Selected quad for the lemma: life_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
life_n	die_v	land_n	tenant_n	4,804	5	10.0751	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
a13252	A briefe treatise of testaments and last willes very profitable to be vnderstoode of all the subiects of this realme of England, (desirous to know, whether, whereof, and how, they may make their testaments: and by what meanes the same may be effected or hindered,) and no lesse delightfull, aswell for the rarenes of the worke, as for the easines of the stile, and method: compiled of such lawes ecclesiasticall and ciuill, as be not repugnant to the lawes, customes, or statutes of this realme, nor derogatorie to the prerogatiue royall. In which treatise also are inserted diuers statutes of this land, together with mention of sundrie customes, aswell general as particular, not impertinent thereunto: besides diuers marginall notes, and quotations not to be neglected, especially of Iustinianists, or young students of the ciuil law: vvith two tables, the one analyticall ... the other alphabeticall ... By the industrie of Henrie Swinburn, Bachelar of the Ciuill Lawe.	Swinburne, Henry, 1560?-1623.	1591 (1591)	STC 23547; ESTC S118058	497,477	642

By this thē it appeareth that the authority of an executor is greater then of an administrator for an executor maie appointe an executor to the first testator so can not an administrator Howe be it an executor can not giue awaie the goodes of the testator in his will by legacies no more then an administrator l) Plowd d. cas inter Bransby Grantham for those goodes are not the proper goodes of the executor but are to bee imploied for the behoofe of the testator m) c. stat de testa lib. 3. prouincial constit Cant. and in that respecte also is the executor accomptable to the ordinary as wel as th'administrator n) Eod. c. statutum I meane of a bare mere executor of whose diligence the testator made special choise to whō nothing is bequeathed in the said testament Thirdlie by the opinion of diuers iustices of this realme and doctors of the cannon and ciuill lawe the goodes of this realme that is to saie of the auncient crowne and iewelles cannot be disposed by will o) Fitzherb Abridg. tit exec n. 108. as is aforesaid p) Supr part 2. §. vlt. Fourthlie those thinges which belong to anie colledge or hospitall can not bee deuised by the testament or laste will of the maister of the sayde Colledge or Hospitall q) Perkins tit deuise● fol. 96. Doct. Stud. lib. 2. c. 39. The same maie bee saide of a Maior of anie citie or borough for hee can not by his testament bequeath anie thing belonging to the citie borough or comminaltie r) Perkins tit deuise fol. 96. §. non solùm Instit de lega vers sed si no more then a master of a colledge or hospitall such thinges as he hath in right of the colledge or hospitall s) Perkins vbi supra Fiftlie the goodes of the church can not be deuised by testament t) c. 1. de testam extr But the corne growing vpon the glebe v) Stat. H. 8. an 28. c. 11 and certaine other goods may be bequeathed as hath beene before declared x) Supr part 2. §. penul Sixtlie those thinges which after the death of the testator descende to the heire of the deceased and not to his executor can not bee deuised by testament y) Perkins tit deuises à quo sequentes casus mutuatus sum except in such cases where it is lawfull to deuise landes tenementes or hereditaments And therefore if a man seased of landes in fee or fee taile bequeath his trees growing vpon the said lande at the time of his death this deuise is not good except as before but if hee deuise the corne growing vpon the same lande at the time of his death from the heire to some other person this deuise is good albeit the land whereupon it groweth bee not deuiseable the reason of the difference is because the trees are parcell of the free-hold and descend together with the lande to the heire and not to the executor but it is not so of corne for the same shall goe to the executor as parcell of the testators goodes And therefore if a man be seased of landes in the right of his wife and sowe the lande and deuise the corne growing vpon the same lande and die before the corne be reaped in this case the legatarie shall haue the corne and not the wife but it is otherwise of grasse and hearbes not separated from the ground at the time of the death of the testator If a man seased in fee in right of his wife doe let the same lande for yeeres to a straunger and the lessee soweth the grounde and afterwardes the wife dieth the corne not being ripe In this case the lessee may deuise the same corne notwithstanding his estate bee determined So is it if he that is tenaunt by curtesie of England of landes tenementes or hereditamentes for his life let the same lande to an other for yeeres and the leassor die within the tearme of those yeeres In this case the lessee maie deuise the corne which shall bee growing vpon the same lande not ripe at the time of the death of the testator Likewise if the tenante in dower sowe those landes which he hath in dower and make his executors and after dieth the corne not separated there the executors shall haue the corne notwithstanding the same be not seeded and so the tenant in dower may deuise the corne growing vpō that land which she holdeth in dower at the time of her death But it is not alwaies lawfull for a man or a woman to deuise the corne by them sowen for if a man seased of lande in fee doe infeoffee a straunger in morgage vpon paimente and not paiment made on the partie of the feoffer at a certaine daie and the feofee sowe the land and the feoffer paie the monie at the daie appointed and enter in this case it is thought that the feoffee cannot deuise the corne growing vpon the said lande Likewise if he that is tenaunte in taile of certaine land doe let the same lande for terme of life and the lessee doe sowe the same lande and the tenaunte in taile die and the issue do recouer the same in form don in the discent before the corn be separated it is thought in this case that the issue in taile maie bequeath the same by his testament Moreouer if a man seased in fee haue issue a daughter and die his wife being great with childe and the daughter enter and sowe the ground and afterwarde before the corne be seuered the wife is deliuered of a son and thereupon his next freind do enter for him yet the daughter maie deuise the corne growing vpon the same land but if after the sowing of the corne and before the birth of the son the mother hath recouered her dower against her daughter and the same land that is sowen is alotted or assigned vnto her by the Sherife for her dower in allowance of other lands there the mother may deuise the corne growing vpon the saide lande and not her daughter Finallie whereas by the ciuill law it was lawfull for the testator to bequeath not onelie his owne thinges but an other mans also a) §. Nō solum Instit de lega L. cùm alienum C. de lega in so much that the executor was compellable to redeeme the same thing and deliuer it to the legatarie or if the owner would not sell it then to paie the iuste value thereof to the same legatarie b) Eod. §. non solùm L. non dubium ff de lega 3. vnlesse the testator were ignorant that the same thing did belong to an other and did suppose it to be his owne In which case the legacie is void so that the executor is neither boūd to buie the thing nor to paie the value therof c) d. §. non solùm L. si vnum §. si rem ff de lega 2. because

be demaunded so that he which maketh demaunde doo enter into bonde in manner as hereafter is described to performe that which is exacted by the testator or else to make full restitution p) L. quibus diebus §. Termilius ff de cond demon L. 1. 2. C. de his quae sub modo An other case is when † the testators will is not repugnant thereunto for then this bonde as it is affirmed hath place euen in affirmatiue conditions q) Bar. in d. L. Mutianae de cond demon ff n. 3. When the † condition is negatiue then wee are to regarde what kinde of negatiue condition it is that is to saie whether the same consist in not dooing or not giuing or not chauncing If † the condition consiste in not dooing then it is material whether the same maie be accomplished so long as he liueth on whom the same is imposed yea or no. If † the condition consistinge in not dooing can not be performed so longe as the person on whome it was imposed liueth then maie hee obtaine the bequest by puttinge in bondes to accomplishe the condition or else in defect thereof to make full restitution r) d. L. Mutianae ibi Bar Bal● Paul d● Ca●●r Zas in L. dedi tibi ff de cond caus dor as for † example the testator maketh one his executor or giueth him a hundred pounde if he neuer plaie at the Cardes or Dice This condition we see is negatiue it cōsisteth in not dooing and it is such a condition withall as can not be fullie performed so long as hee liueth on whom it is imposed because at anie time during his life hee maie infringe the same by playing at the Cardes or Dice s) S●m● de Praetis de interp vlt. vol. lib. 5. inter 2. Iub 1. n. 23. for albeit he did abstaine this daie yet might hee plaie the next daie or if not the next daie yet some one daie or other so longe as hee had anie daies to liue t) Simo de Praetis vbi supr Paul de Castr in d. L. Mutianae and so in the meane time that is to saie all his life longe hee shoulde not reape anie commoditie by the testament if the full performaunce of the condition were first exacted Wherefore † leaste the testators will should be vneffectuall and leaste the executor or legatarie should reape no benefit therby if the full performaunce of the condition should bee expected ere the bequest coulde bee obtained one Mutius Sceuola did deuise this remedie that hee who is made executor or to whom anie legacie is bequeathed vpon a condition negatiue which coulde not bee fullie performed duringe his life shoulde enter into bonde to performe the condition that is to saie neuer to doo that which is prohibited or else to make a full restitution and by that meanes obtaine the executorshippe or legacie v) d. L. Mutianae cum gloss ibid. Simo de Praetis vbi supr Zas in L. ded● tibi de cond caus dot ff n. 7. 9. which bonde or caution is of Mutius the author thereof called Mutiana cautio x) Gloss in d. L. Mutianae and after a sorte hath the effecte of the full accomplishment of the condition y) ●ar Castr in d. L. Mutianae Yea in some cases † the legacie which is giuen vnder a condition negatiue consisting in not dooing maie be obtained without anie such bond albeit the same condition maie be infringed duringe the life of the legatarie namely in a legacie of libertie or free-dome from bondage z) L. libertatem L. libertas §. 1. de manumiss testa ff in a legacie ad pias causas a) Tiraquel de priuileg piae causae c. 48. The reason of the difference is because in these fauorable legacies the testator is presumed to haue meante onelie of the firste acte when the legatarie had oportunitie of doinge the thinge prohibited b) Tiraquel vbi supra So that if at that season or firste oportunitie the legatarie doo not infringe the condition by dooing contrarie to the disposition of the testator it is not hurtefull though after that first oportunitie past the legatarie goe against the condition c) Gloss in L. Titio §. fundus ff de cond demon Tiraquel d. c. 48. vnlesse the meaning of the testator doo appeare to bee contrarie viz. that the condition should be extended to euery act during the life of the legatarie d) L. vlt. de manumiss testa ff Tiraquel vbi supra But † if the negatiue condition bee suche as maie be performed during his life on whom it is imposed this aforesaide bonde or caution hath no place e) L. cum tale §. 1. ff de cond demon L. pater §. socrus eod and consequentlie the executorship or legacie disposed vnder such condition so long as the same dependeth not fullie performed can not be obtained f) L. cū tale §. 1. gloss in d. L. Mutianae For example the testator maketh thee his executor or giueth thee a C. pound if thou neuer plaie at dice or cardes with A.B. or if thou do not at any time giue away thy lands to A.B. this cōdition howsoeuer it be negatiue also cōsisteth in not giuing or not doing Yet it may be fullie perfectly cōplete and performed in thy life time For A. B. with whō thou art forbidden to play or to whō thou art forbiddē to giue thy lands may die before thee then thou canst not play with him nor giue him thy lands when he is dead and so it is euident that this condition may be fullie performed accomplished in thy life time for a † negatiue condition is then said to bee fullie accomplished when it is brought to an impossibilitie g) Gloss DD. in d. L. Mutianae ff de cond demon and therefore in this case thou canst not be admitted executor nor obtaine the legacie vntill the condition bee brought into that state that it can not be infringed h) DD. in d. L. Mutianae d. L. cum tale §. 1. Simo de Praetis de inter vlt. vol. lib. 5. interp 2. dub 1. n. 23. Great † ods therefore there is betwixte those negatiue conditions which can not be performed in the life time of that persō on whom they are imposed those negatiue cōditions which maie be performed during his life For there the executor or legatarie maie obtaine the executorship or legacie by putting in bondes but here he can not vnlesse it be † such a case as the euent thereof dooth bring greefe and sorrow to the partie on whom the condition is imposed for in such cases where the condition can not be infringed or become deficient without sorrowe or heauines it is lawfull for the executor or legatarie to enter into bondes for making restitution if the condition be not performed and so to be admitted to the executorship and to obtaine

vlt. vol. lib. 11. tit 6. n. 9 Wherefore if the testator make thee his executor or giue thee an hundred pounde if he die without issue after which will made he dieth leauing his wife with child In this case he is reputed to die without issue and so thou art to be admitted to the executorship maist recouer thy legacie b) Mantic. d. tit 6. n. 9. post Bald. in d. L. qui. in vtero el. 2. vnlesse it be more beneficiall to the childe that his father shoulde haue beene reputed to haue died without issue for then thou art excluded c) L. iubemus §. pen. C. ad Trebel ibi Paul de Castr When † the childe dieth so soone as it is borne we must consider whether it were borne in due time or not if it were borne in due time so that by possibilitie of nature it might haue liued longer as in the vii ix or x. moneth d) L. septimo mense de stat hom L. Gallus in princ de lib. posthu L. intestat §. vlt. de suis legit ff the father is iudged to haue issue especially † if the childe were once heard to crie e) Mantic. de coniect. vlt. vol. lib. 11. tit 6. n. 10. Mascard Tract de probac. verb. Natus concl 1088. n. 9. 10. per L. quod certatum C. de posthu haered instituend Sichard in d. L. n. 4. for then also by the lawes of this realme that man whose wife was seased in fee simple or in fee taile generall or as heire in fee taile speciall shal be said to haue had issue and by reason thereof after the decease of his wife shall holde the same land during his life and shall be called tenant by the curtesie of England for that it is thought that the same law is not vsed in any other Countrey sauing onely in England f) Litleton tit curtesie d'engleterr But † if the childe which he had by his wife were not heard to crie it is thought that he cannot be tenāt by the curtesie g) Bract. de leg consuet Angl. lib. 5. tit de excep c. 30. n. 7. 8. Which opinion though auncient hath beene strongly encountered of late and shrewdly shaken by men of deepe iudgement and reuerent aucthoritie *) Dyer fol. 25. n. 159. post Fitzh and so the same not being free from contradiction cannot bee vtterly voide of doubt and therefore as it becommeth me I doo verie willingly referre the determination thereof to the lerned and expert in the studie and practise of the lawes temporall of this land Neuerthelesse to other purposes and testamentarie effectes determinable in the ecclesiasticall courts I suppose he shall not bee reputed to haue died without issue although his childe did neuer crie so that it did sensible breath or moue h) L. quod dicitur ff de lib. posthu L. 2. 3. C. de posthu Felin in c sicut de homicid ex●r Mascard Tract de probac. verb. natus conclus 1088. sub finē for what if the childe were borne dumbe i) d. L. quod dicitur d. L. 2. 3. DD. ibid. Therefore I say by the ciuill and ecclesiasticall lawes concerning testamentarie effectes the father shall not bee accounted to haue died without issue if the childe did but breath and though it did not nor coulde not crie but died in the handes of the midwife k) d. L. 3. C. de posthu for crying is not an onely proofe of life l) L. quod certatum C. de posthu ibi Sichar n. 4. Mascard de ꝓbac conclus 1088 n. 10. since it may be prooued by other meanes as by motiō breathing and such like m) L. si magister C. de Instit sub Mascard d. concl 1088. sub finē Sichard in d. L. quod certatum In deede † if the childe be borne deade n) L. qui mortui ff de verb. signif or being halfe borne aliue yet dieth before it be wholy borne o) Alciat in d. L. qui mortui Cui adde Tiraquel in rep L. si vnquam C. de reuoc donac verb. susceperit n. 132. vbi etiam disputat an talis baptizari possit cuius tantum caput in partu apparet hee shall not bee reputed to haue issue p) d. L. 3. in sin d. L. qui mortui DD. in LL. Likewise in the other case that is to say when the child is not brought forth in due time as perhappes before the seuenth moneth or in the eight moneth so that it is impossible for the same to liue the parents for and concerning testamentarie effectes shal not be accompted thereby to haue had issue howsoeuer the childe for a while after the birth did sensiblie breathe and moue q) L. 2. C. de posthu Socin sen cons 275. n. 20. vol. 2. Mantic. de coniect vlt. vol. lib. 11. tit 6. n. 10. Grass Thesaur com op §. fideicommissum q. 33. in fin If † the testator make thee his executor or do bequeath vnto thee any legacie conditionally if he shall haue no issue and afterwards his wife doe bring foorth a monster or misshapen creature hauing peraduenture a heade like vnto a dogges heade or to the head of an asse or of a Rauen or Ducke or of some other beast or birde such monstrous creature though it should liue as commonly none doo yet is it not accounted amongst the testators children r) L. non sunt ff de stat hom Olden in eand L. Sichard in d. L. 3. C. de posthu for the lawe doth not presume that creature to haue the soule of a man which hath a forme and shape so straunge and different from the shape of a man s) Bald. in d L. nō sunt Sichard in d L. 3. n. 5. But if the creature brought forth do not varie in shape from a man or woman but haue somewhat more then God by the ordinarie course of nature alloweth as hauing sixe fingers on either hand t) DD. in d. L. 3. C. de posthu in d. L. non sunt in L. ostentum in L. quaeret ff de verb. sig Idem quoque iuris est si quis habeat tres testes Alciat in d L. quaeret n. 9. or on the contrarie wanting some of the ordinarie members as hauing but one hande or one foote v) Bald. Aug. in L. quod dicitur ff de lib. posthu such creature is not excluded but is to be accounted for the testators childe What if there be duplication of notable members as to haue foure armes or two heades or disorder in the principall members as the face standing backwardes or in the breast In this case I suppose much to bee attributed to the discretion of the Iudge x) Sichard in d. L. 3. C. de postu n. 5. verb. cum autem And albeit the writers seeme rather to encline to this opinion

is or shall be due and not paide at the time of his death shall and maie haue an action of debt for all such arrerages against the tenant or tenants that ought to haue paide the saide rent or fee ferme so being behind in the life time of their testator or against the executors and administrators of the said tenants And also furthermore it shall be lawfull to euerie such executor or administrator of any such person or persons to whom such rent or fee ferme is or shall be due and not paide at the time of his death as is aforesaid to distraine for the arrerages of all such rentes and fee fermes vpon the landes tenements or other hereditaments which were charged with the paiment of such rents or fee fermes and chargeable to the distresse of the saide testator so long as the saide landes tenements or hereditaments continue remaine and be in the seasin or possession of the said tenant in demaine who ought immediately to haue paide the saide rent or fee ferme so being behinde to the saide testator in his life time or in the seasin or possession of any other person or persons claiming the said lands tenements and hereditaments onely by and from the said tenant by purchase gift or discent in such like maner forme as their said testator might or ought to haue done in his life time And the saide executors and administrators shall for the same distresse lawfully make auowrie vpon their matter aforesaid Prouided alwaies that this act nor any thing therein conteined shall not extend to any such mannour lordship or dominion in Wales or in the marches of the same whereof the inhabitants haue vsed time without minde of man to pay vnto euerie Lord or owner of such lordship mannor or dominion at his or their first entrie into the same any summe or summes of money for the redemption and discharge of all duties forfaitures and penalties wherewith the same inhabitantes were chargeable vnto any of the saide lordes auncestors or predecessors before his said entrie And further be it c. that if any man which now hath or hereafter shall haue in the right of his wife any estate of fee simple or fee taile or fee ferme and the same rents or fee fermes now be or hereafter shall be due behinde and vnpaide in the wiues life then the said husbande after the death of his saide wife his executors and administrators shall haue an action of debt for the said arrerages against the tenant of the demaine that ought to haue paid the same his executors or administrators and also the saide husbande after the death of his saide wife may distraine for the saide arrerages in like maner and forme as he might haue done if his said wife had beene liuing and make auowrie vpon his matter as is aforesaid And likewise it is c. that if any person or persons which now hath or heereafter shall haue any rentes or fee fermes for tearme of life or liues of any other person or persons and the saide rent or fee ferme nowe or hereafter shall be due behinde and vnpaide in the life of such person or persons for whose life or liues the state of the saide rent or fee ferme did depende and continue And if the saide persons doo die then he vnto whome the saide rent or fee ferme was due in forme aforesaide his executors or administrators shall and may haue an action of debt against the tenant in demain that ought to haue paide the same when it was first due his executors and administrators also distraine for the same arrerages vpon such lands and tenements out of the which the saide rentes or fee fermes were issuing and paiable in such like maner and forme as he ought or might haue done if such person or persons by whose death the aforesaid estates in the said rents and fee fermes was determined and expired had been in full life and not deade and the auowrie for the taking of the same distresse to bee made in maner and forme aforesaid Secondly † concerning the testator it shall be behouefull for thee that art desirous to bee resolued whether it were better to accept or refuse the executorship to inquire learne whether the same testator were executor or administrator to anie other person If he were executor then by the statutes of this realme v) Stat. 4. Ed. 3. an 25. c. 5. Idem iure ciuili in haerede haeredis L. 2. 3. de petic haered ff Contrarium in haerede executoris tàm iure ciuili quàm canonico Bar. alij in L. à filio ff de alimen leg gloss in c. fin de testa 6. verb. mortuo thou † being executor of an executor shalt haue actions of debts accountes and of goodes caried away of the first testator and execution of recognizances made in court of recorde to the first testator in the same maner as the first testator shoulde haue if hee were in life aswel of actions of the time past as of the time to come in all cases where iudgement is not as yet giuen betwixt such executors but the iudgement giuen to the contrarie in times past ought to stand in their force And on the contrarie the executor of the executor shal answere to others to whom the first testator was indebted as much as he shall recouer of the goods of the first testator euē as the first executor should doo if he were in full life But the goods which did belong to the first testator shall not bee put in execution for the debt of the second testator which goods the executor of the executor shall haue by relation to the first testator as immediately executor vnto him and not by relation to the second testator executor to the first testator x) Plowd in casu inter Bransby Grantham Atque ita soluitur nodus de quo Bar. alij in L. veluti ff de petic haered vtrum videlicet haeres haeredis succe dat priori testatori ex testamēto vel ab intestato nobis enim intelligitur succedere ex testamento vtcunque●on fuit in primo testamēto nominatus id quod disputandi rationem praebuit and so the propertie which the second testator had by the saide relation is taken away and is in such case as if the second testator had neuer beene executor y) Plowd vbi supr Howbeit this is to bee vnderstoode with this limitation viz. if there bee no executor of the first testator suruiuing For † if the testator did make diuerse executors whereof some be yet liuing that executor of the first testator suruiuing and the executor of his coexecutor cannot be ioined both together in one action z) Brook Abridg. tit execut n. 99. Contrarium in haeredibus constituit ius ciuile quo si aliquis ex haeredibus decesserit pluribus relictis haeredibus hi omnes accipere debent illampartem quae ad

therof dieth his heire being within age that in euerie such case the king shall haue the warde and mariage of the bodie of such heire so being within age the life of the freeholder or freeholders of the said manors landes tenements or hereditaments so holden by knights seruice notwithstanding Sauing and reseruing to all and euerie woman and women all and euerie such right title interest of dower as they or any of them ought to haue or bee or shall be iustlie intituled to haue claime or demand of anie manors landes tenementes or hereditamentes by the lawes of this realme to be taken or assigned vnto them or anie of them out of the two partes of the said manors landes tenementes or hereditaments seuered and deuided from the third part as is aboue said and not otherwise And sauing also to the king our soueraigne lord his heires and successours the reuersions of all such tenauntes in ioyntenure and dower immediately after the death of such tenauntes if they shall happen to die duringe the minoritie of the kinges wardes An other acte for the Explanation of the former concerning willes and the deuise of landes WHether in the laste parliament begunne and holden at Westminster the 28. day of Aprill in the 31. yeere of the kinges most gratious raigne cap. primo willes 2. And there by diuers prorogations holden and contiued vnto the 24. daie of Iulie in the 32. yeere of his saide raigne It was by the kings most gratious and liberall disposition shewed toward his most hūble and obedient subiects ordeined and enacted howe and in what manner landes tenementes and hereditamentes might by will or testament in writing or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen diposed willed or deuised for the aduauncement of the wife prefermente of children paiment of debtes of euerie such person or otherwise at his wil or pleasure as in the same acte more plainelie is declared Sithen the making of estatute diuers doubtes questions and ambiguities haue risen beene moued and growen by diuersity of opinions taking in and vpon the exposition of the letter of the same estatute For a plaine declaration and explanacion whereof and to the intent and purpose that the kinges obedient and louing subiectes shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposition the lordes spiritual and temporall and the commons in this present parliament assembled most humbly beseeching the kings maiestie that the meaning of the letter of the same estatute concerning such matters hereafter rehearsed may be by the authority of this presēt parliament enacted taken expounded iudged declared and explaned in manner and fourme following First where it is contained in the same former statute within diuers articles branches of the same that all and singuler person and persons hauing any manors lands tenements or hereditamentes of the estate of inheritance should haue full and free libertie power and authoritie to giue will dispose or assigne as well by last will and testament in writing or otherwise by anie act or actes lawfullie executed in his life his manours landes tenementes or hereditaments or anie of them in such manner and fourme as in the same former act more at large it dooth appeare Which wordes of estate of inheritaunce by the authority of this present parliament is and shall be declared expounded taken and iudged of estates in fee simple onelie And also that all and singuler person and persons hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenarie or in common in fee-simple of in anie manors lands tenements rents or other hereditaments in possession reuersion or remainder or of rents or seruices incident to anie reuersion or remainder and hauing no manors lands tenements or hereditaments holden of the king his heires or successors or of any other person or persons by knights seruice shall haue full and free liberty power and authority to giue dispose will or deuise to anie person or persons except bodies politike and corporate by his last wil and testament in writing or otherwise by any act or actes lawfullie executed in his life by him selfe soly or by himselfe and other iointly seuerally or particularlie or by al those waies or any of them as much as in him of right is or shall be all his said manors lands tenements rentes and hereditaments or any of them or any rents commons or other profits or commodities out of or to be perceiued of the same or out of any parcell thereof at his owne free will and pleasure any clause in the saide former acte notwithstanding And further be it declared enacted by the authority aforesaid that al singuler person persōs hauing a sole estate or interest in fee-simple or seized in fee-simple in copercenery or in cōmon in fee-simple of or in anie manors lāds tenements rentes or other hereditamentes in possession reuersion or remainder or of in any rents or seruices incident to any reuersion or remainder holdē of the king by knights seruice in cheef or of the nature of knights seruice in cheefe hath by the authority of this present parliament shall haue full and free liberty power authoritie to giue dispose will or assigne to any persō or persōs except bodies politike corporate by his last will testament in writing or otherwise by any act or acts lawfully executed in his life by him selfe soly or by himself other iointly seuerally or particularly or by al those waies or any of them as much as in him of right is or shall be two parts aswell of al the said manors lands tenementes rents and hereditaments as of all and singuler his other rents hereditaments or of any of them or anie rents commons or other profits or cōmodities out of or to be perceiued of the same two parts or out of any parcell thereof in three partes to be deuided or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof in three parts to be diuided of what person or persons so euer they be holden at his free will and pleasure And that by the authority aforesaid the said will so declared shal be good and effectuall for two parts of the said manours lands tenements and hereditaments although the will so declared be made of the whole or of more than of two parts of the same The same diuision to be made and set forth by the deuisour or owner of the same manours lands tenements and hereditaments by his last will in writing or otherwise in writing And in default therof by a commission to be graunted out of the kinges courte of the wards and liueries vpon the enquirie of the true value therof by the othes of 12. men and returne or certificate thereof had in the same court of the said manours lands tenementes and hereditaments diuision to be made by the master of the

† note that as an executor may be appointed from a certaine time or vntill a certaine time so a legacie may bee bequeathed either from a certaine time or vntill a certaine time x) Grass Thesaur com op §. ●egatum q. 43. And albeit where † a legacie is giuen from or after a certaine time the legatarie dying in the meane while before the time bee come the executors or administrators of that legatarie may demaund and recouer the legacie after the day be past as might the legatarie himselfe if he had liued y) L. 5. ff quando dies leg c●d Grass d. q. 43. Vasq de success progress lib. 3. §. 29. n. 2. vnlesse the meaning of the testator be contrarie z) L. in conditionibus de cond demon ff Mantic. de coniect. vlt. vol. lib. 11. tit 20. n. 8 or vnlesse it be such a thing as cannot be trāsmitted to the executor as personall seruice a) L. si post in princ ff Quando dies leg ced ibi Bar. Yet † if the legacie be giuen after an vncertaine time for so also it is lawful for the testator to doe b) Grass d. q. 43. the legatarie dying in the mean while the executors or administrators of the legatarie deceased cannot demaunde the same but are vtterly excluded c) d. L. si post diem L. si Titio ff Quando dies leg ced Grass d. q. 43. and that † not onely when it is vncertaine whether it shall happen d) L. cum testator C. de manumiss test but also when it is vncertaine when it shall happen e) L. si Titio ff quando dies leg ced L. si cui §. 1. de leg Grass d. q. 43. for example the testator giueth thee an hundred pound when his daughter shall be maried This is vncertaine whether f) Alex. consil 55. vol. 2. it shall happen at all or no or the testator giueth thee an hundred pounde when his sonne shall die This is vncertaine when g) Cuiac obseruac lib. 18. c. 1. Vasq de success ꝓgress lib. 3. §. 27. n. 11. §. 29. n. 3. in fin it shall happen not whether it shall happen for it is certaine we must all die In both which cases if thou die before the day be come that is to say before the marriage of the testators daughter or death of his sonne the legacie is vtterly extinguished or as if it had beene conditionall h) L. si Titio quādo di es leg ced L. quibꝰ diebus §. 2. de cond demon ff Bar. in L. si cui legetur §. 1. de leg 1. Vasq vbi supra Neither † is it material whether the vncertainty be ioined to the substance of the disposition or to the execution thereof for in both cases the legacie or disposition is reputed conditionall i) Alex. in L. senis ad Trebel ff Ias post Bald. Paul de Castr in d. L si cui §. 1. de leg 1. Grass Thesaur com op §. legatum q. 43. Vasq de success ꝓgress lib. 3. §. 29. n. 4. quae opinio scilicet quod legatum huiusmodi nō fit in diem sed conditionale vbi dies est incertus quando veluti post mortem alterius vt communior ita est verior ex relatione Grass §. legatum q. 43. n. 8. cui subscribit Mantic de coniect. vlt. vol. lib. 11. tit 20. n. 3. and so it is not materiall whether the testator say I giue to A.B. an hundred pounde when my daughter shall marrie or when my sonne shall die In which case the vncertaintie is saide to be ioined to the verie substance of the disposition or whether the testator say I giue to A. B. an hundred pounde and I will that the same shall be paied when my daughter is maried or my sonne dieth k) DD. in L. si cui §. 1. de leg 1. ff In which case it is saide to be ioined to the execution of the disposition l) Bar. Paul de Castr Lancel Dec. in d. §. 1. For as well in the one case as in the other if the legatarie die before the mariage of the testators daughter or death of the testators sonne his executors or administrators cannot demaunde the legacie m) Vasq de success progress lib. 3. §. 29. n. 4. Mantic. de coniect. vlt. vol. lib. 11. tit 20. n. 3. But in verie truth if we looke a litle neerer vnto the cause the time of anothers death is not onely vncertaine in respect of the question when but also in some respect of the question whether n) L. haeres meus ff de cond demon Bald. in d. L. for who is certaine whether that the other shal die before the legatarie and this I suppose to be the principall cause wherfore the legacie which is giuen or is to bee performed after the death of another is reputed to be conditionall namely because it is vncertaine whether that time shal happen during the life of the legatarie o) Bald. in d. L. haeres Cuiac lib. 18. obseruac cap. 1. Mantic. de cōiec vlt. vol. lib. 11. tit 20. n. 4 For † if the question be onely when the time shall happen and not whether it maie happen during the life of the legatarie then the legacie in respect of transmission is said to bee pure and not conditionall p) d. L. haeres meus ibi Bald. cum Paul de Castr As for example the testator giueth thee an hundred pounde to be paied the day before thy death heere the vncertaintie is onely when the time shall happen not whether it shall happen during thy life wherefore in this case after thy death thy executors or administrators may recouer the legacie q) d. L. haeres meus L. 4. ff quando dies leg ced and that without distinction whether the vncertaintie be ioined to the substaunce of the legacie as I giue thee an hundred pounde the day before thy death or whether it bee ioined to the execution of the legacie as I giue thee an hundred pounde to be paied the day before thy death r) d. L. haeres Et licet in illius legis exemplo incertitudo videri possit adiungi praestationi legati non substantiae tamen cùm ratio illius legis sit generalis in vtroque casu militet nempe quia dies non potest non cedere viuente legatario vis legis non est per vnicum exemplum angustanda Wherefore where it is saide that when a legacie is giuen after an vncertaine time if the legatarie die in the meane while his executors or administrators are excluded from demaunding the same legacie albeit the vncertaintie be about this question when that conclusion hath diuerse limitations The first limitation or restraint is in case also it bee vncertaine whether the same shall happen during s) Bald. in d. L. haeres Mantic. de coniect. vlt.

executorship three questions maie bee demaunded First whether hee that is named executor in the testament may be compelled to vndertake the executorship or that it is in his power to refuse the same a) De hac Q. consulas Henr. Boic in c. tua nos de testa extr Panor in c. Iohannes eo tit Bar. in L. 1. de leg 2. ff Secondlie what is to be considered of him that is named executor whereby he maie be resolued whether it were better to accept or refuse the executorship b) Infr. §. prox Thirdly how long time he that is named executor hath to deliberate and determine of accepting or refusing the executorshippe c) Infr. ead part §. 4. To the first it maie bee answered that hee † that is named executor maie bee cited to appeare before the Ordinarie or other hauing authoritie to proue the will and there either to accept the executorship or at least to refuse the same d) Boic Panor Bar. vbi supra Plowd in casu inter Greisb Fox And in case † either he will not appeare or appearing † refuse to proue the testament the Ordinarie or other Iudge maie commit the administration of the goods of the deceased as if hee had died intestate e) Brook Abridg. tit adm̄str n. 32. tit exec n. 49. 102. stat H. 8. an 31. c. 5. and the administrators haue action and may administer the goods of the deceased as if he had died intestate and their authoritie or act done is good and effectuall in the lawe f) Brook vbi supra Plowd vbi supra in the meane time vntill the executors vndertake the executorship g) Bald. in L. de beri C. de fidei commiss liberta Plowd in d. cas inter Greisb Fox for then the Ordinarie maie reuoke the administration before by him committed h) Brook Abridg. tit adm̄str n. 33. quod facilitis procedit cum administratio commissa fuerit vt sēper solet saluo iure cuiuscunque c. But he † that is named executor cannot be precisely compelled to stand to the will and vndertake i) Panor in c. Io. de testa extr n. 3. Olden de exec vlt. volunt tit 7. in fin the executorship vnlesse † hee haue alreadie medled with goodes of the testator as executor for then he is not only to be cōpelled to performe the office of an executor k) Panor Olden vbi supr Boic in c. tua de te sta extr Plowd in cas inter Greisb Fox but also if he should refuse and the Ordinarie commit the administration vnto him this refusall is void and he shall be charged as executor l) Fitzh Abridg. tit execut n. 35. Moreouer albeit † the executor named who hath not medled with the administration of the goodes of the deceased cannot be precisely or absolutely compelled yet if anie legacie bee left vnto him in the testament he maie be compelled to stand to the executorshippe or else to loose the legacie so that he shall not reape the benefite if being duely admonished he refuse the burthen m) Quae positio locum vendicat etiamsi executor sit coniuncta persona vt habet communis opinio Gribald Thesaur com op verb. tutor Rom. consil 235. Adde Io. de Canib d. Tract de executore vbi plures enumerat huius regulae limitationes nempè quod non est compellendus quarum firmitatem quia suspectam habeo eas silētio praetereo What is to be considered of the executor desirous to be resolued whether it were better to accept or to refuse the executorship 1 Diuerse things to be considered of him which would be resolued whether it were better to accept or to refuse the executorship 2 The first thing to bee inquired in this case concerning the testator 3 Of the aucthoritie and charge of the executor 4 The executor may not medle with the landes tenements or hereditamēts of the testator but the heire 5 The heire hath not to deale with the goods and cattels of the testator but the executor 6 The testator may giue power to his executor to sel his landes for paiment of his debts or other purpose 7 What if some of the executors named do refuse whether may the rest sell the lands according to the testament 8 Whether the executor of him that had lands in see simple fee taile or for tearme of life maie recouer the rents fee fermes or other arrerages against the tenant which ought to haue paied the same in the life of the testator 9 The second thing to be required concerning the testator 10 Of the authoritie and charge of the executor of an executor 11 Whether diuerse being assigned executors whereof some be dead the executor of the executor deceased may bee ioined in action with the executor suruiuing 12 Of the aucthoritie and charge of the executor of an Administrator 13 What is to be considered about the last will of the testator 14 Whether the executor maie conuert the residue to his owne vse 15 Whether he that is named executor shall lease his legacie if he do refuse the executorship 16 What is to be considered in the person of the executor 17 What is to be considered in a wise executrix 18 What is to be considered in the person of the coexecutor 19 Whether one executor maie preiudice another 20 Whether one executor maie sue another 21 VVhether one of the executors maie alone sell the goodes of the testator 22 VVhether the coexecutor after refusall maie meddle as executor 23 VVhat is to bee considered in other persons with whom the executor is to deale §. iij. HE † that is desirous to be resolued whether it were better for him to vndertake the executorship or to refuse the same muste consider diuers things whereof some concerne the testator some concerne the executor him selfe and some concerne the persons of others a) Haec alia quae ab executore deliberante consideranda sunt tradunturà Io de Canib in Tract de executor vlt. vol. 2 part q. 1. cum seq Cui si place at adiungas Sichar in Rub. de iure de lib. C. Of those things which concerne the testator the first and principall thing to be regarded in this consultation is his substance or wealth First of all therefore † it behoueth him that is named executor to enquire diligently and to learne certainly if he can what goodes and cattelles did belong to the testator at the time of his death b) Sichard in d. Rub. de iure de lib. C. and what debtes were then due vnto him And on the contrarie what debts he the said testator did owe vnto other men c) Cuius rei vtilitas statim subijcitur For † as the executor may enter to all the goodes and cattels which did belong vnto the testator d) L cùm haeredes de acquir post L. haereditas de reg iur ff

necessarie 10 When the clause is derogatorie of the will of making testaments then it is needful to make mention thereof 11 Certaine cases wherein mention or reuocation of the testament derogatorie is not necessarie 12 Three manner of reuocations generall speciall and singular 13 The force of the generall reuocation 14 The effect of the speciall reuocation 15 The effect of the singular reuocation 16 The effect of generall mention 17 The effect of particular mention 18 How a testament may be reuoked wherein is a special clause derogatorie circumscribed with certaine limites 19 What is chiefly to bee obserued about those testaments wherein be clauses derogatorie 20 Clauses derogatorie of small force in the testaments of simple persons 21 What if two testaments appeare but doth not appeare whether of them is later §. xiiii IT hath beene signified alreadie that † a testament which is good and lawfull at the beginning may afterwards become voide by diuerse meanes a) Supra ead part §. r. as by the making of a later testament b) In hoc ipso §. and by reuoking c) Infra §. 15. and cancelling d) Infra §. 16. the testament made by alteration of the testators state e) Infra § 17. by forbidding or hindering the testator to make another testament or to correct the former and by diuerse meanes hereafter ensuing g) Infr. §. 19. 20. cum sequen vsque ad finem libri Concerning the first of these meanes that is to say the making of a later testament so large and ample is the libertie of making testaments that † a man may as oft as hee will make a newe testament euen vntill the last breath h) L. 4. ff de adim lega Mantic. de coniect. vlt. vol. lib. 12. tit 1. n. 1. neither is there any cautele vnder the sunne to preuēt this libertie i) Bar. in L. si mihi §. in legatis ff de leg 1. Olden de action class 5. in prin fol. 197. But no man can die with two testaments k) L. ius nostrum de reg iur ff L. sancimus C. de testa and therefore † the last and newest is of force l) §. posteriore Instit quib mod testa instr so that if there were a thousand testaments the last of all is the best of all and maketh voide the former m) Paris consil 10. lib. 3 n. 4. This † conclusion that the later dooth infringe the former is diuersly enlarged First the later testament dooth infringe the former albeit it the executor of the later do refuse the executorship or die either during the life of the testator or after his death n) d §. posteriore Instit quib mod testa infir Mascard Tract de probac. concl 1282. n. 2. for it is sufficient that once he might haue beene executor o) Eod. §. posteriore Secondly the later testament doth infringe the former albeit the prince or Emperour himselfe were appointed executor of the former p) L. si quis C. qui testa fac poss Thirdly the later testament doth make frustrate the former albeit the former were a written testament and the later but a nuncupatiue testament q) Vasq de success resolue lib. 1. §. 1. n. 26. 27 Perkins tit testament fol. 92. Fourthly the later dooth infringe the former albeit there be no mention in the second testament of reuoking the former r) Minsing Vigli in d. §. posteriore Fiftly the later testament dooth reuoke the former albeit in the former there bee a clause derogatorie of willes and testaments afterwards to be made s) Bar. in L. si mihi tibi §. in legatis ff de leg but thē whether it be necessarie that in the later testamēt there be mentiō or reuocation of that former testament or of the clause derogatorie is hereafter declared t) Infra §. 15. Sixtly the later testament doth make voide the former albeit there be xx witnesses of the former and but two of the later v) Couar in Rub. de testa extr part 2. in prin Vasq de success resolu lib. 1. §. 1. Seuenthly the later testament dooth take away the former albeit in the former testament the executor is appointed simplie or without condition in the later conditionally and the same condition also violated x) d. §. posteriore Instit quib mod testa infir so that the condition be of something then to come at the time when the condition was made But if the executor of the later testament be made vppon some condition then present or past the condition not existing the former testament is not reuoked y) Minsing in d. §. posteriore n. 6. Eightly the later testament doth make void the former albeit the testator haue sworne not to reuoke the same z) Couar in Rub. de testa extra part 2. n. 9. the othe also being reuoked together with the testament a) Iul. Clar. §. testm̄ q. 94. Grass Thesaur cō op §. testm̄ q. 87. hoc inquit est valdè notandum The restrictions † of this former conclusion are these First the later testament dooth not make voide the former when the later is vnperfect in respect of the testators will b) §. ex eo Instit quib mod testa infir L. sancimus C. de testa and not inrespect of solemnitie c) Supra hoc ipso §. Ampliac 3. 6. Secondly the later testament doth not make voide the former when it is vehemently suspected that the testator was compelled to make the later testament by feare or violence d) Simo de Praetis de Interp. vlt. vol. lib. 4. fol. 226. n. 49. sed an sufficiat probac. per vnicum testē vide ibid. Thirdly the later testament doth not make voide the former when it is suspected that the testator was induced to make the later by fraude or deceite e) Simo de Praetis vbi supr supra ead part §. 3. Fourthly the later testament doth not take away the former the later being made at the interrogation or suggestion of some other person f) Zas cons 3. vol. 1. n. 41. Aymo consil 10 n. 13. Apostil ad Ripam in L. 1. §. si quis ita ff de verb. ob n. 9. vbi dicitur hanc op esse com supra ead part §. 4. especially when the testator is very sick in peril of death g) Socin Iun. consil 148 vol. 2. n. 15. for then it doth not take away the former made by the proper motion of the testator h) Vide quae scripsi supra part 2. §. 26. vnlesse it appeare plainly of the expresse will of the testator to reuoke the former i) Gabriel lib. 4. com conclus tit de testa conclus 2. n. 9. post Rui. cons ●2 n. 11 vol. 2. or vnlesse the testator himselfe did dictate the testament k) Gabriel ibid. n. 21 in fin or vnlesse the later