as that they may conuenientlie keep and maintaine their hospitalities and families nor the good educations and bringing vp of their lawfull generations which in this realme laude be to God is in all parts very great and abundant but that in maner of necessity as by daily experience is manifested and knowen they shal not be able of their proper goods cattelles and other moueable substāce to discharge their debtes and after their degrees set foorth and aduance their children posterities Wherefore our said soueraigne Lord most vertuously considering the mortality that is to euery person at Gods will and pleasure most common vncertaine of his most blessed disposition and liberality being willing to releeue help his said subiects in their said necessities and debility is contented and pleased that it be ordained and enacted by authority of this present parliament in manner and forme as hereafter followeth that is to say that all and euery person and persons hauing or which hereafter shall haue any manours landes tenements or hereditaments holden in socage or of the nature of socage tenure and not hauing any manours lands tenements or hereditaments holden of the king our soueraigne Lord by knights seruice by socage tenure in chefe or of the nature of socage tenure in cheef nor of any other person or persons by knights seruice from the 20. day of Iulie in the yeere of our Lord God 1500. forty shall haue ful and free liberty power and authority to giue dispose will and deuise as well by his last will and testament in writinge or otherwise by any acte or actes lawfully executed in his life all his said manours landes tenementes or hereditaments or any of them at his free will and pleasure any lawe statute or other thing heretofore had made or vsed to the contrary notwithstanding And that all and euery persone and persons hauing manours landes tenementes or hereditamentes holden of the king our soueraigne Lorde his heires or successours in socage or of the nature of socage tenure in cheefe and hauing any other manours lands tenementes or hereditamentes holden of any other person or persons in socage or of the nature of socage tenure and not hauing anie manours landes tenementes or hereditamentes holden of the king our soueraigne Lorde by knightes seruice nor of anie other Lorde or person by like seruice from the 20. daie of Iulie in the said yeere of our Lord God 1500 and fortie shal haue full and free liberty power and authority to giue will dispose and deuise as wel by his last wil or testament in writing or otherwise by any acte or actes lawfullie executed in his life all his said manors landes tenements and hereditaments or any of them at his free will and pleasure any law statute custome or other thing heretofore had made or vsed to the contrarie notwithstanding Sauing alway and reseruing to the king our soueraigne lord his heires and successors all his right title and interest of primer seizon releefes and also all other rights and duties for tenures in socage or of the nature of socage tenure in cheefe as heretofore hath beene vsed and accustomed the same manors lands tenements or hereditaments to be taken had and sued out of and from the hands of his highnesse his heires and successors by the person or persons to whome any such manors lands tenements or hereditaments shall be disposed willed or deuised in such and like manner and forme as hath beene vsed by any heire or heires before the makinge of this estatute And sauing and reseruing also fines for alienations of such manors landes tenements or hereditaments holden of the king our soueraigne lord in socage or of the nature of socage tenure in cheefe wherof there shal be any alteration of freehold or inheritance made by will or otherwise as is aforesaid And it is further enacted by the authority aforesaid that al and singuler person persons hauing any manors lands tenemēts or hereditaments of estate of inheritance holden of the kings highnesse in cheefe by knights seruice or of the nature of knights seruice in cheefe from the said twentie day of Iulie shall haue full power and authoritie by his last wil by writing or otherwise by anie act or acts lawfullie executed in his life to giue dispose will or assigne two partes of the same manors landes tenements or hereditaments in three partes to bee diuided or else as much of the saide manors lands tenements or hereditaments as shall extend or amounte to the yeerelie value of two parts of the same in three partes to be deuided in certentie and by speciall deuisions as it may be knowen in seueralty to and for the aduancement of his wife preferment of his children and paiment of his debtes or otherwise at his will and pleasure anie law statute custome or other thing to the contrarie thereof notwithstanding Sauing and reseruing to the king our souereigne lord the custodie wardship primer seizon or any of them as the case shall require of as much of the same manors lands tenements or hereditaments as shal amount and extende to the full and cleere yeerelie value of the third parte thereof without any diminution dower fraud couin charge or abridgment of anie of the same third part or of the full profits thereof Sauing also and reseruing to the king our said soueraigne lord all fines for alienations of all such manors lands tenementes and hereditamentes holden of the kinge by knights seruice in cheefe whereof there shal be any alteration of free-holde or inheritaunce made by will or otherwise as is abouesaide And be it enacted by authority aforesaide that all and singuler person and persons hauing manors lands tenementes or hereditaments of estate of inheritance holden of the king in cheefe by knights seruice and hauinge other manors lands tenements or hereditaments holden of the king or of any other person or persons by knights seruice or otherwise euerie such person and persons from the said twentie daie of Iulie shall haue full power and authoritie to giue dispose will or assigne by his last will in writing or otherwise by anie acte or acts lawfullie executed in his life two parts of same manors lands tenementes or hereditamentes in three partes to be deuided or else as much of the same manors lands tenemēts and hereditaments as shal extend or amount to the yeerelie value of two parts of the same in three partes to be deuided in certeintie and by speciall diuisions as it may be knowen in seueraltie to and for the aduancement of his wife preferment of his children and paiment of his debts or otherwise at his will and pleasure any lawe statute custome or other thing to the contrarie thereof notwithstanding Sauing alwaie and reseruing to the king our souereigne lorde the custodie wardship and primer seizon or any of them as the case shal require of as much of the same manors lands tenements or other hereditaments as shall amounte and extend to the
full and cleere yeerelie value of the third parte thereof without anie maner diminution dower fraud couin charge or subtraction of the same third parte or of the full profites thereof Sauing alwaie reseruing to our saide soueraigne lord the king all fines for alienation of anie such manors lands tenements or hereditaments holden of the king by knightes seruice in cheefe whereof there shall be anie alteration of freehold or inheritaunce made by will or otherwise as is abouesaid Be it further enacted by the authoritie abouesaid that if anie person or persons hold any manors lands tenementes or hereditaments onelie of any other lord or person than of the king our said souereigne lorde by knightes seruice and other lands and tenementes in socage or of the nature of socage tenure that then euerie such person shall or may giue dispose or assure by his last will or otherwise by anie act or actes lawfullie executed in his life two partes of the said manors lands and tenementes holden by knights seruice or of as much thereof as shall amount to the full yeerelie value of two partes in maner and forme as is aboue declared and also all the landes and tenementes holden by socage or of the nature of socage tenure at his will and pleasure as is aboue written sauinge and reseruing to the lord of the lands and tenements holden by knightes seruice for his custodie and wardship as much of the same lands and tenementes as shall extend or amounte to the full and cleere yeerelie value of the third part of the same landes and tenements holden by knights seruice without anie diminution dower fraud couin charge or subtraction of anie portion of that third part or of the cleere yeerelie value thereof in manner and forme aforesaid And be it further enacted by the authoritie abouesaid that if any person or persons hold anie manors landes tenementes or hereditamentes onelie of the king our soueraigne lord by knightes seruice and not in cheefe or hold anie manors landes tenementes or hereditamentes of our said soueraigne lord by knights seruice and not in cheefe and also holde other manors landes tenementes and other hereditamentes of anie other person or persons by knights seruice and also holde other manors landes tenementes or hereditamentes of anie other person or persons in socage or of the nature of socage tenure that then all and euerie such person and persons shall and maie giue dispose will deuise and assure by his last wil or otherwise by anie acte or acts lawfullie doone and executed in his life two partes of the same manors landes tenements and hereditaments holden of our said soueraigne lord the king by knights seruice and two partes of the manors landes tenements and hereditaments holden of anie other person or persons by knights seruice or as much of either of them as shall amount to the full yeerelie value of two partes in maner and forme as is aboue declared and also of all his lands and tenements so holden in socage or of the nature of socage tenure at his free will and pleasure Sauing and reseruing to the kings highnesse the custodie and wardship of as much of the same manors landes tenementes or other hereditaments as shal extend and amount to the ful and cleere yeerelie value of the third part of the said manors lands tenementes and hereditaments so holden of his highnesse by knightes seruice without anie diminution dower fraud couin charge and subtraction of anie portion of that third part or of the full profites thereof And also sauinge and reseruing to the lords of whom anie of the said manors landes tenementes or other hereditamentes beene holden by knightes seruice for custodie and wardship as much of the same manors lands tenementes or hereditamentes holden of them or anie of them by knights seruice as shall extend and amount to the full and cleere yeerelie value of the third parte of the same without anie diminution charge fraude couin or subtraction of anie portion of that third or of the cleere yeerelie value of the third part therof in maner forme aboue declared Prouided alwaie and it is further enacted by the authority aforesaid that if that third part of the manors landes tenementes or hereditaments of anie of the kings subiectes which in anie of the cases aboue said shal hereafter come to the kings highnesse his heires or successors by vertue of this acte as is abouesaid be not or doo not amount to the cleere yeerelie value of the third part of all the said manors lands tenementes or other hereditaments whereof the kings highnesse is or shall be intituled to haue the custodie or primer seizon as is aboue said that then our said soueraigne lorde and his heires shall and maie at his or their free libertie and pleasure take into his or their handes possessions as of the other two partes of the said manors landes tenementes and other hereditamentes as with that of the same manors lands tenementes or hereditamentes holden and remaining in the kings hands shal make vp the cleere yeerelie value of the full third parte of the said manors and tenementes so to bee had to the kinges highnesse in title of wardship and primer seizon or anie of them as the case shall require and like benefit and aduantage to be giuen to euerie lorde and lordes of whom anie such manors lands tenementes or hereditamentes beene or shall bee holden by knightes seruice as is abouesaid concerninge onelie his third part of or for title of wardship Prouided alwaie and bee it further enacted by the authoritie aforesaid that euerie person and persons shall sue their liueries for possessions reuersions or remainders and also paie releefes and heriots after such maner and forme as they should or ought to haue doone before the making of this acte and as if this acte had neuer beene made And that fines for alienations shall be paid in the kinges chancerie for and vpon writes of entree in the post to be obteined in the same courte of chancerie after the said twentie daie of Iulie for common recoueries to be had or suffered of anie manors landes tenementes or hereditamentes holden of the king in cheefe in like maner and forme as is vsed vpon alienations of such manors landes tenementes or hereditamentes so holden in cheefe by fine or feoffement Prouided also and be it enacted by the authoritie aforesaid that in such cases where fines for alienations shal be paied in the kings chācerie for writes of entree in post as is aforesaide that then none other fine shall bee paied in the same courte for anie such writes anie vsage or custome to the contrarie thereof notwithstanding And be it further enacted by the authoritie afore-saide that where two or more persons now holde or hereafter shall holde anie manors landes tenementes or hereditamentes of the king our soueraigne lorde by knightes seruice iointlie to them and to the heires of one of them and he that hath the inheritance
therof dieth his heire being within age that in euerie such case the king shall haue the warde and mariage of the bodie of such heire so being within age the life of the freeholder or freeholders of the said manors landes tenements or hereditaments so holden by knights seruice notwithstanding Sauing and reseruing to all and euerie woman and women all and euerie such right title interest of dower as they or any of them ought to haue or bee or shall be iustlie intituled to haue claime or demand of anie manors landes tenementes or hereditamentes by the lawes of this realme to be taken or assigned vnto them or anie of them out of the two partes of the said manors landes tenementes or hereditaments seuered and deuided from the third part as is aboue said and not otherwise And sauing also to the king our soueraigne lord his heires and successours the reuersions of all such tenauntes in ioyntenure and dower immediately after the death of such tenauntes if they shall happen to die duringe the minoritie of the kinges wardes An other acte for the Explanation of the former concerning willes and the deuise of landes WHether in the laste parliament begunne and holden at Westminster the 28. day of Aprill in the 31. yeere of the kinges most gratious raigne cap. primo willes 2. And there by diuers prorogations holden and contiued vnto the 24. daie of Iulie in the 32. yeere of his saide raigne It was by the kings most gratious and liberall disposition shewed toward his most hūble and obedient subiects ordeined and enacted howe and in what manner landes tenementes and hereditamentes might by will or testament in writing or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen diposed willed or deuised for the aduauncement of the wife prefermente of children paiment of debtes of euerie such person or otherwise at his wil or pleasure as in the same acte more plainelie is declared Sithen the making of estatute diuers doubtes questions and ambiguities haue risen beene moued and growen by diuersity of opinions taking in and vpon the exposition of the letter of the same estatute For a plaine declaration and explanacion whereof and to the intent and purpose that the kinges obedient and louing subiectes shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposition the lordes spiritual and temporall and the commons in this present parliament assembled most humbly beseeching the kings maiestie that the meaning of the letter of the same estatute concerning such matters hereafter rehearsed may be by the authority of this presēt parliament enacted taken expounded iudged declared and explaned in manner and fourme following First where it is contained in the same former statute within diuers articles branches of the same that all and singuler person and persons hauing any manors lands tenements or hereditamentes of the estate of inheritance should haue full and free libertie power and authoritie to giue will dispose or assigne as well by last will and testament in writing or otherwise by anie act or actes lawfullie executed in his life his manours landes tenementes or hereditaments or anie of them in such manner and fourme as in the same former act more at large it dooth appeare Which wordes of estate of inheritaunce by the authority of this present parliament is and shall be declared expounded taken and iudged of estates in fee simple onelie And also that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenarie or in common in fee-simple of in anie manors lands tenements rents or other hereditaments in possession reuersion or remainder or of rents or seruices incident to anie reuersion or remainder and hauing no manors lands tenements or hereditaments holden of the king his heires or successors or of any other person or persons by knights seruice shall haue full and free liberty power and authority to giue dispose will or deuise to anie person or persons except bodies politike and corporate by his last wil and testament in writing or otherwise by any act or actes lawfullie executed in his life by him selfe soly or by himselfe and other iointly seuerally or particularlie or by al those waies or any of them as much as in him of right is or shall be all his said manors lands tenements rentes and hereditaments or any of them or any rents commons or other profits or commodities out of or to be perceiued of the same or out of any parcell thereof at his owne free will and pleasure any clause in the saide former acte notwithstanding And further be it declared enacted by the authority aforesaid that al singuler person persōs hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenery or in cōmon in fee-simple of or in anie manors lāds tenements rentes or other hereditamentes in possession reuersion or remainder or of in any rents or seruices incident to any reuersion or remainder holdē of the king by knights seruice in cheef or of the nature of knights seruice in cheefe hath by the authority of this present parliament shall haue full and free liberty power authoritie to giue dispose will or assigne to any persō or persōs except bodies politike corporate by his last will testament in writing or otherwise by any act or acts lawfully executed in his life by him selfe soly or by himself other iointly seuerally or particularly or by al those waies or any of them as much as in him of right is or shall be two parts aswell of al the said manors lands tenementes rents and hereditaments as of all and singuler his other rents hereditaments or of any of them or anie rents commons or other profits or cōmodities out of or to be perceiued of the same two parts or out of any parcell thereof in three partes to be deuided or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof in three parts to be diuided of what person or persons so euer they be holden at his free will and pleasure And that by the authority aforesaid the said will so declared shal be good and effectuall for two parts of the said manours lands tenements and hereditaments although the will so declared be made of the whole or of more than of two parts of the same The same diuision to be made and set forth by the deuisour or owner of the same manours lands tenements and hereditaments by his last will in writing or otherwise in writing And in default therof by a commission to be graunted out of the kinges courte of the wards and liueries vpon the enquirie of the true value therof by the othes of 12. men and returne or certificate thereof had in the same court of the said manours lands tenementes and hereditaments diuision to be made by the master of the
wards and liueries if the maister of the wards and liueries for the time beeing and the parties therunto can not otherwise agree vpon the same diuision And that the issues and profits of the two partes of the same manours lands tenements and hereditaments vpon euery such diuision to bee restored to them that shall haue right or title to the same frō the death of the owner or deuisour therof And further be it enacted and declared by authoritie aforesaid that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenary or in common in fee-simple of and in any manours lands tenements rents or other hereditaments in possession reuersion or remainder or of and in any rents or seruices incident to any reuersion or remainder holden of the king his heires or successours by knights seruice and not in cheefe or holden of any other person or persons by knights seruice shall haue full and free libertie power and authority to giue dispose will or deuise to any person or persons except bodies politike and corporate by his last will and testament in writing or otherwise by any act or acts lawfully executed in his life by himselfe solie or by himselfe and other iointly seuerally or particularly or by all those waies or any of them as much as in him of right is or shall bee two parts of all the saide manors lands tenements and hereditaments or any of them so holden by knights seruice or any rents common or other profits or commodities out of or to be perceiued of the same two parts or out of any parcell thereof in three parts to be deuided or as much thereof as shal amount to the full and cleere yeerely value of two parts thereof in three parts to be deuided at his free will pleasure And that the said will so declared by authority aforesaid shal be good and effectuall for two parts of the said manors lands tenements or hereditaments although the will so declared be or shal be made of the whole landes and tenementes so holden by knights seruice or of more than of two partes of the same And also for the whole of all other such manours lands tenements and hereditaments or any of them not holden of the kinge by knights seruice in cheefe or otherwise by knights seruice nor of anie other person by kinghts seruice and of any rents commons or other profits or commodities out of or to bee perceiued of the same or out of any parcell thereof at his free will and pleasure The same diuision to be made and set foorth by the owner of the said manours lands tenementes and hereditaments by his last will and testament in writing or otherwise in writing And in default thereof for as much of the same manors lands tenements and hereditaments as shall concerne the kings interest by commission to be directed out of the kings court of the wards and liueries in maner forme as is aforesaid if the master of the wardes and liueries for the time being and the parties thereunto can not otherwise agree vpon the same diuision And that restitution of the issues and profits of the two parts thereof shal be had and made in maner and fourme abouesaid And for such of the same manors lands tenementes and hereditaments as shall concerne the interest of any other lord or lords by commission to be graunted out of the kings court of the Chauncery to enquire thereof by the othes of 12. men if the same lord or lordes and the parties thereunto can not otherwise agree vpon the same diuisiō And be it further enacted and declared by authority aforesaid that the sauings reseruings and prouisions concerning sauing of the custodie wardship releefe and primer season to the king of such manors lands tenements and hereditaments or as much thereof as shall appertaine vnto him by vertue of the said former act and by the declaratiō and expositiō thereof declared by this present act during the kings interest therein And also of the custody and wardship to other lords of as much of such manours lands tenements and hereditaments holden of them as shall amounte and extende to the cleere yeerelie value of the third parte thereof ouer and aboue all charges without any diminution or abridgement of the thirde part or of the full profits thereof comprised and mencioned in diuers articles in the saide former act contained by the authority aforesaid be and shal be intended expounded and taken as hereafter ensueth that is to say that the king shall haue and take for his full thirde part of all such manours lands tenements and hereditaments where vnto he is or shall be intitled by the said former act and by this present act such manours lands and tenements as shal by any meanes discend or come by discent as well of the estate of inheritaunce in fee taile as in fee-simple or in fee taile onely to the heire of any such person or that shall make any will gifte disposition or deuise by his last will in writing or by any act or acts lawfully executed in his life immediately after the death of the same deuisour or owner thereof And that the will gift and deuise of euery such deuisour or owner of and for the two partes of the saide manours lands tenements and hereditaments residue shall by the authority aforesaid be and stand good and effectuall in the law albeit the same will gift or deuise be had and made of all his fee simple lands tenementes and hereditamentes and in case the same manours landes tenementes and hereditamentes which after the death of anie suche owner or deuisour which shall make any such gift disposition or deuise by his last will in writing or otherwise by any act or acts lawfully executed in his life to his wife children or otherwise as is aforesaid which shall immediatly after his death discend reuert remaine or come to his heire or heires as well of estate of inheritaunce in fee taile as of estate in fee simple or fee taile onely be not or shall not amount or extend to the full cleere yeerelie value of the full thirde part with the full profites thereof of all the said manours lands tenements or other hereditaments of the said deuisour or owner according to the true intent and meaning of the said former act and of this present acte that then the king shall and may haue take into his handes and possession to make vp his full third parte with the full profites thereof according to his interest therein as much of the other manours lands tenements or hereditaments willed giuen disposed or assigned by any such person to his wife children or otherwise as is aforesaid as with such of the same manours lands tenements and hereditaments discended or by any meanes come vnto the heire as heire of anie such deuisour or owner shall make vp the cleere yeerelie value of the said full third parte with
the full profits thereof of all the said manours lands tenements hereditaments of euerie such owner or deuisour so to bee had to the king in the title of wardship or primer season as the case shall require And the deuision thereof to be had and made and with the restitution of the profits of the two partes of the said manours lands tenementes and hereditamentes in such maner and fourme as is aboue rehearsed And like benefit and aduantage to be giuen had and taken by the said authority to euerie Lord and Lordes of whom anie such manours lands tenements or hereditaments beene or shall be holden by knightes seruice in maner and fourme as is aboue said concerning onelie his or their third partes thereof according to their said interest therein And be it further enacted by the authoritie aforesaid that if it happen the same third parte or anie part thereof left willed or assigned to the king or other lord at anie time during their interestes therein to be lawfullie euicted or determined that than the king and the other lord shall haue as much of the two partes residue as shall accomplish and make vppe a full thirde part in cleere yeerelie value after the rate and portion of such manours landes tenementes and hereditamentes as shall then happen to remaine of the same third part not deuicted nor determined and of the other two parts of such manours landes tenementes and hereditamentes as the kinge or other lorde shoulde or ought to haue had by vertue of the said former act and this present act and the same to be deuided in maner and fourme aboue rehearsed anie clause in the said former acte notwithstanding And be it further enacted and declared by the authoritie aforesaid that the sauing and reseruing for fines for alienation by anie such last will and testament of such manours landes tenements or hereditaments holden of the king by knightes seruice in cheefe or of the nature of knightes seruice in cheefe or by socage in cheefe or of the nature of socage tenure in cheefe or for fines for alienation of such manours landes tenementes or hereditamentes whereof there shall be anie alteration of freeholde or of inheritance made by anie such last will comprised in diuers and sundrie articles mencioned in the said former acte be and shall be intended expounded taken deemed and iudged by the authoritie aforesaid that all such person or persons to whom the said manours landes tenementes or hereditamentes or anie of them be or shall be giuen disposed willed or deuised by anie such last will shall be exonerated acquited and discharged for euer against the king his heires and successours for all such fines for alienations by anie such last will or testament without licence by suing forth of the kinges pardon for alienation out of the kinges courte of Chauncerie paying to the king his heires or successours for the fine of euerie such alienation the third parte of the yeerelie value of the same manors landes tenementes or other hereditamentes to him or them willed or deuised and this acte from time to time shall be a sufficient warrant to the lord chauncellor of England or keeper of the great seale for the time being for the graunting out of the saide pardon or pardons vnder the kings great seale as heretofore hath beene vsed for pardons for alinations without anie further suite to bee made to the king for the same And it is further declared enacted by the authoritie aforesaid that willes or testamentes made of any manours lands tenements or other hereditaments by any woman couerte or person within the age of 21. yeeres idiote or by any person de non sane memorie shall not bee taken to be good or effectuall in the lawe And further be it enacted by the authoritie aforesaide that if anie person or persons hauing estate of inheritaunce of or in manours landes tenementes or hereditamentes holden of the king by knightes seruice in cheefe or otherwise of the kinge by knightes seruice or of anie other person or persons by knights seruice hath giuen at anie time sithen the 20. daie of the said month of Iulij 32. H. 8. An. do 1540. or hereafter shall giue wil deuise or assigne by will or other acte executed in his life his manours landes tenementes or hereditamentes or anie of them by fraude or couin to anie other person or persons for terme of yeeres life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeeres life or in taile with a remainder ouer in fee simple to anie person or persons or to his or their right heires or at anie time sithen the said 20. daie of Iulie hath conueied or made or hereafter shall conueie or make by fraude or couin contrarie to the true intent of this act anie estates conditions menalties tenures or conueiaunces to the intent to defraud or disceiue the king of his praerogatiue primer seasō liuerie releef wardship mariages or rights or any other lord of their wardships releefs heriots or other profites which should or ought to accrue grow or come vnto thē or any of them by or after the death of his or their tenant by force and according to the former estatute and of this present acte and declaration and the same estates and other conueiaunces beeinge found by office to be so made or contriued by couin fraude or disceipt as is abouesaid contrarie to the true intent and meaning of the said former acte and of this act That then the king shall haue as well the wardshippe of the bodie and custodie of the landes tenementes and hereditamentes as liuerie primer season releefe and other profites which shoulde or ought to appertaine to the kinge according to the true intent and meaning of the said former acte and of this present acte as though no such estates or conueiaunces by couin had neuer beene had or made vntill the said office bee lawfullie vndon by trauers or otherwise And that the other lord and lordes of whom anie such manours landes tenementes or hereditamentes shal be holden by knightes seruice as is aforesaid shall haue their remedie in such cases for his or their wardships of bodies and landes by write of right of warde and shall distreine and make auowrie or cognisaunce by themselues or their balifes for their releefes heriots and other profits which should haue beene to them due by or after the death of their tenaunt as if no such estate or conueiaunce had bene had or made Sauing and reseruing alwaies by the authoritie aforesaid the right and title of the donees feoffees leassees and deuisees thereof against the said deuisour and his heires after the interest and title of the king or other lord therin ended and determined Prouided alwaies that this acte explanation and declaration or anie of them or anie thing in this said acte explanation or declaration contained shall not extend to the wil or deuise of sir Iohn Gaynsforde late of
A BRIEFE TREATISE OF TESTAMENTS AND LAST WILLES Very profitable to be vnderstoode of all the Subiects of this Realme of England desirous to know Whether Whereof and How they may make their Testaments and by what meanes the same may be effected or hindered and no lesse delightfull aswell for the rarenes of the worke as for the easines of the stile and method Compiled of such lawes Ecclesiasticall and Ciuill as be not repugnant to the lawes customes or statutes of this Realme nor derogatorie to the Prerogatiue Royall In which Treatise also are inserted diuers Statutes of this land together with mention of sundrie customes aswell General as Particular not impertinent thereunto Besides diuers Marginall notes and Quotations not to be neglected especially of Iustinianists or young Students of the Ciuil Law VVith two Tables the one Analyticall describing the generall order of the whole Treatise The other Alphabeticall disclosing the particular contents therof That in the beginning this in the end of the booke By the Industrie of Henrie Swinburn Bachelar of the Ciuill Lawe 2. Kings c. 20. Put thine house in order for thou shalt die and not liue LONDON Printed by Iohn Windet 1590. TO THE MOST REVEREND FATHER IN GOD IOHN BY GODS PROVIDENCE Archbishop of Yorke Primate of England and Metropolitane H. S. wisheth true felicitie now and euer WHen I had finished this briefe TestameÌ„tarie treatise bethinking vvith my selfe most reuerende Father vnto vvhose patronage I might dedicate the same In the end I did resolue to make an offer thereof vnto your Grace Being moued thereunto vvith the consideration partlie of mine ovvne duetie partlie of your Graces interest For being a member of your Graces Courts Ecclesiastical and hauing novve receiued sundrie good fauours at your honours handes This I thought might fitly serue for a probable argument of my thankfulnesse in that behalfe And on the other side forasmuch as before all others vvithin this prouincâ— of Yorke it apperteineth principally vnto your grace to prouide that testameÌ„ts lavvfully made be dulie executed being novve by Gods merciful prouideÌ„ce Metropolitane ordinarie of that sea I could not see a more vvorthie Patrone for a testameÌ„tary vvork Partly therefore by these former considerations but especially I vvas encouraged therunto vvith the coÌ„templation of those diuine graces of piety learning zeale grauitie bountie benignitie affabilitie and al maner not onely sufficiencie but excellencie of vertuous giftes vvherevvith the giuer of all goodnesse hath vvonderfullie enriched your honourable minde Wherefore as hitherto your vvisdome hath bene accustomed to entertaine vvith comfortable countenance such as be studious to benefite either the Church or the common vvealth though othervvise they bee of small reputation so novve most reuerend I am vvith all duetie to craue the continuance of the same in mine ovvn behalfe together vvith the fauourable protection of these my labors so farre as they bee agreeable to truth right and equitie vvhich thing I doo so much the more humblie desire by hovv much I may seem ouermuch aduenturous in making choise of so honourable a patrone for such a trifling treatise The Lorde of might and mercie multiplie his spirite vppon your grace to the aduauncement of his ovvne glorie and the good of his Church vvith encrease of manie yeares in health and happinesse Your Graces most readie at commaundement H. Swinburne A Table of the first part wherein is shewed what a Testament or last will is and how manie kindes of Testaments there bee A Testament beeing vnderstood in a generall Sence doth not differ from a last will◠§ 1. Wherein if An Executor be named it is more properly called a Testament § § 1. 2. 10. which is eyther 1. Solemne § 9. or vnsolemne § 10. 2. written § 11. or Nuncupatiue § 12. 3. priuiledged § 13. or vnpriuiledged § 17 Whereof some be 1. Military testaments § 14. 2. amongst the testators children § 15. 3. to charitable or godly vses § 16. No Executor be named theÌ„ it stil reteineth the name of a last will § 4. And dooth coÌ„prehend a 1. Codicill § 5. 2. Legacie or deuise § 6. 3. gifte in regard or because of death § 7. A Table of the second parte wherein is declared who may make a Testament and who may not Euerie person may make a Testament or last wil certein persons excepted § 1. Of whom some are prohibited by reason 1. They want discretion as Children § 2. Madfolkes § 3. Idiotes § 4. Oldmen childish § 5. He that is drunke § 6. 2. They waÌ„t freedome as Bondslaues and villeynes § 7. Captiues and prisoners § 8. Women couerte § 9. 3. They waÌ„t some of their principal senses as Dumbe and deafe § 10. Blinde § 11. 4. They haue coÌ„mitted some haynouse crime as Traytors § 12. Felons § 13. Heretickes § 14. Apostataes § 15. Manifest vsurers § 16. Incestuous persons § 17. Sodomites § 18. Libellers § 19. Wilful killers of themselfes § 20. Outlawed persons § 21. Excommunicate persons § 22. 5. Certein legall impediments as Prodigall persons § 23. He that sweareth not to make a Testament § 24. He that is at the very point of death § 25. Ecclesiasticall persons § 26. 〈◊〉 kinde of 〈◊〉 the greaâ—â— part are not vtterly intestable but in some cases onely 〈◊〉 second part 〈◊〉 Question also is briefly touched viz. Whether a King may bequeath his kingdome to whom he will § 27. A Table of the third part describing what things and how much may be disposed by will If we would know What thinges may be disposed by will If we regard 1. Lands tenements and hereditamentes they are not deuiseable but in certeine cases § 2. Whereof some are approued by 1. Custome viz. when the laÌ„ds are holden in 1. Gauelkinde § 2. 2. Burgage tenure § 2. 2. Statutes viz. when the laÌ„ds are holden in 1. Socage tenure § 3. 2. Knights seruice § 3. 2. Gâ—ods catâ—â—â—ey are 〈◊〉 â—le exâ—â—â— certein cases § 5. As when those things bequeathed ar such as 1. The testator hath iointly with an other § 6. 2. The testator hath as administrator § 6. 3. The goodes of the realme viz. of the auncient Crowne and Iewels § 6. 4. Which belong to anie Colledge § 6. Hospitall § 6. Citie § 6. Church § 6. 5. Descend to the heire and not to the executor § 6. 6. Belong not to the testator but to an other § 6. 3 CoÌ„mitting of the â—â—â—â—on of childreÌ„ especially within the prouince of Yorke Concerning which thing diuerse questions are examined viz. 1. Who may appoint a tutor § 9. 2. To whom a tutor may be appointed § 10. 3. Who may be appointed tutor § 11. 4. In what manner a tutor may bee appointed § 11. 5. What is the office of a tutor § 13. authoritie of a tutor § 13. 6. By what meanes the tutorship is ended § 14. How much may be disposed by will If we respect 1. Lands tenements hereditaments holdeÌ„ in 1. Socage tenure all is
the 1. Executor or legatarie § 7. 8. 2. The thing bequeathed § 10. 3. Date of the testament § 11. 10. Of imperfection which is either in respect of 1. solemnitie § 12. or 2. will § 12. 11. The testator hath no meaning to make his last will as when he speaketh vnaduisedly § 13. iestingly § 13. boastingly § 13. 2. Being good at the beginning is afterwards made voide eyther in respect of 1. The whole testameÌ„t as by 1. a later testament § 14. 2. reuoking the testament made § 15. § 16. 3. cancelling the testament made § 15. § 16. 4. alteration of the state of the testator § 17. 5. forbidding or hindering the testator to make an other Testament § 18. 6. refusall of the executorship § 19. 2. Particular legacies only which thinge doth happen by diuerse meanes whereof some haue relatioÌ„ to 1. the fact of the testator as by 1. ademption of legacies §§ 20 21. 2. translation of legacies §§ 20 21. 2. the fact of the legatary as if the legatary 1. become enimie to the testator § 22. 2. accuse the testament of falsitie § 22. 3. refuse to performe the charge imposed in respect of the legacie § 22. 4. apprehend the legacie of his owne authoritie § 22. 5. die before the legacie be due § 23. 3. other occasions especially if the thing bequeathed be destroied § 24. To the Reader GReat and wonderful is the number of the manifolde writers of the Ciuill and Ecclesiasticall lawes and so huge is the multitude of their sundrie sorts of bookes as lectures councels tracts decisions questions disputations repetitions cautels clausules common opinions singulars contradictions concordances methodes summes practickes tables repertories and bookes of other kindes apparant monuments of their endlesse and inuincible labours that in my conceite it is impossible for any one man to read ouer the hundred part of their works though liuing an hundred yeeres hee did intende none other worke Wherfore by the publishing of this testamentarie treatise I may be thought to powre water into the Sea to carrie owles to Athens and to trouble the reader with a matter altogether needlesse and superfluous But yet for all this in case this one litle booke may serue in steed of many great volumes then I hope that in the equal iudgement of such as be indifferently affected the same is rather to be admitted as commodious then reiected as superfluous And nowe beleeue me gentle reader I haue desired earnestly and endeuoured carefully according to the measure of such slender skil as God hath vouchsafed me and as conuenient leisure from other occasions of needfull profite and healthfull disport haue permitted that this one litle booke which heere I do present vnto thy courteous handes may stand in steed of many bigger bookes The causes wherefore the Author of this booke vndertooke this worke For whereas by the supreme authoritie and inuiolable power of the high court of Parliament holden in the xxv yeere a) Stat. H. 8. an 25. c. 19. of the reigne of the most renowmed King of this lande Henrie the eight of famous and happie memorie It was enacted and established amongest other Statutes then made and since that time reuiued in the first yeere of her Maiesties b) Stat. Eliz. an 1. c. 1. most gracious reigne that nowe is that such lawes ecclesiasticall being then alreadie made which bee not hurtfull or preiudiciall to the prerogatiue roiall nor repugnant to the lawes statutes and customes of this Realme shall still be vsed and executed as they were before the making of that acte vntill such time as they were viewed searched or otherwise ordred or determined by two and thirtie persons or the more part of them according to the tenour fourme and effect of the saide acte Which lawes so established reuiued and confirmed and not without good cause and deepe consideration in diuerse statutes made during the reignes as well of the saide most noble king Henrie the eight c) Stat. H. 8. an 27. c. 20. an 32. c. 7. as of the most godly prince Edwarde the sixt d) Stat. Ed. 6. an 2. c. 13. are termed or intituled for the more honorable account thereof with the reuerend and sacred name of the Kinges ecclesiasticall lawes Like as in those countries and Churches of Germanie which haue receiued the Gospell the Canon lawe is admitted and obserued so farre foorth as it is not repugnant to the newe Testament e) Schuediwinus Tracte de nuptijs part 4. tit d diuortâ—â— n. 13 fol. 48. and is at this day the Ecclesiasticall law of their consistories Whereas also the Ciuill law euer since the Ecclesiasticall law was made had beene deemed and iudged for part and parcell of the same Ecclesiasticall law in cases wherein it dooth not differ from the same f) c. 1. de no. op num c. clerici de iud extra c. fâ—â—n auditorium dist 10. §. si vero ecclesiasticum in Auth. vt clerici apud propr Episcopoâ— For where these two lawes be not contrarie the one is suppletorie of the other and being mutually incorporated doo both make one bodie g) Panor in d. c. 1. de no. â—p num Valquius de success creat lib. 3. §. 26. n. 70. Benedict Capâ—a Thesaur com op verb. leges fol. mihi 4â—3 n. 23. otherwise the Ciuill law being contradicted by the Ecclesiastical law ought to be silent in the Ecclesiasticall court h) d. c. 1. de no. op nun gloss in c. 2. de arb lib. 6. Arc. in d. c. clerici de iudic extra quae sensentia communiter approbatur teste Benedict Capra vbi â—â—pra And forasmuch as these foresaide lawes haue not as yet beene viewed searched or otherwise ordered or determined by xxxij persons or the more part of them according to the forme and effect of the foresaide act of Parliament which thing neuerthelesse hath beene I confesse attempted i) Vide licet per Gualt Haddon legum Doctorem consulâ—â— omnium quos vnquaÌ„ tulit Anglia legistaruÌ„ disâ—â—â—simum lib. de Reformatione legum ecclesiastic yet not so sully effected but may bee and that shortly if God vouchsafe prosperous successe to that notable and profitable worke of that graue and learned man Doctor Percie now well towardes accomplishment By occasion of which defect of the viewe examination order or determination of the saide two and thirtie persons those Ciuill and Ecclesiasticall lawes testamentarie not repugnant to the lawes statutes and customes of this Realme are yet euen as hither to they haue beene scattered and dispersed here and there and secretly hidden from the subiects of this realme in corners of many bookes of straunge Countries and forreine language intangled also and incombred with long discourses of farre different argument and no lesse number of lawes vtterly impertinent to the gouernment of this common wealth so that the knowledge thereof 〈…〉 fewe in comparison of the rest whom otherwise I might
alium patronum quaerat qÌ„ AugustinuÌ„ c. vlt. 17. q. 4 How bee it it seemeth that if the testament were not in fauour of his children but of some other of his kinne that then the testament ad pias causas were to bee preferred vnlesse they did prooue the testament made in their fauour to be the latter t) Mantic. de coniect. vlt. vol. lib. 6. tit â— n. 43. Of testamentes vnpriuileged 1 Vnpriuileged testaments what they are §. xvij VNpriuileged testamentes are they †which haue not any freedome or benefite contrarie to the common course of ordinarie lawe but are tied to such obseruations as the law requireth and hath appointed regularly for all testaments Of which formes wee shall discourse heereafter when oportunitie shall serue THE SECOND PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS DECLARED what persons may make a Testament and who may not so doe The Paragraphs or Chapters of the second parte WHether euery person may make a testament § 1. Of Children § 2. Of madfolkes and lunaticke persons § 3. Of Idiots and fooles § 4. Of olde men § 5. Of him that is drunk § 6. Of Slaues and villaines § 7. Of Captiues and prisoners § 8. Of a woman couert § 9. Of those which be deafe and dumbe § 10. Of him that is blinde § 11. Of traitours § 12. Of Felons § 13. Of Heretikes § 41. Of an Apostata § 15. Of manifest vsurers § 16. Of incestuous persons § 17. Of Sodomites § 18. Of a libeller § 19. Of him that killeth himselfe § 20. Of him that is outlawed § 21. Of an excommunicate person § 22. Of prodigall persons § 24. Of him that hath sworde not to make a testament § 25. Of him that is at the very point of death § 26. Of ecclesiasticall persons § 27. Of Kinges § 28. WHETHER EVERIE PERSON MAY MAKE A TESTAMENT The second part 1 Euerie person may make a Testament which is not forbidden 2 Diuers persons forbidden to make their testaments 3 Some forbidden for want of discretion 4 Some forbidden for want of freedome 5 Some forbidden for want of their principall sences 6 Some forbidden by reason of some hainous crime §. j. IN the second part of this Testamentarie treatise shal be declared God willing what person maye make a testament who may not so do Wherein it maye be set downe for a rule that †euery person both man and woman Christian Iewe sound or sicke and generally of what state or condition so euer he or she be hath full power and liberty to make a testament or last will a) Instit Quibus non est permissam testa fac in prin gloss ibidem Suno de Praetis de inter vlt. vol. lib. 2. inter 1. sol 4. Vasq de success progress lib. 1. § j. Michael Grass Thesaur com op § testmÌ„ q. 20. and may therein dispose of his goods and cattelles b) Quibus enim permissum est testaâ— eisdem codicillari legata relinquere Roland tract de codicil n. 6 Michael Grass Thesaur com op §. Codicil n. 2. sauing such persons onely as be prohibited by law or by custome c) Est enim edictum de testameÌ„tis plubitoriuÌ„ certarum personarum gloss in §. j Instit Quibus non est permissum testa fac Grass Thesaur com op testmÌ„ q. 20. n. 1. Therefore if we shall diligentlye examine what persons are forbidden by lawe or by custome it will easely appeare who they are that can make a testament or dispose of their goods and cattelles And albeit †many persons are forbidden by lawe or custome to make testamentes yet they are reduced of some vnto fower or fiue sortes d) Bar. Bald in L. Si quaeramus ff de testa Lindw in c. cum viris de testa lib. 3. prouincial constit Cant. Amongest the first †are comprehended such as want discretion or iudgement as children e) Infr. ead part §. 2. madde folkes f) Infr. ead part §. 3. and idiots g) Infr. ead part §. 4. to whom also I may ioyne those persons who be so very olde that they become childishe againe h) Infr. ead part §. 5. and him that is drunke i) Infr. ead part §. 6. Amongest the second †sort are comprehended such as lacke freedome full liberty as bondslaue slaues and villeines k) Infr. ead part § 7. vnto whome may be added captiues and prisoners l) Infr. ead part §. 8. and women couert m) Infr. ead part § 9. In the third sort †are contained such as lacke some of their principall senses namely such as bee dombe and deafe n) Infr. ead part §. 10. and blinde o) Infr. ead part §. 11. Among the fourth sorte †are placed such as for some heinous crime are depriued of abilitie of making of testaments as traitors p) Infr. ead part §. 12. felons q) Infr. ead part §. 13. heretikes r) Infr. ead part §. 14. apostataes s) Infr. ead part §. 15. many others t) De quibus infr ead part §§ 16 17 18 19 20 21 22. And last of all others †for other causes hereafter specified v) Infr. ead part §§ 23. 24. cum sequentibus vide Io. ab Imol. in c. qua ingredieÌ„tibê° de testa extr vbi haec sunt carmina Testari nequeunt impubes religiosus Filius in sacris morti damnatus obses Crimme damnatus cum muto surdus ille Qui maiestatem laesit sit caecus ipse Of Children 1 At what age a testament may be made of landes 2 At what age a testament may be made of goods 3 What if the minor be doli capax or a souldier or the testament be ad pias causas 4 What if the testament be made with the auctoritie of the tutor 5 What if the testator doe liue vntill he come to lawfull age 6 A boye after 14. yeeres a woman after 12. maie make a testament of their goods 7 VVhat if the last day of the yeere be not finished 8 VVhat if the testament made during minority bee approoued by the testator after he be of full yeeres §. ij IF we wil vnderstand when a child may make his testament we must distinguish whether the testament be of landes or of goods If of landes †it is prouided by the statutes of this realme that willes or testamentes made of any mannours landes tenementes or other hereditaments by any person within the age of 21. yeeres shall not bee taken to be good or effectuall in law a) Stat. H. 8. an 34. c. 5. for vntill that time by the common laws of this realme they be accompted infantes b) Doct. Stud. lib. j. c. 21. lib. 12 c. 28. If †of goodes we must distinguish whether the child bee man or woman A boye cannot make his testament before hee haue accomplished the age of 14. yeeres nor a wench before
non solum But it is not so with a villeine for the Lord hath no title to the goodes of his villeine before seasin nor any title to his landes before entrie nor anie title to any rent reuersion common or the aduowsement of a church belonging to the villeine but by clame n) Perkin tit Grant fol. 6. Brooke Abridg. tit villenage Doct. Stud. lib. 2. c. 43. And so the velleine in the meane time hath perfecte propertie therein o) Doct. Stud. d. c. 43. lib. 2. And therefore †a villeine is more like vnto him which in the ciuill lawe is called Ascriptitius Glebae p) Ascriptitius Glebae id est adscriptus praedio Spieg. Lexicon that is to say one that is ascribed or assigned to a ground or farme for the perpetuall tilling or manuring thereof q) Quemadmodum enim Ascriptitiê° verè ser uus non est sed serâ— li tantùm macula asâ—â—rsus Bald. in L. cuÌ„ precum C. de lib. causa sicut qui ascribitur glebae seu praedio perpetuò colendo nunquam inde recedere debet vel si aufugiat ad antiquos penates nempe vbi natus est redire coÌ„pellitur L. omnes de Agricul censit lib. 11. C. Eodem prorsus modo isti quos Villeins appellat vulgus Licet non sunt propriè serui perpetuae tamen praedij culturae astringuntur nunquam inde recessuri inuito vel ignoraÌ„te domino Quod si aufugiunt conceditur statim breue quod dicitur De natiuo habendo Fitzh Nat. Bre. then to a slaue If you will †vnderstand whether a villeine may make his testament or not we must †note that whatsoeuer villeines haue of their owne be it landes or goodes the lorde may by entrie or seasing take and enioye the same as his owne r) Brooke Abridg. tit villenage Perkins tit Graunts fol. 6. Litleton tit villenage Termes of law verb. Them onely he may not slay or maine his villeine s) Old tenurÌ„ tit villen And therefore †if the villeine make any deuise of landes or goodes the Lord may before the approbation of the will or apprehension of the goodes by the executor enter to those landes and sease those goodes or some parcell thereof in the name of the whole and by that meanes make voide the gifte or deuise of the villeine t) Doct. Stud. lib. 2. c. 43. The will is also voyd though the Lord doe not really sease any goods of his villeine in case he did claime the villeine in his life time and by wordes onely did sease his goodes for then the executor shall not haue them but the lord of the villeine v) Brooke tit villeine n. 50. But if †the will be prooued before the ordinarie and by him approoued and the executors by vertue of the same will or deuise enioie or possesse the same landes or goodes accordingly then I suppose the lord may not enter to such landes or sease those goodes no entrie seasing or claime being made before x) Brooke eodem titu num 73. Doct. Stud. lib. 2. c. 43. Adde quod Ascriptitius potest testmÌ„ facere Spec. de Instr edi §. compeÌ„diose Lindw in c. statutuÌ„ verb. AscriptitioruÌ„ de testa lib. 3. prouincial constit Cant. for if a villeine purchase landes and alieneth the same to an other before his lorde enter then the lord may not enter afterwardes but it shall be imputed to his owne follie that hee entred not when the lands was in the villeines hands y) Litleton tit villenage And so it is of other goodes which if the villeine sell or giue to an other before the Lorde doe sease them the sale or gift is good and the lord can not afterwardes haue the same z) Ibidem Neuerthelesse if the †prince haue anie villeine which purchaseth lands and alieneth the same before the prince doo enter yet maie the prince at any time after enter vnto the landes to whom so euer the same doe come a) Litleton vbi supr And likewise if the princes villeine sell or giue any goodes yet may the prince at any time after sease those goods in whose hands so euer they doo remaine b) Ibidem for the prince is not preiudized by any course of time And therefore I doe collect that if the princes villeine should by testament dispose either landes or goodes the prince notwithstanding the approbation of the same testament and execution thereof might enter to the lands and sease the goods so deuised or disposed in whose hands so euer the same were c) Arg. à contract ad vlt. vol. de quo Olden Topic. Legal loco à contract Note that †what I haue here spoken of villeines is not to be vnderstood of such persons as onely holde lands in villenage being themselues no bond-men but free for diuers persons holde by tenure in villenage and yet be no villeines themselues d) Brooke Littleton Old tenures tit villenage but of such as bothe hold by villenage and are villeines also For these are they whose testaments or last willes are voidable sauing as before where the will is prooued and the executor or legatary possessed of the thinges deuised And sauing where †the villeine is executor to an other person for being executor himselfe he may appoint an other executor who shall haue those goodes which the villeine had as executor and not the Lord of the villeine e) Brooke tit villenage n. 73. For if the †villeine himselfe were liuing the Lord could not take from him such goodes as hee hath as executor to an other man if he did his villeine might bring an action against him for the same and recouer both the goods and dammages f) Brooke d. tit villenage n. 68. the †reason is because that which the villeine hath as executor hee hath it not to his owne vse g) c. Statutum §. nullus de testa lib. 3. prouincial constituc Cant. infr part 6. §. j. but is to be imployed in the behalfe of the testator as to the paiment of his debtes and legacies and to other godlye vses as appeareth more at large in the office of an Executor h) Infr. 6. part §. j. §. iij. §. xvj §. xxj Of captiues and prisoners 1 A captiue during his captiuitie can not make a testament 2 If the captiue escape whether the testament made during his captiuitie be good 3 What if the testament were made before hee were captiue 4 What if the testator be taken captiue by some pirat Turke Insidle or christian when warre is not proclamed 5 Whether he may make a testament which is condemned to perpetuall prison 6 VVhat if the testator be imprisoned for dette §. viij HEe †that is taken captiue by the enemie during his captiuitie can not make a testament a) L. eius qui apud hostes ff de
alibi ê‘ eundem intersuos casus an 24. Hen. 8. quem locum diligenter obserues cupio or vnlesse so much onely were lefte vnto their said children as would serue for their competent sustentation or nourishment h) Plad ita â—ure Can. c. cuÌ„ haberet de eo quit dax in vx ext quod c. locum habet non soluÌ„ in spurijs sed etiam in incestuosis vt est com op teste Decio in c. in patria de prob extr n 39. Gabr. lib. 6. de alimen concl 1. n. 5. or vnlesse the children were appointed bare executors without any other benefit In which cases the testamente is good i) Inf. 5. part §. 7 Petr. Duen reg 366. Limitae 9. verb. filius Simo de Praetis de interp vlt. vol. lib. 5. fol. 17. n. 27. as heereafter more at large k) Infr. part 5. §. 7. Of a Sodomite 1 VVho is a Sodomite 2 A Sodomite can not make a testament 3 VVhat if he were neuer condemned of Sodomitrie §. xviij A †Sodomite that is to say a) Sodomia autem dicitur non solùm illud nefandum peccatum inter masculos sed etiaÌ„ flagitium illud contra naturam cum faemina Et haec opinio communis est contra Socin contendentem istiusmodi peccatum non sodomiam sed extraordinariam quandam pollutionem dici debere quem DD. communiter reprobant vt refert Viuius lib. com op verb. sodomia Dec. in L. j. de secundis nuptijs n. 9. C. Card. in clem 1. de consang aff q. 13. he or she that dooth commit that wicked horrible sinne against nature as did the Sodomites whereof mentioÌ„ is made in the holy scripture b) Gen. c. 19. is †prohibited to make a testament c) Spec. de Instr edit §. compendioso n. 5. and to bequeath his goods and cattelles And albeit hee were neuer conuicted †or condemned thereof in his life time yet I suppose this exception may be obiected against the probate of the testament d) Dec. in L. 1. de secundis nup. C. Simo de Praetis de interp vlt. vol. lib. 2. dub 1. soluc 4. n. 97. for that he was intestate at the time of the fact committed e) Simo de Praetis Dec. vbi supra Adde Cardinal in clem eos de sepul q. 19. Of a Libeller 1 VVhat is a famous Libell 2 A Libeller intestable §. xix A †Famous a) Famosum quandoque in malam partem sumi multis exemplis osteÌ„dit Petrus à Placa epit delict c. 3. Libell is a writing made to the infamie of any man published abroad to that ende b) Summa Angel Summa Siluest verb. libellê° and he that †is condemned for deuising writing or publishing the same is thereby depriued of the abilitie of making a testament or disposing of any his goods or cattelles c) L. si cui §. si quis ff de testa L. vnic de famos libel C. Petr. á Pla. epit delict lib. 1. c. 3. Of him that killeth himselfe §. xx IF any maÌ„ do wittingly willingly kil himself his testameÌ„t if he made any is voyd a) L. si quis filio §. eius de testa ff L. 2. qui testa fac poss C. both concerning the appointment of the executor and also concerning the legacie or bequest of any goods for they are confiscate b) Vasq de success resoluc lib. 1. §. 3. n. 31. Of him that is outlavved 1 An outlawed person looseth his goods and benefite of the lawe 2 VVhat if the action be personall 3 VVhat if the action be vniust 4 VVhether an outlawed person may make his testament 5 VVhat if the prince giue the goods to the executor whether is he therefore chargeable with the paiment of legacies 6 He that is outlawed dooth some time forfeite not goods onely but lands also 7 An outlawed person may make his testament of landes not forfeited 8 An outlawed person may assigne tutors testamentarie to his thildren 9 Certaine other cases wherein hee that is outlawed may make his testament §. xxj AN †outlawed person is not onely out of the protectioÌ„ of the Prince out of the aid of the laws of this realme a) Fitzher Nat. Br. fol. 161. Termes of law verb. vt legarie but also all his goods and cattelles be forfeited to the Prince by meanes of the outlawrie b) Doct. Stu lib. 2. c. 3 although †hee were outlawed but in an action personall c) Termes vbi supr and although †also the action peraduenture were not iust neuerthelesse his goodes and catelles are forfeited by reason of his contempt in not appearing for it is a maxime in the common lawes of this realme that he that is outlawed doeth forfeite all his goods and cattelles to the Prince without distinction whether the action be iust or vniust d) Doct. Stu. lib. 2. c. 3 And therefore †it followeth that he that is outlawed can not make his testament of his goodes so forfeited e) Iul. Clar. §. testmÌ„ q. 19. In so much that †if the prince hauinge seased the forfeited goods of the testator should giue the same againe to the executor neuerthelesse the testament is voide in respect of such goods neither can the legatarie recouer the same at the hands of the executor f) Doc. Stu. lib. 1. c. 6. for by the forfeiture and seasin the propertie thereof is altered and so ceasing to bee the goodes of the testator doe not charge the executor as assets g) Doc. Stu. lib. 2. c. 3. lib. 1. c. 6 If †the testator be outlawed by an outlawrie for felonie then he doth not onely forfeite his goods and cattelles but also his landes and tenementes whether they be holden in fee simple or for terme of life h) Termes of law verb. vt legat And hee that is thus outlawed can neither make his testament of those goods nor of those landes for they are none of his Howbeit †I suppose that he that is outlawed in an action personall may make his testament of his landes for they are not forfeited i) Vide quae sequuntur hoc §. litera L. quo etiaÌ„ tendit quod scripseruÌ„t Brook Tit. Gard. n. 6. Perkins tit grants fol. 6. Or if †he doe assigne tutors to his children as within the prouince of Yorke and other places by custome there vsed parentes may doe k) Infr. part 3. § vij the same assignation is to be confirmed l) Is enim qui nostratibus dicitur vt legatus parùm differt à relegato Cùm relegatio sicut vtlegatio nihil aliud est quà m exilium temporarium L. relegati ff de paen Quinimo relegati quandoque prout etiam vtlegati bona confiscata sunt Iul. Clar. §. testmÌ„ q. 22. Attamen non amittit testmÌ„ factioneÌ„ relegatus quoad bona si quae sint non
rule of the deuise of landes is negatiue 2 The exceptions of this rule are of two sortes §. ij TRue it is that this matter of the deuise of landes tenementes and hereditamentes which in this realme of Englande with all questions incident thereunto is to be determined according to the lawes temporall of this realme and is not subiecte to the rules and decisions of the lawes ciuill or ecclesiasticall lest therefore whilest I would seeme a meere professor of the ciuill lawe I might seeme altogether to neglecte both lawe and ciuilitie by thrusting my sickle into an others haruest and setting my foote in an others possessions without licence first obtained for the auoiding of this offence before I go any further I am to craue this fauour learned professors and serious students of the laws temporal of this realm that for as much as this your fielde wherein groweth all these questions concerning the deuise of landes dooth lie so iust betwixt me and those other groundes wherein the marke whereat I aime is placed and wherein the fruite which I would gladlie vtter is planted so that I can not as nowe my iourney lieth haue readie accesse vnto the one but through the other It would therefore please you giue mee a little leaue to walke through a corner of your large dominions vnto those foresaid places more proper to them of mine own professiō Your territories I confesse are verie fertile and ful of hidden treasure the fruite also of that soile I meane the golden cases much like the golden fleece of Colchos the growing very pleasant profitable Howbeit you neede not be afraid of any preiudice for neither wil I disturbe your quiet possession with any long abode neither cā I if I wold cōueigh away the riches you should reape by disclosing of the mysteries of your gaineful arte to me vnknown vnles I would seeme to be more bold then blinde baiarde more arrogant then the ignoraunt Cobler who for his saucinesse receiued this admonition Ne sutor vltra crepidam And further that as a poore passenger I maie bee allowed to take a taste of those thinges which you haue set abroache to all the world and which by your sundrie bookes you haue made common to all trauellers the rather for that I am prepared in some sorte to requite the same This onelie I desire and this I hope you will not denie to the purpose therefore Touching the bequest or deuise of landes tenementes and hereditamentes this appeareth to be a true position and ground agreeable to the ciuill lawe a) c. imperialis de prohib feud alien lib. 2. Feud Bald. in c. 1. de success feud and also the laws of this realme b) Stat. H 8. an 27. c. 10. in princ Doct. Stud. lib. 1. c. 8. Perkins tit deuise 102. that landes tenementes or hereditamentes can not be disposed or deuised by will but in certaine cases of which some are approued by force of certaine customes c) Infr. §. prox within this realme and some by force of certaine statutes d) Infr. ead par §. 4. Certaine cases approoued by custome wherein it is lawfull to deuise landes tenementes or hereditaments 1 Gauelkinde landes may be deuised by will 2 The cause wherefore the custome of Gauelkinde did continue 3 Burgage lande deuiseable by will 4 To whom and after what manner Burgage landes be deuiseable 5 Whether anie other person maie deuise Burgage landes but a citizen 6 Burgage tenure a kinde of tenure in Soccage 7 Whether liuerie or seasin bee needefull where burgage land is deuised 8 Whether the Iointenaunt may bequeath his part of Burgage land otherwise deuiseable 9 Of landes deuised to certaine vses 10 The custome of deuising landes to feoffes reformed 11 The causes of this reformation 12 The statute or acte of reformation §. iii. THe first case wherein by custome of this realme of England it is lawfull for a man by his laste will or testament to deuise or bequeath landes tenements or hereditamēts is this namely whē lands tenements or hereditaments are holden in Gauel-kind for such †landes tenements or hereditaments by ancient custome maie be giuen or deuised by wil a) Dyer fol. 153 verb. deuise Termes of law verb. Grauelkind ita saepissimè accepi à nonnullis huius regni iurisperitis the same otherwise being duelie made For †after that William duke of Normandie had inuaded and conquered all England Kent onelie excepted at last also the kentish-men yeelded but vpon condition that they might enioy their auncient customes of Gauelkind which was graunted vnto them since hath continued b) Lambert perambulation of Kent fol. 23. amongest which customes being verie large and benificiall this is one that they which holde landes in Gauelkinde may giue and sell the same without licence asked of their lordes sauing vnto the lordes the rentes and seruices due out of the same tenementes c) Termes of law vbi supr Lambert vbi supr fol. 416. The †second cause is when the lands or tenementes be holden in Burgage tenure d) Fitzherb Nat. Bre. ex graui querela in prin Doct. Stud. lib. 1. c. 7. 10. For it is the custome of diuers Cities and Borroughes of this land as in London Yorke Oxford c. that such persons as are seased of landes tenementes or hereditamentes lyinge and being in such cities or boroughes and hold the same in burgage tenure maie by their testamentes or last willes giue or bequeath the same to whom they will e) Brook Abridg. tit deuise n. 22. 51. Fitzber in d. Br. ex graui querela Doct. Stud. d. c. 7. 10. Lindw in c. statut de testam lib. 3. prouincial constituc Cant. verb. de consuctudine verb. laicalis feodi eod c. to holde in fee simple or in fee taile or for life or yeeres or otherwise and such bequest or deuise is good f) Fitzherb in d. Breui ex graui querela the will being lawfullie made and prooued before the ordinarie as touching the goodes and cattelles bequeathed in the same and enrowled before the maior of the said citie or borough g) Fitzher in d. Bre. ex graui querela Howbeit it is not alwaies necessarie that the testament be proued before the ordinary or inrolled wherein landes onelie and no goodes and cattelles are bequeathed h) Brook Abridg. tit deuise n. 43. For in some places by the custome there vsed the deuisee maie enter to the landes deuised of his owne auctoritie without any probation or inrolment praecedent and in other places hee is to bee put in seasin or possession by the Balife i) Brook d. tit deuise n. 43. principall grounds tit burgage fol. 43. And it seemeth not to be needeful to the validitie of the deuise in this case that the testator should be a citizen or burgesse of that citie or boroughe where the landes or tenementes deuised doo lie but
it is sufficient if the landes and tenementes be holden in burgage k) Brook tit deuise n. 22 For that not he onelie is said to holde in burgage who is a citizen or burgesse of the place where the lands or tenementes be and holdeth of the kinge or other lorde landes or tenementes lying in the citie or borough yeelding therfore to his said lord a certaine yeerelie rent but he also that is no citizen or burgesse which holdeth of anie lord landes or tenementes in burgage yeelding vnto him a certaine rente by the yeere l) Old tenures verb. burgage which tenor in burgage is but a kind of tenure in soccage m) Litleton tit burgage in princ Howbeit there is this difference betwixt citizens burgesses and freemen and those which be not citizens burgesses or freemen that is to saie citizens burgesses and freemen maie bequeath their burgage landes to Mortmain which others can not doe n) Brook Abridg. tit custome n. 7. 38. 41. tit deuise n. 22. 28. Doct. Stud. lib. 1. c. 10. And in some borough by the custome thereof a man may deuise by his testament lawfullie made his landes and tenementes which hee hath in fee-simple within the same borough at the time of his death and by force thereof the deuisee after the death of the testator maie enter into the tenementes to him deuised to haue and to holde to him after the forme and effect of the deuise without anie libertie of seasin thereof to be made vnto him o) Litleton tit burgage But if there be two iointe tenauntes in fee-simple within one borough where the landes and tenementes within the same be deuisable by testament if one of the said iointe tenauntes deuise that which to him belongeth by testament and die this deuise or legacie is voide p) Principall grounds fol. 20. b. The reason is for that no deuise can take effect till after the death of the testator who did bequeath and deuise the same but by his death all the lande dooth incontinentlie by the lawe of this realme come to the suruiuor who neither claimeth nor hath anie thing by deuise but of his owne right by the suruiuâ—ir according to the course of the lawe of this lande and for this cause such deuise is voide q) Principall grounds fol. 20. b. An other case there was also some-times vsed and practised of deuising lands tenements and hereditamentes by willes to certaine vses intentes and trustes which willes or testamentes of landes tenementes and hereditamentes in feoffees handes were for the time accompted and taken for good r) Stat. H. 8. an 27. c. 10. But this custome was reformed in manie things for diuers good considerations namelie because by the common law of this realme lands tenements hereditaments be not deuisable by testament and also for that such deuises were not onelie hurtfull to the heire of the testator beeing manie times thereby disinherited but also for that diuers other inconueniences did by reason thereof insue as that the lordes lost their wardes mariages reliefes harriots escheates aids Pur faire fitz chiualer pur file marier Furthermore by occasions of suche willes and other conueiaunces to secrete intentes vses and trustes men could not be certainelie assured of anie landes by them purchased nor knew not against whom they should vse their actions executions for their rights and titles Besides this men married lost their tenaÌ„ces by the curtesie women their dowries finally the prince himselfe lost the profits of the landes of persons attainted For reformation whereof a statute was made in the time of King Henrie the eight and enacted as followeth s) d. Stat. H. 8. an 27. c. 10. That is to say that where anie person or persons stand or be seized or at anie time hereafter shal happen to be seized of and in anie honors castels mannors landes tenementes rentes seruices reuersions remainders or other hereditamentes to the vse confidence or trust of anie other person or persons or of anie body politike by reason of anie bargaine saile or feofment fine recouery couenant contract agreement will or otherwise by anie maner meanes whatsoeuer it be that in euerie such case all euerie such persoÌ„ persons bodies politike that haue or hereafter shall haue anie such vse confidence or trust in fee simple fee taile for terme of life or of yeeres or otherwise or anie vse confidence or trust in remainder or reuerter shall from hence-foorth stand and bee seized deemed and adiudged in lawfull seizon estate and possession of and in the same honors castels manors lands tenements rentes seruices reuersions remainders and hereditaments with their appurtenances to all intents constructions and purposes in the lawe of and in such like estates as they had or shall haue in vse trust or confidence of or in the same And that the estate title right and possession that was in such person or persons that were or hereafter shall be seized of anie landes tenements or hereditaments to the vse confidence or trust of anie such person or persons or of anie bodie politike bee from hence-foorth cleerelie deemed and adiudged to be in him or them that haue or hereafter shall haue such vse confidence or trust after such qualitie maner forme and condition as they had before in or to the vse confidence or trust that was in them And bee it further enacted by the authoritie aforesaid that where diuers and many persons be or hereafter shall happen to be iointlie seized of and in anie landes tenements rents reuersions remainders or other hereditaments to the vse confidence or trust of anie of them that bee so iointlie seized that in euerie such case that those person or persons which haue or hereafter shall haue any such vses confidence or trust in anie such landes tenements reuersions remainders or hereditaments shall from hence foorth haue and bee deemed adiudged to haue only to him or them that haue or hereafter shall haue such vse confidence or trust such estate possession and seizon of and in the same lands tenements rents reuersions remainders or other hereditaments in like nature maner forme condition and course as he or they had before in the vse confidence or trust of the same landes tenements or hereditaments sauing and reseruing to all singular persons and bodies politike their heirs and successors other than those person or persons which be seized or hereafter shall be seized of anie landes tenementes or hereditaments to anie vse confidence or trust all such right title entree interest possession rents and action as they or anie of them had or might haue had before the making of this acte And also sauing to all and singuler those persons and to their heires which be or hereafter shall he seized to anie vse all such former right title entree interest possession rents customs seruices and action as they or anie of them might haue had to his or their
own proper vse in or to any manors lands tenements rents or hereditaments wherof they be or hereafter shal be seized to anie other vse as if this present act had neuer beene had or made any thing conteined in this acte to the contrarie not withstanding And where also diuers persons stand and be seized of and in any lands tenements or hereditaments in fee simple or otherwise to the vse or intente that some other person or persons shall haue and perceiue yeerely to them and to his or their heires one annuall rent of tenne pounds or more or lesse out of the same lands and tenements and some other person one other annuall rent to him and his assignes for terme of life or yeeres or for some other speciall time according to such intent and vse as hath bin heretofore declared limited made thereof Be it therefore enacted by the authoritie aforesaid that in euery such case the same persons their heirs and assignes that haue such vse and interest to haue and perceiue any such annuall rents out of any lands tenements or hereditaments that they and euery of them their heires and assignes be adiudged and deemed to be in possession and seizon of the same rent of and in such like estate as they had in the title interest or vse of the said rent or profit and as if a sufficient grant or other lawful conueiance had bin made executed to them by such as were or shal be seized to the vse or entēt of any such rent to be had made or paied according to the very trust intent therof And that al euery such person or persons as haue or heereafter shall haue any title vse and interest in or to any such rent or profit shall lawfully distreine for non paiment of the said rent and in their owne names make aduouries or by their balifs or seruants make cognizances and iustifications and haue all other sutes entries and remedies for such rents as if the same rents had bin actually and really graunted to them with sufficient clauses of distresse reentree or otherwise according to such conditions paines or other things limited and appointed vpon the trust and intent for paiment of suretie of such rent And be it further enacted by the authority aforesaid that where as diuerse persons haue purchased or haue estate made and conueied of and in diuers lands tenements and hereditaments vnto them and to their wiues and to the heires of the husband or to the husband and to the wife and to the heires of their two bodies begotten or to the heirs of one of their bodies begotten or to the husband and to the wife for terme of their liues or for terme of life of the said wife or where any such estate or purchase of any lands tenements or hereditaments hath bin or hereafter shall bee made to any husband and to his wife in manner and forme aboue expressed or to any other person or persons and to their heires and assignes to the vse and behoofe of the said husband and wife or to the vse of the wife as is before rehearsed for the iointer of the wife that then in euery such case euery woman married hauing such iointer made or hereafter to be made shall not claime nor haue title to haue any dower of the residue of the lands tenemētes or hereditaments that at any time were her said husbands by whom she hath any such iointer nor shall demand nor claime her dower of and against them that haue the lands and inheritaunces of her said husband But if she haue no such iointer then she shall be admitted and inabled to pursue haue and demand her dower by write of dower after the due course and order of the common lawes of this realme this act or any law or prouision made to the contrarie thereof notwithstanding Prouided alway that if any such woman be lawfully expulsed or euicted from her said iointer or from any part therof without any fraud or couin by lawfull entree action or by discōtinuance of her husband then euery such woman shal be indowed of as much of the residue of her husbands tenements or hereditaments whereof she was before dowable as the same lands and tenements so euicted and expulsed shall amount or extend vnto Prouided also that this act nor any thinge therein conteined or expressed extend or be in any wise hurtfull or preiudiciall to any woman or women heretofore being married of for or concerning such right title vse interest or possession as they or any of them haue claime or pretēd to haue for her or their iointer or dower of in or to any manors lands tenementes or other hereditamentes of any of their late husbands being now dead or deceased any thing conteined in this act to the contrary notwithstanding Prouided also that if any wife haue or hereafter shall haue any manors lands tenements or hereditaments vnto her giuen or assured after mariage for terme of her life or otherwise in iointer except the same assurance be to her made by act of parliament and the said wife after that fortune to ouer-liue the same her husband in whose time the said iointer was made or assured vnto her that then the same wife so ouer liuing shall and may at their liberty after the death of her said husband refuse to haue take the lands and tenements so to her giuen appointed or assured during the couerture for terme of her life or otherwise in iointer except the same assurance be to her made by acte of parliament as is aforesaid and thereupon to haue aske demaund and take her dower by write of dower or otherwise according to the common law of and in all such landes tenements and hereditaments as her husband was and stood seized of any state of inheritance at any time during the couerture any thing conteined in this act to the contrary in any wise notwithstanding Prouided also that this present act nor anie thing therein conteined extend or be at anie time hereafter interpretated expounded or taken to extinct release discharge or suspend anie statute recognizance or other bond by the execution of any estate of or in any lands tenements or hereditaments by the authority of this act to any person or persons or bodies politike any thinge conteined in this acte to the contrary thereof notwithstanding And for as much as great ambiguities and doubts may arise of the validity and inualidity of wils heretofore made of any landes tenements hereditaments to the great trouble of the kings subiects the kings most roial maiesty minding the tranquillitie and rest of his louing subiects of his most excellent and accustomed goodnesse is pleased and contented that it be enacted by the authority of this present parliament that all maner true and iust willes and testaments heretofore made by any personne or persons deceased or that shall decease before the first day of May that shall be in the yeere of our
Lord God 1536 of any lands tenements or other hereditaments shall be taken and accepted good and effectual in the law after such fashion maner and forme as they were commonly taken and vsed at any time within forty yeeres next afore the making of this acte anie thing conteined in this act or in the preamble thereof or any opinion of the common law to the contrarie thereof notwithstanding Prouided alwaies that the kinges highnesse shall not haue demand or take any aduantage or profit for or by occasion of the executing of any estate onely by authority of this act to any person or persons or bodies politike which now haue or on this side the said first day of Maie which shall be in the yeere of our Lorde God 1536 shall haue any vse or vses trustes or confidences in any manors lands tenements or hereditaments holden of the kinges highnesse by reason of primer seizon liuerie Ouster le maine fine for alienation releefe or hariotte but that fines for alienations releefes and hariots shal be paied to the kings highnesse And also liueries and Ouster le maines shall bee sued for vses trusts and confidences to be made and executed in possession by authority of this act after and from the said first day of May of lands and tenements and other hereditamentes holden of the king in such like maner and forme to all intents constructions and purposes as hath heretofore beene vsed or accustomed by the order of the laws of this realme Prouided also that no other person or persons or bodies politike of whom any lands tenements or hereditaments be or hereafter shal be holden mediat or immediat shal in any wise demand or take any fine releefe or harriot for or by occasion of the executing of any estate by the authority of this acte to any person or persons or bodies politike before the said first day of May which shall be in the yeere of our Lord God 1536. And bee it enacted by the authority aforesaid that all and singuler person and persons and bodies politike which at any time on this side the said first day of Maie which shall be in the yeere of our Lord God 1536 shall haue anie estate vnto them executed of and in anie lands tenements or hereditaments by the authority of this act shall and may haue and take the same or like aduantage benefit voucher aid praier remedy commoditie and profit by action entree condition or otherwise to all intents constructions purposes as the person or persons seized to their vse of or in any such lands tenements or hereditaments so executed had should might or ought to haue had at the time of the execution of the estate thereof by the authority of this act against any other person or persons of or for any wast disseizon trespasse condition broken or any other offence cause or thing concerning or touching the said lands or tenements so executed by the authority of this act Prouided also and be it enacted by the authority aforesaid that actions now depending against any person or persons seased of or in any lands tenements or hereditaments to any vse trust or confidence shal not abate ne be discharged for or by reason of executing of any estate therof by authority of this act before the said first day of May which shall be in the yeere of our lord God 1536. any thing conteined in this act to the contrarie notwithstanding Prouided also that this acte nor any thing therein conteined shall not bee preiudiciall to the kings highnes for wardships of heires now being within age nor for liueries or for Ouster le mains to be sued by any person or persons now being within age or of ful age of any landes or tenementes vnto the same heire or heires now all ready descended any thing in this act contained to the contrarie notwithstanding Prouided also and be it enacted by the authority aforesaid that all and singuler recognisances heretofore knowledged taken or made to the kinges vse for or concerning any recoueries of any landes tenementes or hereditaments heretofore vsed or had by write or writs of entree vpon disseizon in Le post shall from henceforth be vtterly voide and of none effect to all intents constructions purposes Prouided also that this act nor any thing therein conteined be in any wise preiudicial or hurtfull to anie person or persons borne in Wales or the marches of the same which shall haue any estate to them executed by authority of this act in any lands tenements or other hereditaments within this realme whereof any other person or persons now stand or be seized to the vse of any such person or persons borne in Wales or the marches of the same but that the same persō or persons borne in Wales or the marches of the same shall or may lawfullie haue reteine and keepe the same lands tenements or other hereditaments whereof estate shall be so vnto them executed by the authority of this act according to the tenor of the same any thing in this act conteined or any other acte or prouision heretofore had or made to the contrary notwithstanding Certaine cases wherein by the statutes of this realme it is lawfull to deuise landes tenementes or hereditaments §. iiij NOwe follow certaine other cases authorised by the statuts of this realme of England wherein it is lawfull to bequeath or deuise lands tenements and hereditamentes by will sometimes wholy and sometimes in part onely or rateably according to the nature of the tenure of such lands tenements and hereditamentes as in the same statuts which I haue here set downe at large doth appeare An Acte declaring how by the Kinges grant landes tenementes and hereditamentes may be by will testament or otherwise disposed and concerning wards and primer seasin c. Anno 32 II. 8. c. 1. WHere the kinges most roiall maiestie in all the time of his moste gratious and noble reigne hath euer beene mercifull louing and beneuolent and most gratious souereigne lord vnto all and singuler his louing and obedient subiectes and at many times past hath not onelie shewed and imparted to them generally by his manie and often great beneficial pardons heretofore by authority of his parlemēts granted but also by diuers other waies and meanes many great and ample grants and benignities in such wise as al his said subiects bin most bounden to the vttermost of all their powers and graces by them receiued of God to render and giue vnto his maiesty their most humble reuerence obedient thanks and seruices with their daily and continuall praier to almighty God for the continual preseruation of his most roiall estate in most kingly honour and prosperity yet alwaies his maiesty being repleat and endowed by God with grace goodnes and liberality most tenderly considering that his said obedient and louing subiects can not vse or exercise thēselues according to their estats degrees faculties and qualities or to beare themselues in such wise
By this thē it appeareth that the authority of an executor is greater then of an administrator for an executor maie appointe an executor to the first testator so can not an administrator Howe be it an executor can not giue awaie the goodes of the testator in his will by legacies no more then an administrator l) Plowd d. cas inter Bransby Grantham for those goodes are not the proper goodes of the executor but are to bee imploied for the behoofe of the testator m) c. stat de testa lib. 3. prouincial constit Cant. and in that respecte also is the executor accomptable to the ordinary as wel as th'administrator n) Eod. c. statutum I meane of a bare mere executor of whose diligence the testator made special choise to whō nothing is bequeathed in the said testament Thirdlie by the opinion of diuers iustices of this realme and doctors of the cannon and ciuill lawe the goodes of this realme that is to saie of the auncient crowne and iewelles cannot be disposed by will o) Fitzherb Abridg. tit exec n. 108. as is aforesaid p) Supr part 2. §. vlt. Fourthlie those thinges which belong to anie colledge or hospitall can not bee deuised by the testament or laste will of the maister of the sayde Colledge or Hospitall q) Perkins tit deuise◠fol. 96. Doct. Stud. lib. 2. c. 39. The same maie bee saide of a Maior of anie citie or borough for hee can not by his testament bequeath anie thing belonging to the citie borough or comminaltie r) Perkins tit deuise fol. 96. §. non solùm Instit de lega vers sed si no more then a master of a colledge or hospitall such thinges as he hath in right of the colledge or hospitall s) Perkins vbi supra Fiftlie the goodes of the church can not be deuised by testament t) c. 1. de testam extr But the corne growing vpon the glebe v) Stat. H. 8. an 28. c. 11 and certaine other goods may be bequeathed as hath beene before declared x) Supr part 2. §. penul Sixtlie those thinges which after the death of the testator descende to the heire of the deceased and not to his executor can not bee deuised by testament y) Perkins tit deuises à quo sequentes casus mutuatus sum except in such cases where it is lawfull to deuise landes tenementes or hereditaments And therefore if a man seased of landes in fee or fee taile bequeath his trees growing vpon the said lande at the time of his death this deuise is not good except as before but if hee deuise the corne growing vpon the same lande at the time of his death from the heire to some other person this deuise is good albeit the land whereupon it groweth bee not deuiseable the reason of the difference is because the trees are parcell of the free-hold and descend together with the lande to the heire and not to the executor but it is not so of corne for the same shall goe to the executor as parcell of the testators goodes And therefore if a man be seased of landes in the right of his wife and sowe the lande and deuise the corne growing vpon the same lande and die before the corne be reaped in this case the legatarie shall haue the corne and not the wife but it is otherwise of grasse and hearbes not separated from the ground at the time of the death of the testator If a man seased in fee in right of his wife doe let the same lande for yeeres to a straunger and the lessee soweth the grounde and afterwardes the wife dieth the corne not being ripe In this case the lessee may deuise the same corne notwithstanding his estate bee determined So is it if he that is tenaunt by curtesie of England of landes tenementes or hereditamentes for his life let the same lande to an other for yeeres and the leassor die within the tearme of those yeeres In this case the lessee maie deuise the corne which shall bee growing vpon the same lande not ripe at the time of the death of the testator Likewise if the tenante in dower sowe those landes which he hath in dower and make his executors and after dieth the corne not separated there the executors shall haue the corne notwithstanding the same be not seeded and so the tenant in dower may deuise the corne growing vpō that land which she holdeth in dower at the time of her death But it is not alwaies lawfull for a man or a woman to deuise the corne by them sowen for if a man seased of lande in fee doe infeoffee a straunger in morgage vpon paimente and not paiment made on the partie of the feoffer at a certaine daie and the feofee sowe the land and the feoffer paie the monie at the daie appointed and enter in this case it is thought that the feoffee cannot deuise the corne growing vpon the said lande Likewise if he that is tenaunte in taile of certaine land doe let the same lande for terme of life and the lessee doe sowe the same lande and the tenaunte in taile die and the issue do recouer the same in form don in the discent before the corn be separated it is thought in this case that the issue in taile maie bequeath the same by his testament Moreouer if a man seased in fee haue issue a daughter and die his wife being great with childe and the daughter enter and sowe the ground and afterwarde before the corne be seuered the wife is deliuered of a son and thereupon his next freind do enter for him yet the daughter maie deuise the corne growing vpon the same land but if after the sowing of the corne and before the birth of the son the mother hath recouered her dower against her daughter and the same land that is sowen is alotted or assigned vnto her by the Sherife for her dower in allowance of other lands there the mother may deuise the corne growing vpon the saide lande and not her daughter Finallie whereas by the ciuill law it was lawfull for the testator to bequeath not onelie his owne thinges but an other mans also a) §. Nō solum Instit de lega L. cùm alienum C. de lega in so much that the executor was compellable to redeeme the same thing and deliuer it to the legatarie or if the owner would not sell it then to paie the iuste value thereof to the same legatarie b) Eod. §. non solùm L. non dubium ff de lega 3. vnlesse the testator were ignorant that the same thing did belong to an other and did suppose it to be his owne In which case the legacie is void so that the executor is neither boūd to buie the thing nor to paie the value therof c) d. §. non solùm L. si vnum §. si rem ff de lega 2. because
pe tut L. matris C. eod in fin quam op longaeuus approbauit vsus but if they doo not electanie other curator after their seuerall ages then hee that is assigned in the will is to bee confirmed curator to either of the said children albeit hee were aboue 14. yeeres and she aboue 12. when the wil was made c) L. tutelae C. de testa tut §. dantur Instit de cura A tutor maie also be assigned to a childe that is not borne d) §. cum autem Instit de tut likewise to an ideote or him that is lunatike e) §. furiosi Instit de cura licet huiusmodi personae maiores sint 25. annis erunt sub curatione d. §. furiosi an haec authoritas fit penes testatorem vel ordinarium an ad regem spectet iure praerogat Quaere vt inf in d. §. But all this which is here aforesaid is to bee restrained so that it be not to the preiudice of him that is a Gardian or hath the wardship of anie infant or minor f) Habenti tutorem tutor non est dandus §. interdum Inst de cura or of anie idiote by reason of anie landes tenementes or hereditaments belonging to such infant or idiote g) Stat. praerogatiuae regis c. 9. Fitzh Breâ—e de idiota inquirendo For by the common lawes of this realme of England the lorde of whom the infant dooth hold his landes so soone as the father dieth hath the wardship and keeping of the heire and thereby maie sease vpon the bodie of the warde and his landes h) Tract de repub Ang. lib. 3. c. 5. per stat de praerog regis an 17. Ed. 2. c. 1. 6. whereof also he maie take the profites without accompt so that he nourish and bring vp the warde i) d. tract de repub An. And not that onelie but also offering to his warde conuenable marriage without disparagement before 21. yeeres if it be a man or 14. if it be a woman if the ward refuse to take that mariage he or she must paie the value of the mariage k) Stat. West c. 22. which is commonlie rated accordinglie to the profites of his lands which is a thing vtterlie condemned of some greatlie lamented of manie both graue and godlie because of the insatiable couetousnesse of diuers in these daies l) Vide d. tract de repub Angl. lib. 3. c. 5. Termes of law verb. gardein for that therby it commeth to passe manie times that a free man and a gentleman whiles he is an infant of slender discretion and lesse experience destitute of his beste friende that is to saie his naturall father and consequentlie subiect to the subtilties and importunities of his craftie and couetous Gailor is bought and solde like a beast to such as seeke to make most aduantage of him and in the ende besides manie moe inconueniaunces matched to my maisters daughter sister cosin or some other female to whom for her vertues and gentle conditions if thine enimie shoulde be preferred in mariage thou couldest wishe him no greater tormeÌ„t if it were lawful forthee to wishe him anie torment hell excepted To these perils are these infants subiect which holde landes of other by knightes seruice called in french Garde noble m) d. tract eod c. 5. for there is an other kind of seruice called Gard Returier alias Gard in socage or tenure by the ploughe n) Eodem loco This wardship falleth to him that is next of kin and can not inherite the lande of the warde o) Stat. Marleb c. 17. an 52. H. 3. as the vnckle on the mothers side if the land descend by the father or the vnckle on the fathers side if the land descend by the mother p) Brook tit gardeins prochein amye n. 11 12. 13. Termes of law verb. prochein amye This Gardyan otherwise called prochein amie is accomptable for the profites and reuenues of the lande to the warde as the tutor for the goods and chattelles to the pupill when he is of full age q) d. stat Marleb c. 17. d. tract de repub Angl. lib. 3. c. 5. Concerning Idiottes such is the praerogatiue of the princes of this lande that they shall haue the custodie of all the landes of naturall fooles and maie take the profite thereof without waste or destruction of whose fee so euer the same be holden findinge to them necessaries r) Stat. Ed. 2. de praerog reg c. 9. And after the death of such Idiottes the lande must be restored to the right heires s) Eod. stat But in the meane time that is to saie during the nonage of the warde or during the life of the Idiote the tuition of the bodie of the warde or Idiote or of his landes can not bee deuised by testament to anie other person contrarie to the course of common lawe in preiudice of him to whom the wardship dooth belong t) Quia tutorem habeÌ„ti tutor non datur sauing the testator maie committe the custodie of suche goods and chattelles as he dooth bequeath to the said infant or ideot to whom hee will and during so long time as he will v) Siquidem vnusquisque potest rebus suis quam velit legem imponere Mantic. lib. 7. tit 1. nu 38. testatoris voluntas habetur pro lege L. seruus ff de manumiss licet alias videatur per Fitzherb Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt suo gardiano accrescunt Quaere tamenper Stamford suê‘ d. praerog reg c. Idiot Of the manner of appointing Tutors 1 A tutor maie be appointed simplie or conditionally to a daie or from a daie 2 The condition depending what is to be doone in the meane time 3 Lawfull to appointe one or manie tutors 4 Whether where one tutor is appointed an other maie be receiued 5 Whether diuers being assigned one tutor alone may be admitted 6 By what wordes a tutor maie be appointed 7 What if the testator saie I committe my children to thy power or to thy handes 8 What if he saie I committe my children vnto the quicke and deade 9 What if he saie I desire thee to take care of my son 10 The testator maie vse anie language in the assignation of a tutor §. xij BY the saide generall custome it is obserued within the prouince of Yorke a) De qua per plurima acta testa in d. sacro existen that a tutor maie bee assigned either simplie or conditionallie b) §. ad certum Instit qui testa tutor dari poss and vntil a certaine time or from a certaine time c) Eod. §. ad certum L. tutor §. tutorem de testaria tut ff But no tutor maie intermeddle as tutor vntill he be confirmed by the ordinarie albeit he be assigned tutor simplie d) L. legitimus ibi Bar. ff de legit tutel much
he die t) L. Cuius bonis C. de curator furios or is absent being taken of the enemie v) L. si arrogati ff de tutel In respect of the manner and forme of the tuition the office and authoritie of the tutor is determined as if the tutor bee appointed vpon condition which condition is broken or if the tutor bee appointed duringe a certaine time which time is finished x) § praetereà Instit quib mod tut fin L. si adrogati §. sed etsi §. fin ff de tut in these and manie other respectes which for breuitie I omitte the tutor-ship is determined y) VideaÌ„t Iustinianistae Vigelij methodum iuris ciuilis vbi perplures traduntur causae finiendi tutelam Of the quantitie of landes deuiseable by will 1 Of landes tenementes and hereditamentes sometimes all sometimes but two partes of three is deuiseable §. xv NOwe that I haue shewed what kinde of thinges maie be deuised by will it remaineth to shew how much is deuiseable of landes or goodes And first concerning landes tenements and hereditamentes sometimes they maie be deuised wholie as landes tenementes and hereditamentes holden in socage or of the nature of socage tenure a) Supâ— ead part §. 4. sometimes two partes of three maie be deuised namelie of landes tenements and hereditaments holden in cheef by knights seruice or of the nature of knightes seruice in cheefe b) Eod. § 4. as appeareth more fullie heretofore where I haue set downe the statutes at large What quantitie of goods or chattels maie be deuised by testament 1 Legacies to be paid out of the cleere debtlesse goods 2 The executor compellable to paie dettes out of his owne purse if he paie legacies first 3 Funerall expenses to be deducted out of the whole goodes 4 The testator maie sometime bequeath all his detlesse goodes sometimes halfe and sometimes but a third part 5 When halfe the testators goodes is due to the wife or children 6 When the wife and children ought to haue either of them a third part 7 Whether the wife and children ought to haue anie part of the dettes due to the testator 8 Whether the wife and children maie claime anie reasonable part of leases 9 Whether the wife and children maie claime a reasonable part of goodes where there is no custome 10 The reason of the lawe which leaueth all to the disposing of the testator 11 The reason of the custome wherby the power of the testator is restrained §. xvj COncerning the quaÌ„titie of goods and chattelles to be disposed this is first to be noted that the testator can not bequeath anie parte of the goodes but where something remaineth cleere the moderate funerals and the debtes due by the testator first discharged a) Bracton de legib coÌ„s Angl. lib. 2. c. 26. n. 2 L. scimus §. si praesatam C. de iure de lib. In qua lege assignatur ratio quare legatarijs praeferuntur creditores neÌ„pe legatarij de lucro captando creditores autem de damno vitaÌ„do contendunt d. L. scimus Et licet haeres qui inueÌ„tario legitimè confecto leg atarijs satisfaciat securus sit iure ciuili aduersus creditores quibus eodem iure concessum estactionem intentare non contra haeredem sed contra legatarios Longè tamen aliter iure nostro cautum est quo non legatarios sed ipsum executorem conuenire permittitur vt statim subijcitur And therefore if the testator doo bequeath any legacies by his testament where his goodes and chattelles will not suffice to discharge his funeralles and debts and the executor paie anie of those legacies before hee haue discharged the debts by meanes wherof there is not sufficient goodes lefte wherewith to pay the testators debtes in this case the executor shall be charged with the payment thereof out of his owne purse b) Fitzherb Abridg. tit deuise n 1. Brook tit admÌ„str n. 37. Perkins tit deuise fol. 109. as one that had otherwise wasted the goodes of the testator c) Doc. Stud. lib. 2. c. 11. quam conclusioneÌ„ facile admitterem coÌ„scio executore aeris alieni Sichard in d. §. si praefatam verb. 3. vtilitas Minsing in §. sed nostra Instit de haered qual diff n. 12. Ca terùm quod nonnulli ex nostratibus eandem conclusionem extendunt vt locum habeat vel ignorante executore alios esse creditores An istud verun sit dubito durum esse non inficior Et quidem summus Iusticiarius Brook oppositam sententiam tenet nisi vbi principi quid sit debitum quia regia debita suo periculo scire debet Brook tit exec n. 116. This then being vnderstood that no legacie is due but where there cleerlie remaine some goodes and cattelles the funeralles and debtes first deducted for funeral expeÌ„ces are to be deducted foorth of the whole goods both by the ciuill lawe d) L. scimus §. in computatione C. de iure delib and by the lawes of this realme e) Fitzh Na. Br. fol. 121 Doct. Stud. lib. 2. c. 10. Brook Abridg. tit exec n 172. Thou shalt vnderstande that of that which remaineth sometimes the whole sometimes the halfe and sometimes the third part maie be bequeathed or deuised by the testator according to the diuersitie of these cases following The first case is when the testator hath neither wife nor childe at the time of his death for then hee maie dispose all the residue of his cleare goodes and cattels at his pleasure f) Lindw in c. statut de testam lib. 3. ê“uincial constit Cant. verb. defunctum Bracton de legib consuetu Ang. lib. 2. c. 26. Tract de repub Angl. lib. 3. c 6. Fitzherb Bre. de rationabil parte bon The second case is when the testator at the time of his death hath a wife and no childe or else some child or childreÌ„ but no wife In which case by a custome obserued not onely throughout the prouince of Yorke but in manie other places besides within this realme of England the goodes are to be deuided into two partes and the testator can not bequeath anie more then his part that is to say the one halfe for the other halfe is due to the wife or else to the children by vertue of the said custome g) Lindw Bracton Fitzherb vbi supr The third case is where the testator leaueth behinde him bothe a wife and also a childe or children In which case by the custome obserued in diuers places of this realme of England and namelie within the prouince of Yorke the testator can not bequeath anie more of his goods then the third part of the cleere goods h) Act. computat in scaccario Archiepiscopi Ebor. Lindw Bract. Fitzher vbi supr for in this case the said cleere goodes are to be deuided into three partes whereof the wife ought to haue one
parte the child or children an other parte and the third part which is called the deathes part remaineth to the testator by him to be giuen or bequeathed to whoÌ„ he thinketh good h) Lind. Bract. Fitzh in locis praed And here note that where the wife or children ought to haue a ratable parte of the goods of the deceased be it a third parte or halfe as the case yeeldeth there also they ought to haue a like parte of the debtes due vnto the testator after they be recouered by the executor or administrator for then they are numbred or accompted amongest the goodes of the testator but not before i) Brook Abridg. tit exec n. 112. Siquidem si ista ex coÌ„suetudiue tantum debentur hac non probâ—ta sine difficultate illud procedet quod est iuri recepto magis consonum But of leases the wife and children can not haue anie ratable parte within the prouince of Yorke or other places where they haue beene accustomed to haue their ratable parte of the moueable goodes and debtes recouered vnlesse the saide wife or children demaunding their ratable parts of leases do proue that by speciall custome of that place namelie of that citie countie deanrie or parishe where the testator dwelled and had such leases the wiues and children were accustomed to haue their ratable parte as well of the leases as of the mooueable goodes of the testator which speciall custome being prooued they maie recouer their ratable part as before k) Fitzh in Br. de rationab part in quo Breui fit mentio non solùm bonorum sed etiam cattallorum Atque huc facit quod habemus in Mag. Chart. c. 18. The fourth case is when there is no suche custome of deuiding the goodes of the testator into two partes or into three partes as is before mentioned in which case albeit some were of this opinion that euen by the coÌ„mon lawes of this realme the cleere mooue-able goodes were to be deuided into three parts or into two partes as before whereof the wife and children were to haue their partes l) In hac sententia stetit Glandeuile antiquus huius regni iurisconsultus motus per stat de Magna Chart. c. 18. vt refert Fitzh in d. Breui de rationab part bon Brook Et per de rationab part bo sic enim post multaÌ„ disputationem inquit Et fuit dit pue ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn comÌ„en ley nunque demurr ideo videtur que ceo est le comÌ„en ley and consequentlie that the testator could not dispose anie more thereof then the halfe or third being the deathes part Neuerthelesse others whose opinion hath preuailed doo holde the contrarie to wit that there is no such deuision to bee made by force of the common lawes of this lande but onelie by force of custome m) Fitzh d. Br. de rationab part bonor Brac. de legib coÌ„suet Ang. lib. 2. 26. Tract de repub Angl. lib. 3. c. 6. and coÌ„sequentlie that it is lawfull for the testator by the lawes of this realme except in those places where the custome aforesaid is obserued to dispose all the whole residue of his goodes his funeralles and debtes deducted at his likinge and that the wife or childe can claime no more thereof but accordinge as the testator shall deuise by his testament And in the opinion of some the lawe of this lande which leaueth all the residue to the disposition of the testator funeralles and debts deducted seemeth to haue better grounde in reason then the custome whereby he is forced either to leaue two partes of three or at leaste the one halfe to his wife and children n) Bracton d. lib. 2. c. 26 For what if the sonne be an vnthrifte or naughtie person what if the wife be not onelie a sharpe shrowe but perhaps of worse conditions Is it not harde that the testator must leaue either the one halfe of his goods to that wife or child or more for the which also peraduenture hee had labored full sore all his life were it not more reason that it should be in the libertie of the father or husband to dispose thereof at his owne pleasure which when the wife and children vnderstood it might be a meanes whereby they might become more obedient liue more vertuouslie and contend with good desert to winne the good will and fauour of the testator o) Hisce rationibus vtitur Bracton in desensionem â—uâ— is huius regni d c. 26. cui adde Rebuff in L obuenire de verb. signif ff fol. 682. These reasons make for the testator and for the equitie of the common law which leaueth the whole residue to his disposition But the custome whereby the libertie of the testator is restrained is not without reason also Forwhere it is asked what if the child be an vnthrifte the wife worse then a shrowe So it maie be demaunded with like facilitie what if the childe be no vnthrifte but frugall and vertuous what if the wife be an honest and modest woman which thing is the rather to be presumed p) c. dudum c. vltim de praesump extr Mas card tract de probae conclus 222. But if it be not amisse to feare the worst then on the contrarie what if the testator be an vnnaturall father or vnkinde husband perhaps also greatly inriched by his wife wheras before he was but poore standeth it not with as great reason that such a wife and children should be prouided for and that it shoulde not be in the power of such a testator to giue all from them or to bestowe it vpon such as had not so well deserued it and by that meanes set his wife children a begging surelie the custome hath as good ground in reason against lewd husbands and vnkinde fathers as hath the lawe in meeting with disobedient wiues and vnthrifty children q) Mediam viam elegit Iustinianus tà m quoad vxorem quà m quoad liberos Nam quod ad vxorem attinet inbet imperator illa bona restitui quae marito vel ab ipsa vxore vel ab alio nuptiarum causa nempe ad sustinenda matrimonij oneradonata suere L. 2. fol. matr ff Bar. in Rub. solu mâ—iom ff n. 21. quod autem attinet ad liberos iure ciuili Assis nunc triens id est tertia pars totius patrimonij nunc semis seu dimidium assis pro legitima debetur Auth. nouissimo C. de inoffic testa quae quidem legitima gratis tantum liberis deberi intelligitur nam ingratis nihil habet parens pro legitima â—â—linquere Claud. Battandier tract de legitima c. 13. If the testator doo bequeath more then he maie which legacie is to bee preferred or what other course is to bee followed 1 If the testator bequeath more then the deaths parte whether one legacie is to be preferred before an
vlt. vol. lib. 11. tit 6. n. 9 Wherefore if the testator make thee his executor or giue thee an hundred pounde if he die without issue after which will made he dieth leauing his wife with child In this case he is reputed to die without issue and so thou art to be admitted to the executorship maist recouer thy legacie b) Mantic. d. tit 6. n. 9. post Bald. in d. L. qui. in vtero el. 2. vnlesse it be more beneficiall to the childe that his father shoulde haue beene reputed to haue died without issue for then thou art excluded c) L. iubemus §. pen. C. ad Trebel ibi Paul de Castr When †the childe dieth so soone as it is borne we must consider whether it were borne in due time or not if it were borne in due time so that by possibilitie of nature it might haue liued longer as in the vii ix or x. moneth d) L. septimo mense de stat hom L. Gallus in princ de lib. posthu L. intestat §. vlt. de suis legit ff the father is iudged to haue issue especially †if the childe were once heard to crie e) Mantic. de coniect. vlt. vol. lib. 11. tit 6. n. 10. Mascard Tract de probac. verb. Natus concl 1088. n. 9. 10. per L. quod certatum C. de posthu haered instituend Sichard in d. L. n. 4. for then also by the lawes of this realme that man whose wife was seased in fee simple or in fee taile generall or as heire in fee taile speciall shal be said to haue had issue and by reason thereof after the decease of his wife shall holde the same land during his life and shall be called tenant by the curtesie of England for that it is thought that the same law is not vsed in any other Countrey sauing onely in England f) Litleton tit curtesie d'engleterr But †if the childe which he had by his wife were not heard to crie it is thought that he cannot be tenaÌ„t by the curtesie g) Bract. de leg consuet Angl. lib. 5. tit de excep c. 30. n. 7. 8. Which opinion though auncient hath beene strongly encountered of late and shrewdly shaken by men of deepe iudgement and reuerent aucthoritie *) Dyer fol. 25. n. 159. post Fitzh and so the same not being free from contradiction cannot bee vtterly voide of doubt and therefore as it becommeth me I doo verie willingly referre the determination thereof to the lerned and expert in the studie and practise of the lawes temporall of this land Neuerthelesse to other purposes and testamentarie effectes determinable in the ecclesiasticall courts I suppose he shall not bee reputed to haue died without issue although his childe did neuer crie so that it did sensible breath or moue h) L. quod dicitur ff de lib. posthu L. 2. 3. C. de posthu Felin in c sicut de homicid exâ—r Mascard Tract de probac. verb. natus conclus 1088. sub fineÌ„ for what if the childe were borne dumbe i) d. L. quod dicitur d. L. 2. 3. DD. ibid. Therefore I say by the ciuill and ecclesiasticall lawes concerning testamentarie effectes the father shall not bee accounted to haue died without issue if the childe did but breath and though it did not nor coulde not crie but died in the handes of the midwife k) d. L. 3. C. de posthu for crying is not an onely proofe of life l) L. quod certatum C. de posthu ibi Sichar n. 4. Mascard de ê“bac conclus 1088 n. 10. since it may be prooued by other meanes as by motioÌ„ breathing and such like m) L. si magister C. de Instit sub Mascard d. concl 1088. sub fineÌ„ Sichard in d. L. quod certatum In deede †if the childe be borne deade n) L. qui mortui ff de verb. signif or being halfe borne aliue yet dieth before it be wholy borne o) Alciat in d. L. qui mortui Cui adde Tiraquel in rep L. si vnquam C. de reuoc donac verb. susceperit n. 132. vbi etiam disputat an talis baptizari possit cuius tantum caput in partu apparet hee shall not bee reputed to haue issue p) d. L. 3. in sin d. L. qui mortui DD. in LL. Likewise in the other case that is to say when the child is not brought forth in due time as perhappes before the seuenth moneth or in the eight moneth so that it is impossible for the same to liue the parents for and concerning testamentarie effectes shal not be accompted thereby to haue had issue howsoeuer the childe for a while after the birth did sensiblie breathe and moue q) L. 2. C. de posthu Socin sen cons 275. n. 20. vol. 2. Mantic. de coniect vlt. vol. lib. 11. tit 6. n. 10. Grass Thesaur com op §. fideicommissum q. 33. in fin If †the testator make thee his executor or do bequeath vnto thee any legacie conditionally if he shall haue no issue and afterwards his wife doe bring foorth a monster or misshapen creature hauing peraduenture a heade like vnto a dogges heade or to the head of an asse or of a Rauen or Ducke or of some other beast or birde such monstrous creature though it should liue as commonly none doo yet is it not accounted amongst the testators children r) L. non sunt ff de stat hom Olden in eand L. Sichard in d. L. 3. C. de posthu for the lawe doth not presume that creature to haue the soule of a man which hath a forme and shape so straunge and different from the shape of a man s) Bald. in d L. noÌ„ sunt Sichard in d L. 3. n. 5. But if the creature brought forth do not varie in shape from a man or woman but haue somewhat more then God by the ordinarie course of nature alloweth as hauing sixe fingers on either hand t) DD. in d. L. 3. C. de posthu in d. L. non sunt in L. ostentum in L. quaeret ff de verb. sig Idem quoque iuris est si quis habeat tres testes Alciat in d L. quaeret n. 9. or on the contrarie wanting some of the ordinarie members as hauing but one hande or one foote v) Bald. Aug. in L. quod dicitur ff de lib. posthu such creature is not excluded but is to be accounted for the testators childe What if there be duplication of notable members as to haue foure armes or two heades or disorder in the principall members as the face standing backwardes or in the breast In this case I suppose much to bee attributed to the discretion of the Iudge x) Sichard in d. L. 3. C. de postu n. 5. verb. cum autem And albeit the writers seeme rather to encline to this opinion
make a testament 53 Infants as well as others of full age may be made executors 196 Infanitie of minde see Madnes Intestable actiuely by occasion of any crime is intestable also passiuely 203 Inuentary to be made by the tutor 101 An Inuentarie being made the executor need not to pay any legatarie his whole legacie where there is not sufficient to pay the rest 107 No Inuentary being made how far the executor is bounde to pay legacies 108 Inuentary necessary 217 Inuentarie wherefore necessarie 217 In the Inuentary what things are to be put 218 Inuentarie to bee made before the executor meddle with the testators goods 219 Inuentary indented 219 Ioyntenāt whether he may bequeath his part of Burgage land 71 Whos 's Issue is naturall not lawfull whether he is said to die without issue 161 Whos 's Issue is lawfull not naturall whether he be said to die without issue 261 The Issue whether it is the former or second husbands when it is doubted which of them did beget the same 165 Issue whether shall he be deemed to haue who had children but not at his death 166 Issue whether shall he be deemed to haue whose childe is vnborne when he dieth 167 The Issue if it die so soone as it is borne whether shall the father be deemed to haue died without issue 167 If the Issue be borne dead or die as it is borne whether shall the father be sayde to haue had Issue folio 168 This word Iust hath diuers significations 5 Iust opposed to that which is wicked 5 Iust taken for full and perfect 6 Iust what it signifieth in the definition of a codicill 12 K Hee that Killeth himselfe is intestable 58 Kin if the testator make his Kin executor which of his kin is to bee admitted 252 Many kindes of testaments 16 Two Kinds of iudiciall sentences 9 Diuers Kindes of legacies now confounded 15 Three Kindes of giftes in regarde of death 16 Diuers Kindes of priuiledged testaments 25 Three Kinds of Apostasie 55 Two Kindes of Ecclesiasticall persons regular and secular 64 Diuers Kinds of conditions 121 Diuers Kinds of Bastards 198 Diuers kinds of executors 205 Diuers Kindes of executors testamentarie 207 A King whether by his testament he may bestowe his kingdome at his pleasure 66 Knowne or vnknowne persons may be made executors 196 L Landes not deuisable without writing 23 Lands at what age they may be deuised 35 Lands are not deuisable but in certaine cases 70 Lands holden in gauel kind deuisable 70 Landes holden in burgage tenure deuisable 17 Lands deuisable to certaine vses 72 Lands in what cases they may be deuised by the lawes of this realm 77 Lands deuised alienated and redeemed whether the same may bee recouered 280 Last will is a generall worde 3 Last will how it is defined 11 Later testament doth infringe the former 263 By the lawes Ciuill and Canon a King can not giue away his kingdome 67 Whether by the lawes of this realm a King may giue away his kingdome 67 Leases are to be put into the inuentarie 218 Legacies bequeathed by him which dieth intestate by whom they are to be paied 13 Legacie what it is 14 Legacies proceede of liberalitie 14 Legacies payable as well by an administrator as by an executor 15 Legacies are to be payed out of the cleare goods 104 Which legacie is firste to bee paied whē there is not sufficient goods to pay euery legacie wholie 107 A Legacie may be giuen to or from a certain time or to or from an vncertaine time 172 The Legacie is not transmissible which is giuen from an vncertaine time 172 The Legacie whether it bee transmissible the vncertaintie being about the question whether not this question when 172 The Legacie is not transmissible if the question bee onely when not whether 173 The Legacie whether it be transmissible which is giuen after a certaine age 173 The Legacie sometimes transmissible albeit the age be ioined to the substance of the legacie 173 A Legacie being left to a bastarde whether the same bee presumed to bee left for his alimentation 202 A Legacie of wine or corne no quātitie being expressed whether the same be void 255 Legacie due though the executor cannot or will not vndertake the executorship 276 The legacie if it be referred to a certaine day whether it begin to be due at the death of the testator 291 The Legacie is extinguished if the thing bequeathed doo perish 292 The Legacie is not extinguished if the thing bequeathed do perish by the negligence of the executor 292 The Legacie which is generall or doth consist in quantitie cannot perish 293 The Legacie whether it be extinguished if the thing bequeathed be not destroied but the forme onely altered 293 The Legatarie may not take his Legacie of his owne authoritie 15. A Legatarie may not of his owne authoritie take his legacie and what is the reason 119 Legataries what remedie they haue for the obteining of their legacies 119 The Legatarie may sometimes take his legacie of his owne authoritie 119 A Legatarie whether hee may bee a witnesse 187 Legatarie ought to bee capable of the legacie at the testators death 276 Legataries by what meanes they may be made incapable of their legacies 286 A Legatarie whether he loose his legacie by reason of enimitie betwixt him and the testator 286 The Legatarie looseth his legacie by accusing the testament of falsitie 288 The Legatarie looseth his legacie by cancelling the testament 288 The Legatarie whether he loose his legacie by entring to the possession without authoritie 288 The Legatarie if he die at the same instant when the testator dieth whether the legacie be lost 289 A Libeller cannot make a testament 58 A libeller cannot bee executor 203 Licence of the husbande maketh good the wiues testament 47 Licence of the husband whether it must go before or may concurre or follow the wiues testament 48 Licence granted by the husband to the wife whether when it may be reuoked 48 M Mad folks cannot make their testaments 36 Madnes being past whether the testament be good 36 A mad man may make his testamēt betwixt his sits 37 Madnes to be proued by him which obiecteth the same 37 Madnes before the making of the testament whether it be presumed to continue 37 Madnes hard to be proued 38 Madnes how it may be proued 38 Madnes whether it may be proued by singular witnesse 38 Madnes whether it may be proued when the witnesses yeelde a generall reason of their knowledge 38 A Manifest vsurer cannot make a testament 56 A Manifest vsurer not to be buried in any Church or Churchyarde 57 Many being appointed executors whether one may be admitted without the rest 181 Manifest vsurers incapable of testamentarie benefite 203 Many things to bee considered of him that would be resolued whether it were better to accept or refuse the executorshippe folio 209 Mariage though it be vnsolemne yet it is a true mariage 20 Mariages