and dyes the issue in Tayl recover Land against A. being second in formedon this is lost A. hath a Daughter and dyes his Wife great with child of a Son the Daughter enters and sows the Land shee shall reap though the Son be born before reaping time But if after the sowing of Corn and before the Son born the Mother recover Dower against the Daughter and ground sown be assigned to her in Dower she shall also have the Corn. Windows Tables wainscot Benches and the like Windows c. fixed or mortised in earth go not to the Executor but to the Heir for they are parcel of the Free-hold and to remove them is wast Also Furnaces and Ovens set in Mortar or Stone do belong to the Heir Concerning the assigning of Tutors or Guardians Guardian and the disposing of Childrens portions during minority Divers Customs are in England observed A Father hath a paternal power and may appoint a Tutor or Guardian to his Child for a time and the custody of his portion All but the Heir and such as are preferred in the life time of the Parents are to have filial portions of the Father 's goods But if there be no Testamentary Tutor or Guardian then the Ordinary may appoint the next of Kin demanding the same as in case of administration but if the Child be a Ward the Ordinary may not do it Neither can any one be a Tutor or Guardian who may not be an Executor A Tutor or Guardian may be assigned to a Boy till 14. to a Female Child till 12. and then they may have Curators of their own choosing If a Child be a Ward the Guardian shall have him and all his Lands and offering him a convenient marriage and at reasonable age if they refuse he shall have the value of their Marriage which shall be rated according to the value of the Land but this is now taken away But in Socage Tenure if the Land come by the Mother the Uncle on the Father 's side shall have the Guardianship sic è contra and as such shall account to the Pupil for the profits of his Land at his full age Of Fools and Ideot 's the King by his Prerogative Royal hath the tuition of the body and the profits of the Lands but after the Ideots death the Land shall return to the next Heir Copy-holder Heir under 14 years of Age shall have a Guardian appointed him till 14. as the Mother or next of Kin. A Tutor may be appointed for a time either simply or upon condition nay more than one may be appointed If the Testator say I commit my Children to the tuition of A. or I leave them to his hands or to his government or I desire my Wife to take care of my Children all these imply the Testators meaning to be so and they shall be confirmed Tutors The Office of a Tutor is to provide for the Infant faithfully to administer his Goods and Chattels and to account for all received by him and if any take away the Pupil or his Goods he may cite them and make them restore them in the Ecclesiastical Court. The Tutor may sell bona peritura but not Goods immoveable If a Testator Will that A. shall educate his Children and have the disposing setting and letting of his Lands yet he may not sell them for the words dispose set and let properly bear no such meaning As to the disposing of Goods we are to observe Distribution that moderate Funeral expences are to be paid out of the whole and then debts quaque suo ordine but if the Executor pay Legacies and there be not sufficient left to pay Debts he shall pay de bonis propriis it being a wast in him Cro. Eliz. 646. the 5 Report Duke and Littleton's Case Cheynyos Case 33 Eliz. B. R. If there be a Wife and no Child or a Child or Children and no Wife the Goods shall be divided into two parts and the Testator can but devise one half but now see the Stat. 22 Car. 2. Cap. 11. And if there be Wife and Children or Child which Child is Heir or which Children were advanced by his Father in his life time in such case the Wife shall have half and the Testator may dispose of the other moiety But see Ratcliff's Case 3. Rep. But it is also held that a Child preferred shall have as in Hotchpot if he will cast in his share See Fitzh and Brook. de rationabili parte bonorum Although the Law leaveth all to be disposed of by the Testator yet in many places he is restrained by Custom But note it seemeth he may disseize of Leases especially where it is customable for the Wife and Children to have a ratable part of moveable Goods and Debts Bro. Tit. Exec. Patrimonium patris munus because it is to prefer Matrimonium matris manus because she is to nourish and breed up the Child If A. be seized of 30 Acres and have issue 2 daughters and he bestow 10 Acres in Frank-marriage with one of them and dye seized of 20 the married Sister may cast up in Hotchpot and have a new division and moiety CHAP. IV. Exposition of Testaments TEstaments shall be favourably expounded and according to the intent and meaning of the Testator which intent ought to be manifest and not doubtful Co. 6. Wild's Case because he is supposed to be inops consilii Words in a Testament seeming to tend to a condition as if Provided and such like shall not be taken in Law for conditions where the intent of the Testator appeareth not to defeat the whole Estate devised thereby but for a limitation as for example A. seized of Lands in Fee hath issue B which Lands he deviseth to C. in Tayl the remainder to D. in Tayl with divers other remainders Provided that if any of the In-taylees bargain or sell the Land or any part thereof that from thenceforth such persons selling shall be utterly excluded and the Land to remain to the next in Tayl as if such person had not been named in the Testament in this case the exposition shall be until such Person in the In-tayl shall alien he shall have as before and so it is a limitation and not a condition For if it were taken for a condition then B. his Son should enter for he only is prius and none but priuses may enter for a condition broken and then all the Estates were determined which were contrary to the intent of the Testator But by limitation it is otherwise Plow so 412. Scholastica's Case Only such Estate as cannot be by the rules of the Common Law conveyed by an Act executed in the life of the Testator with advice of Counsell such Estate cannot be devised by Testament As if A. devise Land to B. in Fee and if B. do not such an Act that C. shall have the same to him and his Heirs this is void for such limitation if it had been
Chattels are forfeited be the cause of Action just or unjust Doct. and Stud. Lib. 1. Cap. 6. in fine if one be outlawed for Felony he shall forfeit Goods and Lands but in Action personal the contrary if any Errour or discontinuance be in the suit or Process whereby the Outlawry becomes reversable as where the party is beyond the Seas where three proclamations are not made whereof one in open Court another at Quarter-Sessions and a third at the Church or Chappel-door where the Defendent dwelleth or lastly where the party hath obtained his pardon One at the very point of death In extreams if he be of good memory though you can scarce understand what he speaks yet may make his Will and it shall be good A written Will is brought to a sick Man and he is asked if that be his Will and he answers yea this Will if it were written by the sick Mans privity or directions it will be good otherwise it is held contrary Ecclesiastical persons are either Regular or Secular Relligions The Regular are Monks Friars c. And if such a Regular Clerk make his will at his entrance into Religion it must be then also proved and the Executor must enter as if he were actually dead for he is accounted dead in Law in respect of his Vow and therefore totally disabled to make a will afterwards The Secular are Bishops Vicars c. and these may make a will so as the Goods they dispose thereby be not held by them in right of their Church for they may not devise the Fruit of Trees growing on the glebe Howbeit Corn growing upon the glebe belongs to him his Executor or Administrator but of other Fruits Tythes Oblations and Emoluments the next Incumbent shall have them towards payment of his first-fruits and if he dye his Executor 28 H. 8.11 CHAP. III. What things may pass by Will and how much 1. Of Lands 2. Of Goods and Chattels And of the tuition of Children to whom and how it shall be granted or committed LAnds are devisable either by Custom or by Statute By Custom such are Gavel-kind Lands which are not contined only to Kent as hath been erroneously held from the Grant of William the Conquerour And one seized thereof may give or sell them at his own pleasure neither are they forfeitable for Felony according to the Adage The Father to the Bough The Son to the Plough 2. Lands held in Burgage-tenure by Custom devisable in divers Cities and Burroughs And such Land may be given in Fee-simple fee-Fee-tail for Life or Years so as the Will be enrolled before the Mayor neither is it needful to have it written according to the form of the Statute of Hen. 8. for that the Land was devisable before that Statute and is a kind of a Socage-tenure Citizens Burgesses and Free. men may devise their Lands in Mortmain which others who have Burgage Lands may not do otherwise there is no difference But joyntenant of Burgage-Lands cannot devise his part for it will pass by survivourship The Custom of devising Lands to Feoffees reformed by 27 H. 8. which see at large As also the Stat. 32 H. 8. whereby Lands may be devised A. having Lands in Socage may devise all except he have Lands of the King or others in Knight-service but in such device there must be reserved primer seisin and fines for alienations such as should have been in case the Land had been altered or sold If one hold Lands in Socage and other Lands in Knight-service he may devise all his Socage Lands and two parts of those in Knight-service reserving three parts for the King or other Lords of the Knight-service Lands for Wardship and primer seisin c. but this is in effect now out of doors If there be two joyntenants or more of Land holden of the King and one die his Heir shall be in Wardship Lands Tenements Rents and other Hereditaments in possession reversion or remainder may be devised as before Of Goods and Chattels all may be devised yea as well things extant as things not in being at the time of the device or during the Testator 's Life as Corn annually growing in such Land all Lambs coming of such a flock depasturing in such a Field next Year but if no such Corn or Lambs be it is void By common Law If A. grant B. an annuity of 10 l. to be taken out of his Coffers and he have no Coffer or out of his Lands in Dale and he have none there in both these cases his person is chargeable By a deed of Gift made of all Goods and Chattels yet debts or things in action pass not Contrary it is of a devise by a Will for if a debt or thing in action be given to A. the Testator may make him Executor only to that and A. may recover it in his own name If a man bequeath another mans Goods by the Civil Law the Heir must either buy them or render so much in value to the Legatary But both by the Common Law and Law Ecclesiastical used in this Realm such a devise is judged void There are several sorts of Goods which are said not to be devisable as 1. Such as a man hath in the right of his wife viz. Debts due to her or things in action or Chattels real as Leases for after the Husbands death they return to the wife 2. One may not devise Goods which he has joyntly with another no though he make the other joynt Executor yet he shall not be chargeable for those Goods but adjudged to have them as survivor 3. Neither may one bequeath those things which he hath as Administrator to another for he ought not to convert those to his own use but therewith to pay the Debts and Legacies of the Deceased and to distribute the rest in pios usus and therefore bound to be accountable 4. Albeit the Executor of an Executor may administer Goods of the first Testator yet so may not the Executor of an Administrator but there must be a particular Administration of them granted Also an Executor may appoint an Executor of the first Testator 's Goods so may not an Administrator Howbeit an Executor cannot give away the Goods of a Testator no more than may an Administrator for they are not properly his but he must accompt for them 5. Goods of the Realm such are the Crown and the Jewels thereof are not devisable 6. The Master of a Colledge the Mayor of a City or Burrough may not devise things which belong to the Burrough City or Colledge so it is also of an Hospital and Church goods excepting upon the glebe growing 7. Goods de jure belonging to the Heir are not devisable as Trees growing the Heir-loom c. Tenant in right of his Wife sows Lands and bequeaths the Corn the Legatary shall have it and not the wife otherwise it is of Corn and Grass not separated Tenant in Tayl makes Lease for Life to A.
by Act executed had been void Et sic de caeteris Co. Rep. Corbet's Case fo 86. CHAP. V. Of the Forms of Testaments THe substantial or essential form of a Testament is the naming of an Executor without which it is no Testament for the Executor is in the place of the Testator and compellable to pay Debts so long as he hath Assets without naming an Executor it is but a Codicil be there never so many Gifts or Legacies contained therein and Administration is to be granted as of one dying intestate unto the Wife or next of Kin. But be it solemn or unsolemn written or nuncupative priviledged or unpriviledged the naming or appointing of an Executor without more ado makes a good Testament An Executor may be appointed simply or conditionally from a time or to a time certain generally or particularly in the first second third or fourth degree Simple nomination as I make Institute or Will that or desire that A. be my Executor or A. shall or let A. be my Executor or I commit all my Goods to dispose of by A. or I will that A. dispose of those Goods in his possession in the first he shall be adjudged Executor of all In the second of so much as are in his possession only The word Executor needs not always to be expressed in a Will but circumlocutory words will serve so as the Testator 's meaning be certainly known but when it is doubtful whether the person named be a general Legatary or Executor great care must be taken to determine whether a Will or not a Will. A Testator makes his Will by entreaty or interrogation of another person as if one demand if he will make A. Executor and he answer yea or I do this is a good nomination so as he be then purposed and intended to make his Will for be the words never so plain if the Testator were in fear jest or drink though he say I make A. my Executor yet it is void because he had not then animum testandi As nomination of an Executor is pure and simple being without condition so of Legataries mutatis mutandis in all things always according to the Testator 's meaning Therefore if A. devise to B. all his Lands and Tenements all in possession and reversion pass by the word Tenements Land is devised to A. to have for evermore or to him and his Assigns there the devisee hath a Fee-simple but in a Feoffment such words create but an Estate for the Feoffee 's life A devise of Lands is made to A. thus to give or sell or do with at his pleasure this makes a Fee-simple A devise of Land is made to A. and his Heirs males this is an Estate Tayl but in a Feoffment the same words make only a Fee-simple because thereby it does not appear of what bodies the Heirs shall be begotten Lands are given by deed to A. and the Heirs males of his body he hath issue a Daughter who hath issue a Son and dies the Son of the Daughter shall not have it but it shall return to the Donor But if the same were so given by a devise in a Will he viz. the Son of the Daughter should have it A devise made to an Infant in the Mothers Womb is good but contrary of a deed Feoffment grant or gift for they being made to such are void A devise is to A. and his Heirs Females of Land the Devisee hath a Daughter and Son and dyes in this case the Daughter shall have the Land and not the Son though he be Heir A devise of Land is to A. charging him with payments of near the value of the profits during his Life though there be word of Heirs or Assigns or for ever yet this is a Fee-simple But a devise of Land to A. in Fee and if he dye without Heir then to B. in Fee this is a void remainder because one Fee-simple cannot depend upon another So Land was devised to the Prior and Covent of B. so as they paid to the Dean and Chapter of P. 10 l. per annum and in default thereof their Estate to cease and the Land to remain to the Dean and Chapter this is a void remainder for it could not be limited after an Estate in Fee and the Heir not the Dean and Chapter shall take advantage of the condition A Legatary may take his Legacy without delivery by the Executor But there is no remedy to recover a Legacy by the Common Law but only by citation before the ordinary But a Legatary possest of his Legacy at the Testator 's death may retain it if there be sufficient to pay debts beside Conditions some are 1. Necessary 2. Some impossible 3. And some possible or indifferent 1. Necessary in respect of Fact as if the Sun rise 2. Necessary in respect of Law as a condition to make one Executor or give 100 l. 2. Impossible conditions and these have four sorts of Impediments 1. Of Nature as to give one 100 l. if he touch the Sky with his hands or drink up the Sea. 2. Contrary to Law deemed impossible as if he murder a Man or deflower a Maid for id possumus quod de jure possumus 3. Hard to be performed as a base Subject to marry the King 's Daughter And 4 of contrariety and repugnancy 3. Possible conditions or indifferent of these 1. Some are casual as to give 100 l. if the King of Spain dye this year 2. Others are Arbitrary as if one go to Church But here note that conditions unlawful impossible and dishonest are absolutely void Every condition must be precisely performed for performance in part will not suffice for the whole meaning of the Testator therein must be performed A condition that one go to Church on Easter-day and he endeavours so to do but he is hindred by great floods or other lawful impediments the condition is performed But if in going to Church he commit an offence and be stayed for it this is not a performance of the condition when the condition cannot be performed by the Testator 's default this is no bar to the Legacy as a Legacy is given on condition that he bury the Testator 's body in St. Peter's Church in York and he dyes excommunicate Executor or Legatary under some possible condition admittable putting in caution to perform the condition or make restitution Condition is that A. marry the Testator 's Daughter he is ready and willing but she refuses this is doubtful for he must persevere if he will have the benefit for though it seem the condition be performed in Law yet is it not performed in fact according to the Testator 's meaning But it is contrary if the Testator remitteth to him a Debt upon such condition and he offereth to marry her or if he be possessed of the Executorship or Legacy in the mean time before she repent or if 100 l. in such a chest or a white horse be given
Tit. Exec. Dyer 35. fo 160. Divers Executors are named one getteth possession of Goods the other have no remedy against him for any part for one Executor may not sue another but in case the Testator give to one Executor the residue of his Goods he may retain them or sue any other that holds them but if he give all his Goods to his Executors they are to be divided and the Ordinary hath power to prevent fraud among them But if one Executor dye the survivour shall have his part unless the Testator appoint that the Goods shall be equally divided for those words equally divided in a Will do make a Tenancy in common Two Witnesses void of exception sufficient to prove a Will but if the Testator ordain that one Witness whom he nameth and trusteth shall prove the Will and he doth it this is good proof But a solemn Testament must be proved by seven Witnesses and every one must set his Hand and Seal to it Any Language Hand or Character is good for a Will so that it may be understood vitium Scriptoris will not hurt for as falsa Orthographia non vitiat Chartam Sic nec Testamentum In Nuncupative Wills and Testaments it is good to avoid obscurity and ambiguity CHAP. VI. What Persons may be capable of Executorship or Legacies A Testator may exclude his own Children and make a Stranger his Executor or Villain if he make a Villain of his own Executor it is a manumission but a Villain of another being named Executor may have an Action against his own Lord. A Woman sole is Executrix she marries her Husband alone may release a Debt due to the Testator An Infant Executor may release a Debt due to his Testator during his Minority so as he receive due satisfaction for the same If a Child be under 17 years he must have a Tutor and such Tutor may sell any of the Testator 's Goods but for necessity only A Testator making his Debtor Executor the Debt is extinguished if he prove the Will Also making a Creditor Executor when he makes an Inventory he may detain his own Debt first A. and B. bound to C. for Money C. makes A. Executor by this the Bond is released A. indebted to C. the said C. makes A. and F. Executors A. dies F. shall have no Action against the Executor of A. for that Debt But if the Testator be indebted to A. and makes him and B. Executors if A. refuse to prove the Will and B. prove it A. may have Action for his Debt against B so Debt by Testator is not extinguished by naming a Creditor Executor unless he Administers But Debtor refusing to Administer being named Executor the Debt is extinct unless there want Assets to pay Creditors A Colledge City or University may be appointed Executor but an Apostatae is incapable to take or make Executor So Felon attainted and excommunicate persons Church-Wardens are no lawful Corporation in every respect but in some respects they are such a Corporation as may sue for a Legacy given to the Parish Convict Recusant at the Death of the Testator or time of Administration granted disabled to be Executor Administrator or Guardian in Socage or Chivalry See the Stat. 3. Jacobi CHAP. VII Of the several kinds of Executors THere are three sorts of Executors 1. From the Law as the Bishop or Ordinary 2. The second is made by the Bishop or Ordinary 3. The third by the Testator himself If an Executor refuse or cannot prove the Will the Ordinary may grant Administration cum Testamento annexo and this Administrator is charged to perform that Will and is called Executor Dativus for he is the Ordinaries Deputy or Steward The Ordinary may call to an account and revoke his Authority and such revocation may be secret or implyed as Administration granted to A. and after to B. the grant of the later revoketh the first as a latter Will revokes a former yet all Acts done by A. before such revocation are good 27 H. 8.26 per. Fitz. 4 H. 7.14 per Tremaile Bro. Novel Cases 330. Executor Testamentarius being one so made by the Testator may without Authority from the Ordinary possess himself of his Testator 's Goods and Chattels and after probate of the Will may commence Actions But if he be a meer Executor he may not convert the residue of the Goods to his own use but be accountable for them neither is he to have any other benefit than what is appointed by the Will or allowed for his charges or pains by the Ordinary and if such Executor dye intestate from thenceforth his Testator shall be said to dye intestate and Administration de bonis non Administratis shall be granted An Executor some say is not compellable to prove the Testament before citation but if he be cited and refuse he shall lose his Legacy and the Ordinary may grant over Administration to another until he will accept c. but if he hath meddled with any of the Testator 's Goods he is compellable to stand to it If Administration be granted where a Will may or can be produced and the Executor hath not refused the Executor may bring an Action of Trespass against such Administrator if he meddled Vid. Br. Abridgement des cases edit 1599. Tit. Administ 112. fo 183. To him that is desirous to know whether it be better to accept or refuse Exccutorship it is to be known That Executor is chargeable to Creditors so far as the Goods do extend but for Debts due to the Testator he shall not be charged with Asseâ—s for they are things in Action and not in Possession yet he must use diligence to obtain and get them in The Heir shall have none of the Goods or Chattels of the Deceased nor shall the Executor have any of the Lands Tenements or Hereditaments unless the Will appoint them to sell Lands for which if two or three be appointed and some refuse to prove the Will the rest that prove it may sell notwithstanding If the Testator appoint his Executor to sell Land and to distribute the money in pios usus and they enter and convert the profits to their own use for two or three years the Heir may enter upon them and exclude them for the Franktenement is in him neither if one Executor dye before sale may the survivour sell but contrary if the limitation be for payment of the Testator 's Debts for then the surviving Executor may sell 39 Ass 17. And it seemeth by the issue in that Book that any one of the Executors may by himself sell the Land without his Companions though they be alive and notwithstanding that they have but a power and Authority given them which is joynt and in most cases must be performed according to the limitation but it seemeth that that is admitted for the special respect the Law hath to have the Debts of the Deceased paid Vid. Fitz. Tit. Ass 336. Et. Executors 117. An