Son or Daughter married in his life-time who hath a Child or Children and then dyes and afterwards the Grand-father dyes in this case the Grand-children shall recover such part of the Grand-fathers Goods as should have been due to their Father or Mother for their Childes Portion if they had lived Reformatio Legum Eccles tit Test cap. 10. 154. If the Father leave a Legacie to his Child being neither Heir nor advanced by him in his life-time and do not mention whether it shall be in lieu and recompence of his filial portion or no in such case if it be as much or more in quantity then the filial portion extends unto by the rate of the Inventary or if it want but a very little thereof then it shall be presumed to be given in lieu of his Portion but if the Legacie be very small then the Child shall both recover the said Legacie and his filial Portion too Menoch de Praesumpt li. 4. Praesumptio 109. num 6 26 and 110. Swin part 3. sect 18. num 9. 155. Where the Child is Heir to his Father in Fee-simple or Fee-tail though the Lands be but of very small value in regard of the personal Estate of his Father yet he is thereby barred from having any filial Portion by the custom of the Province of York and some other places yea although he be but Heir in reversion or hold Lands as Heir which are but Mortgaged with power of Redemption upon payment of such a sum of money at a certain day yet during such holding till the condition be performed he is barred of his filial portion but if he have onely copy hold-lands after his Fathers death in such case he is not barred from the recovery of his filial Portion Dyer fol. 124. pl. 38. Swinbor part 3. sect 18. and the opinions of Sir Tho. Hâ—â—sâ—oth Doctor of the Civil Law and Sir Jo. Savile one of the Barons of the Exchequer Judge of Assize at York 1604 cited by Mr. Swinborne in his Marginal Notes 156. If the Father bestow or give any thing to a man of Trade to take his Son an Apprentise and to teach him his Trade or bestow any thing upon a School-master or Tutor in the Universities of Oxford or Cambridge for the increase of his Childs knowledge in Learning or buy an Advowson or Ecclesiastical Benefice or Dignity and afterwards presents his Son to it or the Son being much indebted the Father pays off his debts or buys an Office and bestows it upon his Son or if any other but the Father bestow a preferment on his Son though it be never so much yet none of all these shall be accounted such preferment or advancement as to bar the Child from the recovery of his filial Portion Claudius Battandier Tract de Legitima cap. 12. num 19 20 21 28 22 31. Swin part 3. sect 18. 157. But it is said by some that if the Father bestow a Lease upon his Child or grant to him an Annuity for life out of his Lands and though the Child be to reap no benefit by these during his Fathers life but after his death yet it 's held for a preferment because it was assured to him in his Fathers life-time Swin part 3. sect 18. num 25. 158. And it is granted for certainty that if the Father bestow a competent portion with his Daughter in Marriage upon him that should marry her this is such an advancement as shall bar her from the demand of a filial Portion but it is to be understood that this competent Portion must be equal or not far inferiour to that quantity which should fall to be due to such a Child after the rate and proportion of the Fathers Estate at that very time when he bestowes it on his Child and not according to such quantity as should fall due at the time of the Fathers death afterwards Swin part 3. sect 18. num 22 26 27. 159. But if such gift be not competent but far under the rateable part of that which would fall due to the Child as 5 l. to put in his Purse or spend at his pleasure when perhaps the filial Portion would amount to several hundreds of pounds this is not such an advancement as shall hinder such Childe from the recovery of a filial portion Swin part 3. sect 18. num 28. 160. Or if a man seized in Fee-simple of thirty Acres of Land hath Issue two Daughters and giveth ten Acres with one of them in frank-Marriage and dyeth seized of the other twenty Acres in this case she that is married may if she will have part of those twenty Acres also and put them in hotch-potch with the other Land and suffer the same to lye commixed and mingled together and so an equal division shall be made betwixt the two Sisters and each of them shall have fifteen Acres whereas otherwise the Sister marrieâ— would get but ten Acres Litt. 59. Fynches Law pag. 124. Terms of the Law verbum hotch-potch Swin part 3. sect 18. numb 33. 161. Note that by Portion is to be understood not onely a sum of money or part of the Fathers Goods and Chattels but also Lands and Annuities bestowed by the Father upon the Childe Swin part 3. sect â—8 num 29. CHAP. VII What things are deviseable by Will and what not 162. OF Lands Tenements and Hereditaments some are deviseable by Custom and some by force of certain Statutes as hereafter appears Cowels Inst pag. 138. Swin part 3. sect 2. 163. Lands Tenements and Hereditaments holden in Gavel-kinde by the custom of Kent though they be holden in Knights service may be given or devised by Will and that without license of the Lords saving to the Lords the Rents and services due out of the same Lands and Tenements Terms of the Law verb. Gavel-kinde Mich. 1655. in B. R. Hammond and Thornhills Ca. Syles Rep. fol. 476. Swin part 3. sect 3. 164. And so Lands Tenements and Hereditaments lying in London York Oxford c. and other place where the same are held in Burgage-Tenure may be devised by Will foâ— to hold in Fee-simple fee-Fee-tail foâ— life for years c. and if he who hold such Lands c. in Burgage-Tenure be a Citizen or Burgess of the City or Burrough where such Lands Tenements or Hereditaments be holdeâ— in Burgage-Tenure then he maâ— devise the same in Mortmain whicâ— otherwise he could not do if he werâ— not Citizen Burgess or Freeman oâ— the same place and it is not necessary that the Will wherein BurgageLand is devised should be in writing But note that the custom of the place must he observed concerning the Probate or Inrolment of such Wills c. F. N. B. Bre. ex Gravi quaerela in pr. Bro. tit devise 22 43 and 51. Dr. Stud. li. 1. cap. 7 and 10. Swin part 3. sect 3. Perkins Sec. 577 578. pag. 49. E. 3. devise 8. 165. The Wife so long as she lives unmarried shall have half
of her Husbands Lands holden in Gavelkinde Co. on Litt. fol. 111. Old Terms of the Law verb. Gavelkinde 166. And of Lands held in Burrough English by the custom of some places the Widow shall have the whole and sometimes the half of her Husbands Estate Dum sola casta vixerit Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10. 167. By the Stat. 32 H. 8. cap. 1. every one except a woman Covert an Insant under the age of one and twenty years or a person De non sane Memorie may be their last Will and Testament in writing or other Act lawfully executed in their life-time give dispose Will or devise all such Lands Tenements and Hereditaments as they are solely seized of in Fee-simple or as much as of right in them is of all such Lands Tenements and Hereditaments as they are seized of in Fee-simple in Copercenary or in Common in Fee-simple to any person or persons except to Bodies politick and corporate And two parts of three of all such Lands Tenements or other Hereditaments as they hold in Knights service See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1 34. and 35 H. 8. cap. 5. Fynch Law pag. 169 170. Co. on Litt. fol. 111. b. Swin part 3. sect 3 and 4. And Wingates Abr. of Stat. tit Wills 168. All manner of Goods and Chattels real and personal moveable and immoveable may be devised by Will or Testament except in some certain cases following Perkins sect 511. Lind. in C. Stat. de Testament li. 3. Provinc Const Cantibr Swin part 3. sect 5. Cowels Inst pag. 140. 169. As where two men are joyntly possessed of Goods and Chattels real or personal one of them cannot make his Will and bequeath his part to another for when he dyes his part goes to the survivor and so it is in Lands Tenements and Hereditaments also Perkins sect 500 526. Dr. Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst pag. 140. Clerk of Assize pag. 63. 170. Nor can a Spiritual person or Master of a Colledge or Hospital or Mayor of a City devise those things which belong to their Church Colledge Hospital or City nor can the Crown or Jewels of the Realm be devised by Will but they may be given by Letters-patents and a Parson by Will may devise the Corn growing on the Glebe-Land at the time of his death Perkins sect 496 and 497 498. Brac. 1. li. 1 2. cap. 14. Dr. Stud. li. 2. cap. 39. Cowels Inst pag. 125. F. N. B. devise 5. Exer. 108. Swin part 3. sect 6. 171. The Husband cannot devise such Goods as his Wife hath as being Executrix to another nor such things as are in Action as debts due to her before Marriage by Obligation or Contract unless he and his Wife sue and recover the same during Marriage or that he renew the Bonds and take them in his own Name otherwise after his death they remain to her Co. on Litt. fol. 351. b. 9 H. 6 52. 21 H. 7. fol. 29. Kitchin fol. 251. a. Finches Law pag. 44 168. Bro. Testam 11. Swin part 2. sect 9. num 13. 172. Also if the Husband be possessed of a Terme or Lease for years in right of his Wife he cannot devise it by his VVill but he may grant it away or dispose of it in his life-time or if he make no disposition thereof yet if he survive her then it falls to him and in such Case he may devise it by VVill. Dame Hales ca. Plo. com fol. 260. Co. on Litt. fol. 251. a. Kitchin pag. 267. b. 7 H. 6 1. Perkins sect 560. Dr. Stud. li. 1. cap. 7. 173. An Administrator cannot devise those Goods by VVill which he hath as Administrator to another person dying intestate but Administration thereof shall be committed to the next of Kin to the first Intestate neither can an Executor devise those Goods by way of Legacy which he hath as Executor but he may make his Testament and appoint another Executor who shall have the Administration of the same Goods to the use of the first Testator Fynches Law pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com fol. 525 526. Swin part 3. sect 6. 174. Those things also which belong to the Heir after the Testators edath cannot be devised by VVill as Glass-windows VVainscote Tables dormant and Benches affixed thereunto or mortifed in the Earth Furnaces Coppers Leads Ovens c. set in Morter or Stone nor Trees nor Grass growing c. Bro. Exer. 65. Cowel Inst pag. 140. Co. 4. Rep. fol. 62. Swin part 3. sect 6. Noyes Max. pag. 106. 175. But Corn growing on the Land at the time of the Testators death may be devised by VVill by those who are seized in Fee-simple fee-Fee-tail or for life and also by Tenant in Dower Tenant by the Curtesie and Tenant in Mortgage and their Tenants and he who is seized in right of his VVife although theiâ— Estates do determine before the said Corn be ripe and severed except in some special Cases Perkins sect 512 514 522. Dr. Stud. li. 1. cap. 20. 176. If a woman Tenant in Doweâ— sow her Land and afterwards marry and the Husband dyes before severance of the Corn in this Case it remains to her and he cannot devise it but if it had been sown after the Marriage he might have devised it Clerk of Assize pag. 57. Abr. Dr. Stud. li. 1. cap. 20. 177. If Tenant for life have Hops growing and dye a little before the severance of them in this Case the Executors or Administrators shall have them and not he in Reversion or Remainder for the Hops are accounted as Emblements they growing by Manurance and Industry of the Owner by the making of Hills and setting of Poles Vide Miâ—h 11 Car. 1. B. R. Latham and Attwoods Case Cro. 1 part fol. 396. 178. As Goods and Chattels may be devised as aforesaid it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his VVill observe therefore that if the Testator have neither VVife nor Childe at the time of his death hâ— he may then dispose and devise alâ— the cleer residue of his Goods and Chattels over and above the discharging Funeral-expences and hiâ— debts Lindwood in C. Statut. dâ— Testament li. 3. Pro. Const. Cant. verbum defunct Brac. li. 2. cap. 26. Swin part 3. sect 16. 179. But it is the custom of many places especially within the Province of York that if the Testator have a Wife or Childe at the time of hiâ— death that then he can but dispose of half of such his cleer Goods and the other half is to go to the Wife or Childe and if he have both a Wife and Childe or Children at the time of his death then the Goods are divided into three parts whereoâ— one part is to the VVife another
to give an hundred pounds doth give but fifty pound in these cases the Legatary may recover as much as the Testator did mean and intend to give be it more or less then the sum mentioned Swin part 7. sect 5. num 13. 217. If the Testator bequeath an hundred pounds to the Church not mentioning what Church it shall then be understood of his Parish-Church or if he name a Church and there be divers there of the same name and none of them his Parish-Church then the Executor if he prove the Will or the Ordinary if he refuseth may bestow the same on which Church he will but if the Testators Parish-Church be of the same name it ought then to be bestowed there Mich. Grass thesaur com opin sect Legat. q. 64. Swin part 7. sect 8. Franc. Mantiâ— de conject ult vol. li. 8. tit 6. 218. Where the Testator doth bequeath one half of his Goods to one person and makes another his Executor willing and appointing that all his Goods shall be divided betwixt them in this case the Legatary shall have half before debts paid and the Executor the remainder after debts paid as where the Testator hath Goods to the value of an hundred pounds and oweth twenty pounds out of the same here the Legatary shall have fifty pounds and the Executor shall pay the twenty pounds debt out of his half 5 Mariae Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swin part 7. sect 10. Cowels Inst. pag. 146. 219. If a man bequeath twenty pounds to A and twenty pounds to B and twenty pounds to C and makes his Executor and dyes having Goods in all but to the value of twenty pounds of which Goods the Executor makes an Inventary in this case he may pay which of the three he pleases his whole Legacie and the other two are without remedy or he may if he please pay every one of them a rateable part and if in case the Executor make no Inventaâ—â— yet he is chargeable no further â—â—en the value of the Goods and so 〈◊〉 every Legatary in such case should 〈◊〉 him they must prove sufficiency of goods or otherwise they should â—et nothing Plo. com fol. 545. in Case â—ter Parham and Yardly Dr. and â—ud li. 2. cap. 10. 220. If the Testator say I will â—at A B shall have an Horse here 〈◊〉 Election belongs to the Legatary but if he had said I will that my â—xecutor give to A B an Horse then the Election belongs to the Executor and if the words of Election be directed to neither of them then the Legatary shall make the Election if there be any such thing extant amongst the Testators good as is bequeathed and if not then the Executor is to make the Election and in case where the Legatary chuseth he must not take the very best unless there be no more but two of the things extant for then he may chuse the best and so he may do when the Testator grants him the Election and as the Legatary may not chuse the best neither may the Executor obtrude the worst of those things extant and where there is no such thing extant then the Executor iâ— to provide a competent thing for thâ— Legatary Mich. Grass thesaur com opin sect Legat. q. 62. num 2 and Mins in D. sect si generaliter num 〈◊〉 Swin part 7. sect 10. Co. on Litt. fo 144. b. 221. If the Testator bequeat two Horses to two Men having 〈◊〉 more and one of them is a greaâ— deal better then the other in this case he that is first named in the Testament shall have the Election Co. on Litt. fol. 144. b. 2 H. 7 23. Swin part 7. sect 10. 222. If the Testator give to A B twenty pounds if he will in such case A B must express his willingness by some means or else the Legacy is not due and if he die before such expression then the Legacy is lost and shall not go to his Executors or Administrators which otherwise it would if no such condition had been expressed Swin part 4. Sect. 6. num 7. 223. If an Executor have a Legacy left him by his Testator and refuseth to stand to the Executorship in such a Case he looseth his Legacy Gribald Thesaur com opin verb. Tutor Swin part 6. sect 2. in sine Refor Leg. Eccles Tit. Testament C. 23 and 24. 224. But if the Executor be not duly admonished to take the Executorship upon him then if he be the Testators Kinsman or such a person to whom the Testator would have given the Legacy though he did not perform the Will and take the Office upon him in such case he shall not loose the Legacy then by his refusal of the Executorship neither shall the Wife loose her thirds nor the Children their filial Portions nor the Creditor his debt if any of them be made Executors and refuse to take the Office upon them Swin part 6. sect 3. num 15. Sichard in lib. Si legatarius cap. de legat 225. If a man by his Will devise all his Lands and Tenements to A B in this case not only all his Land and Tenements which the Testatoâ— hath in possession do pass but also those which he hath in reversion also by vertue of the word Tenements Terms of the Law verb. Devise Cowels Inst pa. 144. Swin part 4. sect 4 num 19. 226. But if the Testator have both Lands in Fee and Lands in Lease for years and deviseth all his Lands and Tenements in such case the Lands in Fee only pass and not the Lands in Lease for years but if he have none but lands for years in Lease only then those lands shall pass by vertue of such devise Tr. 7 Jac. B. R. Rose and Bartlets Case Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99. 227. If lands be devised to a man to have to him for evermore or to have to him and his Assigns in both these cases a Fee-simple doth pass to the Devisee but if such a Gift or Grant were made by Deed it would carry an estate but for life without the word Heirs were in it Perkins sect 557. M. 22 E. 3. Devise 20. Terms of Law verbum Devise Swin part 4. sect 4. num 19. 228. Also if a man devise his lands to another to give or sell or do therewith at his pleasure here he hath a Fee-simple also and if lands be devised to one and his Heirs males this shall amount to an Estate in tayl but if such words be in a Feoffment it shall be taken for a Fee-simple because it doth not appear of what body the heirs Males shall be begotten Terms of the Law verb. Devise Co. on Lit. fol. 9. b. Swin part 4. sect 4. Cowels Inst pag. 144. 229. Also if one devise to an Infant in the Mothers womb it is good but such a Feoffment Gift or Grant is void and if one will that his Soâ— shall have his
goods come to the hands of the Ordinary he is not chargeable by the Law but if any come to his hands and possession and he will neither Administer and pay the Debts and Duties himself nor commit Administration to the Friends and Kin of the Intestate that would then he is chargeable by the Law for so much as comes to his hands and is lyable to the same Actions as other Administrators are But the Ordinary cannot have an Action of Debt Covenant nor any other Action which belonged to the Intestate but he to whom he commits Administration may so that he is subject to the charge and trouble of an Administrator but is excluded from the priviledges belonging to an Administrator 7 H. 4. fol. 18. F. N. B. 92. a. Co. 2 part Inst fol. 398. West 2. C. 19. Fynches Law pag. 174. 388. If an Action of Debt be brought against the Ordinary for a Debt of the Intestates after notice given him of the same he may not Administer to others if he have not sufficient to satisfie that debt M. 7 El. Dyer fol. 233. 389. If the Ordinary take goods of the Intestates into his hands and after commits Administration and notwithstanding still retains the goods in this case he shall be charged still as if he had not at all committed any Administration 11 R. 2. Admin 21. Co. 2 part Inst fol. 398. 390. Where the Ordinary doth take goods of the Intestates being out of his Diocess here he shall not be charged as Ordinary but as Executor in his own wrong 12 R. 2. Admin 21. Co. 2 part Inst fol. 398. 391 If the goods of the Intestates come to the hands of the Ordinary and he dyeth his Executors or Administrators shall be charged in an Action of Debt by the Stat. Westmin 2. C. 19. Westmin 2. c. 19. Co. 2 part Inst fol. 398. Regist fol. 141. 11 E. 3. Exec. 177. 392. Having spoken before concerning a Codicil I thought good here to insert the usual form thereof as followeth viz. 393. Be it known unto all men by these presents That whereas I Henry Walker of R. c. have made and declared my last Will and Testament in writing bearing date c. I the â—aid Henry Walker by this present Codicil do confirm and ratiâ—ie my said last Will and Testament and do give and bequeath unto Roger Myton of Lympton my best Suit of Clothes and my Will and meaning is that this Codicil or Schedule be and be adjudged to be part and parcel of my said last Will and Testament and that all things herein contained and mentioned be faithfully and truly performed and as fully and amply in every respect as if the same were so declared and set down in my said last Will and Testament In Witness whereof I the said Henry Walker have hereunto set my Hand and Seal this 25th day of July in the 19th year of the Reign of our most gracious Soverain Lord King Charles the Second and in the year of our Lord God 1667. FINIS The Table A ADministration how and to whom it must be granted Sect. 354 355 356 357 358 359 360 370 371 382. What Actions â—ye for or against an Administrator Sect. 374 375 376 379. Administration during Minority of an Executor when it shall cease Sect. 274 276 277. The Power and Authority of such an Administrator Sect. 275. What shall be Assets in the hands of an Executor or Administrator and what not Sect. 252 281 282 284 285 296 297 298 299 300 378 380. How and before whom the Executor or Administrator is to pass his Account Sect. 345 346 347 383 384. Appeals when how and before whom to be made Sect. 361 362 363 364 365 366 367 368 369. B. BOna Notabilia what they are and what to be done in such case Sect. 341 342 344. Bona Peraphernalia what is meant thereby Sect. 315 316. C. COdicil what it is Sect. 22 23 24 25 50. The form thereof Sect. 393. Conditions how many sorts thereof Sect. 117. When they must be performed by an Executor or Legatary and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. D. WHat things are deviseable by Will and what not Sect. 162 163 164 165 166 167 168 169 170 172 173 174 175 176 177 318. What passes by a Devise of Omnia bona Sect. 191 192. What passes by a Devise of Omnia Cattalla Sect. 193 194 195. What passes by a Devise of moveable Goods Sect. 197. What passes by a Devise of immoveable Goods Sect. 198. What passes by a Devise of all Houshold-stuff Sect 199 200. What passes by a Devise of all Lands and Tenements Sect. 225 226 230. What words in a Devise of Lands make a Fee simple what a fee-Fee-tail what an Estate for life c. Sect. 227 228 229 231 232 233 234 235 236 237 238 239. E HOw many kindes of Executors Sect. 243 244 245. What time the Executor is to have to accept or refuse the Office Sect. 311. In what things the Office of an Executor doth consist Sect. 248 312 321. When an Executor shall be compelled to stand to the Office and when not Sect. 249 250 256 257 305 306. Where divers are Executors when the Action must â—e in all their names and when not Sect. 253 255 260. Who may be an Executor and who not Sect. 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106. The several ways of appointing an Executor Sect. 112 113 114 115 116. An Executor conditionally appointed when he must perform it before he can be admitted to the Office and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. What Actions lye for Executors and what against them Sect. 271 272 273 286 293 301. What Acts of an Infant-Executor do binde him and what not Sect. 278. When Executors may refuse the Office and afterwards accept of it and when not Sect. 254 256 257 258 259. VVhat Acts shall make a man Excutor in his own wrong Sect. 308 310. Executor in his own wrong how far he is chargeable Sect. 307. After what order Executors are to pay debts Sect. 292 294 29â— VVhen Execution shall be of the Executors own Goods and when not Sect. 302 303 304. VVhen a Debt shall be extinguished and when not Sect. 286 287 288 377. F. WHat Fees are legally due for Probat of Testaments and granting Administrations Sect. 332 333 334 335 336 337 338. I. WIthin what time the Inventary of the deceaseds goods is to be exhibited Sect. 313. The form and manner of making an Inventary Sect. 314. VVhat goods are put into the Inventary and what not Sect. 315 317. The benefit of an Inventary Sect. 319. L. AFter how many several ways a Legacie may be given Sect. 182 183 184 185. VVhere a Legacie must be sued for Sect. 187 188 189 241. A Legacie conditionally given in what cases the Legatary must perform the Condition before he can obtain the Legacie and in what Cases he need not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. VVhen the Legatary may enter and take his Legacie without leave of the Executor and when not Sect. 186 196. How and after what manner Legacies are to be paid when the Legatary shall recover the whole and when but a part of the Legacie Sect. 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219. VVhen the Legatary shall have the Election or choice of the Legacie and when the Executor shall have it Sect. 220 221 222. In what Cases a Legatary forfeits his Legacie and what not Sect. 223 224. Lands left to be sold by the Executors in what cases they must joyn in the sale and in what cases they need not Sect. 261 262 263 264 265 266 267 268 269 270. M. MOrtuaries where duâ— and what to be paid for the same Sect. 348 349 350 351 352. O. ORdinary who and what he is Sect. 353. VVhat Interest he hath in the Intestates goods that come to his hands Sect. 385 386. What Actions lye for or against the Ordinary Sect. 387 388 389 390. P. THe custom of the Province of York concerning Childrens Portions Sect. 151 152 153 154 155 156 157 158 159 160 178 179 180 181. What is meant by the word Portion Sect. 161. Probat of Testaments before whom they must be Sect. 321 322 323 324 342. How many ways Testaments may be proved Sect. 325 326 327 328 339. T. TEstament the derivation thereof Sect. 1. It s difference from a last Will. Sect. 2 110 111. The several kinds and forms of Testaments Sect. 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20. Who may make a Testament or Will and who not Sect. 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85. VVho may be Tutor or Guardian and who not Sect. 144 145. How and by whom a Tutor may be appointed Sect. 146 147 148 150. Their Office Sect. 149. W. WHat shall be a good VVill and what not Sect. 31 32 33 34 35 36 39 40 41 42 43 44 45 46 47 48 49 51 53 54 55 56. VVat shall be a good VVill to pass Lands and Tenements Sect. 6 37 38 52. The difference between a Testament and a VVill. Sect. 2. The definition of a last Will. Sect. 21. VVhat number of VVitnesses required for proof of a last VVill or Testament Sect. 26 29. VVhat VVitnesses may be excepted against in such a case and what not Sect. 27 28 30. FINIS
to the Childe or Children and the other third part called the deathâ— part is left to his disposing and it no disposition be made thereof it falls to the Executor but note here that if the Childe or Children were Heir to the Testator or were advanced by the Testator in his life-time then the Testator may devise one half of the cleer goods and the other half shall go to his VVife F. N. B. Bre. de Rat. part bonor Bro. eod tit N. 6. M. 7. E. 4. fol. 21. a. Brac. li. 2. cap. 26. Fleta li. 2. cap. 50. Glan li. 2. cap. 20. Co. 2 part Inst fol. 33. Swin part 3. sect 16. Refor Legum Ecclesiast tit lest cap. 10. 180. Note where the VVife and Children ought to have a rateable part of the Goods of the deceased be it third part or half as the case is there also they ought to have a like part of the debts due by the deceased after they are recovered by the Executor or Administrator but of Leases they can have no rateable part where they use to have a rateable part of the moveable Goods and Debts recovered unless it be by special custom of the City County Deanry or place where the Testator dwelled and had such Leases Swiâ— part 3. sect 16. F. N. B. Breve de Rationabl part bon 181. This rateable part of thâ— Goods to the Wife and Children iâ— saved to them by the Statute of Magna Charta but note the Wife oâ— Children cannot sue the Executor oâ— Administrator for their rateable parts till all the Testators Debts bâ— paid and then what remains is to be divided according to the Ruleâ— aforesaid into two or three parts before any Legacies be paid foâ— they must all be paid out of thâ— deaths part after the division Magna Charta C. 18. Regist. fol. 142. 〈◊〉 F. N. B. 122. b. M. 7. E. 4. fol. 21. aâ— Co. 2 part Inst fol. 33. CHAP. VIII Several Cases concerning the bequeathing of Legacies and also touching Devises 182. AS an Executor may be appointed divers ways as is â—newed before chap. 5. so also a Legacie may be given after divers ways either simply or conditionaly c. Swin part 4. sect 3. num â— 183. That Legacie is said to be pure and simple which is given without a condition annexed to it and as in appointing an Executor it matters not after what form of words it be so it is in the bequeathing of a Legacie for it skills not after what form the same be given so that the Testators meaning do but appear whether it be in Goods and Chattels or Lands and Tenements Swin part 4. sect 4. num 18. 184. Note that a Legacy may be given from a certain time or until a certain time albeit the Legatary dye in the mean time before the day come yet the Executors or Administrators of the Legatary may recover the same when once the day is past as the Legatary himself might have done iâ— he had lived so long unless thâ— meaning of the Testator be to thâ— contrary or that it be such a thing as cannot be transmitted to the Executor as personal service but if thâ— Legacy be given after an uncertaiâ— time as where the Testator give thee an hundred pounds when hâ— Son shall dye or the like there 〈◊〉 thou dye before the time come thâ— Executors or Administrators caâ— then recover nothing So note thâ— diversitie Mich. Grass thesaur com opin sect Legat. quaest 43. Mantâ— ca de conject ult volunt li. 11. tit 2â— num 8. Swin part 4. sect 17. Refor Legum Eccles tit Testament cap. 26. 185. If a man devise to his Daughter an hundred pounds when she shall be married or to his Son when he shall be of the Age of twenty one years here if they dye before the time appointed their Executors shall not have it But if the devise were of an hundred pounds to the Daughter to be paid her when she shall be married or to the Son to be paid him when he shall attain the age of twenty one years in such case if they dye before such time then their Executors may recover the Legacy Tr. 1653. B. R. in Dumlowe Shawes Ca. Hughes grand Abridg. 1 part pag. 664. cap. 14. 186. Note that a Legatary may not of his own Authority take the Legacy and serve himself but must receive the same at the hands of the Executor except in some cases as where the Legatary is possessed of his Legacy at the time of the Testators deaths for in such cases he may retain and keep it if there be sufficient assets besides in the Executors hands to pay the Testators Debt or if the Testators give license to the Legatary to enter to his Legacie then he may do it without the Executors consent and if he be both Legatary and Executor then he may serve himself Perkins sect 488. Hernes Law of Con. pag. 88. Socin Jun. Consil 111. vol. 1. Swin part sect 4. num 23. Perkins sect 570 572 573. 187. But the Legatary hath no remedy by the Common Law for any Legacie of goods to him bequeathed if the Executor will not deliver the same but he must in this case have a Citation for the Executor to appear before the Ordinary or other competent Ecclesiastical Judge to answer him in cause of his Legacie except in case where a particular thing is bequeathed as the Testators Horse or Signet c. and in such case the Legatary may sue at Common Law for the same Bro. devise num 3 6 14 27 30. Terms of the Law verbum Devise Swin part 4. sect 4. num 23. 188. Also if the Testator will that his Executors shall sell his Land and pay such and such Legacies out of the Moneys in this case the Legataries may sue at Common Law and not in the Spiritual Court for their Legacies Mich. 5 P. M. Dyer fol. 151 152. Vide M. 29. 30 Eliz. C. B. Germyes Case Leon. Rep. fol. 87. Tr. 17 Jac. C. B. Rott 895. Edwards Graves Case Hob. Rep. fol. 265. 189. But if the Legacies he granted to be paid out of Leases and not out of fee-simple-Fee-simple-Lands then the Legatary may sue in the Spiritual Court for such Legacie Brownlowes 1 part Rep. fol. 34. 190. Testamento cum duo inter se pugnantia reperiuntur ultimum raâ—um est If there be divers devises of one thing in one Will the last devise taketh place only Co. on Litt. fol. 112. b. 191. If the Testator bequeath to A B all his Goods in this case it is the opinion of some that A B shall have the Testators whole Estate actively and passively onely his Lands Tenements and Freehold excepted being in effect his Executor or Heirs as the Civil Law terms him and is hereby chargeable with the Testator debts so far as the Goods will extend Gloss in L. his verbis sect de Haered Instit Swin part 7. sect 10. 192. But others are
of opinion that if a man grant omnia bona that is all his Goods in this case Leases for years nor a Ward noâ— things in Action as debts upon Promise or Obligation shall not paâ—â— thereby for these are Chattels 4. E. 6. Bro. tit Grants 51. Done 43. Kitchin pa. 44. b. 193. But if the Testator do bequeath to A B all his Chattels in such case he shall have the Testators whole Estate Leases and Wards too for Cattalla includes all but freehold as well immoveable as moveable Standford de praero Regis cap. 16. Kitchin Court Leet pag. 45. a. 46. a. Swin part 7. sect 10. 194. But note that A B by such devise shall not have Glass of the Widows Wainscote Tables dormant Fat 's in the Brew-house fixed to the Free-hold nor Furnaces nor the Box or Chest wherein the Testators Evidences are nor Hawks nor Hounds nor Doves in the Dove-house nor Fishes in the Pond nor Deer in the Park for these things belong all to the Heir Fynch pag. 22. Noyes Max. pag. 101 and 107. Vide Hill 43 Eliz. C. B. Gray and Trowes Ca. Goldesboro Rep. pag. 129. pl. 24. 18 E. 4. fol. 14. 4 H. 7 10. And 21 H. 7 26. Kitchin pag. 45. b. 46. a. 195. Note also that if A B dye before he have proved the deceasedâ— Will wherein he bequeaths to him all his Goods or all his Chattels as foresaid yet in such case Administration shall be committed to the next of Kin to the said A B and not to the next of Kin to the Testator 23 Eliz. Dyer fol. 371. Swin part 4. sect 10. 196. But if the Testator in either of the cases make another man Executor then the Legatary shall not enter into the whole Estate of the deceased but the Executor proving the Will is to enter and may receive or sue for all the debts due to the Testator and stands also chargeable with the payment of the Testators debts and what remains is due to the Universal Legatary Mich. Grass thesaur com opin sect Inst q. 14. num 3. Swin part 7. sect 10. 197. If the Testator bequeath to A B all his moveable goods here the Legatary may recover all the Testators personal Goods and Cattle both quick and dead which either move themselves as Horses Sheep Oxâ—â—â— Swine c. or can be moved by another as Houshold-stuff Plate Plough-geer Waynes Carts Corn in the Barnes or Garners and also Corn growing on the ground And such Debts as were due to the Testator and did arise by reason of such moveable things and for recovery whereof there lyeth an Action personal do belong also to the Legatary but the Legatary cannot sue for the same in his own Name if another man be made Executor but the Executor must sue for the same and after recovery deliver the same to the Legatary Paul de Castrens Consil 132. vol. 1. Socin Jun. Consil 60. vol. 1. Stamf. 45. Swin part 7. sect 10. Noyes Max. pag. 99. Mich. Grass thesaur com opin sect Legat. quaest 19. 198. But where the Testator doth bequeath to A B all his Goods immoveable here the Legatary hath right onely to the Leases for years which did belong to the Testator and to such benefits as arise thereby as Fruit on the Trees Grass growing on the Ground Fishes in the Pond and Pigeons in the Dove-coate as appurtenant to the Grounds demised or as parcel of the Fruits of the Tenements which if they were out of Lease did belong to the Heir but as to Corn growing on the Ground or other Fruits industrial as Hemp Lyne c. Turneps Carrets or other Roots they are accounted amongst the moveable Goods and such Legatary shall not have them but he shall have such Debts as were due to the Testator by reason of something immoveable as Rents due out of Leases or Arrearages of Rents due out of Lands Tenements and Hereditaments but he cannot Commence Suit in his own Name if another be made Executor as is shewed before number 197. Cowels Interp verb. Chattels Kelloway Rep. fol. 118. Stamf. cap. 16. fol. 45. Mich. Grass thesaur com opin sect Legatum q. 19. num 5. Swin part 7. sect 10. Bro. Executor 49. 199. If the Testator bequeath to thee all his Houshold-stuff in this case thou shalt have all his Tables Forms Stools Chairs Truncks Chests Cupboards Bedsteads Curtains Vallence Rugs Blankets and all manner of Bedding and also Hangings Carpets and all manner of Linen as Sheets Table-cloths c. Basons and Ewers Candlesticks Salts Flaggons Pottingers Sawcers c. Bowls Barrels and all manner of Vessels serving for meat or Drink whether they be of Earth Wood Glass Pewter Brass or Silver or Gold if they were used in the daily service of the House and not kept for Ornament onely and also Pots Pans Spits Racks and the like and lastly Coaches by some are held to pass by the name of houshold-stuff Menoch de praesumpt li. 4. praesump 160. num 8 16 17 and 19. And Praesump 122. num 21. Panor Consil 88. vol. 2. num 3. Swin part 7. sect 10. 200. But Apparel Books Weapons Artificers Tools Cattle Victuals Corn in the Barne or Granaâ—y Waynes Carts Ploughs c. and Vessels affixed to the Free-hold do not pass by the name of Houshold-stuff Menoch de Praesump li. 4. Praesump 160. num 29 and 33. Labeo and Gloss de Supellectil Swin part 7. sect 10. 201. If the Testator having store of young Colts willeth his Executor to give to A B two Colts of the age of two years and after the making of his Will liveth many years in this case there is due to the Legatary two of the first Colts which were extant at the time of the Will making and not of the last Colts at the time of his death Franc. Mantica de conject ult volunt li. 3. tit 11. Menoch de Praesump 127. num 6. li. 4. Swin part 7. sect 11. 202. And if the Testator bequeath to A B all his Goods which are in such a place and afterwards he brings more Goods thither and then dyes here the Legatary shall have onely those Goods which were there when the Will was made and not those Goods too which were brought thither afterward Menoch de Praesump 127. num 29. li. 4. Swin part 7. sect 11. 203. But if the Testator had said I bequeath to A B all my Goods which shall be in such a place or all my Goods which may or can be found in such place here all the Goods in that place at the time of the Testators death are due to the Legatary though they were brought thither by the Testator after the making of his Will Franc. Mantica de conject ult Volunt li. 3. tit 11. num 12. Menoch de Praesump 127. num 87. li. 4. Swin part 7. sect 11. 204. If the Testator bequeath to A B his Heard of Cattle and there is but one left at the time of his death in this case
the two Chief Justices and Chief Baron or two of them shall have power to make such Writs to be directed to such Sheriffs as to them shall seem fit to make Proclamation in such places within twelve days after the delivery of the said Writs as to the said Chancellor by advice aforesaid shall seem reasonable that the Offenders appear in the Kings Bench at the day limitted in the Writ which Proclamation shall be made fifteen days before the day of appearance when if the Offender appear not he shall be attainted of Felony and if he appear the Justices shall commit him to prison there to remain until he have answered the Executors in their Actions and the same Actions be determined provided that they be pursued with effect and not slackly but if the Offenders procure two sufficient men to be bound with them in Recognizance to the Executors in the same Court where they stand committed to keep such day as they shall have by the Court then the Justices there may bail them and if the Goaler let them go at liberty without the Justices Order he forfeits forty pounds Stat. 33 H. 6. cap. 1. Wingates Abr. Stat. tit Executors 310. If any person shall obtain any Goods or Debts of an Intestate or Releases or other discharge of any Debt or Duty which belonged to the Intestate by fraud as by procuring the Administration to be granted to a Stranger of mean Estate and not to be found with inâ—ent thereby to obtain the Intestates Estate and not upon valuable consideration or in satisfaction of some just Debt answerable to the value of the Goods so obtained in such Case such person shall be chargeable as Excutor of his own wrong so far as the value of the Goods or Debts so obtained shall amount unto howbeit he shall also be allowed such reasonable deductions as other Executors or Administrators ought to have 49 El. cap. 8. Winga Abr. Stat. tit Executors 311. Note that the time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship is left to the discretioâ— of the Ordinary who not only within the year allowed by the Civiâ— Law but within a Moneth or two may cite him to accept or refuse the Office Swin part 6. sect 4. Refor Lâ—gum Eccles tit de Testamentis cap. 34 pag. 143. CHAP. X. Of making of an Inventary proving of the Will with the Fees thereof and before whom it ought to be proved and of passing an Account and paying of Mortuaries 312. WHen an Executor intends to accept of the Office it behooves him to make an Inventary of the Testators Goods for if he meddle with the Goods and refuse to make an Inventary he may be punished by the Ordinary but he may meddle with the Goods as to the discharging of Funerals or disposing of such things as cannot be preserved and kept till the time of making the Inventary Swin part 6. sect 6 and 8. 21 H. 8. cap. 5. 313. And as for the time of making the Inventary it is left to the discretion of the Ordinary who may appoint a longer or shorter time according as the distance of the place where the Goods remain or other circumstances shall minister occasion Lyndwood in C. Stat. verb. Arbitrio Swin part 6. sect 8. num 1. 314. And as for the form thereof it ought to be made by two at the least to whom the Intestate was indebted or left any Legacie and upon their refusal or absence two or more other honest men may by the Executors appointment make the Inventary of all the Goods and Chattels Rights Wares and Merchandises as well moveable as not moveable whatsoever that were of the person deceased and the same must be Indented whereof one part is to remain with the Executor and the other with the Ordinary where the Executor must swear that the same is true and the usual course in making of such Inventaries is first to set down moveable Goods beginning with his Purse and Apparel then Houshold-stuff as it stands in every Room beginning in the Hall and so from Room to Room in order throughout the House then Corn in the Barnes or Garners or ready sown in the Fields then Cattle Husband-geer as Ploughs Carts c. then in moveable Goods as Leases of Lands or Tenements and after that the Debts due to the Testator and oftentimes at the lower end of all the Debts owing by the Testator to other persons 21 H. 8. C. 5. Franc. Porcel Trac de Inve Swin part 6. sect 9. Refor Legum Eccles C. de Testamentis sect 20. 315. Note that the Goods in the Inventary ought to be particularly prized and valued according to reasonable prizes and not hudled up together several things in a gross sum but those Goods which do belong to the Heir after the Testators death must not be put into the Inventary neither may those Goods called Bonae Peraphernalia which is the Wives convenient Apparel agreeable to her Quality be put into the Inventary nay such is the general custom within the Province of York that Widows are there not onely tolerated to reserve to their own use their convenient Apparel and a convenient Bed and Furniture but also a Coffeâ— or Box with divers things therein as Jewels Chains Borders and other things necessary for their own persons Swin part 6. sect 9. num 5. Johannes Garsi Tract de expensis fol. 182. Perkins sect 526. Noyes Max. pag. 107. Swin part 6. sect 7. 316. Certain Jewels to the value of 500 Marks were allowed to a Viscountess as her Peraphernalia and accounted but a reasonable allowance for one of her degree Viscountess Bindons case Abr. Mores Rep. pag. 72. pl. 338. 317. But note if the rest of the Goods will not suffice to pay the Husbands Debts then are the Wives Jewels Chains Borders and such-like being things of Decency or Ornament and not of Necessity to be put into the Inventary amongst other Goods of the deceased towards the payment of his Debts Swin part 6. sect 7. num 5. in fin 318. Note also that the Husband may Devise such Chains and Jewels c. though he leave sufficient Assets besides to pay his Debts and in such case the Wife shall not have them as her Peraphernalia but if the Husband make no Gift or Devise of them and leave Assets besides to pay his Debts then the Wife in such case may keep them in despite of the Executors or Administrators Tr. 8 Car. 1. B. R. Lord Hastings and Sir Archibald Douglas ca. Cro. 1 part Rep. fol. 251 252 253. And See Davenports ca. 5 Car. 1 in Chancery Compl. Attor pag. 305. 319. If any Creditor or Legatary do affirm that more Goods came to the Executors hands then are named in the Inventary he must prove it for otherwise Credit is to be given to the Inventary Maschard de probac. Conclusio 939. Swin part 6. sect 10.