hath the whole and by Title of Survivorship And therefore if I. D. for money by him disbursed Coo. Knights case 163. purchase lands to himselfe and others and their heires this is holden collusion within the Statute 34. H. 8. ca. 5. to avoid Wardship which may accrewe after the death of I. D. because he was never sole seised Coo. 9. Flopirs case 126. a. b. and so no title of Wardship could be after his death because of the Survivor Coo. 9. Flopirs case 126. a. b. But where to be joyntly seised of lands holden of the king in possession and not in remainder to them and the heires of the body of one of them and he that hath the inheritance dyeth his heire deins age the king shall have the Wardship and Marriage of such heire notwithstanding the Survivorship of the other Tenant And this is provided by the other Statute of 32. H. 8.17 in case of the king only and therefore in such case if the lands were holden of a common person there would be no wardship during all the life of the Survivor Ward where the Tenant dyeth seised of land in the very possession thereof by taking the profits c. This admits no difficulty and therefore in vaine to multiply cases thereof He in the Remainder upon an estate for life Coo. 2. Binghams 92. b. 33. H. 6.5 24. Ed. 3.33 B. Na. Br. 142. b Coo. 2. Binghams case 92. b. Coo. 9. Quicks case 129. b. Vet. Na. Br. Bro. Gard. 113. 4. H. 6.20 20. Eliz. Dy. 362. a. is not Tenant to the Lord untill the Remainder happen in possession and therefore if a man maketh a lease for life the Remainder to another in fee and he in the Remainder dies his heire being within age here during the life of the Tenant for life the heire of him in the Remainder shall not be in ward because the impediment is not removed but in that case if after the discent of the Remainder and before the death of the Tenant for life the Lord grant away his Seigniory and after the Tenant for life dies the heire of him in Remainder being under age neither the grantor nor the grantee of the Seigniory shall have him in ward If the Tenant make a gift in tayle the Remainder over in fee to another 4. H. 6.10 here the Tenant in tayle holds immediately of the chiefe Lord and he die his heire under age he shall be in ward to the chiefe Lord and so shall the heire of him in remainder in fee if the Tenant in tayle die without issue during the minority of the heire of him in the remainder because the impediment is removed by death But if an estate tayle be made of lands holden of a common person the remainder in fee to the King the Tenant in taile die his issue under age he shall be ward to no body because the Tenure and services are extinct by the fee simple being in the King who can hold of none And the estate of Tenant in tayle and the remainder over maketh both but one estate If the Tenant make a lease for life Vid. Na. Br. B. Gard. 113. or a gift in tayle leaving the reversion in himselfe he remaines Tenant still to his Lord and his heires shall be in Ward for the reversion because his estate never moved at all out of him and he is immediate Tenant so note the diversity betweene a Remainder and a Reversion So if the Tenant infeoffes A. who gives the land back againe in tayle to the tenant or to the son of the tenant Tenend de Capital Dom. yet the Tenant in tayle should hold of his Donor and he of his Lord Paramount and the heire of the Donor shall be in Ward to his Lord for the reversion and the heire of the tenant in tayle shall be in Ward to his Donor for the possession And for the same reason Coo. 2. Binghams Case 92. if the Tenant in tayle be with the reversion expectant to himselfe and his heires of lands holden by Knights service of a common person and he dies his heire within age he shall be in Ward for his body but not for his lands 24. Ed. 3.33 because betweene the estate tayle and the reversion stand two distinct estates in the tenant and the reversion only is holden immediatly from the Lord and not the estate tayle in possession but if the Case had been Tenant in tayle with the remainder to an estranger in fee there the heire of the tenant in tayle under age shall be in Ward to the Lord of whom the land is holden for body and land because the particular estate and the remainder make but one estate in Law and all is holden of the Lord immediatly But note that in the Kings Case if his Tenant make a gift in tayle and grant the reversion over or keepes the reversion expectant to himselfe in fee in these Cases and the like by some bookes the King may elect his tenant and there shall be a Wardship of the heire of the Tenant in tayle or of him in the reversion as his Majesty shall elect Stat. 34. H. 8. cap. 5. and this election shall binde him so that afterwards he cannot resort to a new choice but other bookes are contrary viz. that he in the reversion is only the Kings Tenant and he hath no election but by common experience of the Court of Wards they use to choose the Wardship of the best estate for the King and for the third part to bee in Ward upon the Stat. of 32. 34. H. 8. of Wills the words of 34. H. 8. are that the King shall have as well lands in taile as in fee simple If the kings tenant F. N. B. 142. d. 14. H. 8.16 or the tenant of a common person be disseised of his land and die so that a right only descend to the heire yet the heires being within age shall be in Ward for this right Coo. 3. Butler Bakers case 35. a. because after the disseisin the disseisee remaines still tenant to the Lord in right of Law So if tenant in taile make a feoffement in fee 48. Ed. 3.8 15. Ed. 4.10 br and thereby discontinue the taile and then dies his issue under age shall be in Ward to the Donor So where the heire under age recovers lands holden c. by a Br. de entrey sur disseisin writ of Cosenage for the action which descends he shall be in ward for this land so recovered because of the right descended to him Mes auterment est lou il recover by a writ which doth not descend as by a writ De dum non fuit compos mentis Yet where a possibility only descends as if a man covenant with the father to stand seised to the use of the father and his heires upon a contingent the father dies his heire under age the contingent happens It was held by the
wife for life the remainder for one of his sons the remainder is no advancement to the sonne to give wardship either for the body or third part of the land by these statutes Ibid. Coo. 2. Binghams case 94. because the mother is the Kings tenant during her life by advancement and such a remainder which may give wardship of body and land at the Common Law is onely intended by the word Remainder in these Statutes which this Remainder doth not the reason is about the title of the ward But a remainder which is in part of a reversion Coo. 10. Leon. Lowes ca. 81. a. as if a man makes a lease for life or yeares and after grants the reversion for life or in taile le remainder in fee to his sonne and after the grant for life or Donee in tayle dies without issue it shall be said advancement within these Statutes and shall give cause of wardship of the body during the life of the tenant for life because this remainder by common Law Coo. 9. Holts Case 132. b. t. shall draw ward and marriage as also a revorsion doth in such case give wardship because he in reversion is immediate tenant to the Lord and not tenant in tayle or for life If the son and heire or any other son purchase land of his father bona fide for money c. this is no preferment for the childe within these meaning of these Statutes and therefore there shall bee no third part of these lands taken for wardship or primer seisin because it was land purchased by the childe and not given by the father to prefer him This Statute gives authority disjunctive to make a disposition either by act executed or by will of two parts of land holden c. And thereupon if a man by act executed in his life time dispose of two parts for the advancement of his wife Coo. 3. But. Bakers Case and preferment of his children and payment of his debts he cannot devise the third part thereof because he had executed his authority before but if hee had aliened two parts to a stranger bona fide then he might also devise two parts of the third part remaining because his alienation to a stranger is out of these Statutes If a man alien two parts for advancement of his wife Re. 6.18 Sir Edw. Cleres Case c. he may also make a feoffement of the third part to a stranger or he may make a feoffement of the third part to the use of his last will and by his will may declare the use of that feoffement to a stranger But here note that the land passeth by feoffement and not by will and that the will served but as a limitation of the use upon the feoffement and yet in that case a third part of the two parts first disposed of shall be in ward If a man by act executed conveyes two parts for life in taile for advancement of his wife 35. El. Clem. Howards Case cited in Coo. 10. Re. Leon. Lowes Case 81. a. c. he may also devise the reversion of the same two parts because the Statute gives him full power over the two parts to dispose it as he will by will or otherwise It is to be observed that these Statutes are to be expounded to save a third part for wardship and primer seisin when the advancement continues in the advanced without alteration either by descent or alienation and not otherwise Wherefore Coo. 2. Binghams Case 93. b. 94. a. Coo. 9. Holts Case 132. a. if the son advanced aliens bona fide or dies and the land descends to his heire in the life of the father that gave the land there shall be no wardship of a third part by these Statutes the same law is when the land is conveyed for the advancement of the wife or payment of the debts Whereas these Statutes serve to be in ward Coo. Re. 10. Leon. Lowes Case 84. a. m. c. lands to the full yearely value of a third part of the whole it is to be noted that the same value shall be accounted as the lands be of value at the Ancestors death The thing of a casuall and uncertaine value may not be left for the third part Coo. Leon. Lowes Case 81. a. t. R. 3.32 b. But. Bak. Case as a franchise to have felons goods and of fugitives and out of fines outlawes fines amerciaments which have not been accustomably let unto farme for yearely rent but if they have been so let then they may be left for the third part The King or the Lord ought to have his third part immediatly after the death of the tenant But. Bakers Case 34. and shall not expect upon any uncertainty wherefore if a man seised of three acres holden in Capite c. leaseth one acre for life and after deviseth the other two acres and dyes and after the tenant for life dies yet the devise is void for a third part of the two parts because the third part did not descend immediately to the heire In construction of these Statutes 35. H. 8. Bro. Testaments 29. an equality hath been used so that for the levying and making up of a third part saved by these Statutes parties alike interessed shall equally and alike be respected wherefore if a man have three severall Mannors holden of three severall Lords by Knights service Coo. 8. Virgill Parkers Case 173. b. every Mannor being of equall value he cannot devise two Mannors and leave the third to descend according to the generality of the words of these Statutes for then he should prejudice the other two Lords of their wardships but he must devise two parts of every Mannor and leave to descend a third part of every Mannor to make a wardship to every Lord. So if a man seised of land holden Coo. Virgill Parker 173. b. c. disposeth before mariage one moity for a joynture of his wife that shall be and after marriage disposeth the other for payment of his debts and legacies and the third part for the King as other Lords shall be equally taken out of both halfes and not out of the halfe last disposed So if the other deviseth the land Coo. 9.133 b. Mat. Menes Case to his eldest son one part and so to foure other sons like parts whereof one part only is holden c. the third of the whole shall be made up equally out of every severall third part of a younger brother a like quantity if the King or the Lord hath once the benefit of the Statutes against one son the Statutes are satisfied and he can have no further benefit therof against another-son as if the father convey land holden c. to one son in tayle the remainder over to another of his sons in tayle or in fee Coo. 9. Tho. Holts Case 132. a. and after the fathers death the King or the Lord
hath wardship and primer seisin of a third part and then the first son dyeth without issue the King or Lord shall not have the benefit of the Statute against the son in the remainder for the Statutes doe extend to the first son advanced only if he survive the father and then be owner of the land Wherefore if a man have lands holden 20. El. Calthrops Case cited in Coo. 3. Re. But. Bak. Ca. 31. a b c. of the yearely value of 20. li. and Soccage lands of 10. li. yearely value he may devise all the lands holden c. and leave the Soccage land only to descend for wardship and primer seisin and the Statutes are satisfied and the heire shall sue Livery for one of the acres holden c. though no land be descended to him if the land be holden of the King by Knights service in Capite So if a man have land only holden Coo. 10. Leon. Lowes Case 84. b. c. And conveyeth the whole for advancement of his wife preferment of his children and afterwards purchase so much land in Soccage as amounteth to the third part of the land holden and leaves this to descend this Statute is satisfied and the conveyance is good for the whole land holden c. And note Coo. 10 Leon. Lowes Ca. 84. that to make wardship upon these Statutes the estate of the Lord holden ought to continue after the Tenants death And therefore if a man have an estate tayle only of land holden and hath Soccage and dyeth without issue so that the estate tayle is spent the devise is good for all the Soccage land so if the land holden be defeated by condition after the Tenants death And so the estate of the Tenure ought to continue after the death of the Tenant Coo. 3. But. Bakers Case 34. b. wherefore if the King gives land to one and his heires to hold during the life of the Patentee by Knights service in Capite and after his death in Soccage or E converso here shall be no wardship or primer seisin neither by the common law nor by these Statutes because in the first case the Tenure continues not after the Tenants death and in the second case the Tenure to make a wardship commenceth in the son only Collusion to avoid Wardships IF Tenant enfeoffe his son and heire apparent St. Marle b. ca. 6. Plo. Com. or his collaterall heire apparent to make him have an estate in land as a purchasor and so to beguile the Lord of his wardship because the heire comes not to the land by descent this is collusion apparent and manisest against which by the Statute of Marleb made Anno 32. H. 3. It was provided that the Lord shall notwithstanding have the wardship of his heire There is also collusion which is not so manifest as when the Tenant enfeoffes others upon collusion between him and them had for the benefit of the heire and to prevent his wardship and this collusion is averable against which also this Statute of Marleb provideth To instance in particular cases what shall be said collusion within these Statutes of Marleb and what is not is needlesse because the cases thereof are too many for this Treatise as for that by the said Statute of 34. H. 8. cap. 5. a more ample provision is made against Collusion then was by that former Wherefore before the statute of 34. Inst fo 78. a. H. 8. if the father had stept but a little further and had made a Feoffement to his sonne and heire and to a stranger although the inheritance were limited to the heires of his heire and that the stranger had but an estate for life Or if the Father had made but an estate for life or taile to his sonne and heire 27. H. 8.10 and limited the remainder and granted the Reversion to another or had left the Reversion in himselfe or if the father had enfeoffed a stranger for the advancement of his younger sonnes or of his daughter or for the paiment of his debts and after doe enfeoffe his heire in all these cases the Lord had beene prevented of the wardship of his Tenants heire and he not helped by the Statute of Marleb because those conveyances were in judgement of the law no Collusion neither apparent nor averable within the intent and meaning of the said Statutes But now by these Statutes of 32. Coo. 6. Sir George Cursons case 76. H. 8. in all these cases and the like Collusion may be averred for a third part of the Land so conveyed and the conveyance pro tempore avoided Re. 8. Rep. Wignts case 163. Inst 78. a. or the wardship primer sesin in case of land holden of a common person and for wardship of primer sesin in case of land holden of the King for a third part of the land but as these Statutes in many other cases gives remedy to the King and other Lords where they had none before so in other cases these Statutes give the Tenant benesit where he had none before And therefore where the King Coo. 8. Wights case 3. 164. b. Coo. 10. Leon. Lowes case 82 83. or the Lord by the Statute of Marleb might take advantage by Collusion apparent or where the Tenant conveyes the land to his sonne and heire under age of an estate in fee simple might have had the whole land so conveyed by fraud in ward now by these Statutes because they did enable him to convey the two parts for preferment of his childe the King shall have but a third part in such case this Statute of 34. H. 8. cap. 5. concerning Collusions to this purpose that if the Tenant being seised of an estate of inheritance doe by Act executed in his life time convey by covin to any person his land holden c. for or with divers Remainders over in Fee to a stranger or to his owne right heires or shall make by fraud contrary to this Act any estate conditions mesnalties tenures or conveyances to the intent to defraud the King or the Lords of these wardships c. which ought to come to them after their tenants death by force of this Statute and of the Statute of 32. H. 8. the said estates and conveyances being found by Office to be so made by covin There the King shall have the wardship and other profits 2. 3. Eliz. Dyer 193. c. according to the intent of the said Statute as though no such estates had beene made untill the said office be lawfully undone by traverse or otherwise and other Lords shall have their remedy in such cases as their wardships of body and lands by the Writ of Wards and shall distraine and averre for their reliefes heriots or other profits as if no such estates had beene made But observe 10. Eliz. Dyer 276. Re. 8.165 a. Wights case that it is adjudged upon these Statutes of 32. H. 8. and 34. H.
Court of Wards that the heire was in by descent and that there should be a wardship and yet nothing descended but by a possibility And in every wardship there must be a descent Re. 10.83 a. Leonard Low Case except it be in some cases upon the Statute de 32. 34. H. 8. quem vide in le prochein Title Where Re. 3.62 a. Lincolne Colledge Case if the issue in tayle under age enters into the joynture of his mother by force of the Stat. 11. H. 7. c. 20. for a forfeiture by her alienation thereof he shall not be in ward because he hath the land in manner of a purchase and not by descent So if the father leaseth to his son and heire for life and dyeth 9. Ed. 3.4.15 Co. 6. Sir Geo Cursons ca. 76. and the fee descends to the son under age so that the freehold is mergd in the inheritance yet he shall not be in ward for the land because he had the possession by purchase Si soit bona fide valet ut c. And generally in all other cases where the heire hath the land by purchase without collusion is where he buyes the land of his father bona fide and for valuable consideration or in the like cases Coo. 10. Re. Leon. Lowes case 83. b. t. Inst 78. â— for if it be by collusion then there will bee a wardship by the Stat. of Marleb and 34. H. 8. cap. 5. though the heire had not the land by descent whereof after see in the Title Collusion If the King Knight the heire apparent of his owne Tenant Plo. Com. fo 268. Ratclifts Case Coo. 6. Sir Dru Druries Case 74. Coo. 8. Sir Hen. Constables Case 171.2 or of the tenant of a common person under age and in life of his Ancestor hee shall not bee in ward though he be under age at the death of his Ancestor neither for body nor land but shall for all purposes bee reputed of full age because the king by knighting him hath adjudged him of full age and able to doe knights service But if he knight him after his Ancecestors death while he is in ward Stat. Mag. Carta cap. 3. hee is thereby presently out of ward for his body but for his land shall be in ward till his full age of one and twenty yeares Quem vide apres en le Title Marriage as also some other Cases where the heire shall be out of wardship for his body though his lands remaine still in ward Wardships and Primer Seisin By these Statutes of 32. H. 8. c. 1. a. 34. H. 8. cap. 5. of Wills WHereas the words of the Statute are That every person having Lands Tenements or Hereditaments of an estate in fee simple per Knights service in Capite of the King or of any other Lord in common knights service c. May by his last Will in writing by act executed in his life time give dispose will or assigne two parts thereof for advancement of his wife preferment of his children or paying of his debts c. leaving to the King wardship and primer seisin and to no other Lords wardship of so much of the same lands as shall amount to the cleare yearely value of a third part thereof It is to be considered that these Statutes give to the tenant power to devise his lands by his last will in escript which he could not doe before these Statutes which was some prejudice to the Lords of these lands for their wardships of the two parts so devised Coo. 6. Re. Sir Geo Cursons Case 76. a. So then they doe give benefit to the King and other Lords to have wardships c. In cases when they shall have had none before though the Ancestor neither dyed seised nor any land descended to his heire which are contrary to the rules of the Common Law which see before in the last Title And where the father conveyes his land holden c. by act executed in his life time for advancement of his wife preferment of his children or payment of his debts and dies his heire under age here is neither dying seised nor descent and yet the Statutes gives a third part of these lands to be in ward during the minority of his heire notwithstanding it shall at his full age goe according to his fathers disposition because the conveyance was only avoided during the minority for benefit of Wards by the Statutes Co. Re. 8. Digbies Ca. 165. b. and not utterly void but these Statutes doe in no case give wardship where there is no heire as where the father after such conveyance is attainted of Treason and dyed his issue being under age here the third part shall not be in ward by the Statute Re. 10.85 a. t. Leon. Lowes Case because the Ancestor dies without heire in regard of a corruption of his blood And note where the Ancestor deviseth by his last will land holden c. to his wife Dyer 150. b. St. 34. H. 8. ca. 5. Coo. 8. Sir Richard Pexals Case 85. a. yonger children c. the will is not avoided only during the minority for the benefit of wardships as in the said Cases of acts executed but the will is utterly void for a third part by those Statutes and therefore he hath the third part by course of descent by the Common Law and the will is good only for the other two parts whereof there shall bee no wardship but only for the third part descended which the heire also shall have a son plein age notwithstanding the will Coo. 3. But. Bak. Case 35. for if a man devise a rent out of all the lands holden c. this is void to charge a third part of the lands notwithstanding the land descends charge of the rent But where the land holden c. are deviseable per custome in London and some other townes theâ—e all may be devised and the will is not void for a third part because the land was deviseable before the Statutes which are in the affirmative and therefore doe not destroy the custome but the case But the saying of these Statutes doe avoid the will pro tempore Coo. Re. 3.35 a. b. But. Bakers Case and give a third part to the King for a wardship during the minority c. And yet the heire is barred by custome to have the third part at his full age as before in the third case of disposition by act executed he is barred by the conveyance It is seen who shall be said to be a person having of lands tenements or hereditaments holden within the meaning of these Statutes and that will best appeare by cases of difficulty for of common persons having of lands c. I purpose not to speake plaine matters need no demonstration a disseised of land in capite which is put out of possession and hath only a right of lands Coo. 3. But. Bak. Case 35. a.
holdeth of a common person Soccage lands he is a person having of lands within these Statutes because in the judgement of the Law he hath the land to many purposes and therefore devise c. by him of his other lands holden in Soccage is good only for two parts and his heire shall bee in ward c. for the third part If a man have only a fruitlesse reversion without rent expectant upon an estate tayle Coo. 11. Re. Henry Harpers Case 24. Coo. 10. Leon. Lowes Ca. 80. or for life of lands holden c. and devise but two parts of his other lands holden in Soccage a third part shall bee saved for wardships and primer seisin c. By these Statutes But if the first grant away this reversion Coo. Leonard Lowes Ca. 81. then he may devise all his Soccage land because at the time of the devise hee is no person having c. But if he that hath a remainder c. expectant upon an estate taile or a lease for life of lands holden c. deviseth all his Soccage lands and dies before his remainder shall fall into possession this devise of all is good because he is not a person having of such estate in lands holden c. as by the common Law yeeldeth wardship and therefore out of the purpose of the Statute and so note the diversitie betweene a reversion and a remainder upon the Reason of the Cases thereof before Title Marier Inheritances which of their nature are not of any certaine yearely value 5. H. 7.36 Coo. 10 Leon. Lowes Case 82. a. as a Franchise to have felons goods Court Leetes waifes estraies advowsons c. holden of the king c. shall restraine the owner thereof to devise a third part of his Soccage land because he that hath these is a person having hereditaments within the meaning of these sttatutes But where a man hath Soccage land Cars Case 29. Eliz. cited in Coo. 3. But. Bak. Case 30. b. a. and hath also a rent hat was holden by knights service in Capite extinguist in his Tenancy he may devise or dispose of it by act executed all his Soccage lands and there shall be no wardship of a tierce part because that the rent being extinct he was not a person having thereof at the making of his last will c. So where the husband and the wife be both Jointenants of an estate in Fee after coverture Coo. ibid. Stat. 34. H. 8. the husband shall not be said a person having of this land Coo. 8. Re. Wights fo 163. b. because hee alone is not owner of this land and so generally he that shall be said a person having of land holden c. to be within these statutes must be sole seised and not joyntly with another Thirdly as these words are in these statutes having lands doe import sole ownership of the land holden Coo. 10. Leon. Low Ca. 82. b. so they doe also import and appoint the time of such ownership to be the same instance when hee makes disposition or devise of these lands so that the time of having holding and disposing ought to concurre where if a man convey to his yonger or to his wife c. his lands holden c. in Fee simple Coo. 11. Re. Harpers Case 24. a. either absolutely or with power of Revocation having a third part which is Soccage land to discend and after purchase more land holden in Soccage he may devise all his new purchased lands because at the making of his will he had no land holden c. So if a man have Soccage land and convey it as Joynture to his wife c. and afterwards purchased lands holden Coo. 10. Leon. Low Ca. 83. b. c. and devise two parts thereof and dieth his heire under age no part of the Soccage land shall be taken to make a third part of the whole for watdship c. because when he made the conveyance of the Soccage lands he had no lands holden and therefore the conveyance good for the whole But if a man having soccage land of 20. li. yearely value deviseth it to his yonger children or to a stranger and afterwards purchaseth land holden of the yearely value of 20. li. and dieth the devise is not good for all the soccage land because the VVill tooke not effect before his death and before the land holden c. See now the difference betweene the last Case of conveyance by Act executed and this of devise But if a man having land holden in Fee and soccage land Coo. 3. But. Bak. Case deviseth this soccage land and after hee aliens his his land bona fide this divise is good for all the soccage land Coo. 10. Re. Leon. Lowes Case 84. a. t. because when the VVill tooke effect he had no land holden to cause a wardship or Primer seisin Fourthly it is to be considered who shall be said to be a wife or a child to be within these Statutes to be advanced and then what estate shall be said an advancement of such wife or children A disposition for the advancement that a man intend to marry Coo. 8. Virgill Parkers Case 173. b. though at the time she be no wife if after he marry her she is made a wife within the intent of these Statutes as if at the disposition made she had had him If by Act a man disposeth of all his lands holden to his bastard 14. El. Dyer 313. b. Coo. 10. Leon. Lowes Case 83. a. t. Coo. 6. Report Sir George Cursons Case 77. a. or to one of his collaterall blood not being his heire apparent or to his grandchild in the life of the father these Statutes give no wardship nor Primer seisin of a third part no more than if the deposition had been to a meere stranger bacause these are not children in judgement of law and then the conveyance remaines as it was at the common Law good to all because the Statutes provide for wardships or primer seisin but where the conveyance is made to a childe But if after the fathers death the grandfather conveieth the land to the use of any of his children there shall be wardship c. for a third part because by the fathers death the care of the children is cast upon the grandfather by the law as of his owne children and therefore they are to be taken children within the statute Then to see what shall be said an advancement of such wife and children if the land conveighed to the wife and children by the said father or grandfather be levied to her her husband to her use of the wifes lands therefore there shall be no third part in ward Coo. 9. Floyers Case 126. because this conveyance is no advantage to her in regard the land was originally hers and moved not from her husband therfore out of the statute So if a man convey land to his
restitution therunto and the profits thereof he is driven to sue to the King for his speciall grace and pardon To prevent which penalties the Law requireth that the heire doe at times therefore by the Law appointed sue to the King to have such lands re-delivered unto him by his highnesse They cannot seize before the office which is called in Law saving of Livery till which be done the Escheator in the County where the land lies may to the Kings use seise and take the whole profits of the land Coo. 9. Sir Geo. Reinolds case 95. b. Coo. 8. Hales Case 172. b. which notwithstanding is not used to be done till office be found and then the King is in possession without seisure and is to be answered of all profits since his Tenants death till Livery sued forth then he doth his homage and hath the land delivered unto him out of the Kings hands and paieth the King his Primer seisin whereof see before in the last Title But because to your suing of Livery many things are to be done with great care Coo. 8. Hales Case 172. b. and still the Lord gives the heire 6.3 moneths time for the prosecuting thereof if the heire at his full age having been in Ward or at the death of his ancestors if he after his full age tender his Livery and pursue it with effect he shall have as much benefit by his tender as if he had done homage and had sued his Livery And therefore if the heire after the tender dies within the said 6.3 moneths Coo. 9. Holts Case 132. so that the prosecution of the Livery is become impossible by the act of God In providentia excusat legem and the interest of the King to Primer seisin is determined as if he had taken homage of the heire when he made his tender but the meane rates if any were forfeited are not discharged And so for the same reason the heire after such tender may bargain and sell or make other disposition of the land and the same is good in law if he die within the said 6. moneths Instructions by the new institutions the sur veon and hath as much power over it as if he had sued his Livery this tender at 6. moneths end is used to be continued over for 6. more and so from 6. moneths to 6. moneths as long as the Master of the Wards shall give leave and in the meane time the heire hath like benefit thereof as if he had sued his Livery Livery shall not be sued but where the Kings Tenant dyed seised of lands holden by Knights service in Capite Inst 77. a. or Soccage in Capite If the Tenure be Knights service in Capite Stat. Marleb ca. 16. viz. F. N B. 61. the King hath the same prerogative for his Livery that he hath in case of Wardship whereof see before to have a Livery sued of lands holden by his Tenant of others either by Knights service or Soccage or for lands which he hath in Ward by reason of Ward or that are holden of his Tenants or that are holden of a Bishop by a Tenant that dyeth while the temporalties of a Bishoprick are in the Kings hands But if the Tenure be in Soccage in Capite 4. El. Dy. 113. F. N. B. 256. b. 32. H. 8 Br. Gard. 97. 45. E. 3.19 35. H. 8.6.52 F. N B 259. Inst 77. the King as he shall have primer seisin and a Livery to be sued of no other lands holden by his Tenant of others besides the land holden by Soccage in Capite so also the heire of such Tenant shall not sue Livery nor pay primer seisin if at the death of his ancestor he bee under the age of 14. but in every of these cases they to whom the body belongeth shall have an Ouster le maine una cum exitibus viz. the Lord of whom the lands are holden by Knights service And here in the last case 20. Eliz. Dyer 362. howbeit when he attaines his full age of 14. yeares hee must sue Livery or else shall lose the meane rates But bee the heire of the Tenant by Knights service in Capite under age at the death of his ancestor West 1. cap. 22. St. 39 H 6. ca. 2. a. Stam. prae Rs. 13. yet at his full age he shall sue Livery although he hath been in Ward as well as though he had been of full age at the death of his ancestor though with some difference for the primer seisin as appears Title Primer seisin The time after the death of the Kings Tenant for his heire to sue Livery is of lands in question holden by Knights service in Capite be the heire in Ward and then comes to full age or be of full age at his ancestors death then viz. the heire male at 21. the heire female above 14. at the death of the ancestor then if the possession of the free-hold doe descend immediately after the ancestors death to the heire the Livery is to be sued forthwith If only a reversion doe descend then not till after the death of the particular Tenant if it be a reversion without rent incident thereunto howbeit the heire at this day hath election either to sue immediately in the life of the particular Tenant paving for Primer feisin but halfe a yeares value or to tarry till after his death Inst 77. a. Dyer 14. Eliz. 308. b. and then to sue it and pay a whole yeares value of the land but if it be in reversion with a rent incident thereunto and he sueth out his Livery in the life of the Tenant he may doe so and shall pay for Primer seisin but one yeares value of the rent And the time of the heire of Tenant by Soccage in Capite to sue Livery is Coo. 9. Hales case 132. b. Re. 9.81 Leon. Lowes case immediatly upon the death of the Ancestor with the same observation of possession or Reversion as is for the heire of the Tenant by Knights service in Capite if he be above 14. years of age at the death of his ancestor and if hee be under then hee is to sue no Livery till he be 21. yeares as is afore shewed But the time which the law hath appointed for Soccage of Livery may by Accident be altered or changed Co. Re. 9.173 Sir Hen. Constables case Coo. Re. 6.74 Sir Dru Druries case as where the sonne and heire is a Knight in the life of his father and his father dies before he be of full age his Livery must be sued or tendred immediatly on his fathers death and before his full age because the King by Knighting him hath adjudged him of full age So in diebus illis if the father had entred into Religion his heire being of full age his heire should have sued Livery presently and should not have expected his fathers naturall death No Livery can be sued of lands above the yearely value of 5.