that they be monsters so not to be accounted as childreÌ„ y) L. ostentum ff de verb. signif DD. in d. L. quod dicitur notwithstanding if any legacie bee left not by the parents to another but to the parents by another vpon coÌ„ditioÌ„ if they shal haue issue in this case it seemeth that it doth not hinder the parents though the father did beget and the mother bring foorth a monster when it cannot bee imputed to their fault wherefore the issue was monstrous z) d. L. quaeret de verl signif Alciat ac Rebuffâ—bid If †the testator make the childe in the mothers wombe his executor the mother bring forth two or three children at that brith whether are they al to be admitted executors Likewise †the testator bequeathing to the childe in the mothers wombe if it bee a man childe a greater summe if a woman childe then a lesser summe the mother bringing forth both a sonne and a daughter at one burthen howe much is to either These questions are elsewhere absolued a) Inf. ead part §. 20. sub sinem What order is to bee taken concerning the administration of the goodes of the deceased whiles the condition of the executorship dependeth vnaccomplished 1 Of the remedie which creditors and legataries haue during the suspence of the condition of the executorship 2 The first remedie is to commit the administration to him that is conditionally assigned executor 3 The effect of this administration 4 What if the executor will not meddle with the administration or possession of the goods in the meane time §. xvj FOrasmuch †as the nature of euerie honest and possible condition is such as it dooth suspende the execution and effect of the disposition a) L. qui haeredi de cond demon L. si quis sub conditione Si quis omissa causa testa L. cedere diem de verb. sig ff Grass Thesaur com op §. legatuÌ„ q. 52. supr ead part § 6. so that in the meane time the partie deceased cannot be iudged to haue died either testate or intestate and coÌ„sequently he that is made executor is neither to be receiued nor repelled in the meane time to or from the executorshippe b) L. quamdiu ff de acquir haered Minsin in § haeres Instit de haered instituend It shall not be amisse to shew what order is to be taken for and concerning the possession and administration of the goodes of the deceased and what remedie the creditors and legataries haue for the obteining of their debts and legacies which are due presently after the death of the testator whiles the condition of the executorship dependeth c) Quod autem iure ciuili non possunt legata peti pendente coÌ„ditione institutionis vt in qua tota vis testameÌ„ti collocata sit non obseruatur in Anglia ê“ut alià s pleniùs diximus infra part 6. For it seemeth not onely inconuenient but vniust also that they especially the creditors d) Creditores enim de damno vitando Legatarij autem de lucro captando certare dignoscuntur L. scimus §. si praesatum C. de iure delib should be remedilesse all that while during the suspence or expectation of the performance of the condition vntil that bee performed by the executor which perhaps would not nor could not be effected in seuen yeares The first †remedie therefor is this considering that hee which maketh an executor conditionally cannot be iudged to haue died intestate the condition depending or so long as the testament may take effect e) d. L. quaÌ„ diu ff de acquir haered and so the administration of the goodes cannot be committed according to the statutes of this Realme which prouide onely in that case where a man dieth intestate or where the executor dooth refuse to prooue the testament f) Stat. H. 8. an 21. c. 5. stat Ed. 3 an 32. c. 11. It is prouided by the ciuill ecclesiasticall lawes that it shall bee lawfull for the Ordinarie to commit the administration and possession of the goodes of the deceased to him that is made executor onelie for and during so long time as the condition dependeth and is not extant or else deficient g) L. si quis instituatur §. 1. §. 2. ff de haered instituend By †vertue of which administration or decree of possession the said executor may enter to the said goods and may administer and sel the same for the satisfiyng of the debts due by the testator and payment of his legacies simply bequeathed and may bee conuented by them if hee make delaies during the time aforesaide h) d. L. si quis Quae lex etsi creditoribus tantuÌ„ praebeat remedium tamen iure quo vtimur legatarijs quoque succurritur vtpote quibus legata omnino debeantur etiamsi deficiat institutionis conditio nec aliquis existat haeres seu executor infr part 7. §. 19. nedum vbi pendeat adhuc conditio And if afterwards the condition bee performed or extant then may hee still retaine the goodes of the deceased as executor to the will i) Dum tamen probatuÌ„ sit testamentum ab Ordinario approbatuÌ„ But if the coÌ„dition be infringed or deficient then ought he to make restitution to the next of kinne to the deceased or to those that shall haue administration of his goodes k) L. 2. § si sub conditione ff de bon poss secundum Tabul Grass Thesaur com op §. bon poss q. 5. n. 7. For by breach or defect of the condition the deceased is reputed to haue died intestate or as hee had neuer made executor l) L. haeres de acquir haered L. quod dicitur de mil. test ff and the former administration is finished and a new may be committed m) d. L. si quis instituatur ff de haered instit If he †that is made executor conditionally will not meddle with the administration of the goodes of the deceased ne yet performe the condition the next remedie is this you must consider the nature of the condition that is to say whether the performance of the same doo consist in the power of the executor or not n) d. L. si quis §. 1. 2. If it bee such a condition as hee may easily performe then may the ordinarie assigne vnto him a competent tearme for the accomplishment thereof o) Fortasse 100. dies extraneis annum defuncti liberis secundum Bar. Bald. in d. §. 1. within which time if the executor doo not performe the same it is reputed for infringed or deficient p) Bar. Paul de Castr in d. §. 1. and so the administration may bee committed according to the statute in this case as of one dying intestate q) Stat. H. 8. an 21. c. 5. And the executor shall bee excluded if he doo not purge his delay before the
vlt. vol. l.b. 11. tit 8. in prin the which if it doo not appeare then it seemeth by the lawes of this realme that hee is reputed not to haue died without issue but as if he had got it himselfe because by the same lawes i) Bract. vbi supr Fitzh Abridg. tit bastardy n. 1. 4. Brook eod tit n. 43. in sin Tract de repub Ang. lib. 3 c. 6. it is prouided †that if a man take to wife a woman which is great with childe by another that was not her husband and after the childe is borne within espousalles or mariage he which maried the woman shall bee saide to bee the father of the childe and not hee which did beget the same although the childe were borne the next day after the mariage soleÌ„nized k) Iuxta illud pater est quem nuptiae demonstrant for whose the cow is as it is coÌ„monly said his is the calfe also l) Quod tamen non est simpliciter verumin viduis vt per Termes of lawe verb. bastardy etinfr d. §. Much more †if after the mariage an other man haue carnal coniunction with his wife shal the husbaÌ„d be deemed the father of that child which is not onely borne but begotten during mariage for then by al lawes the husband is presumed to haue begotten the childe himselfe and not the adulterer m) L. filium de his qui sunt sui vel alien iur L. miles §. defunct de adul ff ibi Legistae c. Michael de sil praesbit c. per tuas de probac. ext ibi Canonistae Bract. de leg consuetud Angl. lib. 2. c. 29. albeit another had to do with her besides her husbaÌ„d Which †conclusion because it is in fauour of matrimonie and tendeth to the benefite of children is diuersly extended First therefore although the mother doo cohabite with the adulterer yet if the husbande haue free accesse vnto her he is presumed to be the father and not the adulterer n) Bald in L. si à matre C. de suis legit Abb. in c. accedens de purg cano ext Mascard de probac. verb. filius concl 788. For albeit it bee likelie that the adulterer did begette the childe yet seeing it is possible that the husband did beget it Honest possibilitie is preferred before that other possibilitie which is linked with dishonestie o) Bald. in d. L. filium de his qui sui vel alien iur ff Palaeotus de Noth spur c. 24. Secondly albeit the wife were as common as the Cart-waie making an open profession of her filthinesse yet the husband if she be not altogether out of his guard shall be iudged the onely father p) Cyn. post Iac. de Butr. in L. si minus C. de nup. Gab. lib r. tit de praesump concl 14. n. 9. Mascar de ê“bac d. concl 788. n. 39. Thirdly albeit the mother had beene barren a long time beefore yet the childe is presumed to haue beene begotten by the husbande and not by the adulterer q) Ab. in c. per tuas de ê“bac ext Alcia de praesump reg 3. praesump 37. Gabr. d. coÌ„cl 14. n. 8 Fourthly albeit the mother doo confesse that the adulterer did beget the childe yet her sole confession dooth not hurt the childe r) Abb. in c. officij de poeniten extr quod procedit etiam si patris confessio accederet Palaeot de Noth Spur. c. 24. n. 2. Alciat de praesump reg 3. praesump 37. n 6. Petr. Duen Tract reg fal verb. filius reg 344. contra Bald. Anch Alex. de quibus Gabr. d. concl 14. n. 13. Fifthly albeit the childe be borne blind or lame yet is the husbande presumed to haue begotten the same and not the adulterer s) Couar epitom de sponsal 2. part c. 8. §. 3. n. 8. Mascard d. concl 788. n. 18. Petr. Duen d. reg 334. limit 2. In which case neuerthelesse some haue beene of this opinion that this childe was begotten in adulterie t) Barba in c. praesentia de probac. extr in cons 68. in prin vol. 4. Alex. cons 157. vol. 5. Dec. consi 183. Hyppol Sing 530. vbi alios citat huius opin Authores quamplures Quibê° si placeat adde Ed. FeÌ„toÌ„ AngluÌ„ Tract de mirabil secret naturae c 5. being so borne as they imagined by Gods prouidence and iustice because of the sinne of the parentes whose rash opinion is by others refelled as erronious and blinde v) Couar de spons c. 8. §. 3. n. 8. 2. part Duen d. reg 344. in fin hauing no better grounde then had their conceipt who asked of our Sauiour Christ as he passed by a blinde man who had sinned he or his parentes that he was borne blind x) Euangel S. Iohan. c. 9. in prin To which demaunde our Sauiour answered neither he nor his parents but that the power of God might be made manifest y) eod c. 9. vers 3. Sixtly albeit †the childe bee verie like the adulterer yet shall the husbande bee deemed the father z) Bald. in L. Gallus de lib. posthu ff n. 13. Paul de Castr consil 257. vol. 3. Alciat d. praesump 37. n. 3. Wherein diuerse I confesse of no small aucthoritie haue contended mightilie that this childe is to bee adiudged the adulterers a) Alberic in L. 7. ff de stat hom Paris consil 10. vol. 2. n. 59. Bald. cons 390 vol. 2. Fulgos consil 212. col 3. Coras L 2. Miscel c. 22. n. 5. fortifiyng their assertion with this reason especially because in other creatures nature hath so prouided that each thing dooth beget that which is like vnto it selfe b) Paris Coras alij vbi supr Tiraquel de leg Conub leg 7. Masc de ê“bac concl 79â— n. 2. yet contrariwise their opinion hath preuailed as being armed with arguments of the inuincible truth who defende that the husbande ought to bee iudged the father of that childe which is so like the adulterer and so vnlike himselfe c) Bar. Ias communiter DD. in L. Gallus ff de lib. posth quaÌ„ sententiam propiùs ad veritatem accedere resert Mascard de probac. d. conclus 792. n. 7. Neither is that other reason of such force as is pretended because †this forme or similitude maie happen to the infant by the mothers serious cogitation or firme imagination at the time of the conception d) Alciat d. praesump 37. post Bald. in d. L. Gallus vnde mulieres simulachra saepissime statuasque in delicijs habuisse legitur similesque ijs partus enixas Coras d. c. 22. n. 2. For proofe whereof we may read in the holie Scriptures howe by Iacobs deuice of the spotted stickes being laide before Labans sheepe at the ramming time the lambs became spotted e) Genes c. 30. Famous also is that accident registred in the bookes of sundrie writers
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 describing the generall order of the whole Treatise The other Alphabeticall disclosing the particular contents therof That in the beginning this in the end of the booke By the Industrie of Henrie Swinburn Bachelar of the Ciuill Lawe 2. Kings c. 20. Put thine house in order for thou shalt die and not liue LONDON Printed by Iohn Windet 1590. TO THE MOST REVEREND FATHER IN GOD IOHN BY GODS PROVIDENCE Archbishop of Yorke Primate of England and Metropolitane H. S. wisheth true felicitie now and euer WHen I had finished this briefe TestameÌ„tarie treatise bethinking vvith my selfe most reuerende Father vnto vvhose patronage I might dedicate the same In the end I did resolue to make an offer thereof vnto your Grace Being moued thereunto vvith the consideration partlie of mine ovvne duetie partlie of your Graces interest For being a member of your Graces Courts Ecclesiastical and hauing novve receiued sundrie good fauours at your honours handes This I thought might fitly serue for a probable argument of my thankfulnesse in that behalfe And on the other side forasmuch as before all others vvithin this prouincâ— of Yorke it apperteineth principally vnto your grace to prouide that testameÌ„ts lavvfully made be dulie executed being novve by Gods merciful prouideÌ„ce Metropolitane ordinarie of that sea I could not see a more vvorthie Patrone for a testameÌ„tary vvork Partly therefore by these former considerations but especially I vvas encouraged therunto vvith the coÌ„templation of those diuine graces of piety learning zeale grauitie bountie benignitie affabilitie and al maner not onely sufficiencie but excellencie of vertuous giftes vvherevvith the giuer of all goodnesse hath vvonderfullie enriched your honourable minde Wherefore as hitherto your vvisdome hath bene accustomed to entertaine vvith comfortable countenance such as be studious to benefite either the Church or the common vvealth though othervvise they bee of small reputation so novve most reuerend I am vvith all duetie to craue the continuance of the same in mine ovvn behalfe together vvith the fauourable protection of these my labors so farre as they bee agreeable to truth right and equitie vvhich thing I doo so much the more humblie desire by hovv much I may seem ouermuch aduenturous in making choise of so honourable a patrone for such a trifling treatise The Lorde of might and mercie multiplie his spirite vppon your grace to the aduauncement of his ovvne glorie and the good of his Church vvith encrease of manie yeares in health and happinesse Your Graces most readie at commaundement H. Swinburne A Table of the first part wherein is shewed what a Testament or last will is and how manie kindes of Testaments there bee A Testament beeing vnderstood in a generall Sence doth not differ from a last will◠§ 1. Wherein if An Executor be named it is more properly called a Testament § § 1. 2. 10. which is eyther 1. Solemne § 9. or vnsolemne § 10. 2. written § 11. or Nuncupatiue § 12. 3. priuiledged § 13. or vnpriuiledged § 17 Whereof some be 1. Military testaments § 14. 2. amongst the testators children § 15. 3. to charitable or godly vses § 16. No Executor be named theÌ„ it stil reteineth the name of a last will § 4. And dooth coÌ„prehend a 1. Codicill § 5. 2. Legacie or deuise § 6. 3. gifte in regard or because of death § 7. A Table of the second parte wherein is declared who may make a Testament and who may not Euerie person may make a Testament or last wil certein persons excepted § 1. Of whom some are prohibited by reason 1. They want discretion as Children § 2. Madfolkes § 3. Idiotes § 4. Oldmen childish § 5. He that is drunke § 6. 2. They waÌ„t freedome as Bondslaues and villeynes § 7. Captiues and prisoners § 8. Women couerte § 9. 3. They waÌ„t some of their principal senses as Dumbe and deafe § 10. Blinde § 11. 4. They haue coÌ„mitted some haynouse crime as Traytors § 12. Felons § 13. Heretickes § 14. Apostataes § 15. Manifest vsurers § 16. Incestuous persons § 17. Sodomites § 18. Libellers § 19. Wilful killers of themselfes § 20. Outlawed persons § 21. Excommunicate persons § 22. 5. Certein legall impediments as Prodigall persons § 23. He that sweareth not to make a Testament § 24. He that is at the very point of death § 25. Ecclesiasticall persons § 26. 〈◊〉 kinde of 〈◊〉 the greaâ—â— part are not vtterly intestable but in some cases onely 〈◊〉 second part 〈◊〉 Question also is briefly touched viz. Whether a King may bequeath his kingdome to whom he will § 27. A Table of the third part describing what things and how much may be disposed by will If we would know What thinges may be disposed by will If we regard 1. Lands tenements and hereditamentes they are not deuiseable but in certeine cases § 2. Whereof some are approued by 1. Custome viz. when the laÌ„ds are holden in 1. Gauelkinde § 2. 2. Burgage tenure § 2. 2. Statutes viz. when the laÌ„ds are holden in 1. Socage tenure § 3. 2. Knights seruice § 3. 2. Gâ—ods catâ—â—â—ey are 〈◊〉 â—le exâ—â—â— certein cases § 5. As when those things bequeathed ar such as 1. The testator hath iointly with an other § 6. 2. The testator hath as administrator § 6. 3. The goodes of the realme viz. of the auncient Crowne and Iewels § 6. 4. Which belong to anie Colledge § 6. Hospitall § 6. Citie § 6. Church § 6. 5. Descend to the heire and not to the executor § 6. 6. Belong not to the testator but to an other § 6. 3 CoÌ„mitting of the â—â—â—â—on of childreÌ„ especially within the prouince of Yorke Concerning which thing diuerse questions are examined viz. 1. Who may appoint a tutor § 9. 2. To whom a tutor may be appointed § 10. 3. Who may be appointed tutor § 11. 4. In what manner a tutor may bee appointed § 11. 5. What is the office of a tutor § 13. authoritie of a tutor § 13. 6. By what meanes the tutorship is ended § 14. How much may be disposed by will If we respect 1. Lands tenements hereditaments holdeÌ„ in 1. Socage tenure all is
alium patronum quaerat qÌ„ AugustinuÌ„ c. vlt. 17. q. 4 How bee it it seemeth that if the testament were not in fauour of his children but of some other of his kinne that then the testament ad pias causas were to bee preferred vnlesse they did prooue the testament made in their fauour to be the latter t) Mantic. de coniect. vlt. vol. lib. 6. tit â— n. 43. Of testamentes vnpriuileged 1 Vnpriuileged testaments what they are §. xvij VNpriuileged testamentes are they †which haue not any freedome or benefite contrarie to the common course of ordinarie lawe but are tied to such obseruations as the law requireth and hath appointed regularly for all testaments Of which formes wee shall discourse heereafter when oportunitie shall serue THE SECOND PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS DECLARED what persons may make a Testament and who may not so doe The Paragraphs or Chapters of the second parte WHether euery person may make a testament § 1. Of Children § 2. Of madfolkes and lunaticke persons § 3. Of Idiots and fooles § 4. Of olde men § 5. Of him that is drunk § 6. Of Slaues and villaines § 7. Of Captiues and prisoners § 8. Of a woman couert § 9. Of those which be deafe and dumbe § 10. Of him that is blinde § 11. Of traitours § 12. Of Felons § 13. Of Heretikes § 41. Of an Apostata § 15. Of manifest vsurers § 16. Of incestuous persons § 17. Of Sodomites § 18. Of a libeller § 19. Of him that killeth himselfe § 20. Of him that is outlawed § 21. Of an excommunicate person § 22. Of prodigall persons § 24. Of him that hath sworde not to make a testament § 25. Of him that is at the very point of death § 26. Of ecclesiasticall persons § 27. Of Kinges § 28. WHETHER EVERIE PERSON MAY MAKE A TESTAMENT The second part 1 Euerie person may make a Testament which is not forbidden 2 Diuers persons forbidden to make their testaments 3 Some forbidden for want of discretion 4 Some forbidden for want of freedome 5 Some forbidden for want of their principall sences 6 Some forbidden by reason of some hainous crime §. j. IN the second part of this Testamentarie treatise shal be declared God willing what person maye make a testament who may not so do Wherein it maye be set downe for a rule that †euery person both man and woman Christian Iewe sound or sicke and generally of what state or condition so euer he or she be hath full power and liberty to make a testament or last will a) Instit Quibus non est permissam testa fac in prin gloss ibidem Suno de Praetis de inter vlt. vol. lib. 2. inter 1. sol 4. Vasq de success progress lib. 1. § j. Michael Grass Thesaur com op § testmÌ„ q. 20. and may therein dispose of his goods and cattelles b) Quibus enim permissum est testaâ— eisdem codicillari legata relinquere Roland tract de codicil n. 6 Michael Grass Thesaur com op §. Codicil n. 2. sauing such persons onely as be prohibited by law or by custome c) Est enim edictum de testameÌ„tis plubitoriuÌ„ certarum personarum gloss in §. j Instit Quibus non est permissum testa fac Grass Thesaur com op testmÌ„ q. 20. n. 1. Therefore if we shall diligentlye examine what persons are forbidden by lawe or by custome it will easely appeare who they are that can make a testament or dispose of their goods and cattelles And albeit †many persons are forbidden by lawe or custome to make testamentes yet they are reduced of some vnto fower or fiue sortes d) Bar. Bald in L. Si quaeramus ff de testa Lindw in c. cum viris de testa lib. 3. prouincial constit Cant. Amongest the first †are comprehended such as want discretion or iudgement as children e) Infr. ead part §. 2. madde folkes f) Infr. ead part §. 3. and idiots g) Infr. ead part §. 4. to whom also I may ioyne those persons who be so very olde that they become childishe againe h) Infr. ead part §. 5. and him that is drunke i) Infr. ead part §. 6. Amongest the second †sort are comprehended such as lacke freedome full liberty as bondslaue slaues and villeines k) Infr. ead part § 7. vnto whome may be added captiues and prisoners l) Infr. ead part §. 8. and women couert m) Infr. ead part § 9. In the third sort †are contained such as lacke some of their principall senses namely such as bee dombe and deafe n) Infr. ead part §. 10. and blinde o) Infr. ead part §. 11. Among the fourth sorte †are placed such as for some heinous crime are depriued of abilitie of making of testaments as traitors p) Infr. ead part §. 12. felons q) Infr. ead part §. 13. heretikes r) Infr. ead part §. 14. apostataes s) Infr. ead part §. 15. many others t) De quibus infr ead part §§ 16 17 18 19 20 21 22. And last of all others †for other causes hereafter specified v) Infr. ead part §§ 23. 24. cum sequentibus vide Io. ab Imol. in c. qua ingredieÌ„tibê° de testa extr vbi haec sunt carmina Testari nequeunt impubes religiosus Filius in sacris morti damnatus obses Crimme damnatus cum muto surdus ille Qui maiestatem laesit sit caecus ipse Of Children 1 At what age a testament may be made of landes 2 At what age a testament may be made of goods 3 What if the minor be doli capax or a souldier or the testament be ad pias causas 4 What if the testament be made with the auctoritie of the tutor 5 What if the testator doe liue vntill he come to lawfull age 6 A boye after 14. yeeres a woman after 12. maie make a testament of their goods 7 VVhat if the last day of the yeere be not finished 8 VVhat if the testament made during minority bee approoued by the testator after he be of full yeeres §. ij IF we wil vnderstand when a child may make his testament we must distinguish whether the testament be of landes or of goods If of landes †it is prouided by the statutes of this realme that willes or testamentes made of any mannours landes tenementes or other hereditaments by any person within the age of 21. yeeres shall not bee taken to be good or effectuall in law a) Stat. H. 8. an 34. c. 5. for vntill that time by the common laws of this realme they be accompted infantes b) Doct. Stud. lib. j. c. 21. lib. 12 c. 28. If †of goodes we must distinguish whether the child bee man or woman A boye cannot make his testament before hee haue accomplished the age of 14. yeeres nor a wench before
childe in his vnderstanding cannot make a Testament 3 He that hath lost his memorie cannot make a Testament §. v. ALbeit †olde age alone doeth not depriue a man of authoritie and power of making a testament a) L. senium C. qui testa fac poss for a man may freely make his Testament how olde soeuer he be for it is not the integritie of the bodie but of the minde that is requisite in testaments b) d. L. senium yet †if a man in his olde age do become a very childe againe in his vnderstanding c) Simo de Praetis de inter vlt. vol. lib. 2. dub 1. solue 4. n. 22. which thing doeth happen to diuers persons being as it were worne away with extreame age and depriued not onely of the vse of reason but of sence also almost such a person can no more make a testament then a childe d) Ibidem So it is †if a man either by reason of age or some other infirmitie become so forgetful that he hath forgotteÌ„ his own name e) L. fin C. de haered Inst which thing also hath happened to diuers wise and learned men because for any acte which is to bee performed with discretion he is no more fit then a foole or an idiote f) Bald. in d. L. fin Mantic. de coniect. vlt. vol. lib. 2. tit 15. n. 16 of whom we haue spoken already Of him that is drunke 1 Whether he that is drunke may make a testament §. vj. HEe †that is ouercome with drinke during the time of his drunkennesse is compared to a madde man and therefore if hee make his testament at that time it is voide in lawe a) Vasq de success crea lib. ◠§. 13. requis 7. n. 8 Simo de Praetis de inter vlt. vol. lib. 2. dub 1. soluc 4. n. 22. which is to bee vnderstood when hee is so excessiuely drunke that he is vtterly depriued of the vse of reason and vnderstanding Otherwise if hee bee not cleane spent albeit his vnderstanding be obscured and his memorie troubled yet may he make his testament being in that case b) ijdem Vasq Simo de Praetis vbi supra Of slaues and villeines 1 Of all men the slaue is in greatest subiection 2 What is a slaue 3 A slaue hath neither landes nor goods for both are his lordes 4 Whether the children of bonde parentes be subiect to seruitude 5 By the ciuill lawe the childe is free if the mother be free notwithstanding the bondage of the father 6 By the lawes of this realme the childe is freeborne whose father is free though the mother be a bonde woman 7 No bastard is borne a slaue though the father bee a bond-man 8 A bond-man cannot make a testament 9 Of the difference betwixt a bond-slaue and a villeine 10 A villeine like vnto him which is called in the ciuill lawe Ascriptitius Glebae 11 Whether a villeine may make a testament 12 The Lord may take from his villeine whatsoeuer he hath life excepted 13 The testament of the villeine is not voide but voidable 14 Sometimes the Lord can not make voide the testament of his villeine 15 The Prince may at any time make voide the alienation or gifte of his villeine and consequentlie his testament 16 What manner villeines be here ment 17 A villeine executor may make a testament 18 A villeine executor may maintain action against his Lord. 19 The reason of the former conclusion §. vij OF all †men which be destitute of libertie or freedome the slaue is in greatest subiectioÌ„ for a †slaue is that person which is in seruitude or bondage to an other euen against nature a) §. Seruitus Instit de iure personaruÌ„ Et dicitur latinè seruus non à seruiendo sed a seruaÌ„do propterea quòd seruandi non orieÌ„di sunt à dominis Nam cùm antiquitùs multi sçuijssent in captiuos eósque necassent prohibitum id fuit constitutúmque vt potiùs venderentur quà m occiderentur Et inde à seruando nomé mutu arunt serui §. serui autem Instit de iure personarum Neither †hath he any thing of his owne but whatsoeuer he possesseth all is his Lordes (b) §. in potestate Instit de his qui sui vel alie iur Not onely landes goodes and cattelles and generallie whatsoeuer he getteth either by his owne industrie or by the gifte of other or by any other meanes (c) §. iterum Instit per quas personas But †euen his children also are infected with the Leprosie of his fathers bondage d) Bracton de legib consu Ang. lib. 1. c. 6. principall grounds fol. 44. And although by †the ciuill lawe the wife being a free woman the children are likewise free Quia partus sequitur ventrem e) §. sed etsi Instit de ingenuis in so much that if the mother be free either at the conception or at the birth of the child or in the meane time by the same ciuill lawe that child shall be free notwithstandinge the bondage of the father f) Eod. â— sed etsi Yet it †is otherwise by the lawes of the realme for the childe dooth follow the state condition of the father and therefore in England the father being a bondman the child shal be in bondage without distinction whether the mother be bond or free g) Bracton de legib cons Ang. lib. 1. c. 6. So that the childe be begotten or borne in lawfull matrimonye But †a bastarde shall not be bound though the father were a bond-slaue h) Btacton vbi supr principall grounds fol. 44. because the lawe dooth not acknowledge any father in this case for by the lawe a bastard is sometimes called filius nullius the sonne of no man sometimes filius vulgi the sonne of euery man i) Cui pater est populê° pater est sibi nullus omnis Cui pater est populus non habet ipse patrem gloss in §. pen. Inst de nuptijs But howsoeuer the ciuill lawe and the laws of this realme differ in this whether the bondage of the father or of the mother doo make the childe bonde Yet in †this they doo agree that a bond-man can not make a testament k) L. liber de petic haered L. seruus CommÌ„ de success C. Vasq de sucsess progress lib. 1. §. j. vbi multis ampl hanc propositionem ornat A villeine †howsoeuer he may seeme like vnto a slaue yet his bondage is not so great for whatsoeuer a bond-slaue getteth by and by it is his Lords albeit ignoraunt and vnwillinge l) §. Item nobis Instit per quas personas not onely in respect of property but also in respect of possession for whatsoeuer a bond-slaue dooth possesse he doth also possesse it for his Lord m) Eod. §. Item ibi
parte the child or children an other parte and the third part which is called the deathes part remaineth to the testator by him to be giuen or bequeathed to whoÌ„ he thinketh good h) Lind. Bract. Fitzh in locis praed And here note that where the wife or children ought to haue a ratable parte of the goods of the deceased be it a third parte or halfe as the case yeeldeth there also they ought to haue a like parte of the debtes due vnto the testator after they be recouered by the executor or administrator for then they are numbred or accompted amongest the goodes of the testator but not before i) Brook Abridg. tit exec n. 112. Siquidem si ista ex coÌ„suetudiue tantum debentur hac non probâ—ta sine difficultate illud procedet quod est iuri recepto magis consonum But of leases the wife and children can not haue anie ratable parte within the prouince of Yorke or other places where they haue beene accustomed to haue their ratable parte of the moueable goodes and debtes recouered vnlesse the saide wife or children demaunding their ratable parts of leases do proue that by speciall custome of that place namelie of that citie countie deanrie or parishe where the testator dwelled and had such leases the wiues and children were accustomed to haue their ratable parte as well of the leases as of the mooueable goodes of the testator which speciall custome being prooued they maie recouer their ratable part as before k) Fitzh in Br. de rationab part in quo Breui fit mentio non solùm bonorum sed etiam cattallorum Atque huc facit quod habemus in Mag. Chart. c. 18. The fourth case is when there is no suche custome of deuiding the goodes of the testator into two partes or into three partes as is before mentioned in which case albeit some were of this opinion that euen by the coÌ„mon lawes of this realme the cleere mooue-able goodes were to be deuided into three parts or into two partes as before whereof the wife and children were to haue their partes l) In hac sententia stetit Glandeuile antiquus huius regni iurisconsultus motus per stat de Magna Chart. c. 18. vt refert Fitzh in d. Breui de rationab part bon Brook Et per de rationab part bo sic enim post multaÌ„ disputationem inquit Et fuit dit pue ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn comÌ„en ley nunque demurr ideo videtur que ceo est le comÌ„en ley and consequentlie that the testator could not dispose anie more thereof then the halfe or third being the deathes part Neuerthelesse others whose opinion hath preuailed doo holde the contrarie to wit that there is no such deuision to bee made by force of the common lawes of this lande but onelie by force of custome m) Fitzh d. Br. de rationab part bonor Brac. de legib coÌ„suet Ang. lib. 2. 26. Tract de repub Angl. lib. 3. c. 6. and coÌ„sequentlie that it is lawfull for the testator by the lawes of this realme except in those places where the custome aforesaid is obserued to dispose all the whole residue of his goodes his funeralles and debtes deducted at his likinge and that the wife or childe can claime no more thereof but accordinge as the testator shall deuise by his testament And in the opinion of some the lawe of this lande which leaueth all the residue to the disposition of the testator funeralles and debts deducted seemeth to haue better grounde in reason then the custome whereby he is forced either to leaue two partes of three or at leaste the one halfe to his wife and children n) Bracton d. lib. 2. c. 26 For what if the sonne be an vnthrifte or naughtie person what if the wife be not onelie a sharpe shrowe but perhaps of worse conditions Is it not harde that the testator must leaue either the one halfe of his goods to that wife or child or more for the which also peraduenture hee had labored full sore all his life were it not more reason that it should be in the libertie of the father or husband to dispose thereof at his owne pleasure which when the wife and children vnderstood it might be a meanes whereby they might become more obedient liue more vertuouslie and contend with good desert to winne the good will and fauour of the testator o) Hisce rationibus vtitur Bracton in desensionem â—uâ— is huius regni d c. 26. cui adde Rebuff in L obuenire de verb. signif ff fol. 682. These reasons make for the testator and for the equitie of the common law which leaueth the whole residue to his disposition But the custome whereby the libertie of the testator is restrained is not without reason also Forwhere it is asked what if the child be an vnthrifte the wife worse then a shrowe So it maie be demaunded with like facilitie what if the childe be no vnthrifte but frugall and vertuous what if the wife be an honest and modest woman which thing is the rather to be presumed p) c. dudum c. vltim de praesump extr Mas card tract de probae conclus 222. But if it be not amisse to feare the worst then on the contrarie what if the testator be an vnnaturall father or vnkinde husband perhaps also greatly inriched by his wife wheras before he was but poore standeth it not with as great reason that such a wife and children should be prouided for and that it shoulde not be in the power of such a testator to giue all from them or to bestowe it vpon such as had not so well deserued it and by that meanes set his wife children a begging surelie the custome hath as good ground in reason against lewd husbands and vnkinde fathers as hath the lawe in meeting with disobedient wiues and vnthrifty children q) Mediam viam elegit Iustinianus tà m quoad vxorem quà m quoad liberos Nam quod ad vxorem attinet inbet imperator illa bona restitui quae marito vel ab ipsa vxore vel ab alio nuptiarum causa nempe ad sustinenda matrimonij oneradonata suere L. 2. fol. matr ff Bar. in Rub. solu mâ—iom ff n. 21. quod autem attinet ad liberos iure ciuili Assis nunc triens id est tertia pars totius patrimonij nunc semis seu dimidium assis pro legitima debetur Auth. nouissimo C. de inoffic testa quae quidem legitima gratis tantum liberis deberi intelligitur nam ingratis nihil habet parens pro legitima â—â—linquere Claud. Battandier tract de legitima c. 13. If the testator doo bequeath more then he maie which legacie is to bee preferred or what other course is to bee followed 1 If the testator bequeath more then the deaths parte whether one legacie is to be preferred before an
n. 18. But if a legacie bee giuen vppon condition if the legatarie marie then it is the common opinion of the writers that the legatarie must be married within three yeeres or else the condition is saide to bee deficient and so is the legacie lost l) Bar. Ias Dec. Sichar alij in d. L. 2. quorum opinio communis est inquit Grass Thesaur com op §. legatum q. 46. n. 18. And albeit the other opinion is said to be truer that the condition is sufficiently accomplished by marying after three yeeres m) Mantic. de coniect. vlt. vol. lib. 11. tit 18. n. 23. Grass vbi supr yet the iudge may not easilie depart from the common opinion for whatsoeuer is affirmed for the truth of the singular opinion yet that is presumed to be the truer opinion which is more commonly receiued n) Corasius Trac com op lib. 2. cas 14. The reasō of the difference wherefore the legatarie is excluded rather then the executor if he doo not marrie within three yeeres as is before shewed namely for that the executor otherwise is subiect to more perill then the legatarie o) Vt supra in pluribus Of the vnderstanding of this condition viz. If he die without issue 1 Manifolde questions by occasion of this condition if he die without issue 2 Whether he be said to die without issue whose issue is naturall but not lawfull 3 What if the father and mother doo afterwards marie together 4 When the issue is lawfull not naturall whether he be saide to die without issue 5 What if the childe were got by another man before marriage 6 If another haue to do with the wife besides her husband yet the child shall be deemed the husbands 7 Diuers extensions of this conclusion 8 What if the childe be like the adulterer 9 How commes it to passe that the childe is sometimes like vnto another then him which did beget it 10 In some cases the husband shall not bee iudged the father of the child begotten during mariage 11 Whether shall the childe be the former or the seconde husbandes when it is vncertaine whether of them did beget him 12 Whether hee bee saide to die without issue who had children but not at his death 13 Difference betwixt this condition If hee die without issue and this If he haue no issue 14 Whether that father is to be deemed to die without issue whose child is vnborne when he dieth 15 Whether he be deemed to haue died without issue whose child dieth so soone as it is borne 16 If the childe be heard to crie the father shall be tenant by the curtesie 17 What if the childe were not heard to crie 18 What if the issue be borne dead or dieth as it is borne 19 VVhat if a monster be borne whethr shall the parents be iudged to haue died without issue 20 VVhat if the childe in the mothers wombe being made executor she be deliuered of diuers children at one birth whether shall euerie of them bee executors 21 VVhat is to be obserued in legacies where moe are borne at one birth §. xv AS there †is no cōdition more vsual then this If he die without issue so there is none that dooth minister moe questions although some of them be not altogither so difficult which thing that it may the better appeare let vs first suppose that the testator doth make thee his executor or dooth bequeath vnto thee an hundred pound if he die without issue This case dooth minister all these questions What if the testator haue issue naturall but not lawfull Or what if he haue issue lawfull but not naturall What if he haue issue both naturall and lawfull but the same dieth before the father Or what if hee beget his wife with childe and then die before the childe be borne Or what if the child die before it be borne Whether shall the testator bee iudged to die without isse yea or no All these and manie moe like questions may be demaunded by reason of that cōdition If he die without issue whereunto I shall answere in order as they bee propounded presupposing that to haue issue is to haue a childe or children and to die without issue is to die with out any childe When †the issue is naturall but not lawfull if the will and meaning of the testator do not appeare the testator is deemed to haue died without issue a) L. in conditionibus de cond demon L. ex facto §. si quis rogatus ad Trebel L. vulgo de statu hom ff Mantic de coniect. vlt. vol. lib. 11. tit 9. in prin Sichard in L. generaliter §. cum autem C. de Instit sub Bract. de leg consue Angl lib. 5. c. 30. n. 10. in sin for it is not likelie that an honest person speaking of children did meane of bastards but of lawfull children b) Ripa in d. L. ex fact §. si rogatus ad Trebel ff n. 16. Grass Thesaur com op § fideicommis q. 37. n. 6. Insomuch †that if the testator do beget a childe and after the birth of the childe marie the mother yet in this case I am of this opinion that by the lawes of this realme he shall be iudged to haue died without issue For thou shalt vnderstande that in the time of King Henrie the thirde c) Merton c. 9. an 20. H. 3. this question being propounded in the Parliament Whether one borne before matrimonie might inherite as one borne after matrimonie All the Bishops answered and saide that it was against the common order of the Church that such shoulde not inherite d) Per c. 1. c. tanta qui filij sunt le git extr §. vlt. Instit de nuptijs c. nullum 3. q. 5. and they all instanted the Lordes temporal and Barons then assembled in Parliament that they woulde consent that all they that were borne before matrimonie should bee legitimate as well as they that were borne within matrimonie concerning the succession of inheritaunce for as much as the Church accepted such as legitimate But they all with one voice answered that they woulde not chaunge the lawes of this realme which hitherto had beene vsed and obserued e) Merton c. 9. an 20. H. 3. When †the issue is lawfull not naturall By lawfull issue in this place I vnderstande that childe which is begotten of a married woman by another then her husband f) Bracton de consuet Angl lib. 2. c. 29. n. 4. verb. licet for of adoptiō arrogation or any other meanes to make children lawfull except marriage wee haue no vse here in England g) Tract de repub Ang. lib. 3. c. 7. In this case first of all the meaning of the testator is to bee regarded h) d. §. si quis rogatus L. vlt. C. de his qui vaen aetat imp L. Sancimus de nuptijs C. Mantic. de coniect.
f) Ias in L. Gallus ff de lib. posthu a 69. Coras lib. 2. Miscel c. 22. Fenton de secretis naturae c. 5. of a beautifull ladie who hauing a husband of a faire and white complexion was deliuered of a childe as blacke as pitch like vnto a Moore or Ethiopian and hereupon being accused of adulterie shee was acquited and absolued for that by the opinion of the best learned in phisicke and philosophie the same did so come to passe by reason of the picture of a black boie or litle Nigro which did hang in the bedchamber at the time of the coÌ„ceptioÌ„ Like vnto this is that credible historie of another woman in the time of Charles the fourth Emperour and king of Boemia who because she had too much regard to the picture of Saint Iohn clothed in a Camels skinne which did hang at the beds feete during the conception shee brought foorth a childe all rough couered with haire like vnto a Beare g) Coras in annotac super quodam Arresto Tholoss fol. 31. Fenton vbi supra The histories are full of these kinde of accidents I shal coÌ„tent my selfe with one more which did befall in the time of the Emperour Maximilian in a towne in Brabant h) Coras in d. annotac eod fol. 31. Ludouic Viues in 12. lib. Augus de ciuitat Dei There in a publike plaie or spectacle a certaine man whose part was to plaie a dauncing deuill assoone as the plaie was ended ranne home to his wife in his deuils attire and being moued in spirit catched his wife hastilie in his armes and muste needes c. in that habite saying he would beget a deuill and so it came to passe that at her childes birth shee was deliuered of a deuillish monster which as soone as it was borne began to leape and daunce like to the father Which examples with diuerse other like experiments being made notorious manie women that they might bring foorth beautifull children haue gotten beautifull pictures and fixed the same nigh to their beddes and haue in deede oftentimes brought foorth children like vnto those pictures in the sight whereof they were formerlie most delighted i) Plutarch de placitis philos lib. 5. c. 12. Coras in d. c. 22. n. 2. lib. 2. Miscel Seeing then the conceite or imagination of the woman is of such force in the act of generation that whose forme or similitude is then in their minde the same is not seldome represented in the childe k) Gloss in L. quaeret aliquis de verb. sig in L. non sunt de stat hom ff What maruel theÌ„ if the child which is begotten by the adulterer bee like vnto the husband when the adulteresse fearing to be interrupted by his returne who woulde take but small pleasure at such sporte cannot but still haue an eye to that doore vntil the peril be past l) Alciat de praesump reg 3. praesump 37. Ias alij in d. L. Gallus ff de lib. posthu And wherfore theÌ„ also shoulde we wonder that the childe which is begotten by the husband shoulde bee like to the adulterer m) Bald. in d. L. Gallus Mascard de probac. verb. filius concl 792. vpon whose face and fauour her minde is fullie fixed who in the middest of her delights imagineth the stolne water to bee the sweeter n) Prouerb Salom. c. 9. vers 17. Nay rather it is to be maruailed that it should bee otherwise but that the almightie dooth still reserue his prerogatiue besides and contrarie to the course of nature bestoweth what formes it best liketh him vpon euery creature Other extensions there bee of this rule o) de quibus Mascard de probac. d. concl 788. Petr. Duen Tract reg fal reg 344. Alciat de praesuÌ„p 37. Menoch de Arb. Iud. sent 89. Gabriel de praesump concl 14. but let vs returne to the limitations The first limitation is this †when the husband was not within the foure seas at such time as the childe was conceiued q) Bract. de leg cons Angl. lib. 1. c. 9. in fin lib. 2. c. 29. n. 3. 4. Kitchin tit discent fol. 108. Brook tit bastardy n. 4. or at the least was so farre absent from his wife or imprisoned the same time that thereby it was impossible for him to haue begotten the same childe r) c. ex tenore de testib extr Panor ibid. Paris consil 64. vol. 3. n. 6. 7. consil 10. vol. 2. n. 36. 78. Mascard de probac concl 788. n. 40. Petr. Duen d. reg 344. lim 3. Brook Abridg. tit bastardy n. 4. Which time of conception when it was may best bee knowne by relation to the birth of the childe For a woman cannot bring forth a perfect childe before the beginninge of the 7 month s) L. septimo de stat hom ff ex sententia Hyppocratis lib. de partu septimestri à quo non dissentiunt Aristotel lib. 1. de natura animal Plutarch lib. 5. de placit philos c. 18. Plin. lib. 11. natural histo c. 31. neither can shee beare a childe in her wombe after the ende of the tenth moneth from the time of the conception at least by presumption of law t) L. intestato §. vlt. ff de suis legit §. vlt. Tiraquel in rep L. si vnquam C. de reuoc don verb. susceperit vbi multa scitu non indigna de partu septimestri decimestri ex Hyppocrate Aristotele alijs tùm Medicis tùm Philosophis deprompta videre licet Sed prae caeteris Legistis praeclarissimè copiosissimè de nascendi tempore scripsit Gentilis noster except it be for one two or three daies more at the verie fardest v) Accurs in d. §. vlt. Auth. de restit eaquae parit c. Salmo in L. Gallus de lib. posthu ff Menoch de Aâ—b iud quest lib. 2. cal 89. n. 41. So that if the husband did depart from his wife aboue tenne monethes with those fewe daies added thereunto nor retuned vntill within sixe monethes next before her deliuerie it is impossible for him to be the father of this childe being otherwise a perfect childe Secondly if the husband were not able to beget a childe at such time as his wife did conceiue hee is not to be deemed the father of that childe x) L. filium ff de his qui sunt sui vel al. iur DD. ibidem Gabr. lib. 1. com concl tit de praesump concl 14. n. 19. Pract. Andr. Gail lib. 2. obseru 97. n. 15. For seeing law is but an arte of righte and good y) L. 1. ff de Instit iur by imitation of nature z) §. minorem Inst de adop Paris coÌ„sil 10. vol. 2. it were against all right and reason that he should be iudged the father of that childe by fiction of lawe which he could not beget by possibilitie of nature
the distribution amongst them as substitutes ought to be equall r) L. nonnunquam ff ad Trebel ibi DD. Viglius Minsing in § si Instit de vulg sub By names appellatiue in this place I vnderstand euerie name which is common or maie comprehend diuers persons or all names except the christian name or surname of any person as when the testator doth substitute his executors his children his brethren his kinsfolkes all which I doo account names appellatiue in this present case s) Sichard post Paul de Castr alios in d. L. 1. de impub. et al. sub C. n. 5. in fin Minsing et Vigl in d. §. si ex disparibus the cause of the difference as most doo thinke is the force of this worde and which worde being most commonly vsed and almost necessarie where soeuer the testator dooth substitute diuers persons by their seuerall proper names the nature and force thereof is such as it doth make equall distribution t) Paul de Castro Ias Sichard in d. L. 1. de impub. alijs sub C. without the which the substitution shall be proportionable to the institution insomuch that if the testator doo substitute diuers by their proper names without that worde and as if the testator say I substitute the two Iohns at Noke In this case the testators being instituted vnequallie in the first degree the substitutes are to succeede vnequallie likewise v) Iidem Castrens Ias Sichard in d. L. 1. But what †if the testator doo substitute by both kinde of names aswell by the appellatiue as by the proper names or what if some be substituted by the proper names others by some name appellatiue what if it bee doubtfull by whether kinde of name they were substituted whether in this case ought the substitutes to succeed equally or vnequallie according to the proportion of the substitution x) Has quaestiones cum multis alijs expeditas habet Ias in d. L. 1. When the substitution is made by both names iointly we are to consider whether the names appellatiue or the proper names haue the first place in the disposition For if the appellatiue goe before then the substitutes are to be admitted as if their proper names were not at all expressed that is to say according to the proportion of the institution but if the proper names enioy the first place then the substitutes are admitted equally notwithstanding their vnequall institution y) Ias Sichard in d. L. 1. quae quaestio communis est quam etiam aduersus Curtium defendit Viglius in d. §. si ex disparibê° Instit de vulg pupil sub n. 7. When †some be substituted by their proper names others by names appellatiue they which be substituted by their proper names do succeede equally the others according to the proportion of their institutions z) Ias post Salicet in d. L. 1. When it is doubtfull by whether names they be substituted for that perhaps the witnesses do not remember what maner of wordes the testator did vse in this case they shall succeede according to the proportion of their institution a) Bar. in L. 1. ff de vulg pupil sub Ias Sichard in d. L. 1. C. de impub. al. sub Hovve manie may be appointed executors 1 Either one alone or moe persons may bee appointed executors 2 What if the testator make all the worlde his executor 3 What if he say I make the poore my executor or the Church or my kinne 4 Where diuerse be named executors all are to be admitted and not one without the rest 5 The extensions of this former conclusion 6 The limitations of the same conclusion 7 Whether the executor of the executor is to be ioined with the executor suruiuing 8 What if the executor suruiuing die intestate 9 The executor of the executor may somtimes be sued as executor in his owne wrong 10 If the impediment be not long the executor is to be expected 11 One of the executors may execute when the rest refuse 12 Whether the coexecutor be excluded by his refusall before the ordinarie 13 Other causes wherein one executor alone may sue or be sued without his fellowes 14 Whether one executor may sue another 15 Certaine cases wherein one executor maie sue another 16 Howe the goodes are to be distributed among the executors to whome the testator giueth the residue 17 If the testator make the child in the mothers womb executor and the mother bring forth two or three children at one birth they are all to bee admitted executors 18 If the testator doo bequeath an hundred pounde to the childe in the mothers wombe and the mother is deliuered of two or three whether are each of them to haue an hundred pound or but one hundred amongest them 19 What if the testator make his wife and the childe in her wombe executors willing that if it be a man childe hee to haue two partes of the residue of his goodes and his wife but one and if it be a woman childe then his wife to haue two partes and his daughter but one Admit nowe the mother haue both a sonne and a daughter at one birth howe is the goodes to be distributed §. xx FIftly either one persoÌ„ †may bee appointed executor alone or diuerse persons together a) §. vnum Instit de haered instituend euen as many as the testator list to appoint so that †the number be not infinite as to say I doo make all the men of the worlde my executors b) Porcius in d. §. v. num qui refert hanc pinionem esse communem licèt Grass Thesaur com op §. Institutio q. 13. existimet contrariam esse magis coÌ„munem nempe huiusmodi institutionem mero iure subsistere sed re effectu irritaÌ„ inanem reddi for to appoint executors in that sort were an argument that the testator were not of perfect minde and memorie c) Porcius in d. §. vnum Besides that it is impossible d) Idem Porcius ibid. for all to execute and therfore a voide assignation at least in effect e) Gloss in d. §. vnuÌ„ Grass d. q. 13. But †if the testator make the poore his executors or the Church or his kinne giuing to them the residue of his goodes albeit hee doo not declare which poore what Church or which kinnesfolkes neuerthelesse the disposition is not void as elsewhere is declared f) Infra 7. part §. 8. vide Dyer fol. 160. When †the testator dooth make diuerse persons executors they are all to be admitted to the executorship and not one alone without the rest g) c. religiosa §. sanc de testa lib. 6. which conclusion is diuersly both extended and limited The †first extension is that albeit the testator doo appoint his owne sonne and a stranger his executors the stranger if he can and
testator doth make diuers executors if †anie of them do get the possession of the goods of the testator the other executor hath no action for recouerie of the same goods or any part thereof l) Brook tit exec n 98. for one executor can not sue another m) Infr. part 6. §. 3. Howbeit †if the testator make diuerse executors and do bequeath to the one of them the residue of his goodes it is not onely lawfull for him to whom they are bequeathed to retaine the same but also if the other executor enter thereunto hee is subiect to an action of trespasse n) Brook d. tit execut n. 104. Likewise if the testator do bequeath vnto all his executors the residue of his goods the same ought to bee equally distributed amongst them In which case I suppose the office of the ordinarie to whom they are accomptable is of great aucthoritie if one of them seeke to defraude another o) c. tua nos de testam extr Brook Abridg. tit accompt n. 8. But †what if the testator make many executors giuing them the residue of his goods of which executors he nameth one by his proper name the rest by a name collectiue As for example the testator saieth I make my brother and his children my executors to whom I bequeath the rest of my cleare goodes whether in this case ought the father to haue as much as all his children or whether ought euery childe to haue as muche as the father I suppose that in this case the residue of the deathes part ought to be diuided into two partes and that the father ought to haue as much as all the children p) Ias in L. fin de impub al. sub C. Dec. consil 236. cons 254 for it is deliuered for a rule that where diuerse persons be comprehended vnder one name collectiue with another third person then all they which be included vnder that one name doo represent one onely person q) Ias in d. L. fin Mantic de coniect. vlt. vol. lib. 4. tit 9. quem operepretium crit videre Of which rule neuerthelesse there be diuers exceptions One is when the testator willeth the said goodes to bee equally diuided amongst them r) L. interdum ibi Paul de Castr ff de haered instit Dec. consil 597. Another is when the children were not borne at the time of the making of the testament s) Ias in d. L. fin per L. quidaÌ„ §. si tibi de reb dub ff The third and that is generall is when the testator meaneth that euery person shall haue a like portion t) Ias in eand L. fin queÌ„ velim videas nam ibi tradidit regulam septeÌ„ limitationibus dotataÌ„ for in those cases the rule â—oth not hold but distribution is to be made according to the number of the persons that is to say if there be three persons then the residue of the deathes part is to be diuided into three parts if there be foure persons then into foure parts and if there be mo then into mo parts euery part equall for euery person If †the testator do appoint the childe in the mothers wombe his executor and it falleth out that the mother dooth bring forth two or three children at that one burthen they are all to be admitted executors v) Ias in L. placet ff de lib. posthu Mantic. de coniect. vlt. vol. lib. 4 tit 8. n. 4. And as they are all to be admitted to the executorship so are they all to enioy the legacie And therefore if the testator say I doo bequeath an hundred pounde to the childe in the mothers wombe and if she dooth beare two or three children the legacie is to be diuided amongst them x) Paul de Castr in L. qui filiabus §. 1. ff de leg 1. But if the testator say if my wife shall bring forth any child I giue to the same an hundred pound and she bring forth two or three children in this case euery childe may obtaine an hundred pound if the testators goodes do suffice to satisfie the same y) d. L. qui filiabus §. 1. DD. ibid. vnlesse it be prooued that it was the testators meaning that they should haue no more but an hundred pound amongst them z) Text. in d. §. 1. What shall we say to this question The †testator maketh the childe in the mothers womb executor and willeth that if it be a man childe hee shall haue two partes of the residue of his goodes and the mother but one and if it bee a woman childe that then the mother shall haue two parts of the said residue and the daughter but one The will being thus framed the mother bringeth forth a sonne a daughter how much of the testators goods is due to each person In this case euery person is to haue a portion of the testator a) L. si ita ff de lib. posthu that is to say the sonne shal haue twise so much as the mother and the mother twise so much as the daughter for example the residue of the testators goods arising to seuen score poundes the sonne ought to haue fourescore pounds the mother fortie and the daughter twentie so the mother hath double so much as the daughter and the sonne hath double so much as the mother But what †if the will being such as before viz. that the issue being masculine shall haue two partes and the mother but one and being feminine to haue but one part and the mother two the mother doth bring foorth an Hermophrodite or persoÌ„ hauing the part both of a maÌ„ a woman whether shal this Hermophrodite haue so much as if two children male female had bene both borne The Hermophrodite can haue but one portion that is to say the portion due to that Sex whereof the Hermophrodite doth most participate b) L. quaeritur ff de stat hom and if that also be doubtfull it is to be presumed according to the more worthie kinde c) Addic ad Bar. in d. L. quaeritur Of those things vvhich doo appertaine to the apparance of the testament 1 Euerie testament is to be proued by witnesses or by writing 2 Two witnesses needfull and two sufficient 3 What if the witnesses be not free from all exception whether doth the number supplie the defect 4 Somtimes one witnesse is sufficient 5 Euerie one maie bee a witnesse which is not forbidden 6 Three especiall causes which do minister exceptions against witnesses 7 Who are excluded for their dishonestie 8 All malefactors are not repelled from witnessing 9 Who are excluded for want of iudgement and how long 10 Who are excluded for affection and how farre 11 Whether a legatarie may be a witnesse 12 Whether a woman may be a witnesse 13 Whether a poore man may be a witnesse §. xxj HAuing spoken of the general internall forme common
Of an vnlawfull colledge § 9. Of a libeller § 10. Of vsurers Sodomites and other vicious persons § 11. Of an vncertaine person § 12. â—HAT PERSON â—AIE BE EXECVTOR OF 〈◊〉 TESTAMENT OR IS CApable of a legacie The fifth part Euery one may be executor which is not forbidden The testator may omit or exclude his owne childe and make others executors The testator may make executors either bonde men or free Not onely lay men but Clearkes also may bee made executors Women as well as men may be executors Infants as well as those of full age may be made executors The testator may make his executors either knowne or vnknowne persons The testator may appoint executors either one person or many §. j. IN the fift principall part of this Testamentarie treatise is declared what persons may bee appointed executors and are capable of a legacie and what persons are incapable of an executorship or legacie Wherein forasmuch as the lawe dooth giue libertie to the testator to appoint whom he will to bee his executor a) Tit. de haered instit lib. 2. Instituc in princ Benedict de Capra Tract regul fal verb. executor and likewise to giue legacies to whom he will certaine persons excepted b) §. legari Instit de lega This may be deliuered for a rule that euerie person may be an executor and is capable of a legacie sauing such as are forbidden c) Minsing in d. tit de haered instit in prin pract Petr. de Ferrar. in forma libelli ad reddend ration Tutel §. an â—â—ecutores n. 1. Now what persons these be which are forbidden shal streight way bee shewed after the view of the greatnes of the testators libertie in appointing his executors First it is to be vnderstood that this libertie of the testator is so large ample that albeit the testator haue children of his owne naturally and lawfully begotten yet by the lawes customes of this realme he maie appoint others to be his executors secretly omitting or openly excluding his owne children d) Bract de consuetud leg Angl. lib. 2. c. 26. Tract de repub Angl. lib. 3. c. 7. vnde perspicuum est nullum ferè vsum apud nos manere huiusmodi titulorum iuris ciuilis viz. de exhaeredac liberorum lib. 2. Instituc de lib. posthu haered instituend vel exhaeredand ff de in offic test ff Instit C. vnà cum pluribus alijs eiusdem farinae cùm titulis tuÌ„ legibus Secondly the testator hath libertie to appoint executors not onely those which be free but also bondmen or villeines e) Lib. 2. Instit tit de haered instituend in prin Litleton tit villenage fol. â—0 Brook Abridg tit villein n. 68. Et licèt iure ciuili seruus institui quidem potest non executor vt per Bald. in L. id quod C. de episcopis cler n. 3. Tamen iure quo nos vtimur institui possunt serui nostrates executores vt per Litleton Brook vbi supra Quinimo eodem iure ciuili seruus constitui potest nudus executor Io. de Canib Tract de exec vlt. volunt part 1. q. 3. n. 47. either his owne villeine or the villeine of another f) d. tit de haered instit in prin And if the testator do make his owne villeine executor he doth manumit or deliuer his villeine from bondage g) Io. de Platea in d. tit in prin And if anothers villeine bee made executor such villeine may as executor haue action against his owne Lorde in case he were indebted to the testator h) LitletoÌ„ tit villenage fol. 40. Brook tit villein n. 68. because hee shall not recouer the debt to his owne vse but to the vse of the testator i) Litleton vbi supra sic nota quod noÌ„ obtinet ius ciuile quo seruus alienus institutus acquirat domino §. alienus Instit de haered instit Thirdly the testator hath libertie to appoint his executors not onely laymen but Clearkes also k) Imo etiam religiosos obtenta licentia Fitzh tit execut n. 47. Brook eod tit n. 63. 77. Fourthly the testator may make executors not onelie men but also women l) Couar in c. tua de testa extr Et est communis opinio Peckius de testa coniâ—g lib. 1 c. 20. either single or maried m) Peckius d. c. 20. Fitzh Brook d. tit executor Fiftly the testator hath power to appoint executors not onely persons of ful age but also infants (n) Brook Abridg. tit executor n. 115. tit couerture n. 56. and the act done by the infant as executor as the releasing of the debt due to the testator or the selling or distributing of the testators goods is saide to be sufficient (o) Brook vbi supra sic non recipitur iuris ciuilis disciplina quâ minor 17. annis non admittitur executor in law And here note by the lawes of this realme euery one is accounted infant vntill he be xxi yeares old (p) Doct. Stud. lib. 1. c. 21. lib. 2. c. 28. But if the infant be so yong that he hath no discretion for it is not onely lawfull to make such an one executor but also the childe in the mothers wombe and vnborne at the death of the testator (q) L. placet ff de lib. posthu quae lex etsi loquatur de haeredis institutione idem tamen iuris vel in executoris coÌ„stitutione passim ab Anglis obseruari notoriè coÌ„stat quicquid dixerit ius ciuile In that case the ordinarie or other to whom the approbation of the testament appertaineth after the birth of the childe dooth commit the execution of the will to the tutor of the childe for the childes behoofe vntill hee be able to execute the same himselfe the which tutor hath authoritie to deale as executor vntill the childe bee able to vndertake the executorship r) Quod sine vlla contradictione saepissimè obseruatur salteÌ„ infra prouinciam Eborac Sixtly it is lawfull for the testator not onelie to appoint his knowne friendes and acquaintance his executors but also straungers and such persons as he did neuer see s) §. fin Instit de haered instituend L. extraneum C. de testa vide infra ead part §. vlt. intellige vt ibi Finally the testator may appoint one person alone or manie t) §. vnum Instit de haered instituend manie I say seueral or manie representing one bodie as a Colledge a Citie an vniuersitie v) L. haereditatis C. de haered instit Minsing in d. §. vnum Grass Thesaur com op §. Institutio q. 20. After this view of the greatnesse of the power of the testator in making executors let vs returne to the restraint of the testators libertie and shewe what persons are forbidden to be executors or to reape any commoditie by a testament or last
c. in praesentia de probac. extr n. 39. Gabr. vbi supra n. 5. quae opinio communis est contra Bald. in d. Auth. ex complexu issue also is made capable of so much as is sufficient for needfull and conuenient sustentation hath preuailed against the rigour of the ciuill lawe and is to be obserued especially in the ecclesiasticall Court h) Idem iuris est in terris imperij gloss Panor in d. c. cùm haberet Bar. in â— Auth. ex complexu Decis Neap 164. n. 2. Dec. vbi supra Duen verb. filius reg 367. as more agreeable to nature equitie and humanitie And in this respect the lawes and statutes of this realme in prouiding aswell for the conuenient reliefe and keeping of poore and miserable children begotten born out of lawful matrimonie at the charges of the reputed father or mother i) Stat. Eliz. an 18. c. 3. without distinctioÌ„ whether such infantes were begotten in incest and adulterie or fornication k) Vbi enim lex non distinguit nec nos distinguere debemus L. de precio ff de pub in rem action as for the punishment of the mother and reputed father of such vnlawfull issue are worthily commended although in respect of the next limitation following they may seeme not altogether so worthie commendation The fourth limitation is grounded in the lawes of this realme which doo permit euerie man both by deede made and executed during their liues l) Perkins tit graunts fol. 11. Bract. lib. 2. c. 7. and also by their last willes and testaments to be executed after their deathes m) Perkins tit deuise fol. 98. to giue to deuise vnto anie their bastards without distinction all their lands tenements or hereditaments without restraint at the least more then wil suffice for their sustentation and much more then they are worthie of Which thing cannot but redounde to the great preiudice of right heires considering the daunger whereunto lawfull children are subiect and which they doo manie times sustaine through forcible â—latteries of vile dissembling harlots no lesse voide of all modestie then full fraught with all kinde of subtiltie with whose sweete poison and pleasant sting manie men are so charmed and inchaunted n) Videas c. 5. Prouerb Salom. that they haue neither power to hearken to the iust petitions of a vertuous wife praying and crauing for her children nor grace to denie the vniust demaunds of a vicious and a shamelesse whoore prating and grating for her bastardes neuer remembring that when Sara said to Abraham Cast out this bonde woman and her sonne for the sonne of this bond woman shall not be heire with my sonne Isaak Abraham by the commaundement of God hearkened to the voice of Sara o) Gen. c. 19. neuer once regarding that which diuers haue diligently noted that the brood of bastardes are commonly infected with the leprosie of the Sires disease p) c. si gens Anglorum ibi praepos distinct 56. Hinc est ait Peckius quod SodomitaruÌ„ vnà cum parentibus paruulos etiam coelesti igne consumpsit Dominus nempe quòd prospexerat paruulos hos idem flagitium admissuros Pec. in c. non decet de reg iur 6. and being encouraged with the example and patterne of their fathers filthinesse they are not onely prone to follow their sinfull steppes q) Mali corâ—â— maluÌ„ ouum metueÌ„da sunt paterni criminis exeÌ„pla L. quisquis C. ad L. Iul. maiest §. 1. but do sometimes exceede both them and others in all kinde of wickednesse The fift limitation is in the bastardes of kings and princes for a king may ex plenitudine potestatis make his vnlawfull issue capable of whatsoeuer by will deuisable hee dooth giue or bequeath vnto him r) Boer Decis 127 n. 17. Duen d. reg 366. lim 7. The sixt limitation is this the adulterous grandfather may bequeath anie thing to the lawfull children of his owne vnlawful sons or daughters or make them his executors s) Ias in L. haereditas C. de his quibus vt indig n 7. 8. Cui opinioni locum concedereÌ„ etiamsi hic Auê° habeat legitimos filios Cùm apud nos nulla sit necessitas instituendi suos vt supra ead part §. 1 but so cannot the incestuous grandfather t) Bald. in L. si quis incestus C. de incest nup. Couar in d c. 8. de spoÌ„sal 2. part §. 5. n. 13. The seuenth limitation is this that the testator may bequeath vnto his incestuous or adulterous daughter a competent portion for her dowrie or preferment in mariage for this is accounted all one as if he did bequeath it vnto hir for hir alimentation v) Panor in d. c. cuÌ„ haberet n. 5. Bar. in d. Auth. ex complexu quae conclusio ampliatur per Petr. Duen verb. filius reg 367. ampl 3. The eight limitation is this that an executor may make the testators bastard his executor x) Bar. in L. si his ff de vulg sub Bald. in L. eaÌ„ qua C. de fidei commis n. 4. Clar. § testium q. 31. Intellige tamen nisi coniecturae interuenerint ex quibus fraus praesumatur Grass §. Institutio q. 7. n. 13. The ninth limitation is when the adulterous parents doo solemnize lawful matrimonie together before the birth of the childe y) Praepos in c. tanta vis Qui filij sunt legitimi extra n. 10. Card. eod c n. 7. Melch. Kling Tract de caus inrÌ„ion fol. 85. 86. for example A married man doth beget a single woman with childe for this is adulterie by the laws ecclesiastical of this realme z) Card. praepos alij in d. c tanta vis Kling vbi supra c. nemo 32 q. 4. Panor in c. transmissae de eo qui cog consang vx extra Clar. §. adulterium n. 2. although by the ciuill lawe it is but fornication a) L. 1. C. de adul L. inter liberos ff ead Clar. vbi supra immediatelie after his wife dieth after whose death he marieth the woman for so he maie b) Nisi praeter copulam mortis machinatio interuenisset vel fides data fuisset quia tunc non valet inter eos matrimonium iure caÌ„ c. super hoc c. significasti de eo qui dux in matr quam poll per adul extr sed an dissolui possint hodie nuptiae huiusmodi multum dubito occasione statuti H. 8. an 32. c. 38. after the mariage the child is borne In this case the childe is not onely capable of anie testamentarie benefite but is reputed a lawfull childe and not a bastarde c) d. c. tanta vis DD. ibidem as heeretofore hath beene disputed more fullie d) Supr part 4. §. 15. Concerning those bastards which are begotten of single persons such I meane as may lawfullie marrie together then in case the mother were a maide or an honest widdow immediatelie
is hereafter mentioned vpon paine to forfait for euery time so demanding receiuing taking or conuenting or calling any such persō or persons before any spirituall Iudge so much value as they shall take aboue the same limited by this acte And ouer that fortie shillings to the partie grieued contrarie to this act for the which forfaiture the partie so grieued contrarie to this acte shall haue an action of debt by write will plaint or information in any of the Kinges Courtes wherein no wager of law c. shal be allowed First †it is enacted that no maner of Mortuarie shall be taken or demaunded of any such person whatsoeuer he be which at the time of his death hath no moueable goodes vnder the value of ten marke Also †that no Mortuarie shall be giuen or demanded from henceforth of any maner person but onely in such place as a Mortuarie heretofore hath bene vsed to be paid and giuen and in those places none otherwise but after the rate and forme hereafter mentioned Ne †that any person pay Mortuaries in more places then one that is to say in the place of their most dwelling and habitation and there but one Mortuarie Nor †no parson vicar curate parish priest r other shall for any person dying or dead being at the time of his death of the value of moueable goods of ten markes or more cleerely aboue his debtes paied and vnder the summe of thirtie pounde take for any Mortuarie more then three shillings foure pence in the whole And †for a person dying or dead being at the time of his death of the value of thirtie poūd or aboue cleerly aboue his debts paid in moueable goods and vnder the value of xl pounde there shall bee no more taken and demaunded for a Mortuarie then sixe shillings eight pence in the whole And †for anie person dying or dead hauing at the time of his death of the value in moueable goods of xl poūd or aboue to any summe whatsoeuer it be cleerly aboue his debts paide there shal be no more taken paied or demanded for a Mortuarie then ten shillings in the whole Prouided †that no woman being couert baron ne child nor for any person not keeping house any Mortuarie be paied ne that any parson vicar curate parish priest or other aske demaunde or take for any such woman childe or for any person not keeping house dying or dead any maner of thing or money by way of Mortuarie Ne also for any warfaring man or other that dwelleth not ne maketh residence in the place where they shall happen to die but that the Mortuarie of such warfaring persons be answerable in places where Mortuaries be accustomed to be paied in maner and forme and after the rate before mentioned and no otherwise in place or places where such warfaring persons at the time of their death had the most habitation house and dwelling places and no else where Prouided †alwaies that it shall bee lawfull to all maner parsons vicars curats parish priests and other spirituall persons to take and receiue all manner summe of money or other thing which by any maner of person dying shall fortune to be disposed giuen or bequeathed vnto them or any of them or to the high altar of the Church this act or any thing therin mentioned notwithstanding And be it c. that no Mortuaries or corses presents or any summe or summes of money or other thing for any Mortuarie or corse present shall be demaunded taken receiued or had in the parts of Wales nor in the marches of the same nor in the townes of Calice or Berwicke nor the marches of the same but onely in such parts and places of Wales marches townes aforeraide where Mortuaries haue beene accustomed to bee taken and paied and in those parts places no mortuaries or corses presents ne any other thing for Mortuarie or corse present from henceforth shall bee demaunded taken receiued or had but onely after the forme order and maner aboue specified in this present acte and none otherwise ne of any other person or persons then is limited in this present act and none otherwise vpon paine aboue contained in this present act Prouided also that it shall be lawfull to the Bishops of Bangors Landaffe Saint Dauids and Saint Asse and likewise to the Archdeacon of Chester to take such Mortuaries of the Priests within the Diocesses and iurisdictions as heretofore hath beene accustomed Prouided alwayes that in such places where Mortuaries haue beene accustomed to bee taken of lesse value then is aforesaide that no person shall bee compelled to pay in anie such place anie such Mortuarie then hath bene accustomed ne that any mortuarie in such place shall bee demaunded taken receiued or had of any such person or persons exempt by this acte nor in any wise contrarie to this acte vpon paine afore limited Of making an account and first of the necessitie thereof 1 Diuerse reasons wherefore executors are to account 2 Whether the executor be subiect to account being released by the testator §. xvii HEre many things may be considered a) Super hac materia vide Io. de Can. in Tract de executor vlt. vol. §. nouissimum n. 4. Io. Olden consi Tract tit 8. namely howe needfull it is that executors should be accomptable To whom the account is to be made within what time in what manner and what effectes the same hath How †requisite and needfull a thing it is that executors should be charged with the making and rendering of an account the vnfaithfull dealing of a great sorte of faithlesse executors to the vtter vndoing and spoiling of many fatherlesse and friendlesse children it is a proofe ouer well knowen b) Argument à §. quoniam in Authentic vt hi qui oblig Surely if it stand with reason that stewardes receiuers bailifes tutors factors and such as haue to deale for other persons shoulde bee accountable of their stewardship receiuership and their other offices c) Io. de Canib in d. §. nouissimum n. 1. Menoch de arb iud lib. 2. cas 209. with greater reason may it be mainteined that an executor should bee subiect to account rather then they for they for the most part haue to deale for such as be liuing who may haue an eie to their dooings but an executor hath to deale for a dead person who can neither see nor heare if his executor deale vniustly Again if the executor haue well and faithfully executed his office and fully discharged the trust reposed in him what should moue him that hee should not willingly make a due account thereof and thereby obtaine an acquittance and be deliuered from the burthen laid vpon him d) Io. Oldendorp Tract de executor vlt. vol. tit 8. On the contrarie if hee haue plaied the vniust steward much rather in that case ought he to be vrged compelled to make his account that his fraude and deceite