seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
Kitchin tit Escheat f. 110. Of the Tertullian Decree TIT. 3. WEE in the case of Fees follow the Rigour of the twelve Tables which will by no means suffer an ascending from Children to Parents a Bract. l. 2. c. 29. n. 1. wherefore if this seem harsh to any one we shall wish him a Tertuilian or Claudius to perswade our Senate to the contrary Of the Orphitian Decree TIT. IV. CHildren with us doe equally succeed to Inheritances comming from the Fathers or Mothers side and that by the same rules and in the same degrees a Flet. l. 6. c. 9. wherefore we have no need here of an Orphitius Of the Succession of Cozens by the Mothers side TIT. V. THe Romans called those particulerly Cognati which were allied by the female side a Ult. S. 1. â— de gradibus affinitatis but there remaines nothing to be spoken of them the two former Titles being considered b viz. The first and second of this booke where we have shewn That these are never to succeed as Heires but for default of Heires on the Fathers side which is so to be understood that the most remote Cozens on the Fathers side discending in a direct line but not in a collaterall are to be preferred before the neerest on the Mothers side for the great great Grand-child of my â—â—neall Niece or of my Sister shall succeed 〈◊〉 before my Sons or Daughters Cozen-â—erman c Bract. l. 2. c. 30. and 31. 1. This breifly I thought also to insert that 〈◊〉 default of Heirs in a right line discending 〈◊〉 in each collaterall line the Land shall â—scheat to the Lord of the Fee d Glan l. 7. c. 17. Bract. l. 2. c. 29. n. 1. Lit. l. 1. c. 1. F. N. B. 143. Of the degrees of Consanguinity TIT. VI. HAving mentioned degrees it is requisite to take a view of the persons who are â—n possibility of succession and who are preferred before others in succession from the first degree of the same line to the last a Bract. l. 2. c. 31. n. 2. 1. In the right line ascending are these Grand-Father great Grand-Father the great Grand-Fathers Father the great Grand-Fathers Grand-Father the great Grand-Fathers great Grand-Father and so ad infinitum b Id. ib. Flet. l. 6. c. 2. 2. In the right line discending Father and Mother are first which make the common root then Son and Daughter the Nephew and Neice and so Ad infinitum c Brac. and Flet. ib. 3. In the collaterall line ascending Brother or sister of Father or Mother make the second degree and so their Heirs Ad infinitum d Id. ib. 4. In the collaterall line discending are Brother and Sister and their Heires Ad infinitum e Id. ib. Of the Consanguinity of those who are servile TIT. VII THis Title is with the ancient Civilians reckoned as part of the former a Wesenb in the same Title noâ— doth our Law determine any thing in the cases of such as are manumitted contrary to the rules of those who are born free there Marriages being a like lawfull Of the succession of such as are made free TIT. VIII PAtrons are not with us admitted to succeed those who are made free in case they dy without Issue wherefore if any one purchase a Fee after Manumission and dy without Heirs the Lord of the Fee shall claim it by Escheat and not he who gave the party deceased his freedome a F. N. B fol. 143. T. c. the same rules are also for the Chattells of such dying Intestate as for those who were born free Of the assignation of such as are made free TIT. IX THere is no difference with us between those who are manumitted and those who are born free save that they some time were Servants wherefore we have no use of this kinde of Assignation in our Common-weath Of the possession of Goods TIT. X. THE supream power with us gives the possession of a Fee to the Heirs of them who hold the Fee of him by any kinde of service in Capite for he by his Prerogative hath the primer seisin of Lands a Stan. Prerog c. 3. and 13. F. N. B. fo 255. and. 256. c. nor can the Heires receive them but by his hands those who hold of other Lords by Knights service much more Tenant in Socage so soon as they come of age enter upon their Estates by right and in case their Lords hinder them may have their Action having satisfied the value of their marriage b 1. But for those goods which we call Chattells the Ecclesiasticall Judge who is in stead of the Ordinary give possession of them according to the Will or at least confirm the possession being taken to the Executors of the party deceased but if there be no Will then he grants Administration to the widow or next kinsman of the party deceased yet so that the goods shall be distributed according to his Judgement either amongst c 31 Ed. 3. c. 11. them or for pious uses d Linw. provin Of acquiring by Adrogation or Adoption TIT. XI THere is nothing hinders but that the English may adrogate or adopt and be adopted but in this Case the consent of both parties is solely essentiall for our Law determines nothing of this kind of acquisition unlesse that which naturally falls out between party and party in contracts Of him to whom Goods are granted for Liberty TIT. XII AS for those Servants who receive their Freedome from their Lords by Testament the cheif thing is the performance of the Will for it is not materiall whether the Executor will accept the Office For we have shewn before how ungratefull that old solemnity of the Romans in Case of Wills is to us Of Successions which were amongst the Romans by the Sale of Goods according to the Claudian Decree TIT. XIII WE have not this kind of acquisition amongst us yet have we something like unto it for the Fees and all other the Goods of Banckrupts who having consumed their fortunes withdraw themselves That their Creditors may not arrest them wheresoever they be found are divided towards the satisfaction of Creditors by such Honourable persons whom the Statutes in this Case mention a 34 H. 8. c. 4 13 Eliz. c. 7. but above all that most famous Act in King James his time doth most carefully provide in these Cases b 1 Jacob. Ses 1. c. 15. Of Obligations TIT. XIIII WE have before treated of persons and things and are now to speak of Actions a Brac. l. 3. tr 1. c. 1. now an Action comes from precedent Obligations as a Child from a Mother b Id. ib. n. 2. an Obligation is a legall Bond or tie whereby we are necessarily bound to the giving or doing of any thing c id ib. c. 2. n. All civill Obligations may be divided into two kinds Obligations by the Common Law and by
as it were swallowed up nor can any thing be reassumed by the Wife surviving but her womans apparell and so of imoveables and realls if allened by the Husband in his life time but for those which are not alienated he being dead they shall return to the Wife a Plow 418. 4â—9 but if a Wife being Executrix or Administratrix to a former Husband marries a second and survives him she shall have all those Goods both personall and and reall which she brought unto him as possessed of by reason of that relation and office and which are not alienated by her second husband restored unto her without diminution b Vid. infra tit 11. par 7. The other consequence of Marriage is that lawfull or reasonable Dower under which notion she shall have the third part of all such Lands and Tenements which her Husband was seised of in Fee for her life c Flet. l. 5. c. 22. 27. An. 3. 6 Id. 6. in provis Dyer 140. but in case the husband shall happen to be attainted of treason or felony there the wife shall loose her Dower d 1 Jac. ses 1. c. 11. 12. Of Adoptions TIT. XI a Bract. l. 2â— c. 29. n. 4 5. BRacton in the place before mentioned calls silence and Patience in the case of adulterate Issue adoption which creates such Children being in our power free and legitimate I have also heard of that kind of Adoption amongst us which the Romans used But this seemes rather to be by private will and agreement of the persons adopting and adopted then by any Law for this is at our own election that we may give Lands purchased by our selves or which we have by discent unlesse they be given conditionally or as we tearm it by intail to whomsoever we please whether to one of our Kindred or whether it be to a stranger without having any relation to those Children which we have whence it is apparent that the custome which the Romans had of Adoption was either never received amongst us or else that it is long since as with the French wholy extinct b V. Equinarium Baronem in particula posteriori suorum comment super Instit hoc Tit. How and by what means Paternall Jurisdiction is dissolved TIT. XII WE have spoken before how paternall Jurisdiction is occasioned and constituted now we are to declare how it is dissolved and taken away And we must know that this is done three manner of waies By naturall death by civill death and by dignity or honour For if the Father in whose power the Son is dieth the Son remains at his own disposing although sometime in the custody of a Lord or the care of Freinds or Parents But the Grandfather on the Fathers side being dead the grandchildren are not in their own power but remain under the Jurisdiction of the Father if he survive the Grandfather and do not at all go out of his power as in the case of a Emancipation or Dignity a Bract. l. 1. c. 10. Flet. l. 1. c. 7. 1. So by a civill death as in case the Father be condemned for Felony committed or exiled But if he be banished but for a time he shal retain his Children under his power because whatever is his he shall injoy at his coming back b Id. ibid. 2. Paternall Jurisdiction is dissolved also by Emancipation As if a man discharge his Son from his family with any part of his Inheritance as it was the custome in former times c Id. eod for this kind is a kind of a civill death of the Son as is the entrance into Religion d 4 H. 4. c. 17 3. This power is dissolved also by dignity as in a case the Son be made a Bishop e Bract. ubi supra 4. But as this Bond of paternall power is not so strict with us as it was with the Romans so neither is the releasing of it by Emancipation so usuall For I finde nothing in our Lawes which hinders a son or daughter from disposing of themselves even against their Fathers consent so soon as they shall come to the age of one and twenty years It is most certain that they may then enter Marriage or Contract with any one and be no lesse obliged by a Contract then â—f they were threescore For this age with us is perfect and full maturity f Bract. l. 1. c. 10. n. 2. Lit. l. 2. c. 4. Of Wardships TIT. XIII OF those which are under the power or Jurisdiction of others there are some which are in the custody or protection of Lords some are under the care of Parents and Friends and some are not obliged by either as those which are at full age a Bract. l. 1. c. 10. num 2. 1. The word protection is not so frequent with us as Custody For as we have many Species of Law from the Normans so have we words also now they call him 〈◊〉 Guardian which the Romans tearmed Tutor or which was rather meant and comprehended under their appellations of Tutor and Curator together In which we imitate them in calling them Guardians 2. These Guardians are appointed sometimes by the Fathers will sometimes by the Law and sometimes by the Magistrate Foâ— where the Father hath only an Estate of Money or Chattells to leave to those Children which being under age are in his power he may commit the care and Government 〈◊〉 them together with the Legacies to any 〈◊〉 his Friends b Cook l. 3. case Ratcl f. 37 38. he also hath the like power with a Father who shall infeost an Infant iâ— Lawes for he may commit the Custody 〈◊〉 him according to his pleasure to whom 〈◊〉 pleaseth c Flet. l. 1. c. â— and what is here mentioned of Children born may be understood of Post humi Who they are that by Testament may appear Guardians TIT. XIIII WHosoever hath a Free administration and power of dispensing his Goods may constitute a Guardian by his will provided he be of perfect age and sound memory a Glan l. 7. c. 6. and this also may be performed by a Woman b Brit. c. 35. But if an Infant or one that is not Compos mentis be ordained he cannot be admitted untill the defect be removed c Swinb part 3. Sect. 10. 1. A man may constitute his own Villain or Native Guardian over his Children or anothers with the permission of his Lord but it is worthy consideration whether a Villaine by this Act shall gain his Liberty d Sus de libertinis tit 5. 2. One may also constitute his Apprentice e Brook Testament 8. whosoever may be an Executor may also be a Guardian f Swinb part 3. Sect. 10. Of the lawfull Guardian-ship of Kindred TIT. XV. WEE have spoken allready of Guardians which are appointed by Law and this is by reason of an Estate in Fee which shall discend to Infants
and anciently he that broke faith with his Lord did forthwith forfeit his Estate q Bract. l. 5. tr 3. c. 6. n. 3. 14. Fealty is double one is generall confirmed by the Oath of every Subiect to the sepremacy The other speciall due unto the Lord of the Fâ—e r Le grand constumier de Normand B. Fle. l. 3. c. 16. the first is constantly exacted at Sheriffs Courts and view of frank-Pledge or Court Leets from all which in the verge or precinct of the County or Leet who are twelve years old otherwise they have no warrant to continue in their Estates s Brac. l. 3. tr 2. c 1. n 1. yet our Ancestors more ancient used not to impose this Oath upon any under fourteen or fifteen t id ib. Flet. l. 1. c. 27. years of age the form of which Bracton thus explaines They shall swear that they will not receive or entertain persons out-lawed Murderers Robbers or Burglaries Nor that they will consent or connive at them or their Receivers and that if they shall know any such they will attaâ—â— them and that if they shall hear any Hâ—â— and Cry they shall immediately follow with their Family and Servants u Brac. cod Flet. cod and Brittâ—â— more briefely w c. 12. when he saith that they shall swear to bear saith unto the King and that they shall neither be Felons themselves nor consent to felonies 15 The form of fealty speciall is double One which is proper to freemen the other to Villaines When a freeman swears fealty to his Lord he laies his right hand upon the Book and saith as followeth Know you this my Lord N. that J. M. shall be faithfull and true unto you and faith to you shall bear for the Lands which I hold of you at the times assigned So help me God and all Saints x Lit. l. 2. c. 2. When a Villaine swears fealty hee shall holde his right hand a little higher then the Booke so that he touch it not and shall say Know you this my Lord N. that J. M. shall from this day forward be true and faithfull to you and faith to you shall beare for the Land which I hold of you in Villainage and I shall be justified by you in body and goods so help me God and all Saints y 14. E. 1. c. 2. Spec. Inst l. 3. 16. Custody or Guard is a reall service proper to a Knights fee by which the Lord hath the guard and care of the fee and that to his owne use without giving any account during the minority of the Infant his Tenant As also the Education and Guard of the Body of the Heir Now every one is with us an Infant till 21. yeares of age if a Male for our Law presumes that Knights service cannot be duely performed till that age z Fortesc c. 44. But we have spoken enough of this already Only this we shall adde That the Lord may if he please alien this his title of Guardianship as wel as any other thing which he hath whence it is that there is a double Guardian namely one of Right as the Lord of the fee The other in Fait which is he to whom the Lord hath aliened the Guard of the Heir and Lands or of the Heir only a Inst com c. 24. 17. Releife is a reall service or Patrimoniall though some call it aptly a fruit or beneficiall profit of a service b Coo. l. 3. case Penantes fo 66. a. due both to Knights service c Brac. l. 2. c. 4. Lit. l. 2. c. 4. Brit. c. 66. fol. 165. a. Flet. l. 3 c. 17. and Socage By which the Feodary Tenant by Knights service whether male or female being at full age at the death of the Ancestor viz. the male 27. the female 14. years of age is obliged to pay a certain summe of money Tenant in Socage paying so much for Releife as he payes d Lit. l. 2. c. 5. 19. H. 7. c. 15. Bro. Tenures 76 Flet. l. 3. c. 17. yearly by way of Rent to his Lord. At what age soever hee be at the death of his Ancestor that without delay e Dr. Stu. l. 1 c. 7. Flet. l. 1. c. 9. so that the first year he payeth his Rent double one by way of Releif the other part by way of Rent f Flet. l. 3. c. 17. For the Lord may immediately distrain that is take whatever he finds upon the Estate by way of pledy untill he shall be satisfied for his Releife g Littl. l. 2. c. 5. So if one hold by fealty and a pound of Pepper the Heir shall pay the first yeare two pounds of Pepper And the Law is the same where the Tenant payes for his Rent yearly a certain number of Capons or Hens or a pair of Gloves or so many bushels of Corn or the like But if in regard of the season the Tenant cannot pay Releife presently then the Lord ought to expect untill a convenient time As in case hee be bound to pay a Rose or a bushell of Roses at the Feast of St John Baptist Here if he dye in Winter the Heir ought not to be distreyned by the Lord untill the season come that Roses may be had h Littl. ib. This the Feodists define to be a Present or Gratuity which the new Vassall bestows upon his Lord for admission upon the death of another Or for any other cause which shall occasion the Estate to come unto him in regard it is now taken up by a new one i Hotoman verb. feodalis ver Relevium 18. And it is to be observed that the Heirs of Earls or Barons ar others that hold of the King in Capite that is in right of his Crown by Knights service If they are at full age at the death of their Ancestors shall pay their accustomed Releife Viz. an Earle 100. pounds a Baron an Hundred Marks The Heir of a Knight for one Knights Fee 100. shillings And if there be any who hold â—y a double Knights fee 200. shillings and â—o according to the rate k Mag. Ch. c. 2. Instit com c. 24. Flet. l. 3. c. 17. which is also â—rue in the cases of other Lords of Fees l Brac. l. 2. c. 36. Brit. c. 69. 19. The Ancients derived this word Reâ—eife a Relevando because the Inheritance which lay still by the death of the Ancestor was raised up into the hands of the Heir And for this raising up there should be a cerâ—ain fine or acknowledgment paid by the Heir and this they termed Releif m Brac. ib. Brit. ib. 20. Marriage is a reall service belonging â—o a Knights fee by which the Lord of the â—ee hath a power of bestowing his Feodary in Marriage according to his pleasure or at least of claiming the value of the Marriage â—f so be that he be under age at the day of the death of his