personne suchâ— landes to haue to hold to him and to his assignes for euermore here a state of inheritauÌ„ce doth passe for in testamentes the wil and intent of the testaour is to be pondred not the formal prescripte wordes of yâ— law Also these termes in the lawe franke mariage and franke almoâ—e that is to saye free mariage and free almose do include in them wordes of inheritaunce And therfore if I giue landes to a man wyth my daughter in franke mariage wythout further addicion or meÌ„cion of heires this is an estate of inheritaunce as we shal hereafter declare more plentiouslye In likewyse it is of landes giuen to an house ecclesiastical in pure fraÌ„k almes Moreouer if landes be giuen to a maÌ„ to his blode or to him to his seed he hath in both cases a state of inheritauÌ„ce for in yâ— one he hath a fee taile in thother a fe simple For this word seed and bloud and suche lyke do implye wordes of inheritaÌ„ce But nowe it is to be sene who be sayde a mannes heyres in the lawe Ye shall therfore knowe that my brother or syster by the halfe bloude that is to wytte by the fathers syde and not by the mothers or contrary wyse by the mothers and not by the fathers shall neuer be myne heyre nor none that come of them Neither my bastarde can be myne heyre nor myne owne naturall father ne mother nor grandefather ne grandmother can be myne heyre For it is a principle and grounde in the lawe that inheritaunce may linially descend but ascende it may not And therfore if I haue landes in fee simple and dye wythout issue of my bodye my father can not be myne heire but my fathers brother or syster shal and then if my vncle or aunt dye seased wythout issue my father shal haue the landes as heir to myne vncle or to my aunte but heyre to me he can not be But it maye go from me to myne vncle or aunte well ynoughe for that is not called a linial ascension but a collatrall And ye shal note that by the commoÌ„ lawe of this realme my eldest sonne shall haue the hole inheritaunce and after hym if he hathe no issue the seconde sonne and so forth And if I haue no sonnes but daughters than shal al the daughters togither inherite if I haue no issue at all neither sonâ—es ne daughters than shall my eldest brother in heritage succede me but if I haue no brother than my systers if I haue any if not my vncle by my fathers syde if the landes be of myne owne purchase And to be shorte if there be none in lyfe of my fathers syde it shall goo to my mothers syde and if there can be found no heyre neither by fathers syde ne yet by mothers then shall it reuerte and eschete as they call it to the lord of whome it was holden for euerye lande must nedes be holden of some lorde as shall be here after shewed But if landes descende vnto me by my mothers syde than if I fayle of issue the landes shall descende onely to my heyres of my mothers syde neuer to myne heyres of my fathers syde as on the contrarye syde yf I haue landes or any hereditamentes by disceÌ„t froÌ„ my father or his blode they shal neuer descend to my heires by my mothers syde Thus ye se a greate difference in this behalfe bitwene purchased landes and landes which descende from my auncestoure Yf there be thre sonnes and the myddell sonne purchaseth landes dye wythout issue the heldeste shall haue the laÌ„des and not the yongest Also it is a principle in oure law that none can be myne heyre of landê that I holde in fee simple onles he be myne heyre by the hole blode that is to say both by father and mother for if a man hathe issue two or thre sonnes by sondry wyues and the eldest purchaseth landes in fee and dyeth wythout issue his halfe brethren I meane those that be not his brethren bothe by the fathers syde mothers syde shall not haue the lande but it shall go to his vncle Lykewyse if a man hath by his fyrste wyfe a sonne and a daughter and by his seconde wyfe an other sonne and the sonne by the fyrst wyfe purchaseth landes in fee and dyethe wythout issue the syster german shall haue the landes by disceÌ„t as heyre to her brother and not to the yoÌ„ger brother Otherwise it is of landes or other hereditameÌ„tê entailed as shal be herafter specified Also if a man be seised of landes in fee simple and hathe issue a sonne and daughter by one wyfe and afterwarde a sonne by an other and dyeth and the eldest sonne entreth in to the landes and after dyeth wythout lawfull issue of his body the daughter shall haue the landes and not the yongest sonne and yet the yongest sonne is heyre to his father but he is not so to his brother But if in thys case the eldeste sonne had not entred after the death of his father but had died before any entre made by hym than shal not the syster germaine entre but the yonger brother is heire to his father bicause the eldest brother was neuer in actuall possessioÌ„ which is requisyte to that personne that claymeth to be heyre collaterallye But to the lyniall heyres it suffiseth that the auncestour shuld haue bene heyr yf he had liued I meane as thus A man is seased of landes and hath issue a sonne daughter by one wyfe and afterwarde a sonne by an other he dyethe the eldeste sonne entrethe not but dyeth wythout issue before he can make any actuall entree hys syster shall not haue the landes as heyre to her brother bycause her brother was neuer actually possessed but yâ— yoÌ„ger brother shall haue them as heyre to his father Yet if theldest sonne in that case had lefte behynde him issue of his body whether it had bene soÌ„ne or daughter this issue not wythstandyng that the father of the issue was neuer possessed either actually or in the law shal haue the laÌ„des and shal conuey his discent from his father for the sonne or daughter is linial heyre where as the brother sister vncle aunt c. be heyres collaterall and so obserue a dyuersitie I call an actuall possession whan a man entreth in dede in to landes to him desceÌ„ded but a possessioÌ„ in lawe is called when landes be descended to a persone ann he hath not yet real ly and actually eÌ„tred in to them For notwythstandydge that he is not in actuall possession yet he is possessed in the lawe that is to say in the eye consyderation of the law for asmuch as he is tenaunt to euery mans action that wyll sue for the sayd landes for els there shulde insue an intollerable inconuenience as we shal more copyously open in an other place Ye shall vnderstande that thys worde inheritaunce is not onelye to be accommodate and
applied to that whyche commeth by discente from a mannes auncestours but also to euery purchase in fee simple or fee taile Fee tayle Ye shall vnderstande that before a certayne statute called the statute of Westminster seconde there was no state tayle but all was fee simple eyther purely that is to saye wythout condition or condicinallye as appereth by the pretence of yâ— said statute but now sythens the promulgating of that statute diuers formes of state tayles haue rysen Fee tayle is whan it is prescribed and lymytted in the gifte what heyres and by whome engendred shall inherite As for exemple I gyue landes to a man and to his heyres and go no further this is fee simple but if I make a limitation and adde of his hody begotten now is it fee taile that is to saye a fee or inheritaunce limitted prescribed determinate or assigned So that if I gyue landes to a man and to his heyres he hathe fee simple but yf I gyue landes to hym and to hys heyres of hys bodye lawfully begotten he hathe but a fee tayle for asmoche as I appoynte lymytte prescribe and determyne the heyres and for lacke of suche heyres the gyfte shall be expired and worne out the landes shall reuerte agayn to the gyuer or his heyres But ye muste obserue that there bo two kyndes of fee tayle There is a generall tayle and there is a speciall tayle Fee tayle generall is as where landes be giuen to a man and to his heyres of his bodye begotten without anye mencyonynge and expressynge by what woman they are to be begotten And therefore yfa maÌ„ be tenaunte in the generall tayle of landes and taketh a wyfe and hathe issue by her and she dyeth and afterwarde he takethe an other wyfe of whom he hath also other issue here either of these issue is inheritable to this land entayled But if I expresse in the gifte by what womaÌ„ the heires shall be procreate and ingeÌ„dred then is it an especiall tayle as for exemple to make the thynge playne if landes be gyuen to a man and to the heyres of his body lawfully begotten by Katherin his wyfe this is an especiall tayle for the issue of him begotten by an other woman shal neuer inherite by force vertue of the tayle Lykewyse it is if landes be giuen to a woman and to yâ— heires of her body law fully begotten shewe not by what man this is a general taile but if I adde saye by suche a man her husbande than is it an especiall taylle Also yf I gyue landes to a man and to hys wyfe and to the heyres of there two bodyes lawfully begotten thys ys an especyal tayle as wel in the husbande as in the wyfe Semblably it is yf a man gyueth landes to an other man wyth hys daughter or kynswoman in francke mariage thys emplyeth a state tayle especiall and in thys case as wel the man as the woman hathe estate in in the speciall tayle But yf I gyue landes to a man and to suche a woman and to hys heyres that he shall begette of her here the woman hathe estate but for terme of her lyfe and the husbands an estate in the especyall tayle In lykewise it is on the womaÌ„s behalfe as if I gyue landes to a man and to hys wyfe and to her heyres of the bodye of her said husbande engendred he hathe an estate but for terme of lyfe and she an estate in the specyall tayle But in bothe cases yf I hadde sayde to the heyres and not hys or her heyres than shulde eyther of them haue hadde an estate in the specyall tayle bycause thys worde heytes is as well referred to the one as to the other Ye shall also vnderstande that yf landes be giuen to a man ond to the heyres males of his bodye this ys a state tayle and in this case the heyre femalle shall neuer inherite Finally it is to be noted that of landes whych a man hath in fee simple the possession of the brother shall cause the syster germayne that is to saye the syster bothe by the fathers syde mothers to inherite and not the brother by the halfe blod as here tofore was said but of landes which be entayled otherwise it is Therfore if a man be seysed of landes in the generall tayle and hath issue by hys furst wyfe a sonne and a daughter and also a sonne by an other wyfe dyeth and the eldest sonne entreth in to the landes after dyeth the suster germayne shall not haue the landes but the yonger brother of the halfe blode bycause whosoeuer shall inherite landes in taile must claym them as nexte and immediate heyre not to hym that dyeth last seased of the landê but to hym vnto whome the landes were fyrst gyuen whyche in the case before remembred is the sonne and not the daughter Thus ye shal marke obserue a great diuersitie bytwene the forme of successyon in landes of fee simple and the forme in fee tayle Tenaunt after possibilitie of issue extincte WHan landes or tenementes be giuen to a maÌ„ and to his wife and to the heires of there two bodies lawfully begotten yf in thys case either of them chaunce to dye before they haue issue betwene them he or she that ouerlyueth hys styl tenaunt in tayle but wythout all possibilitie of any issue that can be heyre to these landes entayled and for thys cause he or she thus ouerlyuynge is called tenaunte after possibilitie of issue extincte for in suche a tenaunte is all possibilitie of issue that maye be inherytable to these landes by force of the gyfte in tayle vtterlye extincte and quenched and by his or her deth the state tayle shall expyre cease and be abolyshed for euer and shall reuerte agayn to the gyuer or donoure from whence it came Yet forasmoche as thys tenaunt after possibilitie of issue hadde ones an inheritaunce in hym he shall not be punyshede by an action of waste though he makethe neuer so moche waste in the landes and tenementes whereas yet in effecte he is but a tenaunte for terme of lyfe Of perceners Hitherunto I haue made a compendious and short declaracyon of estates of al sortes But where I sayde that among susters there is no prerogatyue or preminence concernyng the inheriting of theyr auncestoures landes but that they shall be al togither inheritours and make as it were but one heyre it is expedient to make a further processe in this behalfe and to shew howe in what maner this partition shall be made But ye shall vnderstande that there be besyde parceners at the common lawe whyche be onelye susters also parciners by custome whiche is amonges brothers contrarye to the course of the common lawe and this custome is in Kent and in other places where landes and tenemeÌ„tes be of the tenure of Gauel kynde Ye shall thefore knowe yâ— whan a maÌ„ is seised of landes in fee simple or see tayle and hath no
by an aunciente custom she shal be indowed of the 〈◊〉 â–ª yea and thoughe 〈…〉 seased actually durying the courture yet if the landes be caste vpon 〈◊〉 by the lawe so that the law calleth him tenaunt to euery mans action it suffiseth for the woman to demaunde her dower for it were vnreasonable that the negligence 〈…〉 of entrynge of the husbande shulde hurte the wyues 〈…〉 Otherwise it is as I sayde before of tenauÌ„t by the curtesy for if landes descende to a woman couert and the husbande for slouthfulnes or negligence doth not entre in his wyues life he shal not be tenaunt by the curtesi◠〈◊〉 by all lawes the wyfe oweth obedience and subiectioÌ„ to her husbande and therfore she can not compel him to entre but when landes descend to the wyfe the husbande onelye haue power to entre at his pleasure And ye shall vnderstand that onlesse the wyfe be passed the age of ix yeares at the tyme of her husbandes deathe she shall not be endowed by the common lawe But it is to be knowen that a womaÌ„ maye by diuers wayes estoppe and preuidiâ—e her selfe of her dower as if she commyt any crime for which she is atteynted of treasone murdre or felonye â—he gettâ—â—no dower not wythstandyng she hath obteyned her pardone Also yf after the deathe of her husband she taketh a lease for terme of lyfe of the same landes wherof she is indowable she losed her dower of the same Moreouer yf she departethe from her husbande and lyuethe in aduoutrye wyth an other man and not reconcieled agayne to her husbande wythout coercion of the ecclesiasticall power she lesethe her dower after her husbandes deathe She shall be also barred of dower yf she wyll wythholde from the heire the charters and euidence concernynge that lande wherof she asketh dower But none other saue the heyre can wytholde her dower for thys cause It maye not be vnknowne also of what thynges she maye demaunde dower and of what thinges not Of landes messuagies aduousons rent charges rente seruyses or signories in grosse or otherwyse of villaynes of coÌ„mons certayne of estouers certayne she is dowable But of commons and estouers sans nombre also of annuities of homage of thingê of pleasure as of seruyces of paimet of roses and semblable she shall not be endowed There be yet two other kindes of dower the one is called dowment ex asseÌ„su patrâ—is and the other is called dowment de la plus beale ê‘tie that is to saye of the fairest parte Dowment ex assensu patris is whan the father is seased of landes in fee and his sonne whiche is heyre apparaunt endoweth his wife at the churche dore whan he is espoused of parcell of hys fathers landes wyth the assente of his father in wrytinge testifienge the same assent if in thys case her husband dye she may forthwyth entre into the laudes so assigned vnto her wtout further appâ—yntynge or proces of law although the father of her husbande be yet aliue in actual possession of the lande But if she thus do and take her to thys endowment at the churche dore she can not haue her dower by the common lawe of the thyrde parte of all her husbandes landes or any parcell of them how be it if she wyll refuse this assignement made vnto her at the church dore and demaund dower at the common lawe she maye verye well A man maye also endow his wyfe at the time of the spousailes of his own landes whiche he hath in his owne possession and that dower is called dower ad ostium ecclesiae Dowment Dela plus beale that is to saye dowmente of the fayreste parte shall be in thys case Whan a man is seased of landes whiche he holdethe of an other man by knyghtes seruice and of other laÌ„des which be of socage tenure and hathe issue whyche is wythin the age of .xiiij. yeares dye and the lorde of whom the lande is holden by knyghtes seruyce entrethe in to the lande holden of hym and the mother of the chylde entrethe in to the socage tenure as gardeyne in socage yf in thys case the woman wyll brynge a wrytte of dower agaynste the lorde whyche is gardeyne in cheualrye he may plede the speciall mater and shewe howe she as gardeyne in socage hath so moche lande and pray the court that she maye be suffred to endowe her selfe of so moche lande beynge in her owne custodie as amounteth to the thyrde parte of the hole landes And than the iudgemente shall be that the gardeyne in chyualrye shall reteyne the lande holden of hym quyte from the woman duerynge the non age of the warde After which iudgement she maye go and in presence of her neighboures endowe her selfe of the beste parte of that whyche is in her custodye amountynge to the thyrde parte of the hole and than is she called tenaunte in dower de la plus beale A diuision of inheritaunces HYtherunto I haue spoken of free holdes nowe it remayneth to treate of inheritauÌ„ces not that inheritauÌ„ces be no free holdes for they be free holdes also but the other estates of whiche I haue here tofore treated be onely free holde and of no hygher nature where as a state of in heritance although it â—e a free hold yet it is not to be called by that name sythe it is a farre more excellent and greater estate But ye shall vnderstande that of inheritaunces some be of more amplitude and excellencye than other some be as that inheritaunce whyche is pure simple and without limitacion of what heyres is it called fee simple But when I make a limitacioÌ„ of what heyres thaÌ„ is it called fee tayle of which also be two sortes as herafter more at large shal be declared Nowe the nature of fee simple is to be setforth wyth oure accustomed compendiousnes Fee simple FEe simple is as I sayd the most ample large inheritaunce that can be in this realme diuised or excogiâ—ate as that whiche a man hath to hym and to his heyres simply without any further limitacion for whether they be of his owne bodye begot ten or not so that they be the next of his kinne and wythin the degrees it suffiseth So then tenaunte in fee simple is he that hath landes or tenementes whether it be by purchase or by discent to him to his heires for euer For if a man will purchase landes in fee simple he must nedes haue these wordes his heyres in his purchase for these be the onlye wordes that make an estate of inheritaunce Therfore yf landes be gyuen to a man for euer no mencion be made of his heyres he hath an estate but for terme of his lyfe bycause these wordes his heyres do lacke Yet neuertheles if a maÌ„ by his testament doth deuise landes to an other in suche where the custome wyl serue so to do though he maketh no mencion of heyres but saythe that he bequethethe to suche a