Will only to Land and a Testament only to Chattels requiring Executors which a Will only for Land doth not require For it seems that by the Common Law where Lands or Tenements are only devised by writing albeit there be no Executor named yet that is properly called a Last Will and where it concerns only Chattels a Testament The truth is a Testament taken strictly according to the said definition differeth from a Last Will yet not as opposite thereto but only as the Special differeth from the General for every Testament is a Last Will but every Last Will is not a Testament In a word a Last Will is a general word and agrees with each several kind of Last Wills or Testaments But a Testament properly so called is only that kind of Last Will wherein an Executor is named or appointed Plowden in his Commentaries doth define a Testament to be the Witness of the mind and to be compounded of these two words viz. Testatio and Mentis But this is no adequate definition of a Testament neither is it a compound word but a single word such as is Calceamentum Paludamentum and the like And if it be demanded whether a Testament may be good in Law without a Seal it is Answered in the Affirmative for a Seal is not absolutely necessary to a Testament though it may be fit and expedient For a Will not being properly and legally a Deed may be good enough without a Seal which is one essential part of a Deed yet hath a Will the force and effect of a Deed. CHAP. II. Of the several Distinctions or kinds of Testaments A Testament is either Solemn or Vnsolemn This though the first and greatest distinction of Testaments yet of least force or use with us now in England 2. Testaments are either written or Nuncupative 3. They are either priviledged or unpriviledged Of Priviledged Testaments there are three sorts whereof some are called Militarie Testaments others are called Testaments only among the Testators own Children and others are Testaments to Charitable and Pious uses But if no Executor be named or appointed then it hath not the name of a Testament yet it shall retain the name of a Last Will and comprehends one of these three viz. either a Codicil or a Legacy and Devise or a Gift in regard or by reason of death CHAP. III. Of Testaments Solemn and Vnsolemn IN Solemn Testaments are comprehended the Solemnities of the Civil Law as the presence of seven Witnesses their subscription or subsignation the making or expediting the act of the Will it self at one and the same time with divers other Solemnities necessarily required by the Civil Law as Essential to a Testament whereof we have no use here in England being not obliged to such Ceremonies In Vnsolemn Testaments the said Ceremonies are omitted and such are our Testaments here in England wherein we are no further obliged than to the observation of such Requisites as are necessary Jure Gentium which requires but two Witnesses And saving in a Devise of Land wherein Writing is also necessary and that it be made in the Testators life time The Testator if he please may make use of more than two witnesses and procure their subscription yea for prevention of Forgery to every page of the Testament but no obligation hereto CHAP. IV. Of Testaments Written and Nuncupative 1. Testament Written what 2. Difference between Devise of Lands and Bequest of Goods 3. Lands of Burgage tenure and by Custome deviseable may pass Nuncupatively 4. Naming Executor not necessary in a Will only for devise of Lands 5. Notes taken in writing-sufficient for devise of Lands 6. Testament Nuncupative what 7. The Will whether Nuncupative or Written in case the Executors Name be omitted out of the writing 8. Law Cases relating to this subject § 1. A Written Testament is such as at the time of making thereof is committed to writing By which words are excluded such Testaments as are afterwards put into writing For being first made by word of mouth they still remain Nuncupative notwithstanding the reducing thereof into writing after the Testators death Among other advantages that a Testator hath by a written Will this is one that he may conceal the Contents thereof from the Witnesses which in a Nuncupative Will he cannot do And it is sufficient if taking his Will in his hand he say unto the Witnesses This is my Last Will and Testament or herein is contained my Last Will or other words to the like effect 2. As touching the disposition of Land of Inheritance by Will if it be not fully written before the Testators death so far at least as concerns the disposition of the said Land it may not be for that part made good by reducing it to writing after the Testators death but as touching Goods and Chattels it may Nevertheless if it be written before the Testators death though it be never brought nor read to him after the writing thereof yet is it good enough and that not only for Land but also for Goods and Chattels provided that there be an Executor named And this shall be a Will in writing and not verbal only yea though it want the subscription of the Testators Name For many cannot write at all and some want hands Nor is the subscribing the name of the Maker any essential part of a Deed much less of a Will which needs not sealing as a Deed doth 3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever for in a Devise of Lands Tenements and Hereditaments held in Burgage-tenure it is not necessary that the same should be written because such may pass sufficiently by Will Nuncupative because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands Tenements and Hereditaments by Will in writing in the Testators life-time which cannot pass by a Nuncupative Testament or Will without writing So that Lands of Burgage-tenure and by Custome deviseable may pass Nuncupatively though Lands of other tenures are not deviseable but by Will in writing 4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will yet this properly refers only as to Goods and Chattels for a man may by his Last Will in writing devise his Lands Tenements and Hereditaments though he make no Executors because an Executor hath nothing to do with the freehold of Land 5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will for the devise of Lands Tenements and Hereditaments and afterwards write the same but the Testator dies before it be shewed unto him yet this is sufficient for a Will in writing for the coveying of Lands Tenements and Hereditaments Likewise it is sufficient if Notes or Articles be made and read to
of Wills and Testaments afterwards to be made as if the Testator sayes Whatsoever Testament I shall hereafter make I will the same to be void and of no force In this case it is not infringed by a later Testament unless in that later there be mention thereof sufficiently made to amount unto a legal revocation of that former Testament or clause derogatory 5. If a man saith that he will revoke his Will hereafter which he hath made that is not any revocation without the doing of some other Act. Likewise if one saith that he will make a Feoffment thereof to another that is no revocation before it be done But if a man Devise Land to another by his Will in writing and after Devise it unto another per paroll albeit that is void as a Will yet it is a revocation of the former Will If a Devisor alien the Land Devised and afterwards repurchase the same Land yet the Will is revoked as to that Land 44 Ed. 3. 33. 44. Ass D. 3 4 P. M. 143. 55. Contra. 2 R. 3. 3. b. Trespass upon evidence where one hath made his Will in writing and devised his Land to A. and her heirs and afterwards being sick and lying upon his death-bed because A. did not come to visit him affirmed that A. should not have any part of his Lands or Goods It was held by all the Court that it was not any revocation of his Will being but by way of discourse and not mentioning his Will But the revocation ought to be by express words that he did revoke his Will and that she should not have his Lands given unto her by his Will or such like words which might shew his intent to make an express revocation thereof Ejectione Firmae Upon evidence to a Jury it was resolved by the Court and so delivered to the Jury that if one makes his Will in writing of Land and afterwards upon Communication saith That he hath made his Will but it shall not stand or I will alter my Will c. These words are not any revocation of the Will for they are words but in futuro and a declaration what he intends to do but if he saith I do revoke it and bear witness thereof he doth hereby absolutely declare his purpose to revoke it in praesenti and it is then a revocation Also Mountague said to the Jury and it was not denied by any other of the Justices That as one ought to be of a good and sane memorie at the disposing so ought he to be of as good and sane memory when he revokes it And as he ought to make a Will by his own Directions and not by Questions so ought he to revoke it of himself and not by Questions CHAP. XIX Of a Reviver of a Will Revoked 1. How a Will Revoked may be Revived 2. How an Executor Revoked may be Revived 3. How one may dye both Testate and Intestate 1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will also a Will revoked may without making a New Will be revived and set on foot again by annexing a Codicil thereunto or by adding any thing to the Will or by making a new Executor or by express speech and word that it shall stand good and be his Will yea and sometimes without either of these as thus A man makes his Will many years after he makes another then in his sickness both these Wills are put into his hands and being demanded which of these Two he will have to stand for his Last Will and Testament and being required to deliver back that which he will have to stand and to detain the other in his hands he delivers back the Will he first made possibly many years before the later In this case the former Will though once made void by the later is now revived again and shall stand as the parties Last Will and Testament 2. If one of the Executors Names be stricken out of the Will and afterwards a stet be written over it by the Testator or by his appointment he is then a revived Executor but then Note that if the stet shall stand good the Executors Name over which it is written ought not to be so blotted out but that it may be read and discerned otherwise the stet is over nothing at all Or if the Testator express by word in the presence of witnesses that the party put out shall yet be Executor he is then also a revived Executor Lastly if the verbal re-affirmance renew the Executorship then is the Will partly in Writing partly Nuncupative his Name not being to be found in the written Will for the appointing of the Executor doth create the Will though it hath not life till the Testators death which is Divinity as well as Law 3. If a man seized of Lands in Fee-simple dispose of the same or part thereof by his Will in writing it shall stand good for the whole or part according to the difference of Tenure though no Executor be named or appointed so that the party shall die Intestate as touching his Goods whereof Administration is to be committed yet shall have a Will as touching his Lands because Land is not properly Testamentary And so a Will may be good in part only But where the strictness of the Civil Law is observed there a man cannot die partly Testate and partly Intestate though here in England where that Ceremonial strictness is not observed but all immunities enjoyed being not obliged to any other observance in making of Testaments than what is Juris Gentium a man may thus and several other wayes die partly Testate and partly Intestate CHAP. XX. Of the Probate of Testaments 1. Where and before whom the Will is to be proved 2. By whom and at whose instance the Will is to be proved 3. When is the Will to be proved 4. How and in what manner is a Will to be proved 5. What are the Fees upon Probate of a Testament 6. Touching refusal to prove the Will 1. EVery Last Will and Testament after the Testators death ought to be duly Proved before a Competent Judge in the Ecclesiastical Jurisdiction A Testament or Last Will is to be Proved before the Bishop of that Diocess within which the Testator had his Domicil or Habitation or before his Official unless by Custome or Prescription within certain Lordships or Mannors it appertains to the Chief Lord or unless the Testator died within some peculiar Jurisdiction in which case the Probation of the Testament may be Prescription or Composition belong to the Judge of the peculiar or unless the Testament be such as wherein only Lands Tenements and Hereditaments and no Goods be devised or unless the Testator had Bona Notabilia at his death in divers Diocesses in which Case the Probation of the Testament appertains to that Arch-Bishop within whose
the Testator though the same be not ingrossed at large or in form of Law until after the Testators death 6. Testaments are called Nuncupative when the Testator without any writing doth declare his Will before a sufficient number of Witnesses and such Nuncupative Will is of as great force and efficacy except for Lands Tenements and Hereditaments as any written Testament Yea this verbal oral or Nuncupative Will being after the Testators death reduced to writing and having the Court Seal affixed thereunto is of as good validity touching the disposal of Goods and Chattels as if it had been written in the Testators life-time 7. Although many Legacies be made and written in a Will and many things expressed to be done yet if no Executor be named in the writing only A. and B. by word of mouth appointed to be Executors this shall not amount to a Will in writing but to a Nuncupative will only because one essential part of the Will viz. the appointing of an Executor is omitted out of the writing Nay the appointing of him Executor who is named in such a Note left with C. D. is no sufficient making of an Executor at all Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary unless some other sufficient circumstance doth make it plainly appear whom the Testator meant so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties 8. A man took Notes of a Will of one who lay sick and afterwards he drew up the Will in writing but the sick person dyed before it was shewed to him Yet it was the opinion of the whole Court that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land Trin. 6 E. 6. Dyer 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case where Articles were read to the Devisor concerning the disposition of his Lands and the Articles were written and engrossed after his death and yet it was a good Will within the said Statute of 32 H. 8. A man intended Land to J. S. for life the remainder to J. D. and before the remainder was written the Devisor dyed It was the opinion of the Court that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other But in that case it was holden that if a man seised of two Acres intends one of them to J. S. and the other to J. D. and the Devise to one is written but the Devisor dyeth before the Devise of the other Acre to the other is written It is a good Devise for the Acre which is written but not for the other Acre B. Brought Writ of Entry in nature of an Assize against his Fathers Wife The Case upon Evidence was this viz. H. B. the Plaintiffs Father and Husband of the said Wife being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands A. desires B. to declare what he would have his Last Will and Testament to be and who to be his Executors whereupon A. wrote short Notes of his Last Will and every Legacy and who should be his Executors then return'd to his own House there wrote the said Will in Order and Form and therewith returning to the House of H. B. within half an hour after 12 intending to have read the same unto him was then told that the said H. B. dyed at twelve of the clock just before Whereupon A. delivered the same to the Executors that were therein named The Wife enters on the Testators Tenements and what was Devised to her the Son enters upon her the Wife re-enters whereupon the Plaintiff brought his Writ The Opinion of all the Justices was That it was a good Will in writing according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given whereupon it passed for the Wife and she enjoy'd the Land CHAP. V. Of Testaments Priviledged and Unpriviledged 1. Testaments Priviledged what and how many kinds thereof 2. Military Testaments their priviledges 3. Testaments made in favour of the Testators Children their priviledges 4. Testaments made for good and pious uses their priviledges 5. Testaments Vnpriviledged what § 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law whereof there are as in the second Chapter chiefly these three kinds viz. 1. Military Testaments 2. Testaments made in favour of the Testators Children 3. Testaments for good and pious uses 2. The priviledges of Military Testaments or of a Testament made by a Souldier are many but chiefly these Four viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others unless for want of Reason or other like grand causes whereby he is disabled Jure Gentium 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier save in some very few Cases specially limited in the Law 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments 4. Whereas no other person can dye with two valid Testaments yet a Souldier may and both Testaments shall stand good according to the intent or meaning of the Testator Other priviledges there are peculiar to Souldiers in making their Testaments but they being many it would not answer the design of a Compendium to make a specification thereof Only let it not here escape our Observation that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war and not to such as lye safely and securely in some Castle Garrison or other like place of defence 3. The priviledges of Testaments made in favour of the Testators Children are chiefly these three viz. 1. If two Testaments be found after the Testators death of divers tenures and it appear not which of them is the latter Testament In this Case that shall be presumed the latter and so prevail which is made in favour of the Testators Children 2. The Testament made in favour of the Testators Children is not so easily revoked as possibly other Testaments may be 3. A Fathers Testament among his Children shall take effect though there be no Witnesses to prove the same being written or subscribed by the Testators hand or by him procured to be written by some other Howbeit these two last Priviledges by the Custome of England the latter of them especially are common to all English mens Testaments so also are all
other priviledges which the Law doth indulge to such Testaments inter Liberos 4. The Priviledges of Testaments made for good and pious uses being such as are made to Orphans Widows Strangers Prisoners Lame and Diseased persons being poor and indigent to Hospitals Schooles Colledges also for the redemption of Captives repairing of City-Walls Bridges and such like are chiefly these four viz. 1. This kind of Testaments may be written with strange and unaccustomed Characters yet shall be good and effectual 2. If the Testament ad pios usus be found Cancelled and it be not known whether the Testator did willingly cancel the same the Law presumes it to be unadvisedly cancelled whereas in other Testaments the contrary is presumed but in this kind of Testaments ad pios usus if it be not certainly known that the Testator did wittingly cancel the same it shall be in effect as if it had not been cancelled at all 3. In this kind of Testaments it is sufficient that the condition if any be be observed and accomplished by other means than according to the precise form of the condition Whereas in other Testaments or Legacies it is not sufficient unless the condition be precisely observed 4. The Testament ad pios usus is not void in respect of uncertainty as other Testaments are And generally most Priviledges that do belong to other priviledged Testaments do belong also unto this Testament ad pios usus 5. Testaments Vnpriviledged are such as have not any benefit or freedom above or contrary to the common course of ordinary Law but are generally obliged to the observation of such Requisites as the Law regularly appoints for all Testaments CHAP. VI. Of Codicils 1. The etymon and original of the word 2. The definitiâ—â— of a Codicil 3. Codicil may be made with or without writing before or after the Testament 4. Who may make a Codicil and whether more Codicils than one may consist together 1. A Codicil in the Etymologie thereof doth signifie a little Book Codicillus being but the diminitive of Codex you may if you please call a Testament a great Book and a Codicil a little Book or writing The Original of these Codicils was meerly occasional for when by reason of the multiplicity of legal Solemnities requisite to a Testament which are not so to a Codicil the Testator failing of sufficient opportunity to make a Testament Solemn was enforced to fly to the refuge of a Codicil for declaration of his Will to be performed post mortem Or otherwise as additional to the Testament touching something therein omitted or explanatory to it touching something therein ambiguous or derogatory to it touching something therefrom to be detracted 2. Every man that writes of this Subject abounds in his own sence touching the definition of a Codicil but he will be found least in errour who defines a Codicil to be the just Sentence of our Will touching that which we would have done after our death without the appointing of an Executor Yet here observe that the word Just is not so comprehensive in this case as in the definition of a Testament for here it doth not signifie those Solemnities and ritual Formalities which are Testamentary but only an exclusion of illegalities and inclusion of such perfections as are consistent with the nature of a Codicil so that we may not improperly infer That a Codicil is a kind of an unsolemn Last Will. 3. A Codicil may in effect be made either in writing or without it provided you do not call it a Nuncupative Codicil that being an abuse of words for if a Codicil may as aforesaid be called a Little Book or Writing it is improper to call it Nuncupative therefore although all the power and force of a Codicil may be made without writing yet being so made it may not otherwise than improperly and abusivè be termed a Codicil but rather something Loco Codicilli and which hath the full force and effect of a Codicil Also a Codicil may be made as well by him who dieth Intestate as by him who dieth Testate Neither is it material whether it be made before or after the Testament for in both cases it shall be reputed as part and parcel of the Testament and to have equal force with it unless being made before the Testament it be revoked in the Testament or be contrary to what is contained therein 4. Persons capable or incapable of making Testaments are even such also as to Codicils Yet a man may die with divers Codicils and the latter shall not as in divers Testaments null the former so as the one be not contrary to the other And if in such Codicils it not appearing which was first or last one and the same thing be given to one person in the one and to another person in the other the Codicils are not void but the persons therein named ought to divide the thing equally betwixt them CHAP. VII What Persons are incapable of making Testaments or Last Wills REgularly every person hath full Power and Liberty to make a Testament or Last Will and therein may dispose of his Goods and Chattels except such persons as are prohibited by Law or Custome whereof some are prohibited because they want Discretion such are Children Mad Folks Ideots Old Persons grown Childish and such as are drunk Others because they want Freedome and Liberty such are Villains Captives and Women Covert Others because they want some of their principal Senses such are the Deaf and Dumb and Blind Others because they are Criminous such are Traytors Felons wilfull Self-murtherers and the like Others because of certain Legal impediments such are Out-lawed Persons men at the point of Death Alien Enemies and such others But here Note that all the said persons are not in all cases absolutely and utterly intestable for that some of them are intestable but in some Cases only as will more distinctly appear hereafter Note also that the King his Heirs and Successors may lawfully make their Testaments and that Execution shall be done of the same The Lord Cook makes mention of the Testament of King H. 4. and his Executors refusing the Arch-Bishop of Canterbury was to grant Administration with the Testament annexed CHAP. VIII Of persons Intestable by reason of the want of Discretion 1. Of Children in Minority 2. Of Mad Persons and proof of Insanity 3. Of Ideots or Natural Fools 4. Of Persons grown Childish by reason of Old Age. 5. Of such as are Drunk 6. Law-Cases relating to the third Paragraph of this Chapter 1. AN Infant-Male at the Age of fourteen years and Female at the Age of twelve years may make a Testament touching Goods and Chattels although both Sexes in construction of Law are Minors or Infants untill the Age of twenty one years till which Age neither of them can make any Conveyance of Land good in Law
of Succession distinguish thus viz. Either he hath only Brothers of the whole Blood or only such Brothers Children or he hath Brothers by the half Blood or such Brothers Children In the first case the Brothers only succeed in the second case only the Brothers Children in the third case the half Brothers and such Brothers Children succeed equally according to their Stock or Root not according to the number of their persons Likewise if one dye leaving one Brother and three Children of another Brother deceased of the whole Blood the Brother alone shall have as formerly declared as much as the said three Children and these do succeed exclusively to all other collateral Kindred Also Brothers of the half Blood do exclude other collaterals Ascendent as Uncles Aunts whether by the Father or the Mothers side and that without distinction of Sex But put case a man dies without Children or Parents leaving one Brother by the Fathers side only another Brother by the Mothers side only for instance A man having had two Wives and a Son by each dies and the second Wife takes another Husband having a Son by him then if the Son by the second Wife of the first Husband dies he leaves a Brother of the half Blood by the Father and a Brother of the half Blood by the Mother In this case the Civil Law sayes that the Brother by the Fathers side shall succeed in the Goods that came by the Father and he by the Mothers side in the Goods which came by the Mother and both of them equally as to all Goods otherwise acquired but our Law knows no such distinction for they shall succeed equally being equal in degree and equal in Blood because by Marriage all was invested in the Father THE Orphans Legacy The Third Part. OF Legacies and Devises THE CONTENTS OF THE CHAPTERS of the Third Part. Â Chap. OF Legacies and Devises in General 1. Of Devisors and Devises or Legataries 2. Of Words and Expressions sufficient for Legacies 3. Of Conditions and their Resemblances incident unto Legacies 4. Of the several Marks and Kinds of Conditions and Questions in Law touching the same 5. What things are Devisables by Will and whether a Testator may Bequeath what is not his own 6. Of Lands Devisable by Will 7. Certain cases touching Devises of Lands void or not void 8. Certain Cases touching Devises of Land in Fee-simple 9. Certain Cases touching Devises of Land by way of Entail 10. Certain Cases in Law touching Devises of Land for Life only 11. Certain Cases in the Law touching Devises of Leases or for a Term of Years 12. Law Cases touching Devises of Reversions or Remainders 13. Touching Devises of Lands with Limitations and upon Conditions 14. Touching Devises of Rents 15. Of Devises touching the Sale of Lands by Executors or others 16. Of Legacies and Devises in respect of Marriages as also between Husband and Wife 17. Of Legacies and Devises to a Child in the Womb. 18. Certain Cases of Devises touching Lands and Real Chattels 19. Cases in the Law touching Legacies of Chattels Personall 20. Of Legacies touching Goods in Generall also what is to be understood under that Notion of Goods and what by Moveables and Immoveables 21. Law Cases touching Money Bequeathed by the Testator 22. Of Legacies relating to Debts with certain cases in the Law touching the same 23. Touching Election in point of Legacies to whom The Election of a Legacy expressed with too much Generality or Dubiety belongs whether to the Executor or to the Legatary with certain cases in the Law touching the same 24. When and how Legacies are null or become void or voidable with certain cases in the Law touching the same 25. Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt cases touching the same 26. THE ORPHANS LEGACY The THIRD PART OF Legacies Devises CHAP. I. Of Legacies and Devises in General 1. What a Legacie or Devise is 2. What are the Requisites to the making of a good Devise 3. Whether is more Considerable as to Legacies the Time of making the Testament or of the Testators death 4. In what Court Legacies and Devises are properly Recoverable 1. A Legacy called a Devise at the Common Law is some particular thing or things given or left either by a Testator in his Testament wherein an Executor is appointed to be paid or performed by his Executor or by an Intestate in a Codicil or Last Will wherein no Executor is appointed to be paid or performed by an Administrator The Word Devise is specially appropriated to a Gift of Lands The Word Legacy to a Gift of Chattels though both are used promiscuously For a Devise is said to be where a Man in his Testament giveth or bequeatheth his Goods or his Lands to another after his decease Observe it is formerly said That a Legacy is a particular thing given by last Will and Testament For if a man dispose or transfer his whole Right or Estate upon another That according to the Civil Law is called Haereditas and he to whom it is so transferr'd is termed Haeres but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do descend by right of Blood And by the same Law the Word Devise from the French Deviser is properly attributed to him that bequeaths his Goods by his last Will or Testament in writing the Reason being for that those Goods that now appertain only to the Devisour are by this act distributed and divided into many parts 2. To the giving of Legacies or to the making of a good and sufficient Devise there are several things Required The Person of the Devisor must be Legally qualified to Devise the thing Devised must be such as is Legally Devisable The Devisor at the time of making the Devise must have Animum Testandi That the Devisee or Legatary be in his Person such as is capable of taking by way of Devise That there be no Co-action on the Testator but that his Will be free and independent without fear force or flattery or other Sinister Contrivances That the Devise be made in that due manner and form as it ought to be That the thing Devised be Devised upon none other then if any Lawful Terms and Conditions That the words of the Devise be such as do clearly declare the Mind and Intention of the Devisor That Probate be made of the Testament after the Devisors death And in case it be of Land then that the Devisor be solely seized thereof in a Fee-simple Estate and not joyntly with another and that the Testament wherein such Devise of Land is be made in writing 3. To find out the Testators mind and meaning which is the very Index of the Testament the time of making thereof is regularly more considerable in point of Legacies then the Time of the Testators death
440. § 43. It may be void also upon the Legataries non-performance of some duty enjoyned him by the Testator p. 445. § 84. Use or Occupation of a thing is Devisable for any time but the thing it self not Devisable for any time less than Forever p. 301. § 1. What Uses are Devisable p 288. § 2. Usurers Manifest and Notorious not capable of being Legataries p 206. § 2. W. Wages Servants Wages of what kind payable by Executors p. 106. § 2. They are payable before Legacies p. 147. § 10. Warranty cannot be made by Will p. 230. § 3. Wast what acts do amount to a Wast how many ways it may be Committed and how it shall charge the Executor de bonis proprijs p. 135 c. § 2 3 4. Wast Committed by one Co-executor shall not charge another Ibid. § 4. vid. Devastavit Wedge of Silver Bequeathed the Vessel after made therewith shall pass thereby p 303. § 8. A limitation thereof Ibid. Wife her Advantage by the Civil Law if she lives and dies in her Widowhood p 280 281. § 10. If she plays the Whore she looses her Legacy p 341. § 22. Two Wives in Being at once the first only shall have the Legacy p 227. § 4. Will or Last-will what relating properly to Land p. 2. § 2. Written without the Testators precedent Order or Subsequent Affirmance void p. 237. § ult The Will of the Testator is a Law to himself p. 302. § 4. If subordinated to the Absolute Will of his Executor all Legacies therein Bequeathed are void p. 312 313. § 3 4. A Testator by making his Executors Will Absolute makes his own Will insignificant Ibid. p 440 § 44. The Testators Will is Ambulatory to the other world p. 341. § 22. Will Tacite and Implicite in the Testator sufficient to null a Legacy not an Executorship so easily p. 341 § 23. Wills are capable of Devising what Grants and Deeds are not of Conveying Or a Man may Devise by Will an Interest which he could not Convey by any Act Executed in his life time p 258 § 8. Wines Bequeathed a Bequest thereof contains the Vessels which contain them p. 448 § 104. Woman Covert in what Sense Testable or not p. 15 to 19. Whether the Husband may Compel her to Accept the Executrixship Or whether she may accept it without or against his Consent p 72 § 1 2 5. Or whether he may make himself her Executor vid. Feme-Covert Wood what passeth by a Devise thereof or by that Name p 442 § 62. Wooll Bequeathed what is to be understood thereby p 441 § 59 60. Words of the Testator how to be Construed p 437 438 § 8 to 16 p 439 § 27 to 31 § 34. They are by Law ever Accommodated to the Testators mind and meaning p. 255 § 11. Any Words plainly Declaratory of the Testators Intention may serve for a Devise or Testamentary Disposition p. 297 298 § 45 p 317 § 21 22 p 445 § 85 86. Words Comprehensive are not to be strained beyond a Legal Rationality p. 290 291 § 16. Generall Words convey more by Implication than Expression p. 302 § 5. Words meerly Enunciative signifie little or nothing p. 316. § 17. How the Copulative word And shall be taken for That is p. 308 § 3. How the Disjunctive word Or in Devises is frequently understood for the Conjunctive word And. p. 299 § 50. How the Word Or shall be taken for And to Create an Estate-Tail by Devise 250 § 10. How the word Shall is to be taken for Should in the Devise of a Term. p 256 257 § 1. How the Word All is to be understood in certain Legacies p 311 § 14. In what Case the Word If doth not amount to a Condition p 216 § 5. How the words If Untill So long as do vary the Sense p 242 243 § 72. What the Words More than this do signifie in a Devise p 319 § 27. Of what force the Word Ought may be in some Cases p 326 § 14. In what Cases the Words Have or I have shall be taken in the Present Tense p 259 § ult In what case the Word Paying shall be Construed only as a Limitation and not as a Condition p 266 267 § 5. What shall pass in a Devise by the Word Appurtenances p 274 § 6 Writings which concern the Inheritance do belong not to the Executor but to the Heir p. 82. § 6. FINIS ERRATA Page Line Errors Rectified 080 32 And dies And D. dies 065 22 Administrator Executor 157 10 To By 232 11 Devise Dower 280 45 His Her 286 09 Of After 290 43 C. D. C. B. 291 26 C. D. C. B. 295 27 Issuers Issues 324 11 No Not 327 18 To Do 302 42 She He 334 39 Are All 340 11 It Its 449 05 Society Saciety 229 20 The words Without Surrender Are omitted 292 11 Death 436 42 Away a L. 1. ff de testa b Mant. de con ult vol. lib. 1. tit 4. n. 10. c Ibid. tit 8. d l. 10. ff de jur Cod. Plow Com. 185. in Woodward Darcyes Case e Inst de haered l. 1. l. 2. ff de Vulg. Substit l. haered palam ff de Testam Broo. tit Execut. 20. Six Inferences from the definition of a Testament Such a Testament as whereto the appointment of an Executor is essential doth properly refer to Goods and Chattels for Lands by vertue of the Statute may be devised by a Will in writing where no Executor is named f Sheph. Epit. cap. 155. g D. D. post glos in dict l. 1. ff de testa h Mantic. ubi sup tit 5. i Aul. Gel. lib. 6 c. â—2 to Serv. Sulp. Sealing not absolutely necessary to a Will k Offic. ex cap. 2. l Ibid. a L. hac consult C. de Testa b l. 1. ff de iniust rupt irrit testa c Myns Inst de testa ordin §. fin d Mant. ubi sup l. 1. tit 57. a Tract de Rep. Angl. lib. 3. cap. 7. Lynw. Const in cap. Stat. verb. probatis tit de testa lib. 3. Bract. de Leg. Consuet Angl. l. 2. c. 25. b Mant. ubi sup lib. 6. tit 3. nu 9. in fine c St. H. 8. an 32. cap. 1. a Myns Inst de testa ord §. Sed cum paulat b Myns ibid. §. fin c L. hac consult Cod. de Testa glos ibid. d Auth. non observato Cod. de Testa DD. ibid. e Offic. Exec. cap. 2. f 6 H. 6. Dyer 32. g Offic. Exec. ubi supra h Swinb part 1. §. 11. n. 5. i Stat. H. 8. an 32. c. 1. k Dyer iâ— Ca 〈…〉 inter Sack vile Browne l Ibid. sup ult vol. cujusdam Hanton m Inst de test ordinan §. fin l. heredes ff de testa n l. hac Consultat §. per nuncupat C. de testa o Stat. 14 H. 6. 5. 5 H. 5. 〈◊〉 M. 15. â—6