and dyes the issue in Tayl recover Land against A. being second in formedon this is lost A. hath a Daughter and dyes his Wife great with child of a Son the Daughter enters and sows the Land shee shall reap though the Son be born before reaping time But if after the sowing of Corn and before the Son born the Mother recover Dower against the Daughter and ground sown be assigned to her in Dower she shall also have the Corn. Windows Tables wainscot Benches and the like Windows c. fixed or mortised in earth go not to the Executor but to the Heir for they are parcel of the Free-hold and to remove them is wast Also Furnaces and Ovens set in Mortar or Stone do belong to the Heir Concerning the assigning of Tutors or Guardians Guardian and the disposing of Childrens portions during minority Divers Customs are in England observed A Father hath a paternal power and may appoint a Tutor or Guardian to his Child for a time and the custody of his portion All but the Heir and such as are preferred in the life time of the Parents are to have filial portions of the Father 's goods But if there be no Testamentary Tutor or Guardian then the Ordinary may appoint the next of Kin demanding the same as in case of administration but if the Child be a Ward the Ordinary may not do it Neither can any one be a Tutor or Guardian who may not be an Executor A Tutor or Guardian may be assigned to a Boy till 14. to a Female Child till 12. and then they may have Curators of their own choosing If a Child be a Ward the Guardian shall have him and all his Lands and offering him a convenient marriage and at reasonable age if they refuse he shall have the value of their Marriage which shall be rated according to the value of the Land but this is now taken away But in Socage Tenure if the Land come by the Mother the Uncle on the Father 's side shall have the Guardianship sic è contra and as such shall account to the Pupil for the profits of his Land at his full age Of Fools and Ideot 's the King by his Prerogative Royal hath the tuition of the body and the profits of the Lands but after the Ideots death the Land shall return to the next Heir Copy-holder Heir under 14 years of Age shall have a Guardian appointed him till 14. as the Mother or next of Kin. A Tutor may be appointed for a time either simply or upon condition nay more than one may be appointed If the Testator say I commit my Children to the tuition of A. or I leave them to his hands or to his government or I desire my Wife to take care of my Children all these imply the Testators meaning to be so and they shall be confirmed Tutors The Office of a Tutor is to provide for the Infant faithfully to administer his Goods and Chattels and to account for all received by him and if any take away the Pupil or his Goods he may cite them and make them restore them in the Ecclesiastical Court. The Tutor may sell bona peritura but not Goods immoveable If a Testator Will that A. shall educate his Children and have the disposing setting and letting of his Lands yet he may not sell them for the words dispose set and let properly bear no such meaning As to the disposing of Goods we are to observe Distribution that moderate Funeral expences are to be paid out of the whole and then debts quaque suo ordine but if the Executor pay Legacies and there be not sufficient left to pay Debts he shall pay de bonis propriis it being a wast in him Cro. Eliz. 646. the 5 Report Duke and Littleton's Case Cheynyos Case 33 Eliz. B. R. If there be a Wife and no Child or a Child or Children and no Wife the Goods shall be divided into two parts and the Testator can but devise one half but now see the Stat. 22 Car. 2. Cap. 11. And if there be Wife and Children or Child which Child is Heir or which Children were advanced by his Father in his life time in such case the Wife shall have half and the Testator may dispose of the other moiety But see Ratcliff's Case 3. Rep. But it is also held that a Child preferred shall have as in Hotchpot if he will cast in his share See Fitzh and Brook. de rationabili parte bonorum Although the Law leaveth all to be disposed of by the Testator yet in many places he is restrained by Custom But note it seemeth he may disseize of Leases especially where it is customable for the Wife and Children to have a ratable part of moveable Goods and Debts Bro. Tit. Exec. Patrimonium patris munus because it is to prefer Matrimonium matris manus because she is to nourish and breed up the Child If A. be seized of 30 Acres and have issue 2 daughters and he bestow 10 Acres in Frank-marriage with one of them and dye seized of 20 the married Sister may cast up in Hotchpot and have a new division and moiety CHAP. IV. Exposition of Testaments TEstaments shall be favourably expounded and according to the intent and meaning of the Testator which intent ought to be manifest and not doubtful Co. 6. Wild's Case because he is supposed to be inops consilii Words in a Testament seeming to tend to a condition as if Provided and such like shall not be taken in Law for conditions where the intent of the Testator appeareth not to defeat the whole Estate devised thereby but for a limitation as for example A. seized of Lands in Fee hath issue B which Lands he deviseth to C. in Tayl the remainder to D. in Tayl with divers other remainders Provided that if any of the In-taylees bargain or sell the Land or any part thereof that from thenceforth such persons selling shall be utterly excluded and the Land to remain to the next in Tayl as if such person had not been named in the Testament in this case the exposition shall be until such Person in the In-tayl shall alien he shall have as before and so it is a limitation and not a condition For if it were taken for a condition then B. his Son should enter for he only is prius and none but priuses may enter for a condition broken and then all the Estates were determined which were contrary to the intent of the Testator But by limitation it is otherwise Plow so 412. Scholastica's Case Only such Estate as cannot be by the rules of the Common Law conveyed by an Act executed in the life of the Testator with advice of Counsell such Estate cannot be devised by Testament As if A. devise Land to B. in Fee and if B. do not such an Act that C. shall have the same to him and his Heirs this is void for such limitation if it had been
by Act executed had been void Et sic de caeteris Co. Rep. Corbet's Case fo 86. CHAP. V. Of the Forms of Testaments THe substantial or essential form of a Testament is the naming of an Executor without which it is no Testament for the Executor is in the place of the Testator and compellable to pay Debts so long as he hath Assets without naming an Executor it is but a Codicil be there never so many Gifts or Legacies contained therein and Administration is to be granted as of one dying intestate unto the Wife or next of Kin. But be it solemn or unsolemn written or nuncupative priviledged or unpriviledged the naming or appointing of an Executor without more ado makes a good Testament An Executor may be appointed simply or conditionally from a time or to a time certain generally or particularly in the first second third or fourth degree Simple nomination as I make Institute or Will that or desire that A. be my Executor or A. shall or let A. be my Executor or I commit all my Goods to dispose of by A. or I will that A. dispose of those Goods in his possession in the first he shall be adjudged Executor of all In the second of so much as are in his possession only The word Executor needs not always to be expressed in a Will but circumlocutory words will serve so as the Testator 's meaning be certainly known but when it is doubtful whether the person named be a general Legatary or Executor great care must be taken to determine whether a Will or not a Will. A Testator makes his Will by entreaty or interrogation of another person as if one demand if he will make A. Executor and he answer yea or I do this is a good nomination so as he be then purposed and intended to make his Will for be the words never so plain if the Testator were in fear jest or drink though he say I make A. my Executor yet it is void because he had not then animum testandi As nomination of an Executor is pure and simple being without condition so of Legataries mutatis mutandis in all things always according to the Testator 's meaning Therefore if A. devise to B. all his Lands and Tenements all in possession and reversion pass by the word Tenements Land is devised to A. to have for evermore or to him and his Assigns there the devisee hath a Fee-simple but in a Feoffment such words create but an Estate for the Feoffee 's life A devise of Lands is made to A. thus to give or sell or do with at his pleasure this makes a Fee-simple A devise of Land is made to A. and his Heirs males this is an Estate Tayl but in a Feoffment the same words make only a Fee-simple because thereby it does not appear of what bodies the Heirs shall be begotten Lands are given by deed to A. and the Heirs males of his body he hath issue a Daughter who hath issue a Son and dies the Son of the Daughter shall not have it but it shall return to the Donor But if the same were so given by a devise in a Will he viz. the Son of the Daughter should have it A devise made to an Infant in the Mothers Womb is good but contrary of a deed Feoffment grant or gift for they being made to such are void A devise is to A. and his Heirs Females of Land the Devisee hath a Daughter and Son and dyes in this case the Daughter shall have the Land and not the Son though he be Heir A devise of Land is to A. charging him with payments of near the value of the profits during his Life though there be word of Heirs or Assigns or for ever yet this is a Fee-simple But a devise of Land to A. in Fee and if he dye without Heir then to B. in Fee this is a void remainder because one Fee-simple cannot depend upon another So Land was devised to the Prior and Covent of B. so as they paid to the Dean and Chapter of P. 10 l. per annum and in default thereof their Estate to cease and the Land to remain to the Dean and Chapter this is a void remainder for it could not be limited after an Estate in Fee and the Heir not the Dean and Chapter shall take advantage of the condition A Legatary may take his Legacy without delivery by the Executor But there is no remedy to recover a Legacy by the Common Law but only by citation before the ordinary But a Legatary possest of his Legacy at the Testator 's death may retain it if there be sufficient to pay debts beside Conditions some are 1. Necessary 2. Some impossible 3. And some possible or indifferent 1. Necessary in respect of Fact as if the Sun rise 2. Necessary in respect of Law as a condition to make one Executor or give 100 l. 2. Impossible conditions and these have four sorts of Impediments 1. Of Nature as to give one 100 l. if he touch the Sky with his hands or drink up the Sea. 2. Contrary to Law deemed impossible as if he murder a Man or deflower a Maid for id possumus quod de jure possumus 3. Hard to be performed as a base Subject to marry the King 's Daughter And 4 of contrariety and repugnancy 3. Possible conditions or indifferent of these 1. Some are casual as to give 100 l. if the King of Spain dye this year 2. Others are Arbitrary as if one go to Church But here note that conditions unlawful impossible and dishonest are absolutely void Every condition must be precisely performed for performance in part will not suffice for the whole meaning of the Testator therein must be performed A condition that one go to Church on Easter-day and he endeavours so to do but he is hindred by great floods or other lawful impediments the condition is performed But if in going to Church he commit an offence and be stayed for it this is not a performance of the condition when the condition cannot be performed by the Testator 's default this is no bar to the Legacy as a Legacy is given on condition that he bury the Testator 's body in St. Peter's Church in York and he dyes excommunicate Executor or Legatary under some possible condition admittable putting in caution to perform the condition or make restitution Condition is that A. marry the Testator 's Daughter he is ready and willing but she refuses this is doubtful for he must persevere if he will have the benefit for though it seem the condition be performed in Law yet is it not performed in fact according to the Testator 's meaning But it is contrary if the Testator remitteth to him a Debt upon such condition and he offereth to marry her or if he be possessed of the Executorship or Legacy in the mean time before she repent or if 100 l. in such a chest or a white horse be given
on such condition upon the first refusal the Executor or Legatary will have a right Condition is he or she marry according to the appointment arbitrement or consent of A. the condition is unlawful but the Legacy is good though the marriage be without such consent Condition is that thou marry not a Widow or this or that particular Woman is good and if thou perform it not no Executorship or Legacy shall pass because thou hast liberty besides A Legacy is given upon condition that thou marry the Testator 's Daughter thou must not marry first another Woman and afterwards her for it is a condition affirmative and intended to be meant of first marriage and so the Legacy is void But in negative conditions as if thou do not marry the Testator 's Daughter here if thou marry two or three and her at the last yet the Legacy is good for here not the first Act alone but all subsequent Acts are regarded A Condition in respect of place is good As that one shall not marry at York for he is at liberty to marry elsewhere Land is given to a Man and the Heirs of his body on condition he nor his sell by Feoffment c. Here if he or his Heirs sell the Donor or his Heirs may enter for this is in favour of others and herein the Common Law and the Ecclesiastical agree Prohibition in a Will to sell a Cup Ornament Gift of a Prince Prize got in War c. is good unless the Goods will not amount to pay Debts or if it be so far from him that he cannot have profit or use of it he may sell it or if he be the last to whom it is limited One by his Will giveth A. the residue of his Goods and makes him Executor on condition he do not sell the same A. must enter into Bond not to sell before he can be admitted Executor which Note As to time when conditions are to be performed when no certainty thereof is expressed it must be done as soon as with conveniency it may after the Testator 's Death A. makes B. Executor on condition that he give 10 l. to the Poor he may do it at any time in his life but the Ordinary may appoint the time and if he fail may grant Administration But a Legacy given on condition that he give 10 l. to the Poor he must do it as soon as he is able after his Testator 's Death or else he will lose his Legacy There are also casual Conditions as if a Ship come from Venice thou must attend and if it come in thy Life good but if thou dye before thy Executor cannot have it though it return after thy death Condition is if such a one dye without issue this is much to be taken notice of for a Bastard shall not be deemed issue though the Parents inter-marry after the birth and such are issue natural not lawful nor may they inherit But if A. have issue by B. his Wife this is lawful not natural so if one marry a Woman with child by another albeit born the next day yet the Husband must be Father For whose is the Cow his is the Calf If a Wife cohabit with an Adulterer yet if it be possible that the Husband may come to her the Husband shall be presumed the Father nay though the Wife own the Adulterer and the Child be like him for that might happen by the Mothers conceit at Conception so Jacob's rods Ethiopian picture c. but if the Husband were not at the time of Conception within the four Seas or far distant or imprisoned it will be judged otherwise Also if disabled by Nature or old Age. In no case such Children shall inherit If a child be born alive and heard cry the Father by the courtesy of England shall have the Land for his Life otherwise if it were an absolute abortion Remedy for Creditors and Legataries during the suspence of the Condition For they are due presently therefore it is provided by the Statute of 21 H. 8. and 32 E. 3. that Administration be granted to the Executor for so long time as the condition depends If a Condition be delayed to be performed by an Executor it being in his power it is his fault and he shall be excluded An Action against an Administrator shall abate if there be an Executor which will prove a Will after the Administration granted The Ordinary may appoint a time to every Executor at the petition of Creditors to prove the Will and if he refuse Administration may be granted unto such as have interest until the condition be extant or he may grant a Letter ad tollendum bona defuncti but upon such letter an Action will lye against the Ordinary as it might have done against the Administrator yea though such one sell bona peritura he may be sued as Executor in his own wrong Ten pound a year given to one by a Testator till his Son attain 21 years of Age is good till he should attain though he dye in the mean time If the Executorship be only limited and the time of Age not joyned to the substance as I give to A. 100 l. and I Will the same be payed when he comes to 21 years of Age and he dye in the mean time yet the Executor or Administrator shall recover it And Executor may be particular as of his Goods c. in York-shire or Universal as of all his Goods the particular Executor is only chargeable so far as he Administers and cannot meddle with the rest But if one make A. an Universal Legatary or give him the rest of his Goods and make no other Executor he shall be deemed Executor at least Administration may be granted to him Two are made Executors one dieth his Executor may not joyn with the first Executor in the execution of the Will and if such Executor of Executor have any of the Testator 's Goods the first Executor may have an Action for them and if the surviving Executor dye intestate yet the Executor of the Executor cannot meddle Also if one Executor be a Babe or beyond Sea the other is admittable in the mean time If all or one Executor refuse to undertake the Executorship the other may sue or be sued But first there must be summons and severance but if the refusing Executor afterwards become willing he may joyn with the Executor and be admitted and if he release a debt due to the Testator it is good so it be released before judgement One releases a debt due to A. and aftrr takes Administration of the Goods of A. the release is void for that there was no right of Action at the time when it was executed Two or more Executors are named all refuse but A. and he proves the Will and after maketh B. his Executor and dyes the rest who refused may not joyn with B. but he may sue or be sued alone for the first Testator 's Goods Bro.