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
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
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
testa In so much that †if afterwardes hee doo escape yet the testament made whiles he was with the enemie is voyd b) Ead. L. eius But if †his testament were made before his captiuitie then after his escape the testament is of like force as if he had not beene captiue c) L. ratio ff de captiuis Grass Thesaur coÌ„ op §. testmÌ„ q. 25. vbi haÌ„c opinionem communiter approbatam oftendit Likewise if the testament were made before he were apprehended and the testator die in captiuitie yet is the testament allowed and the executor by force therof is to haue all his goodes here within this realme of England as if he had died the day before his captiuitie d) L. lege Cornelia ff de testa Likewise †if any person be taken as captiue by any Piratte Turke Infidell or Christian where warre is not proclamed hee that is so taken remaineth still a free man and therefore if hee make his testament whiles he is so deteined the testament is good and lawfull e) L. qui à latronibus ff de resta If a †lay man be condemned to perpetuall prison for some offence it seemeth that he can not make a testament f) Panor in Rub. de testmÌ„ extr Grass Thesaur com op §. testmÌ„ q. 28. cui tameÌ„ opinioni quantumuis communi non acquiescit Clar. §. testmÌ„ q. 23. but if †any person be imprisoned for dette such imprisonment being ordained for safety not for punishment he is not thereby disabled to make his testament g) Bald. in L. 1. C. si quis aliq testari prohib n. 5. sauing that the testameÌ„t is not good when it is made in his fauour at whose suite the testator is imprisoned of intent to extorte the same h) L. qui carcerem ff quod me caus Mantic. de coniect. vlt. vol. lib. 2. tit 7. n. 2. Of a vvoman couert 1 A maried woman cannot make her testament of lands 2 Especially not to her husband and wherefore 3 What if she be not constrained but doeth deuise the same freely of her owne accord 4 What if the testament be made before mariage 5 What if the testament being made during mariage she ouer liue her husband 6 Certain cases wherin the deuise of lands is good not withstanding the couerture of the testatrix 7 A wife cannot make her â—â—â—â—nent of goods without her husbands licence 〈◊〉 â—â—â—sent 8 The reason wherefore the wife cannot make her testament of goods without the husbands licence or consent 9 Whether it be necessarie that this licence or consent should goe before the making of the will or concur or may follow 10 Whether and when the husband may reuoke the licence giuen to his wife 11 Certaine cases wherein the wife may make her testament without her husbandes consent 12 Whether an Emperesse or a Queene may make a testament without the consent of the King or Emperour 13 Of that which is due to the wife whereof the husband was neuer possessed she may make her testament without his consent 14 A woman contracted in matrimony if the mariage be not solemnized may make her testament 15 A wife being executrix may make an executor to the former testator without her husbands consent 16 The reason of the former position 17 Whether a wife being executrix may make her husband executor in her place 18 A wife executrix may not giue away the testators goods by her will 19 A wife both executrix and legatarie cannot make a testament of that which she did accept not as executrix but as legatarie 20 The reason wherefore an executor can not dispose the testators goods by legacies 21 The reason wherefore a wife executrix and legatarie may not make her testament of that which she did accept as legatarie 22 Whether shall the wife which is bothe executrix and legatarie bee deemed to haue accepted of the testators goods as executrix or legatarie 23 Whether the wife being licenced to make her testament may make any moe willes but one §. ix A Maried †woman by the lawes and statutes of this realme can not make her testament of any maÌ„nors lands tenementes or hereditaments a) Stat. H. 8. an 34. c. 5. This conclusion is diuersly enlarged And first shee †cannot deuise the same to her husband b) Brooke Abridg. tit deuise n. 32. 34. the equitie of which prohibition If I may be so bolde with the good fauour of our temporall lawyers to insert the reason consideration of the ciuill lawe is not obscure For if this gappe were lefte open fewe children should succeede in the mothers inheritaunce c) L. 1. 2. 3. ff de donac inter vir vx But by howe much the husband were more cruel the wife more timerous he crafty she credulous by so much the more were the lawfull heire in daÌ„ger to be disherited and the cruel deceitfull husband in hope to be vnworthilye enriched and aduaunced Wherefore if the wife should deuise any her mannors lands tenements or hereditaments or any part therof to her husband this deuise were voide because the same is presumed to haue beene made by constrainte of the husband or other sinister meanes d) Brooke vbi supra SecoÌ„dly albeit †it did appeare by due proofe that the husband did not constraine his wife therevnto but that she of her owne accorde or free motion did make any such deuise either to her husband or to any other person by his consent yet is not the deuise good e) Ita saepius accepi à nonnullis huius regni iurisperitis non vulgaribus quos ipse velim consulas as well because the words of the statute are generall and where the lawe dooth not distinguish there may not we distinguish f) L. p. ecio ff de public in rem action as for diuers other reasons grounded in the common laws of this realme Thirdly albeit †the testament be made before the mariage yet she being intestable at the time of her death by reason her husband is theÌ„ liuing the testameÌ„t is voyd g) Arg. §. alio Institu quib mod testa infir for it is necessarie to the validity of a testament that the testator haue ability to make a testament not onelie at the time of the making thereof when the testament receiueth his essence or being but also at the time of the testators death when the testament receiueth his strength and confirmation h) d. §. alio §. non tamen Instit quib mod testa infir L. 1. §. exigit ff de bon poss secunduÌ„ tab Porcê° in §. in extra neis Instit de haered qual drÌ„ia Fourthly albeit †the wife doo ouerliue the husband yet the testament made duringe the mariage is not good i) c. Non firmatur de reg iur 6. L. 1. § j. de leg 3. the reason is yeelded before because she
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
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
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
Crowherst in the coūty of Surrie knight deceased Nor to the will or deuise of sir Peter Filpot knight deceased Nor the wil or deuise of Richard Creswel late of Mattingley in the countie of South gentleman deceased nor to the will or deuise of Thomas Vnton late of the countie of Berk. gentleman deceased sonne of sir Thomas Vnton knight also deceased or shal be in anie wise preiudiciall or hurtfull to anie person or persons for or concerning anie manours landes tenements or hereditaments conteyned or specified in the said willes or deuises or in any of them but that the said last willes and deuises and euery of them shall stande abide remaine and be in the same case force and effect in the law to all intents purposes and constructions as the said last willes and deuises and euerie of them were before the making of this act declaration and explanation and of none other effect or force this act declaration explanatiō or anie of them or anie thing therein contained to the contrarie thereof in anie wise notwithstanding Prouided alwaie and bee it enacted by the authoritie aforesaid that all and euerie person and persons from whom the king or other lord or lordes shall take anie manours landes tenementes or hereditamentes for his or their full thirde part or to make vp his or their third part shall and maie by authoritie of this present act in anie of the cases aforesaide vpon his or their bill exhibited in the kinges courte of Chauncerie against al and euerie such person and persons which shall be entitled by or vnder anie such will gifte disposition or deuise to the other two partes haue such contribution or recompence for the same as by the chancellour of England or by the keeper of the great seale of England for the time being shall be thought good and conuenient Of the deuise of goods and Chattelles 1 All manner of goods and chattelles may be deuised by will certaine cases excepted 2 The rule of the deuise of landes contrary to the rule of disposing of goodes §. v. COncerning the secōd kind of thinges deuiseable by testament namelie goods chattelles this may be deliuered for a rule That all manner of goods and chattelles maie be bequeathed or deuised by will or testament a. L. caetera ff de leg 1. §. tam corporales Inst de legat ibid. DD. Lindw in c. statutum de testa lib. 3. prouincial constituc Cant. Perkins tit deuise c. 8. fol. 99. certaine cases onelie excepted b) De quibus §. pro◠Which rule is cleane contrarie to the former of the deuise of lands tenementes and hereditamentes for they can not be deuised sauing where some custome or statute hath gained libertie of bequeathing or deuising of the same c) Vt supr ead part §§ 2 3 4. But here in steede of the Negatiue rule is set downe the Affirmatiue the exceptions of which rule are prosecuted in the next Paragraphe Diuers kindes of goodes not deuiseable by will 1 Goods which a man hath iointlie with an other can not be deuised by will 2 What if the other ioint-tenannt be made Executor whether is the bequest good 3 Goods which a man hath as administratour cannot be giuen by will 4 Euerie administrator accomptable to the ordinarie 5 Difference betwixt the executor and the executor of an administrator 6 Goods of the realme that is to saie of the auncient crowne and iewelles can not bee giuen by will 7 Goodes belonging to a church or hospitall can not be deuised 8 Goodes belonging to a citie boroughe or communaltie can not be deuised 9 Church goodes can not be deuised 10 Things which descend to the heire and not to the executor are not deuiseable by will 11 Whether the corne growinge vpon the grounde whereof a man is seased in right of his wife be deuiseable 12 Whether corne on the ground be deuiseable by the lessee the lessor being seased in right of his wife 13 Corne growing deuiseable by the tenaunt by the curtesie of England 14 Corne growing deuiseable by the tenaunt in dower 15 Whether corne growing on lande morgaged bee deuiseable 16 Whether corne growing maie be deuised by the testators daughter where a sonne and heire is afterwardes borne or wherein the mother dooth recouer her dower 17 The testator cannot bequeath that which is an other mans §. vj. FIrst a man can not giue or bequeath by wil any of those goods or catelles which he hath iointlie with an other for if he should bequeath his portion thereof to a third person this bequest is voide by the laws of this realme a) Perkins tit deuise fol. 101. Doct. Stud. lib. 1. c. 6. licet ius ciuile contrarium dictet L. cùm alienum C. de legatis and the suruiuor which had those goodes or cattelles iointlie with an other shal haue that portion so bequeathed notwithstanding the said will b) Hoc verum iure regni nostri Angliae Doct. Stud. lib. 2. c. 25. secùs iure ciuili vt latè per Olden de action class 4. action pro socio In so much that if the testator make the other iointenaunt his executor against the which executor an action is commenced in the ecclesiasticall courte in a cause of legacie neuerthelesse the executor is not to be adiudged to possesse the said goodes as executor or by right of the will but by the title and right of the suruiuor c) Doct. Stud. lib. 2. c. 25. and so the executor is to be dismissed and the will in that respect to be iudged voide d) Vide supr ead part §. 3. n. 8. Secondlie an administrator can not make a testament of those goods which he hath as administrator to anie person dying intestate e) Brook tit administrator n. 7. Fitzherb eod tit n. 3. because he hath not anie such goodes to his own proper vse f) Plowd in cas inter Bransby Grantham fol. 525. 526. but ought there withall to paie the debtes and legacies of the dead person and to distribute the rest if anie thing doe remaine in Godlie and charitable vses g) c ita quorundam de testam lib. 3. prouinci const Cant. stat Ed. 3. an 31. c. 11. and for that cause euerie administrator is accomptable to the ordinarie for such distribution of the goods of the deceased committed to his administration h) d. Stat. Ed. 3. an 31. c. 11. And albeit an executor of an executor maie administer the goodes of the former testator i) Stat. Ed. 3. an 31. c. 25. yet the executor of an administrator can not administer the goodes of the former deceased but a new administration is to be cōmitted by the ordinarie of all the goods vnadministred by the late administrator as if he had also died intestate any testamēt or assignatiō of an executor by him notwithstāding k) Brook Abridg. tit administ n. 7. Principall grounds fol. 61.
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
to say iust age for full and perfect age (d) L. Filius-familias de leg 3. ff Rebuss in L iusta de verb sig and so iuste waight iust measure iust number for full and perfect waight measure number (e) Couar in Rub. de test ext pri part n. 4 ciusd farinae estquod ibi dicitur Iustus exercitus iusta classis iusta pugna iustae stationes iustuÌ„ volumen iustus error c. Adde quod scribit Minsing in Rub L. de testa lib 2. institu iur Ciuil The †word Iuste being thus vnderstoode that is to say for full and perfect all testamentarie defectes and imperfections are thereby excluded Wherfore the testament ought to be full compleate and perfect otherwise being an vnperfect testameÌ„t it is said to be no testaments (f) §. Ex eo instit Quibus mod test infir The †testament is said to be imperfect in two respects vz. in respect of Solemnitie and in respect of Will or meaning (g) Bar. alij in L. hac consultissima §. ex imperfecto C de testa Boer decis 240. The †testament is imperfect in respect of solemnitie wherein some of the Legall requisites necessarie in the making of a testament be wanting (h) Sichard in d. §. ex imperfecto Hereupon diuers writers haue interpreted the worde Iust in this definition to signifie Solemne (i) Viglius in tit de testa ord inst n. 29. Mins eod n. 5. Sichard in Rub. de testa C. n. 2. that is to say furnished with such due rites and formalities as the law requireth Howbeit †all the superfluous solemnities of the Ciuill lawe are vanished out of this kingdome of Englande Onely those solemnities remaine which be Iuris Gentium (k) Infr. ead parte §. 9 So that with vs it is sufficient to the effect of executing the testament that the will and minde of the Testator doe appeare by two sufficient witnesses (l) â— Lindw in statâ—â—tum verb. proba de testa lib 3. prouincial constit cant Sauing where landes tenements and hereditaments are deuised for then the solemnitie of writing is also necessarie and that to be done in the life time of the testator (m) Stat H. 8. an 32. c. prim The †testament is saide to be imperfect in respect of will which the testator hath begun but cannot finish as he would (n) Bar. Sichard alij in L. Hac consultissima §. ex imperfecto C de testa L. si quis ita ff eod tit L. furios C. qui testa fac pos If therfore †whiles the testator is in making his will and whiles hee yet intendeth to proceede further at that present either by adding or diminishing any thing to or from his testament or by altering any thing therein as commonly men do vse to put in put out and change many things before they make an ende (o) Iul. Clar. §. testam q. 7. in fin he be sodainly stricken with sicknes insanity of mind or other impediment whereby he cannot then finish or perfect the same as he would and so die This his testament being imperfect in respect of will is therefore voyde euen touching that which was done which he did intend then to alter before he had made an end (p) d L. si is qui L. iuriosuÌ„ Ias Sichard in L. pen. de Inst sub C. by reason of the defect of the testators consent without which the testament is not of any value (q) Sichard in d. L. hac consultissima § ex imperfecto de testa C. n. 2. Neuertheles not euery testameÌ„t which is tearmed imperfect in respect of will is by and by wholy of no force for in many cases yea and for the most part such testaments are effectual for so much as is already doone as elswhere more aboundantly is confirmed (r) Infr. parte prim § â—â— There is yet †also a further mysterie or secrete meaning included in this word Iuste in that it doeth signifie full or perfect which meaning is this That the testament ought to be compleate not onely in respect of solemnitie and of will as is aforesayd but also that it ought to be perfect in this respect especially that theris no want of any thing which is necessary to the constitution and denomination of a testament (s) Bar. in L. j. de testa ff Viglius Minsing in tit de testa ordin in princ Alciatus in L. Tabernae de verb. sig ff Couar in Rub. de test extr For if †it doe conteine onely a perfect declaration of the testators will and want that which is requisite to make it a testament it may well be tearmed a perfect will for a Codicill a Legacie a gifte in respect of death c. they are all perfect in their kinde (t) Paul de castr in d. L j. de testa ff Nec ideo Musca dicitur imperfectum animal quod sit minor Elephante inquit Couar in Rub. de test extr j part n 3. But it cannot be tearmed a testament much lesse a perfect testament (v) Bar. in d. L j. de testa ff Minsing in d. tit de testa ord This †singular sence and signification of the word iust because some interpreters did not perfectlie apprehend they did reprehend the definition as not perfecte nor conuertible with a testament that is to say not agreeable to a testament alone but common to euery kinde of last will (x) Accurs Paul de castr in d. L. j. de test ff for that they also were perfect euery of them in their seuerall kind (y) Paul de casti in d. L. pri Wherin neuerthelesse they were deceiued for the perfection that is here meant is an absolut perfection such as none other last will hath but onely a testament euen that perfection that giueth both name and nature to a testament (z) Bar. omniuÌ„ Legistarum facillime princeps Bald. Ange. Imol. Aretin in d L. j. de test ff Porcus Viglius Minsing Inst de testa ordi Vasq de succes crea lib. j in prin n. 26. So that the defect was not in the definition but in their vnderstanding To conculde therfore this perfection specially being here vnderstood by this word iust which is proper and peculier to a testament the definition remaineth irreprehensible and is agreeable to a testament only excluding both Codicil Legacie gift in regard of death euery other kind of last will (a) Bar. in d. L. prim de testa ff Viglius Minsing in d. tit de tes a. ordin Instit Couar in Rub. de testa extr part prim hauing euery thing and wanting nothing which appertaineth to the essence of a testament (b) Mantic. de coniect. vlt vol. lib j. tit 4. n. 10 Grass Thesaur com op §. testa q. j. Couar in Rub de testa extr n. 14. 3. 4. sup §. in sin Now †if you
time of the testator being written it were brought to the testator and by him approoued for his testament Or vnlesse the testator when he declared his testament did wil that the same should be written that thereupon the same was written accordingly during his life For then it is effectuall for the deuise of landes tenementes and hereditaments as if it had been written at the first d) Dier fol. 72. ita saepè audiui à nonnullis huius regni Angliae â—urisperitis A written †testament albeit it haue some thinges thereunto belonging which also belong to a nuncupatiue testament and so common to both as the appointing of an executor without the which there can be no testament at all neither written nor nuncupatiue e) Infr. part 4. §. 2. and as the deuising or disposing of goodes or cattelles which may be done indifferently eyther by word or by writing f) Supr §. 9. yet there bee †some thinges which be proper and peculier to a writen testament One is the †deuise or graunt of landes tenementes and hereditamentes which can not passe by a nuncupatiue testament or will without writing g) Stat. H. 8. an 32. c. â— As doeth afterwardes more fully appeare where is also shewed what landes and how much may bee deuised by will h) Infr. 3. part §. 4. An other thing peculier to a written testament is this In a written testament †the testator hath this benefit he maie conceale and keepe secreete the tenor or contentes of his will from the witnesses i) L. hac consultis C. de testa gloss ibidem Which he cannot doe when he maketh a nuncupatiue testament And therfore if the testator be loath to haue his will knowne which thing happeneth very often †either because the testator is afraid to offende such persones as doo gape for greater bequestes then either they haue deserued or the testator is willing to bestowe vpon them least they peraduenture vnderstanding thereof would not suffer him to liue in quiet or else because hee should ouer much encourage others to whom he meante to bee more beneficiall then they expected and so giue them occasion to be more negligent husbandes or stewards about their owne affaires then otherwise they would haue beene if they had not expected such a benefit at the testators hands or for some other considerations In these and like cases after the testator hath written his will with his owne hand or procured some other to write the same he may close vp the writing without making the witnesses priuie to the contents thereof and shewing the same to the witnesses he may say vnto them This is my last will and testament or herein is contained my wil and this is sufficient k) Authen Et non obseruato C. de testa DD. ibidem Neither is the testament therfore the lesse auailable because the witnesses doo not know what is contained in the same l) Minsing in §. sed cuÌ„ paulatim Instit de testa ord Cui accedit Kling in eund tit in 8. in case †the witnesses be able to prooue the Identity of the Writing that is to say that the writing nowe shewed is the very same writinge which the testator in his life time affirmed before them to bee his will or to containe his will m) DD. in d. L. Hac coÌ„sultiss in Auth. noÌ„ obseruato C de testa Couar in c. cum tibi de testa extr n. 5. inf par 4 §. 25. Otherwise the will can take no effect through the defect of sufficient proofe n) Bar. alij in L. si ita scripsero ff de cond demon Paris cons 19. vol. 3. n. 25. 26. And therefore †least the will should perishe for wante of due proofe when the testator would not haue the contents knowne it is not onely requisite that the witnesses be learned but expedient also that they write their names on the backside or some part of the testament o) Specul de Instr Edi. §. compendiose n. 10. Kling in tit de testa ordin Instit n. 8. 9. or vse some other like meanes that they may be able to depose and testifie vndoubtedly that the same is the very writing it selfe which the testator affirmed to be his will or to containe his will p) Sichard in Auth. quod sine C. de testa Couat in c. cum tibi de testa extr Specul vbi supr infr part 4. §. 25. Whether a testament may be written with notes or figures and whether it may be prooued without witnesses by the hand and seale of the testator with other like questions is declared afterward q) Infr. part 4 §. 25. Of a Nuncupatiue Testament 1 What is a nuncupatiue testament 2 Wherefore it is called nuncupatiue 3 Of the force and efficacie of a nuncupatiue testament 4 At what time commonly nuncupatiue testamentes are made and what is the reason 5 Testamentes fauorablie expounded 6 A nuncupatiue testament made diuers waies §. xij A Nuncupatiue testament †is when the testator without any writinge doeth declare his will before a sufficient number of witnesses a) §. Fin. Instit de testa ordin L. Haeredes palam ff de testa And it is called nuncupatiue †à nuncupando i. nominando of naming b) Minsing in d. §. fin Kling in d. tit de testa ordin n. 11. Because when a man maketh a nuncupatiue testament hee must name his executor and declare his whole minde before witnesses c) Minsing in d. §. fin And †a nuncupatiue testament is of as great force and effecacie except for his landes tenements and hereditaments as is a written testament d) L. Hac consultissima §. per nuncupationem C. de testa d. §. fin Instit de testa ordin This kind †of testament is commonly made when the testator is now very sicke weake and past all hope of recouerie e) Termes of law verb. deuise For †as one reporteth it is receiued for an opinion amongst the ruder and more ignorant people that if a man should chance to be so wise as to make his will in his good health when hee is strong and of good memorie hauing time and leasure and might aske counsell if any doubt were of the learned that then surely he should not liue long after And therfore they defer it vntill such time wheÌ„ it were more conuenient to applye themselues to the disposing of their soules then of their landes and goodes f) Ibidem And †in consideration hereof it is that testaments are so much fauored which be made in such perilous times namely for that the testator then cannot conueniently stay to aske counsell of such pointes as be doubtfull in lawe g) Infr. part 4. §. 4. A †nuncupatiue testament may bee made not onely by the proper motion of the tâ—stator but also
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
testmÌ„ q 31. Ego verò adhaereo Alex. Ias Decio Sichardo alijs in ead L. hac consultissima Tiraquel qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento sed sufficere probationem iuris gentium hanc opinionem recepit generalis regni nostri consuetudo But †he cannot make his testament in writing vnlesse the same be reade before the witnesses in their presence and acknowledged by the testator for his last will And therefore if a writing were deliuered to the testator and he acknowledged the same for his will this were not sufficieÌ„t for it may be that if he shold heare the same reade hee would not acknowledge the same for his will (b) DD. in d. L. hac consultissima C. qui testa fac poss Of Traitours 1 Traitours loose both their liues landes and goods and consequentlie are intestable 2 Traitours are intestable not onely from the time of their conuiction but from the time of the crime committed 3 A traitour pardoned and restored may make his testament §. xij OF those who are prohibited to make their testaments as malefactors who now are to make their appearance and to shew theÌ„selues in the course of this treatise traitours because they are most pernicious to the common wealth are most worthie the first place in punishments Vnderstand †therefore that whosoeuer is lawfully conuicted of high treason by verditte confessioÌ„ outlawrie or presentment besides the losse of his life shall forfeite to the prince all his goods and cattelles and all such landes tenements and hereditaments as he shal haue in his owne right vse or possession of any estate or inheritance at the time of such treason committed or at any time after a) Stat. Ed. 6. an 5. c. 11. and so consequentlie is intestable b) L. quisquis §. j. C. ad L. Iul. maiest L. si quis de iniust test L. nemo ff de leg 1. Vasq de succoss progress lib. 1. §. j. n. 165. qui multis ampli hanc concl ornat in so much †that traitours are not onely depriued of making any testament or other kinde of last will from the time of their conuiction but also the testament before made dooth by reason of the same conuiction become voide both in respect of goodes and also in respect of lands tenements and hereditaments c) Stat. Ed. 6. an 5. c. 11. DD. in d. L. nemo de leg 1. ff Vasq vbi sup Neuerthelesse if †any person being attainted of treason obtaine the princes pardon and be thereby restored to his former estate then may he make his testameÌ„t as if he had not been conuicted d) L. si quis § quatenus ff de iniust rupt irrit testa or if he made any before his conuiction and condemnation the same by reason of such pardon recouereth his former force and effect as hereafter is more fully declared e) Infr. 7. part §. xvij Of Felons 1 Felons loose life and goods and so be intestable 2 Who shal haue felons landes 3 Whether hee that is onely indited of felonie maie make his testament 4 Whether he that standeth mute may make his testament of his landes 5 Whether a man after he is apprehended for felonie may make his testament 6 Felons goods not to be seased before attainder 7 The testament of a Felon conuicted is void though he be neuer executed §. xiij IF any person †be condemned of felonie he ought to suffer death and †the Prince shall haue all his goods where so euer they bee found a) Stat. Eliz. an 5. c. 14. Termes of law verb. robberie and if he †haue any free holde it shall forthwith be seased into the Princes hands and the Prince shall haue the profite thereof by the space of a yeere and a day and also waste b) Praerog Reg. c. 16. Eliz. an 5. c. 14. and after the Prince haue had it the yeere and the day and waste the land shall be restored to the cheefe lord of the fee except in certaine places as in the countie of Glocester where after a yeere and a day the lands and tenements of felons shal reuert to the next heire to whom it ought to haue descended if the felonie had not beene committed c) Praerog reg c. 16. Or in Kent in Gauelkind whereas it dooth descend to al the heires males equally to be deuided or to the daughters where there be no sons to be deuided amongst theÌ„ for there it is said the father to the boughe and the son to the ploughe d) Eod. c. 16. Felons therfore lawfully conuicted can not make any testaments or other dispositions of anie goods or landes whereof as wee see the lawe hath disposed already e) Duplici ratione daÌ„natus ad mortem fit intestabilis nimirum bonorum publicatione damnatione ad mortem Damnatus autem ad mortem naturalem efficitur seruus poenae quod communi opinione nititur aduersus eos qui existimarunt ingenuum hodie non effici seruum poenae huiusmodi damnatione sed procedit prior opinio siuè quis damnatus sit secundum ius commune siuè etiam secundum statutum alicuius loci Iul. Clar. §. testmÌ„ q. 21. Couar in Rub. de testa extr 3. part n. 27. Michael Grass Thesaur com op §. testmÌ„ q. 26. But †if any man be indited onely of felony and die before he be conuicted or attainted he may make his testament of his goods and also of his lands f) Quia non condemnatus non reperitur prohibitus vide stat R. 3. an 1. c. 3. or if †he be indited at the Princes suite and so beeing arraigned vpon that inditement will not answer but standeth mute or dumbe whereupon he is to receiue paine as it is tearmed Forte Dure and bee pressed to death g) Do. Stu. lib. 2. c. 41. In this case his goods onely be confiscate but not his lands h) ibidem and therefore in this case I suppose he may make his testament of his landes i) Quia viz. non ê“hibetur qÌ„ non condeÌ„natur If a felon †bee indited and afterwards attainted by verdit or confession the time of the fact committed comprised in the inditement is to be regarded in respect of his lands but in respecte of his goodes in the time of his iudgement k) Perk. tit grants fol. 6 And therefore if before iudgement he doe sell giue or otherwise alienate his goodes such saile gift or alienation is good l) Perkins vbi supr coÌ„cordatius ciuile L. post contractum ff de donac cum distinctione tamen vt per Bar. in d. L. Grass §. testmÌ„ q. 26. Neither †may the Sherife or other person take or sease the goods of any person arrested and imprisoned before the same person be conuicted or attainted of felonie according to the law or that the goods bee otherwise lawfullie forfeited
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
peradueÌ„ture if the testator had knowen that it had been an other maÌ„s he wold not haue bequeathed the same d) d. §. non soluÌ„ Instit de lega yet neuertheles both by the laws ecclesiastical e) c. filius de testa extr ibi Couar in fin Panor in repe c. cùm esses eod tit n. 18. Bar. tract de differentijs interius can ciuil n. 86. also by the laws of this realm f) Plowd in cas inter Bransby Grantham huc etiam pertinent quae superiùs scribuntur in initio huius §. de coemptore seu condomino disponente no maÌ„ can bequeath or deuise anything by his testament or laste will sauing onelie that which is his own and that which he hath to his proper vse g) Plowd vbi sup and if hee do bequeath anie other mans the bequest is void so that the executor is neither bound to redeeme the thing for the legatarie nor to pay the value thereof h) Couar Panor Sichard vbi supra and that without distinction whether the testator did know or not know whether the thing bequeathed were his own or an other mans i) Si enim ignorasset reÌ„ esse alienam tunc vel ciuili iure non valet legatum §. non solùm Instit de lega But what if the testator do bequeath some thing which at the time of the making of the testamente is not his but the testator afterwardes dooth buy the same Whether is this thinge due or recouerable by the legatarie yea or naie By the ciuill lawe it is not due k) L. 1. ff de regul CatoÌ„ but in some fewe cases l) Repertor Bertachni verb. regula Caton By the lawes of this realme it seemeth that we are to distinguish whether some speciall thing be deuised or not for if a special or certain thing be deuised as if the testator doo bequeath the manour of Dale then albeit the testator had no such manor when the wil was made yet by the purchase made afterwards the testator is presumed to haue had this meaning from the beginning to purchase the same for the benefit of the legatarie and so the deuise is good m) Plowd in cas inter Bret Rygden fol. 344 But if the legacie be not speciall but generall as if the testator doo bequeath all his landes then the testator hauing some lands at the time of making the testament and purchasing other lands afterwardes these landes purchased after the making of the testament shal not passe n) Plowd vbi supra But howsoeuer the lawes of this realme haue determined concerning the deuise of lands tenements and hereditaments purchased after the making of the testament yet concerning goods if the testator doo bequeath anie such thing in generall tearmes as a horse or an oxe although the testator haue neither horse nor oxe at the time of his testament made neither yet at the time of his death the legacie is not therefore voide o) Bar. Paul de Castr alâ—j in L. legat generaliter de leg 1. ff but the executor is bound to deliuer an horse or an oxe as else where is confirmed where also is shewed to whom the choice belongeth in this case and what manner thing is to be deliuered p) Infr. part 7. §. x. Of Assigning tutors and disposinge of childrens portions during their minorities generallie considered 1 Manie questions about the tuition of children 2 The matter of tuitions both large and vncertaine §. vij IF I should vndertake to speake fullie of the assignement or appointinge of tutors to children and custodie of their portions or other rightes during their nonage not onelie manie questions would offer themselues to be handled namelie who maie graunt the tuition of whom to whom after what manner what is the office and authoritie of a tutor when the tuition is finished what action the pupill hath against the tutor for the recouerie of his rightes or the tutor against the pupill for the charge of his education and conseruation of such thinges as are due to the childe and finallie if the tutor testamentarie excuse him selfe or refuse the tutorship what order is to be taken in the behalfe of the child which questions are so ample minister so great aboundance of matter that it is not possible to comprehend the same within anie compasse fitte for this breefe treatise And further the customes of this realme are so diuers and contrarie one to an other which doe concerne this matter that I might easilie fall into diuers errors Wherfore as well for that this matter should not exceed the proportion of a iust member as also for that I would be loath to play the blinde guide I thought it better and more safe to refer the Reader to the learned of euery place of whom he may be more sufficiently certified of their particular customes then to fill vp this volume with the multitude of different yea and contrarie obseruations of sundrie countries and places within this Realme whereof I can obteine no sounder warrant nor better assurance of the legalitie thereof then the bare reports and relations of others Howbeit forasmuch as within the Prouince of Yorke I my selfe haue had some reasonable experience in these affaires for many yeeres I thought it not amisse briefly to signifie what is there obserued Of the committing of the tuition of children and custodie of their portions within the prouince of York 1 No parents of any Countrey haue like power ouer their children as had the Romanes 2 Whence the authoritie of assigning children did descend 3 The customes of the North parts of this Realme doe very much resemble the Ciuill lawe §. viii ALbeit neither within this Realm of England nor within anie realme christian anie parents haue the like power ouer their childreÌ„ as had the Romans a) §. Ius auteÌ„ Instit de tutelis ibi glossa in qua enumeraÌ„tur septeÌ„ aut octo in quibus ius patriae potestatis consistit to whoÌ„ alone that patria potestas was proper and particular b) Eod. §. nec non tract de repub Angl lib. 3. c. 7. Intellige tamen vt in gloss in d. §. ius auteÌ„ which was the cheefe cause wherby they did might by their testamentes commit the bodies of their children and their portions at their pleasures to the custodie of others according to the ciuill lawe c) L. 1. ff de testa tutel §. permissum Instit de tutel yet in diuers places within this realme and namelie throughout the prouince of Yorke there dooth remaine a certaine resemblance of that power and determination of the ciuil law as in manie other things so also in the assigning or appointinge of tutors by their testaments or last wils d) Vt patet ex his quae subsequuntur §§ 9 10 11 12 13 14. whether we regard the person of the testator or of him that is assigned tutor or
lesse where he is assigned conditionallie or from a certaine time maie hee intermeddle as tutor vntill the condition be extant e) L. qui sub conditione ff de testa tutel or the time limited be expired f) d. L. qui sub conditione but the ordinarie maie in the meane time commit the tuition and hee that is so appointed by the ordinarie maie for that time administer g) Bar. alij in d. L. qui sub conditione Moreouer it is lawfull to appoint either one tutor alone or manie together h) L. si plures ff de testa tut Where one alone is appointed tutor by the testator the ordinarie ought not to ioine an other tutor i) §. interdum Instit de cura vnlesse he that is named tutor be lunatike k) L. non solùm §. vlt. ff de excus tut gloss in d. §. interdum Instit de curator or bee absent about the affaires of the cōmon wealth l) L. tutor §. si quis abfuturus ff de suspect tut for in these and other like cases an other tutor maie be ioined m) Gloss Minsing in d. §. interdum Instit de cur at leaste duringe the impediment Where diuers are appointed there one alone may administer n) L. 3. de administ tut ff which conclusion doth proceede with lesse difficultie when cotutors can not or wil not meddle o) L. legitimos §. in legitimis ff de legit tut L. 47. de administ tut or transferre their authoritie to him which dealeth p) Bald. in L. qui pupille C. de negotijs gest for they maie doo that and so also be his sureties q) L. Romanus ff de tutor vel curator dat ab his It skilleth not by what wordes the tutor bee appointed so that the testators meāing doo appeare for they are neuerthelesse to bee confirmed tutors r) L. 1. de confir tut ff ibi Bar. L. quoniam C. de testa Socin consil 83. vol. 1. Wherefore if the testator saie I commit my children to the power of A.B. or I leaue them in his hands it is in effect as if the testator had said I make A.B. tutor to my children s) Ias in L. manumissionis ff de Iustit iure Boer decis 124. vbi attestatur hanc opinionem tutiorem veriorem esse so it is if he saie I leaue them to his gouernement regiment administration c t) Molin in addic ad Decium in c. ex parte de app extr Socin consil 83. vol. 1. If the testator saie I commit my sonne to A. B. both quicke and dead with all his legacies by me giuen by these wordes it is presumed that the testator meant that A.B. should be tutor to his child if he liued and if he died then to haue those legacies v) Socin d. consil 83. If the testator saie I desire my wife to take care of my children during their minorities albeit those wordes doo not necessarilie infer or conclude a tuition of their owne nature but rather that she should chastice them when they deserued to be corrected x) Dec. in d. c. ex parte de app extr Boer decis 124 in princ for to haue tuition of children is a greater thinge and extendeth further then to haue a care of them onelie y) Dec. in d. c. ex parte Neuerthelesse for as much as the ruder sorte of people doe not know the difference of termes nor the naturall force of wordes z) Socin d. consil 83. vol. 1. Therefore if any be assigned tutor by these foresaid words he is to be confirmed a) L. 1. de confir tut ff ita limitatur §. quāquam in L. qui aliena ff de neg gest vt per Ias in L. manumissiones ff de Iustit iur The same also maie be saide where the testator dooth commit his childe to the custodie of an other For albeit it be a greater thinge to haue the tuition of a childe then to haue the bare custodie of a child committed vnto him b) Rom. Sing 164. Dec. in c. ex parte de app extr Yet in all thinges the will and meaninge of the testator c) d. L. 1. de confir tut DD. in eand L. molin in addic ad lect Decij in d. c. ex parte M. is to be obserued and preferred before the propertie of the wordes d) L. quoniam indignū C. de testam whereof perhaps he is ignorant which meaning is to be collected by that which went before or folleweth after in the will and by other circumstances which the discreete iudge ought to enquire e) Boer decis 124. Finallie it skilleth not in what language the tutor be assigned whether in English Latine Greeke or anie other tongue f) L. vlt. C. de testa tur Of the office and auctoritie of a Tutor 1 The office of a tutor dooth principallie respect the person of the pupill 2 The office of a tutor dooth secondarilie respecte the good administration of the pupilles goods 3 The tutor ought to make an inuentarie and is chargeable with an accompt 4 Whether a tutor ought to enter into bondes for the performaunce of his office 5 Of the authoritie of a tutor 6 Whether the tutor maie alienate the goodes of the pupill §. xiij THe office and authoritie of the Gardyan or him that hath the wardship of any infant by reason of anie lands tenements or hereditamēts whether the same be holdē by knights seruice or by soccage tenure is alreadie declared a) Supra ead part §. x n. 8. 9. wherefore in this place I shall onelie touch the office and authoritie of a tutor according to the custome obserued within the prouince of Yorke not greatlie differing from the disposition of the ciuill lawe This therfore is the office of a tutor Firste and principally to defend the person of his pupill b) Inde rutores quasi tuitotes id est defensores à tuendo defendendo appellantur sicut aeditui dicuntur qui aedes tuentur §. tutores Instit de tutel L. 1. ff eod that is to saie to prouide that hee bee honestlie and vertuouslie brought vp and to prouide for him meate drinke cloth lodging and other necessaries according to the childs estate or condition and abilitie c) Nec tantùm alimēta praestari debent pupillo sed etiam in studia impensae debent impédi pro facultate patrimonij dignitate natalium Wigand Happel tract de tutel tit 138. n. 44. fol. 350. Secondarilie the office of a tutor consisteth in the good and faithfull administring or disposing of the goodes and cattelles of the saide pupill d) §. datus Instit de excus tut Minsing ibidem that is to saie the tutor maie not commit anie thinge that maie bee hurtfull nor omit anie that maie be profitable to his pupill e) Latiùs de offic
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
what part of the testament he be appointed whether in the beginninge or in the middest or ending k) §. ante Instit de lega Grass Thesaur com op §. Institutio q. 1. The †effect of a pure and simple assignation of an executor is this that the executor maie immediatelie after the death of the testator vndertake the executorshippe and enter vpon the testators goodes and cattelles l) Wesemb in tit de acquir haered ff in tit de haered Instit Et hoc verum est etiam ante probationem testameÌ„ti Plowd lib. 1. in cas inter Greisbrook Fox Cagnol in L. si precibê° C. de impub. alijs sub n. 276. 277. 278. whereas on the contrarie the effect of a conditionall assignation dooth suspend his admission and execution of the testament as afterward more fullie dooth appeare m) Infr. ead part §. 6. 7. And †there note that if the testator say I make A. B. my executor according to the coÌ„ditions afterwards expressed if the testator afterwardes expresse no conditions it is in effecte as if the testator had made him his executor simplie n) L. pen. C. de Instit sub And so hee maie enter vpon the testators goodes presentlie after his death for the testator in not expressing anie conditions is presumed to haue altered and reuoked his purpose concerninge the adding of conditions o) DD. in d. L. Peâ— and consequentlie that he would haue the appointment of the executor to be pure and simple howbeit if the testator making his executor vpon conditions to be then expressed afterwardes in the meane time whiles he is in making his will be sodainlie preuented by death or insanitie of minde that he can not expresse those conditions according to his purpose and determination In this case the assignation is voide and he which is so appointed executor is not to be admitted to the executorship p) L. si quis destinauerat alià s si is qui. ff de testam Paul de Castr in L. iubemus C. de testa latiùs infr part 7. §. 12. Likewise if the testator doo make his executor after this maner I make A.B. my executor if I shall expresse anie conditions in this case no conditions beeing expressed he that is so appointed ought not to be admitted q) Dec. alij in d. L. Pen. C. de Instit sub It is †also to be noted that that assignation of an executor is in effect pure simple where the condition is impossible or vnhonest for such conditions are reputed as not written but omitted r) §. Impossibilis Instit de haered instituend L. obtinuit de cond demon L. conditiones de condic Instit ff and so the executor without accomplishment of anie such condition is forth with to be admitted to the executorship excepte in some cases as hereafter is declared s) Infr. ead part §. 6. 7. Furthermore †when it is certaine that the condition will necessarilie followe or bee extant the appointmente of the executor made vnder such condition is reputed pure and simple as if the testator make A.B. his executor if the sunne shall rise the next daie t) L si pupillus §. sub conditione ff de nouac Alex. consil 59. n. 14. vol. 4. vnlesse the time when the condition will be extant be vncertaine as I make A.B. my executor if my sonne shall die for though it be most certaine that he will die yet nothing is more vncertaine then the time when and therefore the assignation is in effect conditionall v) Sichard in Rub. de condic Instit C. fusiùs infr ead part §. 17. part 7. §. 23. And the like maie be said †when the condition is referred to that which is paste or present as if the testator saie I make A.B. my executor if he be bachelar of the ciuill lawe or if hee haue beene student in the vniuersitie of Oxforde for this kinde of condition is not properlie a condition x) L. si ita stipulatus ff de verb. ob Bar. in L 1. de cond demon ff but rather a finall cause wherefore the testator made his executor y) Ias in L. stichum de leg 1. ff And although the testator be vncertaine whether the executor be bachelar of lawe or haue beene student yet it is certaine in respect of the facte it selfe and is either true or false at that instant when it is made and so the condition worketh no delaie or suspension but is either a good or void assignatioÌ„ at that moment z) DD. in d. L. si ita stipulatus Finallie †that assignation of an executor is pure and simple when that condition is expressed which is necessarilie vnderstoode a) L. haec verba de leg 1. ff L. conditiones de cond demon ff as if the testator saide I make A.B. my executor if the lawe will b) Mantic. de coniect. vlt. vol. or if he will vndertake the executorship c) Grass Thesaur com op §. legatum q. 47. That †which hath beene spoken of the making of an executor accordinge to my former aduertisementes maie easilie bee applied to a legacie mutatis mutandis wherefore as that nomination or assignation of an executor is pure and simple which is made without condition so that legacie is pure and sure which is giuen without condition Secondlie by the like application it maie appeare that it is not materiall in what forme of wordes a legacie be bequeathed so that the testators meaning doo appeare which meaning is to be preferred before the proprietie of wordes d) §. nostra Instit de lega and that not onelie concerninge goodes and cattelles but also concerning lands and tenementes for further declaration whereof I haue added these examples following which I haue borrowed out of a little booke called the tearmes of lawe e) Verb. deuise First †therfore if a man doo by his will deuise to A.B. all his landes and tenementes In this case not onelie all his landes and tenementes which the testator hath in possession doo passe but those also which hee hath in reuersion by vertue of this word tenements Item if landes be deuised to a man to haue to him for euermore or to haue to him and his assignes in these two cases the deuise shall haue a fee-simple wheras if it be giuen by feoffemeÌ„t in such tearmes the feoffee hath but an estate for his life for a deuise made without expresse wordes of heires is good euen in fee-simple Item if a man deuise his lande to an other to giue or sell or doo therewith at his pleasure will this in fee-simple Item a deuise made to one and to his heires males dooth make an estate in taile but if suche wordes be put in deede of feoffement it shall be taken in fee-simple because it dooth not appeare of what bodie the heires males shall bee begotten Item
L. singulos de testa ff Minsing in d. §. sed cum paulatim Fourthly it is requisite that the testator doo with his owne hande write his name whom he will shall succeede and haue all his goodes and if he cannot write that then he name him before those witnesses e) L. iubemus L. cum antiquitas C. de testa Non tamen ita necessaria est nominatio haeredis vt proprio testatoris ore fiat quin sufficit si testator alio interrogante an velit talem fore haeredem Respondeat ita DD. in d. L. iubemus Grass Thesaur com op §. Institutio q. 17. Fiftly it is requisite that the witnesses bee such as are not forbidden to beare testimonie in that behalfe f) §. testes Instir de testa ordin Sixtly it is necessarie that the witnesses do see and behold the testator and not heare him onely g) Menoch de arbitr Iud. q. lib. 2. cent 5. cas 475. n. 23. Minsing in d. 5. sed cum paulatim It is also necessarie that the witnesses doo seale the testament either with their owne seales or with the seale of another h) d §. sed cum paulatim Finally it is necessarie that the testament be made at one time without any intermission except naturall such as cannot be auoided i) Eod. §. ibi Minsing A will thus †made is called a solemne testament which forme if men would obserue but no man is necessarily tied therevnto heere in England k) Supr part 1. §. 9. it were a more safe way aswell against the forging of false willes as suppressing of true willes Of the forme of an vnsolemne testament 1 What is requisite in the making of an vnsolemne testament §. xxiiij IN the †making of an vnsolemne testament it is not precisely necessarie to vse any of the foresaide ceremonies This onely is needfull heer with vs in England that the testator do appoint his executor and declare his will before two or three witnesses whose testimonie partly by the lawes ecclesiasticall a) C. cum esses c. relatum el. 1. de testa ext and especially by the generall custom of this realm b) Lindw in c. statutuÌ„ verb. probatis lib. 3. ê“uincial constit Cant. Tract de repub Angl. lib. 3. c. 7. Peckius in c. priuileg de reg iur 6. is sufficient for the probation and approbation of the same will concerning the appointing of an executor or the disposing of goods and cattels c) Atque huc tendit quod scriptum reliquit Minsing in Rub. de mil. test n. 6. videlicet apud eas gentes quae iuris ciuilis obseruatione non tenentur quarum Anglia est praecipua ius militarâ—s tesâ—â—menti obtinere si nulla ê“pria lex extet Of the forme of a vvritten testament 1 Diuers things considerable in a written testament 2 In what matter or stuffe the testamente is to bee written 3 In what language the testament is to be written 4 In what hand may the testament be written 5 VVith what notes or characters is a testament to be written 6 Limitations of the former conclusion 7 Of the words and sentences of a written will 8 Whether it be necessarie that there be witnesses in a written will 9 How the witnesses are to depose in proouing the will to be written by the testator 10 What if the testament bee founde in the testators Chist §. xxv WE haue heard elsewhere in what cases it is needefull that the testament bee written a) Supr 1. part §. 11. namely where the testator doth deuise any lands tenements or hereditaments b) Stat. H. 8. an 32. c. 1. and also when the same ought to be written that is to say in the life time of the testator c) Eodem stat with diuerse other questions there absolued Now †let vs heare of some other things which may seeme to appertaine to the forme of a written testament namely in what matter or stuffe the testament is to bee written in what language with what hand letters notes or characters with what wordes or sentences and whether it bee alwayes necessarie that there be witnesses of a written testament For the †matter wherein the testament is written the law regardeth not whether it bee paper or parchment or other like stuffe apt for writing d) §. nihil Instir de testa ordi Spec. de Instr edit §. 8. n. 21. Sed quid si quis scripserit voluntatem suam in puluere numquid valebit testamentum vt scriptum Et videtur quod sic per L. milites C. de testa Hoc vno subaudito nimirum nostratiuÌ„ testamenta omni immunitate atque adeo iure militari gaudere vt scriptum reliquit D. Smitheus Tract de repub Angl lib. 3. c. 7. Contrarium tamen scilicet non valere huiusmodi testmÌ„ tanquam in scriptis conditum existimo Saltem ad effectum illum de quo sit mentio in d. stat H. 8. an 32. c. 1. id quod ex mente illius statuti sacile colligere licet Et huc ê‘tinet quod scriptum reliquit Molin in L. 1. §. eod ff de verb. ob n. 9. Neither is it material in what †language e) Minsing in d. §. nihil the same be written either Latine French or anie other tongue For the †hande or letters wherewith the testament is written the lawe is indifferent whether it be Secretarie hand Roman hand Court hand or any other hand either faire or otherwise so that the same may bee read and vnderstoode f) DD. in L. quoniam C. de testa For the †notes or characters it skilleth not whether the same be vsuall or vnaccustomed g) Hoc intelligant Iustinianistae ê‘cedere iure gentium quo nos vtimur Nam iure ciuili testmÌ„ in scriptis fieri non potest per notas aut zypheras inusitatas vt teneÌ„t Bar. Bald. Angâ—l alij in L. quoties §. 1. ff de haered instituend praeterquam in casibus exceptis veluti in testamento militis ad pias causas c. de quibus Vasq de success creat lib. 2. §. 15. requisit 16. Tiraquel de priuileg piae causae c. 13. Grass Thesaur com op §. testmÌ„ q. 10. Vsuall or accustomed notes bee these xx s. for twentie shillings Cl. li. for an hundred and fiftie pounds 1590. for a thousande fiue hundred fourescore and ten with such like whereof I might bring infinite examples vnaccustomed notes and characters bee as when the testator dooth vse the figure 1 in stead of the letter A the figure 2 in steade of the letter B the figure 3 in stead of C c. or perhaps some other more straunge characters then these in place of letters Howbeit †if the characters bee such as the same cannot be read or vnderstood the testament is as if it were not written h) L. 1. ff si Tabul testa
c. in praesentia de probac. extr n. 39. Gabr. vbi supra n. 5. quae opinio communis est contra Bald. in d. Auth. ex complexu issue also is made capable of so much as is sufficient for needfull and conuenient sustentation hath preuailed against the rigour of the ciuill lawe and is to be obserued especially in the ecclesiasticall Court h) Idem iuris est in terris imperij gloss Panor in d. c. cùm haberet Bar. in â— Auth. ex complexu Decis Neap 164. n. 2. Dec. vbi supra Duen verb. filius reg 367. as more agreeable to nature equitie and humanitie And in this respect the lawes and statutes of this realme in prouiding aswell for the conuenient reliefe and keeping of poore and miserable children begotten born out of lawful matrimonie at the charges of the reputed father or mother i) Stat. Eliz. an 18. c. 3. without distinctioÌ„ whether such infantes were begotten in incest and adulterie or fornication k) Vbi enim lex non distinguit nec nos distinguere debemus L. de precio ff de pub in rem action as for the punishment of the mother and reputed father of such vnlawfull issue are worthily commended although in respect of the next limitation following they may seeme not altogether so worthie commendation The fourth limitation is grounded in the lawes of this realme which doo permit euerie man both by deede made and executed during their liues l) Perkins tit graunts fol. 11. Bract. lib. 2. c. 7. and also by their last willes and testaments to be executed after their deathes m) Perkins tit deuise fol. 98. to giue to deuise vnto anie their bastards without distinction all their lands tenements or hereditaments without restraint at the least more then wil suffice for their sustentation and much more then they are worthie of Which thing cannot but redounde to the great preiudice of right heires considering the daunger whereunto lawfull children are subiect and which they doo manie times sustaine through forcible â—latteries of vile dissembling harlots no lesse voide of all modestie then full fraught with all kinde of subtiltie with whose sweete poison and pleasant sting manie men are so charmed and inchaunted n) Videas c. 5. Prouerb Salom. that they haue neither power to hearken to the iust petitions of a vertuous wife praying and crauing for her children nor grace to denie the vniust demaunds of a vicious and a shamelesse whoore prating and grating for her bastardes neuer remembring that when Sara said to Abraham Cast out this bonde woman and her sonne for the sonne of this bond woman shall not be heire with my sonne Isaak Abraham by the commaundement of God hearkened to the voice of Sara o) Gen. c. 19. neuer once regarding that which diuers haue diligently noted that the brood of bastardes are commonly infected with the leprosie of the Sires disease p) c. si gens Anglorum ibi praepos distinct 56. Hinc est ait Peckius quod SodomitaruÌ„ vnà cum parentibus paruulos etiam coelesti igne consumpsit Dominus nempe quòd prospexerat paruulos hos idem flagitium admissuros Pec. in c. non decet de reg iur 6. and being encouraged with the example and patterne of their fathers filthinesse they are not onely prone to follow their sinfull steppes q) Mali corâ—â— maluÌ„ ouum metueÌ„da sunt paterni criminis exeÌ„pla L. quisquis C. ad L. Iul. maiest §. 1. but do sometimes exceede both them and others in all kinde of wickednesse The fift limitation is in the bastardes of kings and princes for a king may ex plenitudine potestatis make his vnlawfull issue capable of whatsoeuer by will deuisable hee dooth giue or bequeath vnto him r) Boer Decis 127 n. 17. Duen d. reg 366. lim 7. The sixt limitation is this the adulterous grandfather may bequeath anie thing to the lawfull children of his owne vnlawful sons or daughters or make them his executors s) Ias in L. haereditas C. de his quibus vt indig n 7. 8. Cui opinioni locum concedereÌ„ etiamsi hic Auê° habeat legitimos filios Cùm apud nos nulla sit necessitas instituendi suos vt supra ead part §. 1 but so cannot the incestuous grandfather t) Bald. in L. si quis incestus C. de incest nup. Couar in d c. 8. de spoÌ„sal 2. part §. 5. n. 13. The seuenth limitation is this that the testator may bequeath vnto his incestuous or adulterous daughter a competent portion for her dowrie or preferment in mariage for this is accounted all one as if he did bequeath it vnto hir for hir alimentation v) Panor in d. c. cuÌ„ haberet n. 5. Bar. in d. Auth. ex complexu quae conclusio ampliatur per Petr. Duen verb. filius reg 367. ampl 3. The eight limitation is this that an executor may make the testators bastard his executor x) Bar. in L. si his ff de vulg sub Bald. in L. eaÌ„ qua C. de fidei commis n. 4. Clar. § testium q. 31. Intellige tamen nisi coniecturae interuenerint ex quibus fraus praesumatur Grass §. Institutio q. 7. n. 13. The ninth limitation is when the adulterous parents doo solemnize lawful matrimonie together before the birth of the childe y) Praepos in c. tanta vis Qui filij sunt legitimi extra n. 10. Card. eod c n. 7. Melch. Kling Tract de caus inrÌ„ion fol. 85. 86. for example A married man doth beget a single woman with childe for this is adulterie by the laws ecclesiastical of this realme z) Card. praepos alij in d. c tanta vis Kling vbi supra c. nemo 32 q. 4. Panor in c. transmissae de eo qui cog consang vx extra Clar. §. adulterium n. 2. although by the ciuill lawe it is but fornication a) L. 1. C. de adul L. inter liberos ff ead Clar. vbi supra immediatelie after his wife dieth after whose death he marieth the woman for so he maie b) Nisi praeter copulam mortis machinatio interuenisset vel fides data fuisset quia tunc non valet inter eos matrimonium iure caÌ„ c. super hoc c. significasti de eo qui dux in matr quam poll per adul extr sed an dissolui possint hodie nuptiae huiusmodi multum dubito occasione statuti H. 8. an 32. c. 38. after the mariage the child is borne In this case the childe is not onely capable of anie testamentarie benefite but is reputed a lawfull childe and not a bastarde c) d. c. tanta vis DD. ibidem as heeretofore hath beene disputed more fullie d) Supr part 4. §. 15. Concerning those bastards which are begotten of single persons such I meane as may lawfullie marrie together then in case the mother were a maide or an honest widdow immediatelie
executorship three questions maie bee demaunded First whether hee that is named executor in the testament may be compelled to vndertake the executorship or that it is in his power to refuse the same a) De hac Q. consulas Henr. Boic in c. tua nos de testa extr Panor in c. Iohannes eo tit Bar. in L. 1. de leg 2. ff Secondlie what is to be considered of him that is named executor whereby he maie be resolued whether it were better to accept or refuse the executorship b) Infr. §. prox Thirdly how long time he that is named executor hath to deliberate and determine of accepting or refusing the executorshippe c) Infr. ead part §. 4. To the first it maie bee answered that hee †that is named executor maie bee cited to appeare before the Ordinarie or other hauing authoritie to proue the will and there either to accept the executorship or at least to refuse the same d) Boic Panor Bar. vbi supra Plowd in casu inter Greisb Fox And in case †either he will not appeare or appearing †refuse to proue the testament the Ordinarie or other Iudge maie commit the administration of the goods of the deceased as if hee had died intestate e) Brook Abridg. tit adm̄str n. 32. tit exec n. 49. 102. stat H. 8. an 31. c. 5. and the administrators haue action and may administer the goods of the deceased as if he had died intestate and their authoritie or act done is good and effectuall in the lawe f) Brook vbi supra Plowd vbi supra in the meane time vntill the executors vndertake the executorship g) Bald. in L. de beri C. de fidei commiss liberta Plowd in d. cas inter Greisb Fox for then the Ordinarie maie reuoke the administration before by him committed h) Brook Abridg. tit adm̄str n. 33. quod facilitis procedit cum administratio commissa fuerit vt sēper solet saluo iure cuiuscunque c. But he †that is named executor cannot be precisely compelled to stand to the will and vndertake i) Panor in c. Io. de testa extr n. 3. Olden de exec vlt. volunt tit 7. in fin the executorship vnlesse †hee haue alreadie medled with goodes of the testator as executor for then he is not only to be cōpelled to performe the office of an executor k) Panor Olden vbi supr Boic in c. tua de te sta extr Plowd in cas inter Greisb Fox but also if he should refuse and the Ordinarie commit the administration vnto him this refusall is void and he shall be charged as executor l) Fitzh Abridg. tit execut n. 35. Moreouer albeit †the executor named who hath not medled with the administration of the goodes of the deceased cannot be precisely or absolutely compelled yet if anie legacie bee left vnto him in the testament he maie be compelled to stand to the executorshippe or else to loose the legacie so that he shall not reape the benefite if being duely admonished he refuse the burthen m) Quae positio locum vendicat etiamsi executor sit coniuncta persona vt habet communis opinio Gribald Thesaur com op verb. tutor Rom. consil 235. Adde Io. de Canib d. Tract de executore vbi plures enumerat huius regulae limitationes nempè quod non est compellendus quarum firmitatem quia suspectam habeo eas silētio praetereo What is to be considered of the executor desirous to be resolued whether it were better to accept or to refuse the executorship 1 Diuerse things to be considered of him which would be resolued whether it were better to accept or to refuse the executorship 2 The first thing to bee inquired in this case concerning the testator 3 Of the aucthoritie and charge of the executor 4 The executor may not medle with the landes tenements or hereditamēts of the testator but the heire 5 The heire hath not to deale with the goods and cattels of the testator but the executor 6 The testator may giue power to his executor to sel his landes for paiment of his debts or other purpose 7 What if some of the executors named do refuse whether may the rest sell the lands according to the testament 8 Whether the executor of him that had lands in see simple fee taile or for tearme of life maie recouer the rents fee fermes or other arrerages against the tenant which ought to haue paied the same in the life of the testator 9 The second thing to be required concerning the testator 10 Of the authoritie and charge of the executor of an executor 11 Whether diuerse being assigned executors whereof some be dead the executor of the executor deceased may bee ioined in action with the executor suruiuing 12 Of the aucthoritie and charge of the executor of an Administrator 13 What is to be considered about the last will of the testator 14 Whether the executor maie conuert the residue to his owne vse 15 Whether he that is named executor shall lease his legacie if he do refuse the executorship 16 What is to be considered in the person of the executor 17 What is to be considered in a wise executrix 18 What is to be considered in the person of the coexecutor 19 Whether one executor maie preiudice another 20 Whether one executor maie sue another 21 VVhether one of the executors maie alone sell the goodes of the testator 22 VVhether the coexecutor after refusall maie meddle as executor 23 VVhat is to bee considered in other persons with whom the executor is to deale §. iij. HE †that is desirous to be resolued whether it were better for him to vndertake the executorship or to refuse the same muste consider diuers things whereof some concerne the testator some concerne the executor him selfe and some concerne the persons of others a) Haec alia quae ab executore deliberante consideranda sunt tradunturà Io de Canib in Tract de executor vlt. vol. 2 part q. 1. cum seq Cui si place at adiungas Sichar in Rub. de iure de lib. C. Of those things which concerne the testator the first and principall thing to be regarded in this consultation is his substance or wealth First of all therefore †it behoueth him that is named executor to enquire diligently and to learne certainly if he can what goodes and cattelles did belong to the testator at the time of his death b) Sichard in d. Rub. de iure de lib. C. and what debtes were then due vnto him And on the contrarie what debts he the said testator did owe vnto other men c) Cuius rei vtilitas statim subijcitur For †as the executor may enter to all the goodes and cattels which did belong vnto the testator d) L cùm haeredes de acquir post L. haereditas de reg iur ff
Plowd in cas inter Greisb Fox and were in his possession at the time of his death e) Cagnol in L. in precibus C. de impub. alijs sub n. 278. and hath action against euerie debtor of his testator f) â—nstit de perpet temp action Terms of law verb. executor So shall euerie one to whom the testator was indebted haue action against the executor especially hauing an obligation or other specialtie so farre as the goods of the testator will extend g) L. fin sin de iure de lib. C. and so long as the executor hath assets in his hands h) Terms of Law verb. executor howbeit where anie debt is due to the testator this shall not charge the executor as assettes because it is a thing in action not in possession i) Brook Abridg. tit executor n. 112. which conclusion is very reasonable when as the executor hath vsed such diligence for the recouerie thereof that he cannot be iustly charged or woorthily blamed for not hauing the same in his owne hands k) c. sine câ—lpa de regiur 6. quod si per cum stâ—tit quo minus haâ—eat in eo casu est de iure ciuili et â—an ac si in manibus retineret L. iure ciuili ff de cond demon Peckius in c. cùm non stat de reg lib. 3. c. 6. 7. As †for landes tenements and hereditaments of the testator they shall descende to his heire and shall not come to the executor For by the lawes of this realme as †the heire hath not to deale with the goods and chattels of the deceased l) Doct. Stud. lib. 1. c. 7. c. 24 Idem lib. 2. c. 10. c. 12. termes of law verb. executor no more hath the executor to doo with his lands tenements and hereditaments m) Doct. Stud. vbi supra Tract de repub Angl. lib. 3. c. 6. 7. Albeit where lands be deuisable by wil wherof we haue spoken before n) Supr part 3. §. 1. cum sequentibus the †testator maie giue power and authoritie to his executor to sell the same landes either for the paiment of his debts or for some other purpose o) Perkins tit deuise fol 104. 105. and the sale made thereof by the said executor is good and lawfull p) Perkins eod loco insomuch that diuers persons being named executors by the testator though †part of the executors named in any such testameÌ„t of any such person making or declaring any such will of any landes tenemens or other hereditaments to be solde by his executors after the death of any such testator doo refuse to take vpon him or them the administration charge of the same testament and last wil wherein they be so named to be executors and the residue of the same executors doo accept and take vppon them the care and charge of the same testament and last will it is enacted by the statutes of this realme q) Stat. H. 8. an 21. c. 4. that then all bargaines and sales of such landes tenements and hereditaments so willed to bee solde by the executors of anie such testator as well before the making of that statute as after made or to be made by him or them onely of the same executors that so doth accept or hath accepted or takeÌ„ vpoÌ„ him or theÌ„ any such cure or administration of any such will and testament shall be as good and effectuall in lawe as if all the residue of the same executors named in the saide testament so refusing the administration of the same testament had ioined with him or them in making of the bargaine and sale of such landes tenements or other hereditaments so willed to be solde by the executors of any such testator which before that time had made or declared or that after should make or declare any will of any such landes tenements or other hereditaments after his decease to be solde by his executors as may appeare by the statute in that behalfe made Howbeit it is prouided that the said statute shal not extend to giue power and aucthoritie to anie executor or executors at anie time after to bargaine or to put to sale anie landes tenements and hereditaments by vertue and aucthoritie of anie will or testament made before the saide statute otherwise then they might doo by the course of the common lawe afore the making of the same Besides that supposing the case were such as the landes being deuisable the executors had power by testament to sell the same lande and to distribute the profits in pios vsus yet after the death of the testator the inheritaunce shall descende vnto the heire and shall remaine in him vntill the executor haue solde the same r) Perkins tit deuises fol. 104. 105. And if the executors themselues doo enter into the landes after which entrie some man offereth a summe of money or price of the same land and the executors refuse to take the money offered because the money offered is vnder the value of the lande and the executors intende to sell the same dearer and so keepe the lande in their owne handes by the space of one two or three yeares conuerting in the meane time the profites arising forth of the same land to their own proper vse In this case the heire of the testator deceased may enter to the landes and put out the executor s) Perkins vbi supra Brook Abridg. tit deuise n. 19. As †for rents due to the testator by the order of the common law of this realme t) Vide stat H. 8. an 32 c. 37. the executors or administrators of tenants in fee simple tenantes in fee taile and tenants for tearme of life of rent seruices rent charges rent secks and fee fermes haue no remedy to recouer such arrerages of the said rentes or fee fermes as were due vnto those testators in their liues nor yet the heires of any such testator nor any person hauing the reuersion of his estate after his decease may distraine or haue any lawfull action to leaue any such arrerages of rentes or fee fermes due vnto him in his life by reason wherof the tenantes of the demaine of such landes tenements or hereditaments out of the which such rents were due and paiable who of right ought to pay their rents fermes at such daies terms as they were due did many times keep holde and retaine such arrerages in their owne handes so that the executors and administrators of the persons to whom any such rents or fee ferms were due could not haue or come by the arrerages of the same towards the paiment of the debts and performance of the will of the said testator For remedie wherof it is enacted by the statutes of this realme as followeth viz. that the executors and administrators of euery such person or persons vnto whome anie such rents or fee fermes
is or shall be due and not paide at the time of his death shall and maie haue an action of debt for all such arrerages against the tenant or tenants that ought to haue paide the saide rent or fee ferme so being behind in the life time of their testator or against the executors and administrators of the said tenants And also furthermore it shall be lawfull to euerie such executor or administrator of any such person or persons to whom such rent or fee ferme is or shall be due and not paide at the time of his death as is aforesaid to distraine for the arrerages of all such rentes and fee fermes vpon the landes tenements or other hereditaments which were charged with the paiment of such rents or fee fermes and chargeable to the distresse of the saide testator so long as the saide landes tenements or hereditaments continue remaine and be in the seasin or possession of the said tenant in demaine who ought immediately to haue paide the saide rent or fee ferme so being behinde to the saide testator in his life time or in the seasin or possession of any other person or persons claiming the said lands tenements and hereditaments onely by and from the said tenant by purchase gift or discent in such like maner forme as their said testator might or ought to haue done in his life time And the saide executors and administrators shall for the same distresse lawfully make auowrie vpon their matter aforesaid Prouided alwaies that this act nor any thing therein conteined shall not extend to any such mannour lordship or dominion in Wales or in the marches of the same whereof the inhabitants haue vsed time without minde of man to pay vnto euerie Lord or owner of such lordship mannor or dominion at his or their first entrie into the same any summe or summes of money for the redemption and discharge of all duties forfaitures and penalties wherewith the same inhabitantes were chargeable vnto any of the saide lordes auncestors or predecessors before his said entrie And further be it c. that if any man which now hath or hereafter shall haue in the right of his wife any estate of fee simple or fee taile or fee ferme and the same rents or fee fermes now be or hereafter shall be due behinde and vnpaide in the wiues life then the said husbande after the death of his saide wife his executors and administrators shall haue an action of debt for the said arrerages against the tenant of the demaine that ought to haue paid the same his executors or administrators and also the saide husbande after the death of his saide wife may distraine for the saide arrerages in like maner and forme as he might haue done if his said wife had beene liuing and make auowrie vpon his matter as is aforesaid And likewise it is c. that if any person or persons which now hath or heereafter shall haue any rentes or fee fermes for tearme of life or liues of any other person or persons and the saide rent or fee ferme nowe or hereafter shall be due behinde and vnpaide in the life of such person or persons for whose life or liues the state of the saide rent or fee ferme did depende and continue And if the saide persons doo die then he vnto whome the saide rent or fee ferme was due in forme aforesaide his executors or administrators shall and may haue an action of debt against the tenant in demain that ought to haue paide the same when it was first due his executors and administrators also distraine for the same arrerages vpon such lands and tenements out of the which the saide rentes or fee fermes were issuing and paiable in such like maner and forme as he ought or might haue done if such person or persons by whose death the aforesaid estates in the said rents and fee fermes was determined and expired had been in full life and not deade and the auowrie for the taking of the same distresse to bee made in maner and forme aforesaid Secondly †concerning the testator it shall be behouefull for thee that art desirous to bee resolued whether it were better to accept or refuse the executorship to inquire learne whether the same testator were executor or administrator to anie other person If he were executor then by the statutes of this realme v) Stat. 4. Ed. 3. an 25. c. 5. Idem iure ciuili in haerede haeredis L. 2. 3. de petic haered ff Contrarium in haerede executoris tà m iure ciuili quà m canonico Bar. alij in L. à filio ff de alimen leg gloss in c. fin de testa 6. verb. mortuo thou †being executor of an executor shalt haue actions of debts accountes and of goodes caried away of the first testator and execution of recognizances made in court of recorde to the first testator in the same maner as the first testator shoulde haue if hee were in life aswel of actions of the time past as of the time to come in all cases where iudgement is not as yet giuen betwixt such executors but the iudgement giuen to the contrarie in times past ought to stand in their force And on the contrarie the executor of the executor shal answere to others to whom the first testator was indebted as much as he shall recouer of the goods of the first testator eueÌ„ as the first executor should doo if he were in full life But the goods which did belong to the first testator shall not bee put in execution for the debt of the second testator which goods the executor of the executor shall haue by relation to the first testator as immediately executor vnto him and not by relation to the second testator executor to the first testator x) Plowd in casu inter Bransby Grantham Atque ita soluitur nodus de quo Bar. alij in L. veluti ff de petic haered vtrum videlicet haeres haeredis succe dat priori testatori ex testameÌ„to vel ab intestato nobis enim intelligitur succedere ex testamento vtcunqueâ—on fuit in primo testameÌ„to nominatus id quod disputandi rationem praebuit and so the propertie which the second testator had by the saide relation is taken away and is in such case as if the second testator had neuer beene executor y) Plowd vbi supr Howbeit this is to bee vnderstoode with this limitation viz. if there bee no executor of the first testator suruiuing For †if the testator did make diuerse executors whereof some be yet liuing that executor of the first testator suruiuing and the executor of his coexecutor cannot be ioined both together in one action z) Brook Abridg. tit execut n. 99. Contrarium in haeredibus constituit ius ciuile quo si aliquis ex haeredibus decesserit pluribus relictis haeredibus hi omnes accipere debent illampartem quae ad
accept or refuse the executorship Of the office of an executor testamentarie vndertaking the executorship 1 Wherein the office of an executor doth principallie consist §. v. 1IT †appertaineth to the office of an executor testamentarie heere in England accepting the executorship amoÌ„gst other things a) De quibus consulas velim Io. de Canib Tract de executor vlt. vol. part 2. q. 1. n. 26. vbi decem enumerat executoris officio incumbentia to cause an inuentarie to be made b) Vt infr ead part §§ 6. 7. 8. 9. 10. to procure the will to be proued and approued c) Vt infr ead part §§ 11. 12. 13. 14. 15. to pay the testators debts and legacies d) Infra §. 16. and finally to make an account e) De quo infr ead pat §§ 17. 18. 19. 20. 21. Of diuers questions about the making of an inuentarie and first whether it be of necessitie that an Inuentarie be made 1 By the lawes ecclesiasticall of this realme and statutes of the same an inuentarie is necessarie 2 The executor which presumeth to administer the goodes and refuseth to make an inuentarie may be punished 3 The reason of this necessitie §. vi COncerning the making of an inuentarie it is expedient to vnderstand whether it bee simplie necessarie that an inuentarie be made what things are to be put into the inuentarie within what time the inuentarie is to bee made in what maner and what be the effects of an inuentarie That †an inuentarie is necessarie to be made by an executor testamentarie is euident as well by the lawes ecclesiasticall of this realme a) Legatin libertatem tit de executor testam c. statutum §. inhibemus lib. 3. prouincial constit Cant. coÌ„firmed by continual vse as also by the statutes b) Stat. H. 8. an 21. c. 5. of the same neither †ought the executor to meddle with the goods of the deceased before hee make an inuentarie c) d. §. inhibemus And if any executor refuse to make an inuentarie neuerthelesse presume to administer the goodes of the deceased he may be punished at the discretion of the Bishop or Ordinarie d) Legatin libertatem de executor testa The †reason is least the executor being disposed to deale vnfaithfully shoulde defraude the creditors or legataries by concealing the goods of the deceased e) Francis Porcellin Tract de inuentario q. 1. per §. sancimus de haered fal in Auth. What things are to be put into the inuentarie 1 All goodes cattels wares merchandizes moueable and immoueable are to be put into the inuentarie 2 Leases are to be put into the inuentarie 3 Corne on the grounde is to bee put into the inuentarie 4 Grasse or trees growing are not to bee put into the inuentarie 5 Whether such things as are affixed to the freeholde ought to be inuentaried 6 Whether debts are to be put into the inuentarie 7 Whether money due for land is to bee put into the inuentarie §. vij THe †things that are to be put into the inuentarie are all the goods cattels and rights which were the testators or did beloÌ„g or were due vnto him at the time of his death whether they bee moueable or immoueable corporal or vncorporall a) Francis Porcellin Tract de inuentar q 3. Pract. Petr. de Ferrar. de forma libelli quo agitu◠〈…〉 tationem Tutel Sichard i◠§. sin autem L. fin C. de iure de lib. n. 9. wherunto also agreeth the statutes of this realme wherby it is enacted that a true and perfect inuentarie be made of the goods cattels wares merchandizes as well moueable as not moueable whatsoeuer that were of the person deceased b) Stat. H. 8. an 21. c. 5. and therefore †leases ought not to be omitted foorth of the inuentarie c) Cattalla etâ—nim sunâ— realia Termes of law verb. chattels how many soeuer they be Likewise †emblemetes or corne growing vpon the ground ought to be put into the inuentarie seeing they belong to the executor d) Perkins tit deuise fol. 99. hanc opinionem longaeuus comprobanit vsus quicquid dicat Sichard post Angel in d. §. sin autem but †not the grasse or trees so growing which beloÌ„g to the heire e) Parkins vbi supra nor †things that are affixed to the tenement and are made parcell of the free holde such I meane as belong likewise to the heire and not to the executor f) L. accessorium de reg iur 6. huc facit L. caetera de leg 1. ff in princ The †debts due to the testator are to bee put into the inuentarie g) Gloss in L. chi ographus ff de admÌ„str tut Quod verum quidem est si existant instrumenta alià s non requiritur vt inscribantur donec recuperentur in manibus tractentur vt quae inteâ—im non rectè dicantur reperta Lindw in d. c. statutum §. inhibemus verb. bonis Pract. Ferrar. forma libelli ad reddendaÌ„ rationem tut §. in suo n. 13. Aequum tamen est vt aliqua fiat commemoratio huiusmodi creditorum vtut incertorum ne sublata penitus corum memoria decepti maneant defuncti creditores liberi legatarij vel alij interesse habentes in ea parte But the debts due by the testator they need not to be put into the inuentarie h) Lind. in d. c. statutuÌ„ Ferrar. vbi supra and if any such debts be put into the inuentarie the Ordinarie shall do well to make diligent examination whether the testator did owe any such for many times debtes are thrust into the inuentarie which are not due by the testator and so the legataries and children of the deceased are often defrauded at least of some part of their due by the vnfaithfulnesse of the executor and negligence of the Ordinarie or his officer Landes †tenements and hereditamentes with their appurtenances such I meane as doe not belong to the executor but descend to the heire are not to be put into the inuentarie Insomuch that if the testator will by his testament or last will that the same lands be solde In this case by the statutes of this realme neither shall the money thereof comming nor the profites of the saide landes for any time be accounted as any of the goodes or cattelles of the person deceased i) Stat. H. 8. an 21. c. 5. and consequently are not to be put into the inuentarie Within vvhat time the inuentarie is to be made 1 The time for making and exhibiting the inuentarie is left to the moderation of the ordinarie 2 The inuentarie ought to bee made before the executor meddle with the testators goodes except in some cases §. viij THe †time appointed for the making and exhibiting of the inuentarie by the lawes ecclesiasticall of this realm is left to the discretion and moderation of the Ordinarie
Diuers questions about the probation of testaments 2 Testaments are to be prooued before the Bishop or Ordinarie 3 Certaine cases wherein testaments are to be proued before others then before the Biâ—hop 4 Of the prerogatiue of either Archâ—ishop 5 What is ment by Notable goods §. xi COncerning †the probation and approbation of testaments these things are chiefly to bee enquired before whome the testament is prooued by whom when howe and what fees hee due in that behalfe The person †before whom the testament is to be proued is the Bishop of the Dioces where the testator dwelled a) Legatin libertatem de execut testam c. iteÌ„ quia c. statutum de testa lib. 3. prouincial const Cant. c. statuimê° lib. prouincial constit Ebor. Lindw in d. c. statutum Doct. Stu. lib. 2. c. 28. Perkins tit testament fol. 94. Trac de repub Angl. lib. 3. c. 7. stat H. 8. an 21. c. 5. or his officer b) Perkins vbi supra Fitzh Abridg. tit testament n. 3. Brook eod tit n. 12. c. fin de fide instr extr Sichard in L. 2. n. 3. C. de testa to whom by auncient custome obserued this many hundred yeares together with the roiall consent of the kings and princes of this land the probation and approbation of testaments haue apperteined c) Lindw in d. c. statutuÌ„ verb. ecclesiasticarum libertatum Qui in d. c. Item quia verb. insinuationem vbi existimat testamentorum insinuationem seu publicationem iure ciuili non pertinere ad episcopos sed iure tantùm authenticorum quo ius codicis corrigitur quod ius autheÌ„ticum sancitum fuit ab Imperatore Iustiniano vltra mille annos retro numerandos non solùm executio sed etiam ipsa insinuatio publicatio coram episcopis ordinariam iurisdictionem exerceÌ„tibus fieri potest vt firmat Sichard in L. 2. C. de testa n. 3. Sauinge †in certaine Signories or Lordships where the probation and approbation of testamentes of the tenaunts there dwelling dooth by prescription appertaine to the principall Lord d) Fitzh tit testament n. 2. Doct. Stud. lib. 2. c. 28. and sauing in certaine peculiar iurisdictions where by prescription or composition or other speciall title the probation and approbation of the testaments of such as dwell and die within those places dooth appertaine to the iudge of the peculiar e) Io. de Athon in legatin libertatem de exec testa verb. Ordinario And sauing where no goodes are bequeathed in the testament but onely landes tenements and hereditaments or other lay fee are deuised and that in such places where neither insinuatioÌ„ nor inrotulation is necessarie f) Supr part 3. §. 3. And sauing †where the partie deceased at the time of his death had notable goods extant in diuerse diocesses or iurisdictions for the probation approbation and insinuation or publication of the last willes and testaments of such persons doth appertaine to the Archbishop or metropolitan within whose prouince such notable goods be dispersed in diuerse diocesses or other inferior iurisdictions g) Lind. in d. c. statutuÌ„ verb. ad quos pertinet Perkins tit testament fol. 94. Fitzh Abridg. tit admÌ„str n. 7. Brook eod tit n. 48. whether it be within the prouince of Canterburie (h) Lindw in d. c. statutum verb. laicalis feodi stat H. 8. an 23. c. 9. pleniùs per Instrum Actorum libros Curiae praerogatiuae Archiepisc Cant. or within the prouince of Yorke (i) Perkins tit testament fo 94. pag. 2. stat H. 8. an 23. c. 9. euideÌ„tius per Instrum Actorum libros in archiuis Archiepiscopi Ebor. fideliter per plurimorum seculorum curricula conseruata What †is ment by Notable goods in this place or when they are so to be tearmed diuers authors haue bene of diuers opinions Some haue bene of this opinion that if the testator died possessed of goods or cattels to the value of fortie shillings in two seueral diocesses then he ought to be deemed to haue notable goodes k) Perkins tit testament fol. 94. Others haue beene of this minde that the testator is to be deemed to haue notable goodes though at the time of his death he had but one penie in another Diocesse l) Fitzh tit admÌ„str n. 7. Others do not only varie from the former opinions but are also at variance with them selues accounting those for notable goodes sometimes when they extend cleerely to a hundred shillinges sterling some times when they extend to ten pounde eleuen shillings vj. pence sometimes when they extend to xxiij pound three shillings farthing not vnder m) Lindw in d. c. statutum verb. laicis Finally others are of this iudgement that he is said to haue notable goods which hath goods to the value of ten pounde of currant money of England dispersed in diuers diocesses or iurisdictions and this opinion seemeth to me to be most commonly receiued n) Plowd in casu inter Greisb Fox fol. 281. By vvhome the testament is to be proued 1 The testament is to be proued by the executor 2 Any person hauing the testament may be compelled to exhibite the same §. xij THe †person by whome the testament is to be prooued is the executor named in the testament a) Perkins tit testament fol. 93. whom the Ordinarie or other person hauing aucthoritie for the probate of the testaments may conuent to the intent to proue the testament and to take vpon him the execution thereof or else to refuse the same b) Stat. H. 8. an 21. c. 5. This may the Ordinarie or other competent iudge doo †not onely ex officio c) L. 1. ff quemadmoduÌ„ testa app ibi Bar. n 1. but at the instaÌ„ce of any partie hauing interest d) Bald. Angel in d. L. 1. Opinor etiam quòd ad eius instantiam cui nihil est relictuÌ„ exhibendum testmÌ„ scilicet vt inde certior fiat Nunquid legatum aliquod sibi relictum sit a defuncto gloss Bald. in L. 2. ff quemadmodum testa app in princ which interest is proued by the othe of the partie e) Bar. Bald. in d. L. 1. If the executor haue not the testament in his custodie but some other person then may such person be compelled to exhibit the same f) L. 1. in prin §. hoc interdict ff de Tab. exhibend And it is sufficient to proue that once he had it for he is presumed still to haue the same vnlesse he affirme vpon his othe that the same is not in his possession g) Alex. in L. 2. C. de testa n. 3. verb. tamen When the testament is to be exhibited and prooued 1 The testament is not to bee proued whiles the testator liueth but after his death 2 If it be vnknowen whether the testator be dead or aliue whether may his testament
dissent aboute the election of the thing bequeathed this controuersie is to be decided by lot if it be not otherwise resolued who in that choise is to be preferred (g) §. optionis Instit de lega Of vncertaintie in respect of the time or date of the testament 1 When it is vncertaine whether of two testaments is later both are voide 2 The testament in fauour of children is presumed last 3 The testament ad pias causas is presumed last 4 The will once proued is not to be reproued by an other of the same date 5 A souldier may die with two testaments 6 Which of these two testaments is presumed later the testament ad pias causas or the testament inter liberos §. xj WHere †two testaments be founde but vncertaine whether of them is the later in this case neither testament is good a) Gloss in L. vlt. C. de edict â—i Adria toll Clar. §. testmÌ„ q. 100. for no man can die with two testaments b) L. quaerebatur ff de testoÌ„ mil. and so the one testament doth destroy the other c) Bar. in L. 1. §. 1. ff de bon poss secundum Tabul Neuerthelesse if the †one testament be made in fauour of the testators children or of those who are to haue the administration of his goods in case he had died intestate and the other testament in fauour of others then that testament shall preuaile which is made in fauour of the testators children or of them which otherwise are to haue the administration of his goods d) Bar. in d. §. 1. Sichar in L. vlt. C. de edicto Di. Adr. toll Mantic. dâ— coniect. vlt. vol. lib. 2. tit 15. n. 17. Or if †the one testament be made ad pias causas the other not then that testament ad pias causas is presumed last and so to take place e) Ias Sichard in d. L. vlt. Or if †the one testament be proued the other perhappes not as yet appearing and the executors in possession of the testators goods by vertue of the testament alreadie proued it is not afterwards to be reproued nor the executors dispossessed by meanes of the other testament of the same date f) Bar. in d. §. 1. Ias Sichard in d. L. vlt. Or if †the testaments be militarie testaments for then perhaps they are both good because a souldier may die with two testaments g) L. quaerebatur ff de mil. testa Where it is saide that that testament is presumed later which is made in fauour of them that are to haue the benefite of the administration of the testators goods or ad pias causas rather then those testaments which are not made ad pias causas nor in fauour of them which are to haue the administration What †if two testaments be found the one in fauour of the testators children or such as are to haue the administration of the goods of the deceased the other made ad pias causas and it dooth not appeare whether of them is former or later whether is to be presumed last and so of force I suppose that if they which are to haue the administration of the testators goods in whose fauour the testament is made be the testators children then that testament made in their fauour is to be presumed later rather then the testament ad pias causas h) Mantic. de coniect. vlt. vol. lib. 6. tit 3. n. 43. Vide supra 1. part §. pen. in sin quod ibi adnotaui ex Augustino otherwise the testament ad pias causas is to be presumed later rather then that testament made in fauour of collaterall kinsmen i) Mantic. vbi supr per L. sancimus C. de sacrosan ecclesia Of an vnperfect testament 1 Two sorts of vnperfect testaments 2 Whether a testament which is vnperfect in respect of solemnitie be voide 3 When a testament vnperfect in respect of will is voide 4 Two meanes whereby testaments are saide to be vnperfect in respect of will 5 Whether the testament be voide which is vnperfect by the former of these two meanes 6 By the ciuill lawe the testament vnperfect in respect of will is voide 7 Whether a testament ad pias causas being imperfect in respect of will be voide 8 That which hath place in testaments ad pias causas hath place also in our testaments 9 Whether a testament being vnperfect in respect of will by the second meanes be voide or not 10 What if the testator after hee haue declared his whole will reserue somewhat to be done at an other time 11 What if the testator hauing declared his testament doo sende for a Notarie to write and die in the meane time §. xij OF imperfect †testaments there be two sorts the one vnperfect in respect of solemnitie the other vnperfect in respect of will a) L. hac consultissima § ex imperfecto C. de testa ibi Paul de Castro Ias alij Boer decis 240. n. 4. 5. That testament is said to be vnperfect in respect of solemnitie which wanteth some of the legall requisites necessarie to the constitution and denomination of a solemne testament b) Sichard alij in d. §. ex imperfecto of which we haue alreadie spoken c) Supra 1. part §. 7. part 4 §. 23. That testament is said to be imperfect in respect of will which the testator hath begun but cannot finish as he would being preuented by death insanitie of minde or other impediments d) Ias Sichard alij in d. §. ex imperfecto L. si is qui de testa ff L. furiosus qui testa fac poss C. The †testament which is vnperfect in respect of solemnitie is vtterly voide by the ciuill lawe e) L. 1. de iniusto testoÌ„ ff L. hac consultissima §. ex imperfecto C. de testa DD. ibid. Minsing in §. sed cum paulatim Instit de testa ord n. 12. Iul. Clar. §. testmÌ„ q. 89. but by the lawes ecclesiasticall f) c. relatum el. 1. c. cuÌ„ esses de testa extra and especially by the generall custome of this realme g) Tract de repu Aug. lib. 3. c. 7. Lindw in c. statutum de testa lib. 3. prouinc const Cant. the testament is good without any such solemnities sauing that where lands tenements and hereditaments be deuised by will the solemnitie of a writing in the life time of the testator is precisely necessarie without the which the deuise of lands tenements and hereditaments is meerely void h) per Stat. H. 8. â—an 32. c. 1. vt refert D. Smith Tract vt supra Quod tamen quaere The †testanent which is vnperfect in respect of will is sometimes vtterly voide and sometimes it is good so farre forth as it is done which diuersitie of effects doth arise by the diuersitie of the meanes whereby the testament is vnperfect If
in L. râ—â— legatam ff de adimen leg in L. 3. C. de lega which coÌ„clusion †hath place although the gift or alienation bee void in lawe q) L. legatum §. pater ff de adimen lega Bar. in L. cum dn̄◠§ fin de pecul leg 1. Socin sen consil 104. n. 11. vol. 3. Couar in Rub. de testa extra 2. part n. 21. Mantic. de coniect. vlt. vol. lib. 11. tit 6. n. 2. quod locum habet tametsi legatum fuerit expressim legatum hâ—â—c sententia verior est receptior testibus Mantica vbi supra Mascardo de probatione concl 1280. n. 98. Gabriel cons 103. Idem iuris est si facta alienatione dominium non sit traâ—â—atum Mantic. d. tic 6. n. 3. Mascard d. concl 1280. n. 100. Et licèt non desint magni nominis Interpretos qui in contraria stant sententia per L. praedia §. libert de Instr leg Falsissima tamen est horum sententia si verum dicat Gabr. d. consil 103. Tu verò dic vt per D. Gentilem acutissimè de hac re differentem lib. 1. epist c. 10. For it is sufficient in last willes for the reuoking of a legacie that the testators meaning doo appeare euen by a sufficient acte r) Couar in d. Rub. part 2. n. 21. verb. aduertendum Grass Thesaur com op §. legatum q 78. in sin Secondly this conclusion †hath place although the testator should redeeme the thing alienated the alienation being lawful s) L. cum seruus ff de adimen leg and therfore if the legatarie should after the death of the testator demaund the legacie alienated and redeemed his petition were to be repelled vnlesse he did prooue a new will of the testator or some approbation or ratification of the former will after the redemption of the thing alienated t) d. L. cum seruus or vnlesse the legacie be of freedome from bondage v) L. veruÌ„ ff de testam manumiss or giuen to some godly or charitable vse x) Mâ—nsing in d. §. si reÌ„ Instit de lega Mantic. d. tit 6. n. 6. Masâ—aâ—d d. conclus 1â—80 n. 112. or vnles the alienation were necessarie not voluntarie y) Bar. â—n d. L. cum seruâ—s or vnles the legatarie be neere of kin or allied vnto the testator z) L. siâ—ia § Titio ff de cond demon Masc d. concl 1280. n. 111. In these and in some other cases the legacie redeemed may be recouered as if the same had neuer bene alienated a) Mascard d. conclus 1280. n. 108. 109. c. vbi alias videre licet huius regulae exceptiones Peraduenture also by the lawes of this realme †landes tenements and hereditaments being first deuised and after the deuise alienated and after the alienation redeemed may be recouered as if the same had not bene alienated b) Brook abridg tit deuise n. 8. The †reason of this law may be because the alienatioÌ„ dooth not defeate the will which is not as yet of any force vntill the testator be deade c) Brook eodem loco but the reason of the ciuill lawe is because by this voluntarie or vnconstrained alienation or gift of the thing bequeathed being an act contrarie to the former acte of the testator his will and meaning which is the life and soule of the testameÌ„t is straight wayes presumed to be changed d) Aretin in §. si rem Instit de lega Socin sen consil 103. in fin Mascard de probac. concl 1280. n. 100. Sichard in L. 3. C. de leg n. 5. and consequently the legacie not to be asleepe as some doo dreame but to be quite dead and extinguished e) Sichard in d. L. 3. C. de leg â— 5. 8. and being once dead cannot easily be awaked but standeth in need of a new consent or other liuely act before it can be reuiued f) L. cum seruus ff de adimen lega If †the thing bequeathed be not fully alienated as if it be pledged or pawned the legacie is not thereby extinguished g) L. qui post C de lega and therefore the executor in this case is bound to redeeme the same and to restore it to the legatarie or to pay the price thereof if he suffer it to be forfaited h) Istam conclusionem limitat sublimitat Mascar de probatione conclus 1280. n. 56. c. quem velim videas Likewise if some part onely of the legacie be alienated the other part not alienated is due and may be recouered i) § ff rem Instit de lega vnlesse it be prooued that the testator did meane by alienating part to take away the whole legacie k) Eod. §. in fin or if the legacie be alternatiue as if the testator bequeathe something or the value thereof the thing being alienated yet may the value be recouered l) Bald. Paul de Castro in L. 3. C. de lega If the †testator doo bequeath an obligation or a summe of money due vnto him and afterwards the debter vnprouoked dooth voluntarily pay the debt due vnto the testator the receit of the same is no ademption of the legacie m) L. fideicommissa §. sed si rem ff de leg 3. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 19. but if the testator do prouoke the debter to make paiment then by receit thereof the legacie is extinguished n) d. §. sed si rem ibi Bar. alij L. pater ff de adimen leg Mascar de probac. concl 1280. n. 130. vnlesse the legatarie be able to prooue that the testator did not thereby meane to reuoke the legacie o) d. §. sed si rem for that peraduenture the testator exacting and receiuing the money did lay it vp and safely keepe it for the legatarie p) Eod. §. sâ—d si rem ibi Bar. in fin Bald. circa med or did vtter in woordes that he did not intende thereby to reuoke the legacie q) Bar. in d. §. sed si rem In these cases the legacie is not reuoked r) Vide Mascar d. conclus 1280. n. 132. 133. Finally †If the testator do bequeath a flocke of sheepe and afterwards the number decreasing they become fewer then a flocke a flocke consisteth of ten at the least s) L. si grege ff de leg 1. DD ibid. be it that of al the flocke there be left but one In this case the will of the testator is not presumed to be altered nor the legacie adempted and therefore that one sheepe is due t) §. si grex Instit de lega Of translation of legacies 1 Translation of a legacie what it is 2 Euery translation includeth an ademption 3 What if the person to whom the legacie is transferred be incapable thereof 4 Certaine cases wherin translation of the
case namely when some speciall or certaine thing is bequeathed it is materiall whether the legacie be of lands tenements or hereditaments and so the question determinable in the temporall court according to the lawes temporall of this land are of goods and so the controuersie to be decided in the ecclesiasticall court according to the lawes ecclesiasticall of this realme If of lands tenements hereditamēts as when the testator for example doth in the former part of his wil deuise his lāds in such a place to one in fee and afterwards in the later part of the same will to another person in fee it seemeth by the lawes of this realm that the later part doth ouerthrow the former s) Plowd in cas inter Paramor Yardley fol. 541. And that as the later testament dooth destroy the former testament t) Eadē enim est ratio partis ad partem atque totius ad totum Euerard loc top à toto ad partem so the later part of a testament doth infringe the former part of the same testament when it is contrarie thereunto neuerthelesse I wil not presume to affirme that this conclusion is vndoubtedly certaine but with due submission surrender the same to be discussed by the learned in the lawes temporall vnto whom it rightly appertaineth If the deuise be of goods as when the testator dooth bequeath his signet his bookes or his horse c. First to one person and afterwards to another person then in case the second legacie be simple I meane without mention of the former the former legacie is not taken away but the two legataries concurring ought to diuide the legacie betwixt them v) Paul de Castro Ias Zas in L. si pluribus ff de leg 1. Ripa in L. re coniūcti n. 21. de leg 3. The reason and foundation whereupon this conclusion is builded is the testators constancie wherin the ciuill law dooth repose such confidence that whē he hath once bequeathed a thing he is not presumed to take the same away x) d. L. si pluribus verb. si quidem euidentissimè without euident presumption y) Raph. Cum. in d. L. si pluribus ibi Ias n. 12. 13. zas n. 14. qui omnes tenent sufficere coniecturalem probationem non obstante quod Textus exigat euidentissimam Quin imo probatio vel ex coniecturis emergens dicitur euidentissima in translatione legatorum Ias vbi supra post Bar. in L. si constante ff sol ma. n. 12. of the alteration of his former resolution Insomuch that if one and the same thing be left to one person in the testament and to another in the codicill yet is not the testator presumed so variable as vtterly to take away the former legacie but rather that both the legataries are to concurre and so to diuide the legacie betwixt them z) Bald. in L. cohaeredi §. cohaeres in fin de vulg pup sub ff Alex consil 169. vol. 5. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 3. Where it is said that as the later testament doth destroy the former testament so likewise the later part of the testament dooth ouerthrow the former part thereof That is true when it is euident that the testator did meane it should be so a) d. L. si pluribus ibi DD. Mantic. de coniec vlt. vol. lib. 12. tit 2. n. 3. in fin But if it be doubtfull then without all doubt we ought to labour diligently to saue the testament from cōtradiction b) Mantic. de coniect. vlt. vol. lib. 3. tit 5. in fin Socin Iun. consil 125. vol. 1. n. 5. and not suffer one part to fight and brawle with another much lesse to permit one part to kill and destroy another in case there be any place for peace or hope of reconciliation to be had betwixt them Againe the argument is not of equall force à parte ad partem with the argumēt à toto ad totum in case there be inequalitie or diuersitie of reason betwixt the one and the other c) Euerard d. loco à toto ad partem n. 7. post Cyn. alios legû interpretes in L. cum notissimi §. in his C. de praescrip 30. ann as in this case For say that such is the force of posterioritie in testaments that the later dooth still destroy the former d) §. posteriore Instit quib mod testam infirm without any other reuocation e) Viglius Minsing in d. §. posteriore Say and thinke that the life of the later testament is euermore the death of the former testament euen because it is the later f) Grass Thesaur com op §. testm̄ q. 860. in prin supra eadem part §. 14. yet how can it be thereby iustified that the later part of a testament dooth destroy the former part whereas neither part doth receiue any life before the other g) Bar. in L. si quis ff de testa L. ex ea scriptura eod tit for vntill the whole testament be completed the partes thereof are as the sencelesse partes of an vnperfect creature or confused embrio h) d L ex ea scriptura Imo inquit Textus testamentum imperfectum est sine dubio nullum §. pen. Instit quib mod testa infir and doo receiue their life altogether at one instant namely when the testator hauing finished his testament dooth approue the same for his last wil and not before i) Iul. Clat. §. testm̄ q. 7. in fin Like as they do receiue their strength all at one moment namely at the death of the testator and not before at which time the foresaid Embrio being now growen to a perfect childe is then brought into the world when the testator doth depart out of the world k) Chrof Porcus in §. in extraneis Instit de haer qual different c. Marth de celebr miss extra If the second bequest be qualified with mentiō of the former for example the testator saith my signet which I bequeathed to A.B. I bequeath to C. D. whether in this case the former legacie be quite taken away or in part is a question wherin the writers do greatly vary l) Id quod patet per Mantic. de coniect. vlt. vol. lib. 12. tit 4 per Couar in Rub. de testa extra part 2. per Grass Thesaur com op §. legatum q. 8. per Vasq de success progress lib 3. §. 23. n. 96. c. per Doctores in L. plane L. si pluribus ff de leg 1. but the greater nūber incline to this opinion that the former legacie is not wholy taken away but that they are both ioint legataries m) Bar. in L. re coniuncti ff de leg 3. cuius opinionem frequentiori calculo receptam monstrat nobis Mantic. de coniect. vlt. vol. lib. 12. tit 4. n. 1. et refert Grass Thesaur com op §.
115 An Executor may bee made either by the proper motion of the testator or at the interrogation of an other 116 Executor when is he said to be appointed conditionally 120 An Executor may be made vniuersally or particularly 175 An Executor may be ordeyned eyther from a time or for a time 171 An Executor may bee made in the first second or third degree 176 The Executor of an executor may sometimes be sued as executor in his owne wrong 182 Executor euery one may be which is not forbidden 196 Executor by the law 205 Executor by the Ordinary 206 The Executor is not to meddle with lands tenements hereditamēts 210 The Executor may be cited to accept or refuse the executorshippe 208 The Executor being cited if he will not appeare the Ordinarie may commit administration 208 The Executor cannot be compelled to vndertake the Executorshippe 208 Executor of an executor whether he may ioyne with the executor suruiuing 213 The Executor punishable which doeth administer without an inuentarie first made 217 The Executor resolued to refuse the executorship must not meddle as executor 236 Executor when doeth he administer as executor 236 Executor ought to be capable of the executorshippe at three seuerall times 276 Expences to be allowed to the executor 235 Exposition of testaments fauorable 24 F False cause whether it destroy the disposition 245 A Famous libel what it is 58 The Father may by his will appoint a tutor to his childe 96 In Fauour of libertie the condition need not to be obserued precisely 130 Feare and Fraud make voyd the testament 10 Feare hindereth the effect of the testament 240 Feare whether it be preiudiciall to any other then vnto the author thereof 240 Feare whether it destroy the testament confirmed with an oath fol. 240 Feare of future hurte whether it destroy the testament 241 Feare whether it be proued by the protestation of the testator 242 Fees due about the probation of the testaments 225 Fees due for copies of testamentes or inuentaries 227 Felons intestable 53 Felons landes who shall haue 53 Whether he that is onely indited of Felony may make his testamēt 53 Whether he that is only apprehended for felonie may make his testament 54 Felons goods not to be seised before atteindure 54 A Felons testament conuicted is voide though he be neuer executed 53 Flatterie not alwayes vnlawful 243 Flattery mingled with feare doeth hurt the testament 243 Flatterie mingled with fraude destroyeth the testament 243 Flattery destroyeth the force of the testament whē the testator is vnder the gouernment of the flatterer 243 Flattery if it be immoderat hindereth the disposition 243 A Flock of sheep being bequeathed if all perish but one whether that one be due 281 Formes of testaments so many as there be kindes 111 Of Formes testamentary some be generall some particular 111 Forme essentiall of a testamēt is the appointment of an executor 112 The Forme of the bond called Mutiana cautio 140 The Forme of a solemne testament 188 The form of an vnsolemne testamēt 189 The Forme of a nuncupatiue testament 192 Forme to be obserued in making of an inuentary 219 Forme of prouing testaments twofolde 223 The former testamēt is not reuoked by the second made by flatterie 243 Former testament voyd where the testator is forbidden to alter the same 273 Former testament in some cases is not void although the testator be forbidden to alter the same 274 Forfeiture for extortion of fees 227 Foundation of the testament 112 Fraud as detestable as force folio 242 Fraud doeth not alwaies destroy the testament 242 Freedome requisite in the testator 10 Funerall expences to be deducted out of the whole goods 104 G Gardian see Wards Gauelkind lands may be deuised by will 70 Gauelkind lands by what occasion they were made deuisable 70 The Generall signification of this word testament 2 The Generall forme of testamentes twofolde essentiall accidentall 111 Generall legacie of all or the residue of the testators goods whether it make an executor 115 Generall legatarie is not alwais vnderstood to be the executor 115 A Gifte in consideration of death what it is 16 Three sorts of Gifts in consideratiō of death 16 Which Gift in case of death is compared to a legacie 16 Goods at what age they may be deuised 35 Goods of any kinde are deuiseable except in certain cases 91 Goods which a man hath ioyntly with another are not deuiseable 92 Goods which any hath as administrator are not deuisable 92 Goods of the Realm vz. of the auncient crown and iewels not deuisable 22 Goods belonging to a church or hospitall cannot be deuised 93 Goods belonging to a city borough or comminalty not deuisable 93 Goods conteined in the inuentary are presumed to be in the hands of the executor 220 Goods other then are described in the inuētary the executor is not presumed to haue 220 Grasse or trees growing are not to be inuentaried 218 H Hard conditions whether they suspēd the effect of the dispositiō 125 An Hereticke cannot make a testament 54 An Heretick whether and when he doth forfeite his landes or goods 54 An Hereticks testament not cōuicted whether it be good 54 An Heretick may be condēned after death 55 An Heretick reclaiming his heresie whether he may make a testamēt 55 An Heretick cannot be executor 197 An Heretick cannot be executor in a military testament 197 An Heretick reclaiming his heresie whether he may be executor 197 Heire hath not to deale with goods and cattels of the testator 210 An House bequeathed and afterwards reedified and renued whether the same may be recouered 278 The House bequeathed being burned or blowen downe and afterwardes another erected whether may this new house be recouered 279 Husbands licence necessary to the validity of the wiues testament 47 The Husbande whether hee may reuoke the licence graunted to his wife 47 I An Idiot or natural foole who 39 An Idiot cānot make a testamēt 39 An Idiot if he do make such a testament as seemeth reasonable and voyd of folly whether is the same good in law 39 That Idiotes haue giuen very wise sentences confirmed by exāples 40 Idiots in the custodie of the Prince 99 What Immunitie wee enioy in England concerning testaments 18 Imperfection testamentary twofold 6 Impossible conditions do not make the disposition conditionall 126 Of Impossible conditions there bee diuers kindes 122 Impossible conditions doe not suspende the disposition 124 Impossible conditions which the testator supposed to be possible whether they suspend the disposition 125 Impossible conditiōs negatiue make voyd the disposition 126 Incestuous mariages 57 Incestuous persons whether they may giue any thing by their testaments and to whom 57 Incestuous persons may in some cases bequeath something to their incestuous children 57 What Inconuenience would follow if vnsolemn testaments were not properly testaments 20 Indifferēt betwixt a wise man and an Idiote may make a testamēt 39 Indited of felony whether hee may