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 Testa­mētarie 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 [Page] 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 prouinc [...] of Yorke, it apperteineth principally vnto your grace, to prouide that testamēts lavvfully made, be dulie executed, being novve by Gods merciful prouidēce Metropolitane & or­dinarie of that sea, I could not see a more vvorthie Patrone for a testamētary vvork. Partly therefore by these former conside­rations, but especially I vvas encouraged therunto vvith the cōtemplation 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 [Page] 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, thē it stil reteineth the name of a last will §. 4. And dooth cō ­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.
  • [Page]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 wāt free­dome, as
      • Bondslaues and villeynes. §. 7.
      • Captiues and prisoners. §. 8.
      • Women couerte. §. 9.
    • 3. They wāt some of their principal senses, as
      • Dumbe and deafe. §. 10.
      • Blinde. §. 11.
    • 4. They haue cō ­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 grea­ [...] 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.
  • [Page]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 lāds are holden in
            • 1. Gauelkinde. §. 2.
            • 2. Burgage tenure. §. 2.
          • 2. Statutes, viz. when the lāds are holden in
            • 1. Socage tenure. §. 3.
            • 2. Knights seruice. §. 3.
      • 2. G [...]ods & cat­ [...] [...]ey are [...] [...]le, ex­ [...] 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 Cōmitting of the [...]on of childrē 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 holdē
        • in
          • 1. Socage tenure, all is deuisea­ble. §. 15.
          • 2. Knights seruice 2. parts of 3. is deuisea­ble. §. 15.
      • 2. Goods, then in case the debts due by the te­stator, do
        • 1. Exceede his goods and cattels: The testator cannot bequeath any thing in preiudice of his creditors. §. 16.
        • 2. Not ex­ceede his goods & cattels, but that somewhat doth remain cleare the debts & fu­nerals de­ducted.
          • Of these cleare goods if there be
            • 1. No custome, all is deuiseable. §. 16.
            • 2. Any custom (as there is within the pro­uince of Yorke & in diuerse o­ther places.) If the testator haue
              • 1. wife & chil­drē the third part is [...] able §. [...].
              • 2. wife alone, or child, alone, the one half, is [...] able §. [...].
              • 3. neither wife nor child, all is [...] able §. [...].
A Table of the fourth part, decyphering the formes of Testaments.
  • [Page]1. General to all Te­staments. §. 1. And of these som do apper­teine to the
    • 1. Essence thereof, as the na­ming of an Execu­tor. §. 2. who may be ap­pointed
      • 1
        • Simplie §. 4.
        • or conditionally §. 5.
      • 2
        • To a certein time §. 17
        • or frō a certein time
      • 3
        • Vniuersally §. 18
        • or particularly
      • 4
        • In the first degree §. 19
        • or in the 2. 3. &c.
      • 5
        • Alone § 20
        • or with others.
          • Concer­ning eue­rie which kinde or forme of making an Execu­tor diuers thinges are consi­dered, e­specially cōcerning the cōdi­tionall as­signation of an exe­cutour these things are examined viz.
            • 1. What it is, & what woords do make the dispositiō to be con­ditionall.
            • 2. How many kinds of condi­tions there be.
            • 3. What is the effect of a con­dition. §. 6.
            • 4. Whether euery possible cō ­dition ought to be obserued pre­cisely. §. 7.
            • 5. Whether the condition be accompted for accōplished, when it doth not stand by the executor or legatary, wherefore the same is not accomplished. §. 8.
            • 6. Whether he that is execu­tor or to whom any legacy is be­quethed cōditionally, may in the meane time whiles the condition depēdeth, be admitted to the ex­ecutorship, or obteine the legacie by entring into bonds to perform the condition, or els to make re­stitution. §. 9.
            • 7. Whether it bee sufficient that the condition was once ac­complished though the same doo not continue. §. 10.
            • 8. How farre those conditions whereby the libertie of making testaments is hindred, be lawfull or vnlawfull. §. 11.
            • 9. How farre those conditions are lawfull or vnlawfull, wherby the libertie of mariage is hin­dred. §. 12.
            • 10. How far those conditions are lawfull, which doo prohibite alienation. §. 13.
            • 11. Within what time the cō ­dition may or ought to be perfor­med, no certeine time being li­mited by the will. §. 14.
            • 12. Of the vnderstanding of this condition, If he die with­out out issue. §. 15.
            • 13. What order is to be taken concerning the administration of the goods of the deceased, whiles the condition of the executorship depēdeth vnaccomplished. §. 16.
    • 2. Apparance thereof, that is to say, due proofe, which is to be made
      • by
        • witnesses §. 21.
        • writing §. 21.
  • 2. particular or peculiar to some kind of Testa­ments. viz.
    • Of a
      • 1
        • Solemne testament. §. 23.
        • vnsolemne testament. §. 24.
      • 2
        • Written testament. §. 25.
        • vnwritten testament. §. 26.
Who maie be Executor, and is capable of a Legacie.
  • [Page]Euerie person may bee Executor and is capa­ble of a Legacie; cer­teine persons excepted. §. 1. viz.
    • Whosoeuer cānot make a Testament by reason of some crime by him committed. §. 2.
    • A Bastard. §. 7.
    • An vnlawfull Colledge. §. 9.
    • An vncerteine person▪ §. 10.
      • Of which persons some are not vtterly incapa­ble, but in some cases onely.
A Table of the sixt parte, viz. of the office of an Executor.
  • [Page]The office of an execu­tor testamē ­tarie is first to deliberate and resolue, either to ac­cept or to refuse the executor­ship. §. 1. wherein for his better instruction, amongst o­ther things (vt in. §. 2. 4) he is to cō ­sider the e­state of
    • 1. the te­stator; and therin espe­cially what goods and cattles did belong vnto him, and what debts he did owe, and whe­ther he were executor or administra­tor to an o­ther. §. 3.
    • 2. Himself, namely whether for his skil, diligēce & fidelity, he be able and fit to vnder­take the of­fice. §. 3.
    • 3. Others with whom he is to deal chiefly of his coexe­cutor, if any be.
    which thinges cōsidered if he re­solue to
    • 1. vnder­take the executor­ship: Thē it doth belong to his office, to
      • 1. Cause an inuen­tary to be made: wherein these things are needful to be knowē, viz.
        • 1. whether it he of necessitie that an Inuētary be made. §. 6.
        • 2. what things are to be put into the Inuentary. §. 7.
        • 3. within what time the In­uentary is to be made. §. 8.
        • 4. what forme is to be obser­ued in making of the Jn­uentary. §. 9.
        • 5. what are the benefits and effects of an Inuētary. §. 10
      • 2. Pro­cure the will to be prooued: wherin it behoueth the exe­cutor to know;
        • 1. Before whom the Testa­ment is to bee prooued. § 11.
        • 2. By whom. §. 12.
        • 3. When. §. 13.
        • 4. In what forme. §. 14.
        • 5. What fees are due in this behalfe. §. 15.
      • 3. Paie debts, le­gacies, & Mortua­ries. And here he is to learne
        • 1. How farre the executor is bound to pay debts and legacies. §. 16.
        • 2. Which debts are first to bee discharged: In case there be not sufficient to pay all. §. 16.
        • 3. How muche is due for Mortuaries.
      • 4. Make an accōpt And here he is to be aduerti­sed
        • 1. How needfull it is. §. 17.
        • 2. To whom it ought to be made. § 18.
        • 3. When. §. 19.
        • 4. In what manner. §. 20.
        • 5. What is the end and ef­fect thereof. §. 21.
    • 2. Refuse the execu­torship: Thē he must be­ware that he doo not ad­minister as Executor: viz.
      • He must not do any act which is proper to an executor, as to receiue the testators debts, or to giue acquitances for the same, &c. But other actes of charitie or humanitie, as to dispose of the testators goods about the funerals, to feede his cattell least they perish, to keepe his goods least they be stolen: These things may bee done without danger.
A Table of the last parte, shewing by what meanes Testa­ments or last willes become voide.
  • [Page]Sometimes the Testament
    • 1. euen frō the be­ginning is ether void or voide­able, who­ly or in parte, by reason
      • 1. The testator is such a person as cannot make a Testament. §. 1.
      • 2. The things bequeathed are not deuiseable. §. 1.
      • 3. The forme of the disposition is vnlawfull. §. 1.
      • 4. The executor or legatarie is incapable of the executorship or Legacie. §. 1.
      • 5. Of feare. §. 2.
      • 6. Of fraude. §. 3.
      • 7. Of immoderate flatterie. §. 4.
      • 8. Of Errour. In which case wee are to distinguish whether the Errour doo respect the
        • person of the executor or legatarie. §. 5.
        • name of the executor or legatarie. §. 5.
        • qualitie of the executor or legatarie. §. 5.
        • name of the thing be­queathed. §. 5.
        • substance of the thing be­queathed. §. 5.
        • quantitie of the thing be­queathed. §. 5.
        • qualitie of the thing be­queathed. §. 5.
      • 9. Of vncerteintie, wherein it is ma­teriall whether this vncerteintie, haue relation to the
        • 1. Executor or legatarie. §. 7. 8.
        • 2. The thing bequeathed. §. 10.
        • 3. Date of the testament. §. 11.
      • 10. Of imperfection, which is either in respect of
        • 1. solemnitie. §. 12.
        • or 2. will. §. 12.
      • 11. The testator hath no meaning to make his last will, as when he speaketh
        • vnaduisedly. §. 13.
        • iestingly. §. 13.
        • boastingly. §. 13.
    • 2. Being good at the begin­ning is af­terwards made voide, ey­ther in re­spect of
      • 1. The whole te­stamēt, as by
        • 1. a later testament. §. 14.
        • 2. reuoking the testament made. §. 15. §. 16.
        • 3. cancelling the testament made. §. 15. §. 16.
        • 4. alteration of the state of the testator. §. 17.
        • 5. forbidding or hindering the testator to make an other Te­stament. §. 18.
        • 6. refusall of the executorship, §. 19.
      • 2. Parti­cular le­gacies on­ly: which thinge doth hap­pen by diuerse meanes, whereof some haue re­latiō to
        • 1. the fact of the testator, as by
          • 1. ademption of legacies, §§. 20, 21.
          • 2. translation of legacies, §§. 20, 21.
        • 2. the fact of the le­gatary, as if the le­gatary
          • 1. become enimie to the testator. §. 22.
          • 2. accuse the testament of falsitie. §. 22.
          • 3. refuse to performe the charge im­posed in respect of the legacie. §. 22.
          • 4. apprehend the legacie of his owne authoritie. §. 22.
          • 5. die before the legacie be due. §. 23.
        • 3. other occa­sions, espe­cially if the thing bequeathed be destroied. §. 24.

To the Reader.

GReat and wonderful is the num­ber of the manifolde writers of the Ciuill and Ecclesiasticall lawes, and so huge is the mul­titude of their sundrie sorts of bookes; as lectures, councels, tracts, decisions, questions, dis­putations, repetitions, cautels, clausules, common opinions, singulars, contradictions, concordances, methodes, summes, practickes, tables, repertories, and bookes of other kindes (apparant mo­numents of their endlesse and inuincible labours) that in my conceite, it is impossible for any one man to read ouer the hundred part of their works, though liuing an hundred yeeres hee did intende none other worke. Wherfore by the publishing of this testamentarie trea­tise, I may be thought to powre water into the Sea, to carrie owles to Athens, and to trouble the reader with a matter altogether needlesse and superfluous: But yet for all this, in case this one litle booke may serue in steed of many great volumes; then I hope that in the equal iudgement of such as be indifferently affected, the same is rather to be admitted as commodious, then reiected as superfluous.

And nowe, beleeue me, (gentle reader) I haue de­sired earnestly and endeuoured carefully (according [Page] [...] [Page] [...] [Page] to the measure of such slender skil as God hath vouch­safed me, and as conuenient leisure from other occasi­ons of needfull profite and healthfull disport haue per­mitted,) that this one litle booke which heere I do pre­sent vnto thy courteous handes, may stand in steed of many bigger bookes.

The causes wherefore the Author of this booke vndertooke this worke.For whereas by the supreme authoritie and in­uiolable power of the high court of Parliament, hol­den in the xxv. yeereStat. H. 8. an. 25. c. 19. of the reigne of the most renow­med King of this lande Henrie the eight, of famous and happie memorie: It was enacted and established (amongest other Statutes then made, and since that time reuiued in the first yeere of her MaiestiesStat. Eliz. an. 1. c. 1. most gracious reigne that nowe is) that such lawes ecclesi­asticall being then alreadie made, which bee not hurt­full or preiudiciall to the prerogatiue roiall, nor repug­nant to the lawes, statutes, and customes of this Realme, shall still be vsed and executed as they were before the making of that acte, vntill such time as they were viewed, searched, or otherwise ordred or de­termined by two and thirtie persons, or the more part of them, according to the tenour, fourme and effect of the saide acte: Which lawes so established, re­uiued, and confirmed, and not without good cause, and deepe consideration (in diuerse statutes, made during the reignes as well of the saide most noble king Hen­rie the eightStat. H. 8. an. 27. c. 20. & an. 32. c. 7., as of the most godly prince Edwarde the sixtStat. Ed. 6. an. 2. c. 13., are termed or intituled, for the more honora­ble account thereof, with the reuerend and sacred name of the Kinges ecclesiasticall lawes: Like as in those countries and Churches of Germanie, which haue receiued the Gospell, the Canon lawe is admit­ted and obserued so farre foorth, as it is not repug­nant [Page] to the newe TestamentSchuediwinus Tracte de nuptijs. part. 4. tit. d diuort [...]. n. 13 fol. 48., and is at this day the Ecclesiasticall law of their consistories.

Whereas also the Ciuill law euer since the Ec­clesiasticall law was made, had beene deemed and iud­ged for part and parcell of the same Ecclesiasticall law, in cases wherein it dooth not differ from the samec. 1. de no. op. num. c. clerici. de iud. extra c. f [...]n auditorium. dist. 10. §. si vero ecclesiasti­cum. in Auth. vt clerici apud. propr. Episco­po [...].: For where these two lawes be not contrarie, the one is suppletorie of the other, and being mutually incorpo­rated doo both make one bodiePanor. in d. c. 1. de no. [...]p. num. Valquius. de success. creat. lib. 3. §. 26. n. 70. Benedict. Cap [...]a. Thesaur. com. op. verb. leges. fol. (mihi) 4 [...]3. n. 23., otherwise the Ciuill law being contradicted by the Ecclesiastical law, ought to be silent in the Ecclesiasticall courtd. c. 1. de no. op. nun. gloss. in c. 2. de arb. lib. 6. Arc. in d. c. clerici de iudic. extra. quae sen­sentia communiter approbatur, teste Be­nedict. Capra. vbi [...]pra.

And forasmuch as these foresaide lawes, haue not as yet beene viewed, searched, or otherwise ordered or determined by xxxij. persons, or the more part of them, according to the forme and effect of the fore­saide act of Parliament: which thing neuerthe­lesse hath beene (I confesse) attemptedVide licet, per Gualt. Haddon, legum Doc­torem consul [...]. (& omnium quos vnquā tulit Anglia legistarū dis [...]simum. lib. de Reformatione legum ecclesiastic., yet not so sully effected, but may bee and that shortly if God vouchsafe prosperous successe to that notable and pro­fitable worke of that graue and learned man Doctor Percie, now well towardes accomplishment.) By oc­casion of which defect of the viewe, examination, or­der, or determination of the saide two and thirtie per­sons, those Ciuill and Ecclesiasticall lawes testamenta­rie not repugnant to the lawes, statutes and customes of this Realme, are yet (euen as hither to they haue beene) scattered and dispersed here and there, and secretly hidden from the subiects of this realme in corners of many bookes of straunge Countries, and forreine language, intangled also and incombred with long dis­courses of farre different argument, and no lesse num­ber of lawes vtterly impertinent to the gouernment of this common wealth: so that the knowledge thereof [...] [Page] fewe in comparison of the rest, whom otherwise I might happily benefite: Albeit I had once begunne, and laid the foundation of the whole tract, in such tearmes as I found it deliuered by others, preferring publique commoditie before particular vtilitie, or mine owne commendation (in case it be lesse commendable, rather to seeke the benefite of the common wealth, then to hunt after priuate praise) I did easily alter my former purpose.

That lawes transformed from their natural shape, must needs in some sort be either damnified or disgra­ced, I do not thinke to be perpetually true: But if it be a thing so necessarily incident to all translations, that it cannot be auoided, it ought therefore to be the rather tolerated.

Sufficeth it therefore these Latin Iustinianists, that those marginall notes especially proper to their studies, be left in Latin: The rest, because it belon­geth to all, meete it is that it be written in such a language, as may be vnderstood of all.

Inter causam sinalem & impulsiuam quid in­terest praeclare Tira­quellus in regulam cessante causa, &c. limitac. prima.Thus (courteous reader) I haue discoursed vnto thee, the end wherefore I vndertooke this labour, the cause which mooued me so to do, and wherefore I haue published the same in the vulgare tongue. Now it re­steth that I craue thy fauourable acceptance of my good will, and endeuour, which if thou shalt vouchsafe to bestow, I shall not onely thinke my selfe sufficiently re­compensed but greatly enriched.

Thine most willingly to his vttermost power, Henry Swinburne.

The principall parts of this Booke.

BEing at last resolued (in regard of the benefite of this common wealth) to set forth this treatise of te­staments in our vulgar tongue, I thought it meete that the methode should be suteable to the stile: that is to say, plaine and familiar. Whereupon it seemed vnto me most conuenient, to distribute the whole treatise into these parts following.

  • 1 In the first part is shewed what a testament or last will is: and how manie kindes of te­staments there be.
  • 2 In the second part is declared what persons may make a testament, and who may not.
  • 3 In the third part, what things, and how much may be disposed by will.
  • 4 In the fourth part, how or in what maner te­staments or last wils are to be made.
  • 5 In the fift part, what persons may be appoin­ted Executors, and who be incapable of an executorship or legacie.
  • 6 In the sixt part, is set downe the office of an executor.
  • 7 In the last part is examined by what meanes testaments or last willes become voide.

THE FIRST PARTE OF THIS TESTAMEN­TARIE TREATISE. WHEREIN IS SHEWED WHAT is a Testament or last Will, & how many kinds of Testaments there be.

The Paragraphes, or Chapters of the first parte of this Treatise.
  • WHether a Testament, and a last will, be both one thing, and of the manifolde signification of this word Testament §. 1.
  • The definition of a Te­stament §. 2.
  • An exposition of the same definition §. 3.
  • The definition of a last will §. 4.
  • The definition of a Codicill §. 5.
  • The definition of a Legacie §. 6.
  • The definition of a gift in regarde, or because of death §. 7.
  • The diuision of Testaments §. 8.
  • [Page]Of a solemne Testament §. 9.
  • Of an vnsolemne Testament §. 10.
  • Of a written Testament §. 11.
  • Of a nuncupatiue Testament §. 12.
  • Of priuiledged Testaments §. 13.
  • Of a militarie Testament §. 14.
  • Of the fathers Testament amongst his children §. 15.
  • Of a Testament ad pias causas §. 16.
  • Of vnpriuiledged Testaments §. 17.

A briefe Treatise of Testaments, and last Willes, &c. The first part of this treatise.
Whether a Testament and last Will be both one thing, and of the manifould Accep­tance of the word Testament.
§. j.

1 NO vse of solemne testaments heere in Eng­land.

2 A testament and a last will haue diuers de­finitions.

3 Testament, taken generally and specially.

4 The generall signification of this word Testament.

5 Testament, taken generally, doth not differ from a last will.

6 Last Will, is a generall word, comprehending all kindes both of last willes and Testaments.

7 A Testament, according to the definition thereof, is one kind of last will, viz. wherein an Execu­tor is named.

IT may seeme, that a testament and a last will be both one thing, and that there is no difference be­twixt the one and the o­ther, at least heere in Eng­land; [Page] because wee † haue no necessarie vseTract. de repub. Ang. lib. 3. cap. 7. Lindewood in c. statutum verb. pro­batis. Tit. de Testam. lib. 3. prouincial. constit. cant. Bracton, de legib. & consuetud. Angl. lib. 2. c. 26. verb. sieri autem. Haddon lib. de reforma. Legum eccl [...]siast. Angl. Tit. de Testa. ca. 2. Pec­kius in c. priuilegium de reg. iur. 6. of 1 those solemne testaments, in the making wher­of, the presence of vij. witnesses, together with the obseruation of many moe ceremonies, is necessarily requisite by the Ciuill lawe.L. Hac. consultissima C. de Testa. §. sed cum paulatim Instit. de Testa. ordin. & infr. ead. part. §. ix.

On the contrary, it seemeth that they are not both one; partely because they haue diuerse names, which doth import diuersitie of things;L. si idem C. de Co­dicil. especially because † they haue differēt defi­nitiōs: 2 for it is receiued for an infallible Axiome, that the definitions being different, the things defined are diuerse.Euerar. & Olden. lo­co. a definitione. As for the former rea­son, it may be thus answered. That albeit our Testaments be vnsolemne; yet it doth not fol­low that therefore we haue no testaments, or that our testaments are therefore meere last willes. For an vnsolemne testament is a testa­ment, and that properlie or in strict interpreta­tion, as hereafter shall be confirmed, when wee shall speake of vnsolemne testaments.Infrae ead. part. §. x. And so the conclusion seemeth rather necessary then probable, that a testament and a last will are not both one, but different. Notwithstanding, this conclusion is not simply or perpetually true, for in some respects they are both one, though in other respects they differ.

Vnderstand therefore, that † a testament may 3 be taken two manner of wayes; largely, and strictly.Bar. in L j. C. de saer sanc. ecclesiast. col. pen. Gloss. in L. j. ff. de Test. It is said † to be taken largely or ge­nerally, 4 when the signification of the bare name or word Testament, (which in Latin is Testa­mentum) is had in consideration.Gloss. & DD. in d. j. ff. de Testa. This word Testamentum, is as much as Testatio mentis, Lib. 2. instit. Tit. de Testa. ord. in princ. [Page 3] that is to say, a testifying or witnessing of the minde. So writeth the worthy Emperour Iusti­nian, after Sulpitius, Couar. in Rub. de Test. ord. ex j. par. n. 1. Which deduction others (without cause I cōfesse, yet not without scofs) doe sharply reprehend.Nempe Aul Gel. & Lau. Valla, acerrimus Latinae linguae asser­tor, qui hanc deductio­nē libero ore de [...]ident: ille li. 6. c. 12. hic li. eleg. 6. c. 3. Quòd (vt aiunt) nō magis dicatur testamentū a mēte, quā cal­c [...]amentū, quā salsa [...]ē ­tum quā ornamētū &c As though forsooth, Iustinian or Sulpitius, had contended to deliuer the very Etymologie of the worde Testament, and not a certaine Allusion rather of the voice 5 onely.Ita enim conantur hanc notam excusare. Alciatus in L. Tabernae ff. de verb. fig. Couar. in d. rub. de test. ex. j. part. n. 2. Inter Etimologiam ve [...]o & allusionem hoc interest, quòd illa in verb [...] veritate radicata rem ipsam potius quā vocem interpretatur. Ista nuda quadam vo­cabuli similitudine cō ­tenta, vocem magis quam rem refert. Oldē & Euerard. loco. ab E­timolog. When this † word Testament is vtte­red in this generall sence, it differeth not from a last will;Bar. in l. j. C. de sa­san. eccle. col. pē. Bal. in L. omne verbum C. Com. de leg. & Lindw. in c. statutum verb. vlt. vol. de test. l. 3. Prouin­cial. constit, cant. and any last will, be it a Codicill, or other kinde, may bee so tearmed a Testament, that is to say, a testifying, or declaring of the minde.Glos. in l. 2. de con­stitu. Pecu C. Bar. Bal. & Lind. vbi supr. And hence it is that not only in our speach, but in our writinges also, wee vse the tearmes of Testament and Last will, indifferently, or one for another.

It is taken strictly, when it is accepted accor­ding to that definition inuented by Vlpianus, L. j. ff. de Testam. hereafter ensuing§. Prox. and being taken in that sence, it differeth from a last will,DD post. glos. in d. l j. ff. de testam. yet not as opposite thereunto, but as the speciall differeth from the generall, DD. vbi. supr. for euery Testament is a last will, but euery last will is not a Testament. 6 To speake more plainly thus they differ, A † last will is a generall word, and agreeth to euery se­ueral kind of last will or testamēt:Mantic. de cōiect. vlt. vol l. 1. tit. [...], vbi tradit quinque species vlt. vol quarum prima est testamentum. Simo de praet. de interp. vlt. vol lib. 2. dub. j. sol. 9. & Phi [...]. Frāc. in Rub. de test. lib. 6. qui lecis praedictis alias insuper species referūt. But a testa­ment 7 † properly vnderstoode, is one kinde of last will, euen that wherein Executor is named. For by the naming of an Executor it differeth from the rest.infr. §. 3. n. 19.

The definition of a Testament.
§. ij.

1 What a Testament is.

2 The definition of a Testament vnworthely re­prehended.

A Testament † is defined after this manner: 1 Testamentum est voluntatis nostrae iusta sen­tentia, de eo quod quis post mortem suam fieri voluit. L. j. de Test. ff. A testament is a iust sentence of our will; touching that we would haue done after our death.

Some † there be, who do censure this excel­lent 2 definition to be defectiue,Accurs. & Paul. de eastr in d. l. j though vn­worthelie,Quam viz. definiti­onem. vtpote perfectis­simam, nemini licere in controuersiam reuo­care, refert Michael Grass. Thesaur. com. op §. Testam q j. (but nothing can content a curi­ous head) whose error is detected, and the defi­nition susteined in the expositiō following.nf. § prox. n. 19.

A briefe exposition of the former Definition.
§. iij.

1 Definitions dangerous in Law.

2 The cause of this danger.

3 It is rare if the definition be so iust that it cannot be ouerthrowen.

4 A iust or perfect definition profitable to many pur­poses.

5 The occasion of this exposition.

6 Iuste, hath diuers significations.

7 Iuste, opposed to that which is wicked.

8 The Testator may not command any thing against iustice or equitie, &c.

[Page 4] 9 Iuste, taken for full, or perfect.

10 The testament must not be vnperfect.

11 Imperfection testamentary twofolde.

12 Testament vnperfect in respect of solemnitie.

13 What solemnities be requisite in making of Te­staments.

14 Testament vnperfect in respect of will.

15 Whether the testamēt being vnperfect in respect of will; be voyde.

16 A further meaning by the worde Iuste, being taken for perfect.

17 Euerie perfect will is not a perfect Testament.

18 Their error detected who reprehende this Defi­nition.

19 What maketh a testament to differ from other kindes of last willes.

20 Of the manifolde signification of this word Sen­tence.

21 Testaments ought to be made with deliberation.

22 Such as haue not the vse of reason, cannot make a Testament.

23 Vnaduised speeches make not a testament.

24 How it may be proued that the Testator had ani­mum testandi.

25 Boasting wordes doe not dispose.

26 Two kindes of iudiciall sentences, Interlocutory and Diffinitiue.

27 Contrarie effects of these two sentences.

28 Testaments compared sometimes to an Interlo­cutorie sentence, sometime to a Diffinitiue.

29 The will of the testator, the gouernor of the testa­ment.

30 The meaning of the testator is to be sought dili­gently, [Page] and kept faithfully.

31 Meaning to be preferred before words.

32 Feare and fraud make voyde the testament.

33 The Testator must be sui iuris.

34 The testament not to be referred to another mans will.

35 How a testament doeth differ from other sentēces.

36 The Testament is of no force vntill the Testator be dead.

DEfinitions † are saide to be dangerous in 1 lawe,L. omnis diffinitio de reg. iur. ff. vbi Accur. cum suis sequacibus, definitionē pro regula sumendā putauit. Sed probabilior mihi vide­tur Cagnoli, & aliorū opinio, quòd lex ista loquitur dedefinitione propriè & dialecticè sumptâ. the cause † may be attributed to 2 the multitude of different cases,L. neque L. nō pos­sunt ff. de Legil us. the penurie of apt wordes,L 4. de praef. ver. ff. the weakenes of our vnderstanding,L 2. C. de vet. in enu­cl. macagnanus. de cō ­muni opinione in prin. and the contrarietie of opi­nions.c. quia diuersitatē in prin. de cōces. praeben. ex [...]r. For happely amongest such a­boundant varietie of thinges, either we cannot discerne the true essence thereof,Id quod [...]emo non fatetur esse difficillimū Dec. Cagnol. & alij in d. L. omnis diffinitio. or we doo not aptly deliuer what we conceaue,Quū plura sint ne­gotia quam vocabula. l. [...]. de praescrip. verb. F. or els these perils being past, at least in our owne opi­nions, yet are we still subiect to the rigorous ex­amination of all sorts of men, and must abide the doubtfull verdict of the sharpest wittes, and endure the dreadfull sentence of the deepest iudgements.L. 1. §. j. ff. de dolo. DD. in Rub Sol. matr. ff. Sane vt mirum sit videre, & ibi, & passim alibi, quomodo pugnāt inter se hommes doctissimi in definiend s. tebus. And † it is rareQuod autē sic scribitur. (Parum est &c.) in d. l. omnis di [...]finitio. sic legitur a Budeo (Rarum est) quae lectio faciliùs suaderi potest, quum aliàs maneat sermo subobsentus. if at the last; 3 after long and superstitious reuolution, one man at least among so many subtile heads, and captious conceits, doe not espie some defect or excesse in the definition, wherby the same may [Page 5] be subuerted.Mantic. de con­iect. vlt. vol. lib. j. tit. 4. in fin. Which thing if it come to pas, then like as when the captain is slaine, the soul­diers are in danger to be discomfited; or as the foundation being ruinous, the building is in perill of falling: So the definition being ouer­throwen, all the arguments drawen frō thence, and whatsoeuer els dependeth thereupon, is in perill to be ouerturned.Quod si definitionē pro regula intelligen­dam sentias cū Accur­sio, vnde quaeso illa ma­gna periclitatio sub­uersionis? Este enim tot quasi milites occidi quot patiatur excep­tiones regula. At horū dux interim (nempe ipsa regula) non ideo prosternitur, immo fir­mat exceptio regulam in non exceptis, ita vt probè cōtra seipsū hac similitudine fretus dis­putat Accursius, dum admoneat vt quisque stet firmus regulae, ve­lut Bononiensis Ca [...]o­ [...]io, licet aliqui capian­tur de eius custodibus: Et sic licet aliqui ca­sus a regula subtra­hantur, respondeatur (inquit) hoc esse speci­ale, & sic regula erit fir­ma in nō exceptis. Haec ille in gloss. in d. L. om­nis diffinitio. Quod nihil aliud est quam si dixisset, Regula laedi quidem potest, subuerti non potest. Quare quum definitio de qua hic agitur, adeo sit subiecta periculo, vt omnino subuerti possit, certè non magis erit regula, quàm illud nescio quod (Carolum Bononiense) est defini­tio. No maruell then if definitions be reported to be dangerous.

But if contrarie to the common course, the 4 definition be so iust, so perfect, that it cannot be iustly reproued,Nempe quòd singulos complexa casus conuertatur cum definito. Id quod vel neces­sarium esse ad constituendam legitimam definionē contendit acriter Cagnolus, contra cōmunem, immo negans contrariam esse cōmunem. in d. L omnis diffinitio. this † definition, besides that it is not perilous, it is so profitable, and so necessarie, that from thence as from the roote, and fountaine, euery discourse ought take his beginning;Cic. lib. j. offic. quod tamen Cagnolus intelligit de definitione Nominis, non Rei. Cuius si vera sit opinio, & nos id ipsum obseruauimus, dum quid, & quot uplex sit haec vox Testamentum superiùs tradidimus. the rather, for that thereby (amongst many other benefites issuing from the definition,Vt argumentationes, quae saepissimè a definitione deducuntur, quarum quanta sit vis & vtilitas, copiose & eleganter Olden. Topic. legal. loco a defini­tione. the whol nature or substance of the thing defined, (which otherwise for the aboundance of the matter thereto belonging may seeme infinite) is plainly declared, and that in fewe wordes.Gloss. & DD. maxime Cagnol. in d. L. omnis diffinitio. Euerard. loco a defi­nitione.

5 Now therefore † lest this notable and most [Page] absolute definitionQuā Alciatus sub­stantialem appellat. li. 9. parergon. c. 2. perfec­tam Bartolus in [...] j. de de testa ff. immo per­fectissimam, nec in cō ­trouersiam reuocandā dicit Grass. d. §. testā. q. t. of a testament aboue de­liuered, not being rightly vnderstoode, might seeme either more dangerous, or lesse commo­dious then it deserueth; I thought it expedient to adde this exposition following.

First, whereas a testament is defined to be a Iust Sentence, we are to consider that this † word 6 Iust, hath diuers significations in the law. Some­times † it is opposed to that which is wicked or 7 repugnant to iustice, equitie, and to good and wholesome manners.Sūma Hostiēs. tit. de testa. §. quid sit. Sichar. in Rub. de testa. C. n. 2. Being taken † in this 8 sence, it geueth vs to vnderstand, that the testa­tor cannot commaunde any thing that is wic­ked, or against iustice, pietie, equitie, honestie, &c.L. Nemo de leg j. L filius de cond. inst. ff. Bar. in d L. j. de testa. n 3. de Rebuff. in L. iusta. ff de verb. sig. fol. 888. For thinges vnlawfull are also reputed impossible: and therefore if the testator should commaund any such thing in his testamēt, the same were not to be obserued.L. conditiones L. fi­lius de cond. instit. ff. Summa Hostiens. d. tit. de testa §. quid sit & Rebus. in d. L. iusta. As if he shold wil any man to be murthered; for this is against the law of God:Exod. c. 20. or if he should commaunde his body to be cast into the riuer, for this is a­gainst humanitie;Quidam ff. de cōd. instit. Sichard. in Rub. de testa. n. 2. C. or if he should command his goods to be burned, for this is against poli­cie;Expedit enim Rei­pub. ne quis re sua malè vtatur, §. sed & maior. instit. De his qui sui, vel al iu [...]. or if he should commaunde any ridicu­lous acte, or preiudiciall onely to his owne cre­dite and dignitie; as if he should will his buriall or funerals to be solemnised with May-games, or Morrice daunces, for this were to manifest his follie, or at least to make question whether he were of sound minde and memorie.d. L. quidam & L. conditiones, el 1. & 2. ff de cond inst. Sichard. in d. Rub. de testa. C. Cast [...]ens. in L. Non o­portet. C. de his qui­bus vt indig. In these and the like cases the Executor in not per­forming the commaundements or requests of the testator is not onely holden excused, but is [Page 6] highly commended.d. l. quidā & ibi Ang. Paul. de castr. & alij, & videas etiam Mantic. de Coniect. vlt. vol. li 2. tit. 5. n. 9.

9 Furthermore † this worde Iust, is sometimes taken for full or perfect: Bar. in d. L. j ff. de testa Sichard. in Rub. de testa. C. Couar. in Rub. de testa ext prim. part. So wee say, when a woman hath gone her full time with childe, (which is cōmonly nine moneths,)Tiraquel. in Rep. L. si vnquam. C. de reuoc. dona. verb. susceperit. vbi non minus elegan­ter quam diligenter docet, quamdiu mulier vterum ferre valeat. that she hath gone her iust time. So wee vse to say iust age for full and perfect age,L. Filius-familias. de leg. 3. ff. Rebuss. in L iusta. de verb sig. and so, iuste waight, iust measure, iust number; for full and 10 perfect waight, measure, number.Couar. in Rub. de test. ext. pri. part. n. 4 c­iusd. farinae estquod ibi dicitur, Iustus exerci­tus, iusta classis, iusta pugna, iustae stationes, iustū volumen, iustus error, &c. Adde quod scribit Minsing. in Rub L. de testa. lib 2. institu. iur. Ciuil. The † word Iuste, being thus vnderstoode, that is to say, for full and perfect, all testamentarie defectes and imperfections, are thereby excluded. Wherfore the testament ought to be full compleate and perfect; otherwise being an vnperfect testamēt, it is said to be no testaments.§. Ex eo instit. Qui­bus mod. test. infir.

11 The † testament is said to be imperfect in two respects, vz. in respect of Solemnitie, and in 12 respect of Will or meaning.Bar. & alij in L. hac consultissima. §. ex im­perfecto. C, de testa. Boer. decis 240. The † testament is imperfect in respect of solemnitie, wherein some of the Legall requisites, necessarie in the making of a testament, be wanting.Sichard. in d. §. ex imperfecto. Hereup­on diuers writers, haue interpreted the worde Iust in this definition to signifie Solemne, Viglius in tit. de te­sta ord. inst. n. 29. Mins. eod. n. 5. Sichard. in Rub. de testa. C. n. 2. that is to say, furnished with such due rites and for­malities, 13 as the law requireth. Howbeit † all the superfluous solemnities of the Ciuill lawe, are vanished out of this kingdome of Englande. Onely those solemnities remaine which be Iu­ris Gentium. Infr. ead parte. §. 9 So that with vs it is sufficient, to the effect of executing the testament, that the will and minde of the Testator doe appeare, by two sufficient witnesses [...] Lindw. in stat [...] ­tum verb. proba. de te­sta. lib 3. prouincial. constit. cant.: Sauing where landes, tenements, and hereditaments are deuised: for [Page] then the solemnitie of writing is also necessarie, and that to be done, in the life time of the te­stator.Stat H. 8. an. 32. c. prim. The † testament is saide to be imper­fect 14 in respect of will, which the testator hath begun, but cannot finish as he would.Bar. Sichard. & alij in L. Hac consultissi­ma §. ex imperfecto. C de testa. L. si quis ita. ff. eod. tit. L. furios. C. qui testa. fac. pos. If ther­fore † whiles the testator is in making his will, 15 and whiles hee yet intendeth to proceede fur­ther at that present, either by adding or dimi­nishing any thing to or from his testament, or by altering any thing therein, (as commonly men do vse to put in, put out, and change ma­ny things before they make an ende,)Iul. Clar. §. testam. q. 7. in fin. he be sodainly stricken with sicknes, insanity of mind, or other impediment, whereby he cannot then finish, or perfect the same, as he would, and so die: This his testament, being imperfect in re­spect of will, is therefore voyde, euen touching that which was done, which he did intend then to alter, before he had made an endd L. si is qui, & L. iuriosū Ias. & Sichard. in L. pen. de Inst. & sub. C.; by rea­son of the defect of the testators consent, with­out which the testament is not of any value.Sichard in d. L. hac consultissima. § ex im­perfecto de testa. C. n. 2. Neuertheles, not euery testamēt which is tear­med imperfect in respect of will, is by and by wholy of no force, for in many cases, yea and for the most part, such testaments are effectual, for so much as is already doone, as elswhere more aboundantly is confirmed.Infr. parte prim. § [...].

There is yet † also a further mysterie, or se­crete 16 meaning included in this word Iuste, in that it doeth signifie full or perfect, which mea­ning is this: That the testament ought to be compleate, not onely in respect of solemnitie, and of will, as is aforesayd: but also that it ought [Page 7] to be perfect in this respect especially, that ther­is no want of any thing, which is necessary to the constitution, and denomination of a testa­mentBar. in L. j. de testa. ff. Viglius & Minsing. in tit. de testa. ordin. in princ Alciatus in L. Tabernae de verb. sig. ff. Couar. in Rub. de test. extr.. 17 For if † it doe conteine onely a perfect declaration of the testators will, and want that which is requisite to make it a testament, it may well be tearmed a perfect will, (for a Codicill, a Legacie, a gifte in respect of death, &c. they are all perfect in their kinde:)Paul. de castr. in d. L j. de testa. ff. Nec ideo Musca dicitur imper­fectum animal quod sit minor Elephante. inquit Couar. in Rub. de test. extr. j part. n 3. But it cannot be tearmed a testament, much lesse a perfect te­stament.Bar. in d. L j. de testa. ff. Minsing. in d. tit. de testa. ord. 18 This † singular sence and signification of the word iust because some interpreters did not perfectlie apprehend, they did reprehend the definition, as not perfecte nor conuertible with a testament: that is to say, not agreeable to a testament alone, but common to euery kinde of last will:Accurs. & Paul. de castr. in d. L. j. de test. ff. for that they also were perfect euery of them in their seuerall kind.Paul. de casti. in d. L. pri. Wherin neuerthelesse they were deceiued, for the per­fection that is here meant, is an absolut perfec­tion, such as none other last will hath but one­ly a testament, euen that perfection that giueth both name, and nature to a testament.Bar. (omniū Legi­starum facillime prin­ceps) Bald. Ange. Imol. Aretin. in d L. j. de test. ff. Porcus Viglius Min­sing Inst. de testa. ordi. Vasq. de succes. crea. lib. j in prin. n. 26. So that the defect was not in the definition, but in their vnderstanding. To conculde therfore, this perfection specially being here vnderstood by this word iust, which is proper and peculier to a testament, the definition remaineth irrepre­hensible, and is agreeable to a testament only; excluding both Codicil, Legacie, gift in regard of death, & euery other kind of last will,Bar. in d. L. prim. de testa ff. Viglius & Min­sing in d. tit. de tes. a. ordin. Instit. Couar. in Rub. de testa. extr. part. prim. ha­uing euery thing, and wanting nothing, which appertaineth to the essence of a testament.Mantic. de coniect. vlt vol. lib j. tit. 4. n. 10, Grass. Thesaur. com. op. §. testa. q. j. Couar. in Rub de testa extr n. 14. 3. & 4. sup. §. in sin.

Now † if you will aske me what kind of per­fection 1 or what speciall thing this is, without the which the will howe perfect soeuer other­wise, is no testament. I haue tould it before.Supr. §. j. in sin. It is the naming or appointing of an ExecutorL. pri. de haered. inst. L. pri. de vulg. & pup. sub. L. Haeredes pa [...]ā de test. L. quod per manus de Cod. cil. il. § ante in­stitut. de Lega. Bractō. de leg. & cons [...]et. Ang. lib. 2 c. 26. Brooke A­bridg tit. test. n. 20. Plowden in casu inter Greisbrook & Fox, & plenius inf. part. 4. § 2.. (Who in the ciuill Lawe is called Haeres heire)d. § ante insti. de leg. Haddon de refor. leg ecclesiast. Angl. Doct. & Stud. lib. [...]. c. 11 trac. de repub. Ang li. 3 c. 9. ita vt Executor testa­mētarius iure quo nos vtimur non tàm re q̄ nomine dissert ab eo quem ius ciuile nūcu­pat haeredē infr. 6. par.. This is said to be the foundation, the substance, the headd. § ante instit. de de lega. and is in deede the true formall cause of the testament,Wesen. in paratit de test. ff. without which a will is no proper testament,L. quod per manus ff. de Codicil. Brooke. Abridg. tit. testa. n. 20. Plowden in casu inter Greisbrook & Fox, fol. 276 Haddon. vbi supr. and by the which onely the will is made a testa­mentVide infr. part. 4. §§ 1. 2..

Sentence, this word † sentence is a general word, 2 and hath many significations, it is sometimes taken for a short pithy saying of a graue or wise man.Cuius generis sunt sententiae Ciceronis, Prouerbia Salomonis, & altorum hominum cùm Philosophorum, tùm Theo­logorum, dicta memorabilia. It is sometimes taken for a decree pronounced by the Iudge,Paul. de castr. Lancel. Doc. in L. j. de testa. ff. and in other pla­ces it is otherwise taken.Veluti pro opinione, pro persuasio­ne, Coratius de com. opin. in princ. Dictionar Calepin. verb. Sententia. Quandoque su­mitur pro pa [...]na a iure inflicta. Franc. in c. s n. de constit. 6. in fin. It is taken in thys place, for an aduised purpose, or destination of the testators mind,Iusta sententia quid significet, breuissimè & elegantissimè (vt semper solet) ae quissimus ille iutis interpres Iohannes Oldendorpius, Hoc est (inquit) vera, ac omnibus modis absoluta animi desti­natio, quam si ad alias in vita deliberationes conseras, longè excellit omnes. De action. class. [...]. in princ. which purpose or desti­nation of mind being reduced into act, (other­wise reteined within the compasse of sole cogi­tation, it is no testament)Quod fortassè fuit in causa, quòd Anglus quidam vertendo di­ctam definitionem à latino idiomate in vulgare nostrum sic transtulit, Iustam sententiam A true declaration. Termes of Law. Verb. Testamēt. is termed a sentence by a certaine excellencie:Couar. in Rub. de test. ext. j. par. n. 4 because in † our te­stamentes, 3 [Page 8] wee should shewe our selues both wise and iust; representing as it were the per­sons 5 of graue men, and of iust Iudges. And † certainelie if al the actions of this life ought to be performed with wisedome, and constancie; if nothing ought to be attempted without care­full consideracion, and due premeditationCic. lib. 1. offic.. How much more ought the last acte of our life, our farewel to the world, the memoriall of our immortality,Olden. de action. class. 5. in prin. euen our testamentes and last wils, to be framed with deliberation, seaso­ned with discretion, & builded vpon sound and constant determination:Adde quod quae viu [...] facimus dicimusu [...], ea aliquando non magni sunt momēti, & si quid displiceat obuia nobis sunt emendandi reme­dia & formulae; verùm quod in causam mor­tis destinamus, id ita proponimus, vt post hanc vitam nunquam mutari velimus. Old. vbi supr. without the which it hath neither shape, nor sauour, of a testa­ment; nor is able to stande for a testament, when it shalbe tried or prooued in the forme of LawConsule Socin. Iun. cons. 179. vol. 2. Hotto. cons. 5. vol. j. Hyero. Franc. in L. quicquid de reg. iur. ff..

Seeing then euery testament is a sentence, we 6 may note diuers thinges. First that † such per­sonnes as haue not the vse of reason or vnder­standing, as madde folkes, or idiots, are iustlye excluded from making of testamentes,Vide inf. part. 2. § §. 2 3. 4 5. & 6. for their deuises being full of folly, theyr deedes must needes be voyd of discretion, and their wittes being sencelesse, their wordes are vtter­ly vnworthy the name of a sentence; howsoe­uer sometimes, more by chaunce then by cun­ning, they may seeme to speake wisely.Ias. & Dec. in L suri­osi C. de testa cōtra Io. Andr. Panor. & alios in c. ad nostram de con­suetud. ext. cum tēpe­rament. tamen vt insi. 2. part, § 4.

7 Secondly, † that albeit the testator be of per­fect mind & memory, neuer thelesse if he speake any thing, eyther vnaduisedly, or incidently, as if a man when he is in perfect health, being de­maunded who shall be his executor, or haue [Page] his goods after his death; (which question is very common amongst familiars) and he forth with nameth some person, whom he saith hee‘wil make his executor, or to whom he wil leaue his goods after his death. This is not to be ta­ken for a testament or last will,’ neither is that person named to be admitted Executor, nor to 24 haue his goodsL. Lucius L. Diuus de mil. testa. ff. § plane instit. de mil. testa. Soc. iun. consil, 179. vol. 2. quod videas velim & perlegas diligenter.: vnlesse it be † proued, that the testator at the time when the words were spo­ken, had Animum Testandi, that is to say, a mind or purpose then and thereby to make his testa­ment or last will. Which minde and purpose must bee prooued by circumstauncesMenoc. de Arb. iud. casu 496. vbi copiose respondit, quae & quot coniecturae sufficiant., (for words alone are not sufficiētGloss. in § plane In­stit. de testa mil. Hot­tom. cons. 5. vol. j.: as that he fra­med 25 or settled himselfe seriously to the making of his last will; beeing then perhaps verie sicke, or requiring them which were present to beare witnesse of his willGloss & DD. iud. L. Diuus Menoch. in d. cas. 496. & plenius infr. part. 7. § 13. &c. Otherwise euen as the opinion of a Iudge, being deliuered priuat­ly, or extraiudicially, touching the euent of any sute, is but a praediction of that which is likelie to ensue, and not the sentence it selfe, or finall iudgement whereby the controuersie is deci­dedL. ex stipulatione C. de senten. & interlocu. Sprigel. Lexic. verb. sentent., (which sentence ought to be pronoun­ced iudicially, after dewe examination of the causeBar. & alij in d. L. ex stipulatione. Vantius Nullita. vz. ex defect. process. n. 69.:) So when the testator doth only fore­tell, whom afterwardes or at some other time, he dooth intend to make his executor, or to leaue his goods vnto; This is but a significati­on of a future acte,Paris. consil. 24. lib. 3 n. 10. and so not the testament it selfe, wherein is required present and perfect consentHottoman. de con­sil. 5. Corne. cons. 149. vol. [...].. Much lesse is that to be taken for a testament, when as any man rashely, bostingly, [Page 9] or iestingly, affirmeth that he will make this or that mā his executor, whē he hath no meaning at all, neither at that time, nor any other tyme to make him executorAlciat. par e [...]g. lib. 2. c. 12. Paris. consil. 127. vol. i. n. 40. 41. Hyero. Franc. in L. quicquid de reg. tur. ff. n. j.. For without mea­ning, or consent of minde, the testament is al­together without life; and is no more a testa­ment, then a painted Lion, is a Lion.

Thirdly by this that a testament is tearmed a sentence, there is a further consideracion offe­red to our vnderstanding, in respect of the ana­logy, betwixt a iudicial sentence & a testament. 26 Of Iudiciall † sentences there bee two sortes, the one interlocutory, the other definitiue Tit. de sent. & interl. om. lud. C.. An interlocutory sentence, is a decree giuen by the iudge, betwixte the beginning and ending of the cause, touching some incident or emergent questionSpecul. de sentent. § species.. A definitiue sentence is a finall de­cree, whereby the principall cause and contro­uersie is decided, in condemning or absoluing 27 the party conuentedSpecul. vbi supra.: These † two sentences, haue these two cōtrary effects. The one one of thē, that is to say, the sentence interlocutorie, may be reuoked at any time so longe as the principall cause dependeth vndecidedL. quod instit. ff. de re. iud. c. cum cessante de app. extr. L. si quis iusiur and. § sin. C. de reb. cred.. But the sentence 28 definitiue cannot be reuokedL. Iudex de re. iud. I. de quaestion. ff. L. j. de rescind. sen. C. Rebuss. in d. L. quod iussit, vbi multifariam limitat v­tramque conclusionē.. The † testa­ment of any man, so long as he liueth, may bee compared to a sentence interlocutory. For it maie be reuoked or altered at any time, and as oft as the testator will, whiles he liueth, euen vntil the last breath:L. 4. de Adimen. leg. ff. c. Matth. c. de Caeleb. miss. ext. and of these the last will preuai­leth§ posteriore. Instit., Quib. mod. iest. infi [...].. But after his death, it is compared to a sentence definitiue d. c. Matth [...]., and as it cannot be reuoked by the dead man, so ought it not to be reuoked [Page] by any other, but obserued as a lawL. j. C. de sacrosanct. eccle., and ex­ecuted as the sentence of a IudgeO [...]den. de action. class. 5. in prin.. And they are to be punished that doe hinder the executi­on of the samec. Statut. de testa. lib. 3. prouinc. constit. cā [...]. c [...]st [...]t [...]i [...]nus eod. tit. lib prouincial. constitut. [...]b [...]r..

It followeth in the definition (of our will) con­cerning this worde will. It † is written, that the 2 will or meaning of the testator is the Queene or Empresse of the testament.S [...]chard. in R [...]b. de te [...]a. C. n. 2. in sin. Because the will dooth rule and gouerne the testament, en­large and restraine the testament, and in euerie respect moderate and direct the same,L. in con licionibus d [...] co [...]d. & de mon. L. si mihi § in legat. de leg. j. ff. and is in deede the very efficient cause thereof.Wesenb. i [...] tit. de te­sta. ff. The † will therefore and meaning of the testa­tor, 3 ought before all thinges to bee sought for diligently; and being found ought in any wise to be obserued faithfully,Vide infr. par. 4. §. 4. it ought to bee sought for as earnestly as the hunter seeketh his game:Bald in L. pen. de necess. haered. institu. C. Socin. Iun. cons. 144 vol. 2. n. 23. And † as to the sacred anker ought 4 the iudge to cleaue vnto it: Pondering not the words, but the meaning of the testator§ nostra instit. de le­ga. For although no man be presumed to thinke other­wise then hee speaketh,L. Labeo. § caeterum de sup leg. ff. (for the tongue is the vtterer or interpreter of the heart,We [...] ab. in tit. de verb. [...]ig [...]. yet cannot euery man vtter al that he thinketh, and therefore are his wordes subiecte to his mea­ning. And as the mind is before the voyce, (for we conceiue before we speake) so is it of grea­ter power; for the voyce is to the minde, as the seruant is to his Lord.d L. Labeo.

Where it is said in the definition of our will, the interpreters doe gather by this woorde our, that the testator ought to enioy all liberty, and freedome in the making of his will: that is to [Page 10] say full power and habilitie, to withstande all contradicton and countermaundMantic. de coniect. vlt. vol. lib j. tit. 3. n. 10. And there­fore 32 † if the testator be compelled by violence, or vrged by threatnings, to make his testament: the testament being made by iust feare, is vnef­fectuallL. j. Quod me. causa L. sin. Si quis aliquem testari prohib. ff. infr. part. [...]. § 2.. Likewise if hee bee circumuented by fraud, the testament loseth his forced. L fin. [...]i quis aliq. testari prohib. ff. & inf. par. 7. § 3: for albeit honest and modest intercession, or request, is not prohibited; yet these fraudulent and mali­cious meanes, whereby many are secretly in­duced to make their testamentes, are no lesse detestable then open forceOlden. de action. class. 5. in princ. & infr. part. j. § 3..

33 Moreouer by † occasion of the aforesayde wordes our will, the writers doe collect that the testator must be sui iuris, that is to say, a freeman, not in subiection, as bondmen and other lyke personnesL qui in potestate ff. de testa. & L si quae [...]a­mus eod., of whom mencion is made hereaf­terInf. part 2. § 7, 8, &c.: Which haue not liberty to make a testa­ment.

34 Likewise † by those wordes our will, are ex­cluded those willes which depend of an other mans willL. captatorias. C. de test. mil.. Wherfore if the testator should re­ferre his will to the will of another as if hee ‘should say. I giue thee leaue and auctority, to make my will; and to make executor for mee who thou wilt, &c.’ If here vpon thou didst make a will, in his name, and didst name an Ex­ecutor for him, yet this will is voyd in laweBar. in I. quidam. ff. de reb. dub. n. 7. Bald. in L. Executorem. C. de excep. rei iud n. 5. Io. And Gem. & Franc. in c. si patr. de testa. 6. Paris. consil. 38. vol. 3. n. 60. & inf. par. [...]. § 11.. For as thy soule is not my soule, so thy will is not my will, nor thy testament my testamentBald (qui nihil ig­norauit) & Angel. in L. captator. C. de mil. test. Paris. d. cons. 38 n. 40..

Furthermore by force of these wordes of our 35 will, the † testament being tearmed a sentence dif­fereth frō those other sentences which are not [Page] of will: that is to say, frō that sentence, which is the saying of some graue man: for that is not a sentence of will but of reasonPaul. de castr. in d. L. j. de testa. ff.; and frō the sen­tence of a iudge, for that is not a sentence of wil but of iusticePaul. de castr. & Lā ­cel. dec. in d. L. j. de te­sta.. And howsoeuer the testator may declare his sentēce, that is to say, his testamēt, as he willIn testame [...]tis stat pro ra [...]ione voluntas. Mantic. de coniect. vlt. vol. lib. 6. tit. 14. n. 2.: yet the Iudge may not pronounce his sentence as he willInstit. tit. de offic. Iud. in princ.: But he must iudge accor­ding to that which is alleadged and prouedL. illicitus. § veritas ff [...]e offic. praesidis., (although paraduenture as a priuate man, hee knowe the same to be vntrue) sauing in certain casesTu, si placeat, videas Io. Olden. aequis. iuris interp. Cora [...]. lib. 3. Mis­cel. c. 20. Couar. lib. 1. var. resoluc. c. [...]. Gentil. Disputac. vj. & genera­liter Legistas in d. L. Illicitus & Cannostas. in c. j. de offic. ord. extr., which because they are impertinent to this discourse, are not here to be handled.

It followeth in the definition touchinge that which we would haue don after our death. By which wordes, a testament differeth from all other sentences, proceeding from our will, and from whatsoeuer actions which take theyr effecte in the life time of the testatorPaul. de castr. in d. L. j. de testa. ff. Minsing. in t [...]t. de testa. ordin. Instit. Couar. in Rub. de testa. extr. part. j.. For † a testament 36 respecteth that, which is to be performed after the death of the testator, and therefore so long as he liueth, the testament is of no force; but dooth take his strength, and is confirmed by the testators deathL. 4. de Adim. leg. ff. c. Marth. r. de celeb. miss. extr.. By these wordes also wee may collect, the material and the finall cause of euery testament: Which thing because I haue more amplie enlarged hereafter, let this suffise which hath bene spoken; for a taste only of such fruite, as growe in this garden.

The Definition of a last will.
§. iiij.

1 What is a last will.

2 Wherein the definition of a last will doth agree, or [Page 11] differ with or from the definition of a testament.

3 Of the difference betwixt these two wordes Lawful and Iust.

4 Of the difference betwixt these two wordes Dispo­sition and sentence.

1 A Last will is thus defined. † Vltima vo­luntas est legittima dispositio, de eo quod quis post mortē fieri velit. Francis. Mantica de coniect. vlt. vol. lib. j. tit. 4. num. 10. A last wil, is a lawfull disposing of that which anie 2 would haue done after death. This † definition differeth not frō the definition of a testament, sauing in two wordes: that is to saye, in steede of iusta sentencia, a iust sentence, which is in the definition of a testament; here is ligitima disposi­tio, a lawfull disposingSupr. § 2. & § 3.. Now if wee shall consi­der the difference betwxit these wordes, iusta sententia, and legitima dispositio; then shall we vn­derstand the full difference, betwixt a last wyll and a testament, (eyther being vnderstood ac­cording to his difinition) for in the rest both the definitions doe agree, and that which hath beene or may be sayd of the one, may also bee verifyed of the other.

3 Lawfull † and iust, doe thus differ. This word lawfull hath not all the significations which bee included in the woorde iust. For albeit by this word lawfull, is excluded whatsoeuer is wicked, or whatsoeuer is contrary to iustice, pietie, or e­quity: or contrarye to good and wholesome manners, as well as by the word iust Spiegel Lexic. verb,. legitimum., And al­though [Page] the woord lawfull may also signifye so­lemne, or furnished with such due rites as lawe requireth,Gloss. in c. consan­guinei de sen. & re. iud. extr. as well as in the woord iust dooth, albeit also that the word lawfull in soome sence doe signifie perfectL. Certo §. vlt. de serui. rust. praed. verb. legitima latitudo., that is to saye, not wanting any thing which the testator ment to vtterSupra §. 3. n. 9.: yet it doeth not signifye perfect in such an excellent or speciall sence as doth the word iustMantic. de coniect. vlt. vol. lib. j. tit. [...]n 10.; that is to say, hauing such perfection, as is requisite for the forme of a testament, and is proper thereunto; namely the appointing of an Executor, by the which forme a testament dif­fereth from all other last willes of what kind so­euer they beSupra § 3. n. 19..

This word † dispositio is sometimes taken for 4 a qualitie of the minde, or vnperfect habit, that is to say, an inclination or affectionIo. Casus Oxon. tra­ctat. dialect. ij. part. c. 20. 21.. In this place it doeth signifye an acte proceeding from a firme purpose or resolutionMantic. de coniect. vlt. vol. lib. j. tit. 4., like as the word sentence in the former difinitionSupra § 3. n. 20.. And albeit this word sentence: seeme to insinuate a greater heede, or a more discreete consideration, to be taken in the disposing of that wee would haue doone after our death, then the nature of this word disposition doth inforce: Yet no last will is of any force, sine animo disponendi, no more then is the testament sine animo testandi Vide infr. par. j. § 13..

The definition of a Codicill.
§. v.

1 This word Codicill signifieth a little booke.

2 A Codicill rightly defined.

3 How the definition of a Codicill dooth agree, with [Page 12] the definition of a testament or differ from it?

4 The signification of the word iust in this definition of a Codicill.

5 A testament is called a great will, and a Codicill a little will.

6 A testament and a Codicill, compared to a ship and a boate.

7 Of the inuention of Codicilles.

8 Codicilles may be made in writing, or without wri­ting.

9 Codicilles may be made, either by him which hath made a testament, or which dieth intestate.

10 Who must pay the legacies giuen in a Codicill, by him which dieth intestate.

11 Codicills be reputed parte of the testament, whe­ther they be made after, or before the testament.

12 Codicilles and testamentes doe agree in the effici­ent cause: But they haue contrary effects.

1 COdicillus, a Codicil, is a diminutiue of Codex Codicillus à codice, Codex rursus dicitur à caudice, siquidem co­dex significat contex­tum tabularum quae priscis temporibus aptabantur cera ad scribendum, tametsi loco tabularum perga­meni & chartae com­modior successerit v­sus Olden. de action. class. quint: in princ. Spiegel. Lexi. verb. co­dicil., a booke. And so this † word Codicill beeing rather Latine then English, doeth signifye a little booke, or writing,Gloss. in Rub. inst. de codicil. the reason wherefore it is so called doeth straight wayes appeare.

A Codicill is diuersly defined of diuerse. In 2 my opinion it is † rightly defined after thisSic enim a pletisque definitur, vt sit vltima vo­luntas minus solennis absque haeredis institutione. Quae definitio vix arridet, vt qua vix intelligam, quî differat codicillus à legato, quum & istud videatur voluntas vltima absque haeredis institutione, nec magis solennis, nec minùs perfecta, quàm est codicil­lus. Paul. de castr. in L. j. de testa. ff. Couar. in Rub. de testa. ext. par. j. n. 3. [Page] manner. Codicillus est voluntatis nostrae iusta sen­tentia de eo quod quis post mortem suam fieri velit absque Executoris constitutione. Mantic. de coniect. vlt. vol. lib. 1. tit. 8. A Codicill is a iust sentence of our will, touching that which anie would haue done, after their death, with­out the appointing of an Executor. Which de­finition † doeth agree almost word for woorde 3 with the definition of a testament: sauing that some wordes are heere expressed, which are there omittedSupr. § ij., absque Executoris constitutione, without the appointment of an executor. By force of which wordes the Codicill is made to differ from a testament: for a testament can no more consist or be without an Executor, then a Codicill can admitte an ExecutorIntellige, directò, nā obliquè seu per fidei-commissum haereditas codicillis iure relin­quitur. § Codicillus instit. de Codicil. Adde Vasq. de success. creat. lib. 3. § 25. Vbi regula extat. Ampliationibus octo, & sex Limitac. ornata.. By the † 4 same wordes also is restrained that speciall sig­nifycation of the word iust, which in the defi­nition of a testament, importeth that singular perfection and proper forme, whereby a testa­ment differeth from all other kindes of willesDe qua supr. § 3. n. 19.. For here this word iust is not onlie destitute of that peculier sence: but it doeth not so much as signify solemne, or furnished with testamen­tarie rites or formalitiesMinsing. Instit. de Codicil.. For a Codicill is an vnsolemne last willGrass. Thesaur. com. op. § Codicil. in prin.. So that by the woord iust in this definition is excluded that which is vn­lawfull, and that perfection onelye included, which may stand with the nature of a CodicilDe cuius vocabuli significatione, supr. § 4. n 3.. Whereupon † the writers conferring a testa­ment 5 and a Codicill together, and perceiuing the oddes betwixt the one and the other, they call a testament a great will, and a codicill a lit­tle willAccurs. & alij in R [...]b. de codicil. Instit. Sichard. in Rub. de Codicil. C.. And doe † compare the testament to 6 [Page 13] a ship, and the Codicill to a boateDD. maxime. Sich. in Rub. de Codicil. C. in princ., tyed most commonly to the ship. And not vnfitly, aswell because the Codicill is not able to sustaine, the heauie burthen of an Executor, who represen­ting the person of the testatorSichard. in Rub. de iure delib. C. n j. Minsi. in Rub. de haered. insti­tuend. Institut. Doct. & Stud. lib. 2. c. 11., doth as it were (like Atlas who is fained to carrie the world vp­on his shoulders) beare vpon his backe, the whole masse and weight of all the goods, and cattels which did belong to the deceasedL. Haereditas de reg. iur. ff. & ibi Cagnol. Plowden in casu inter Greisbrooke & Fox, & latiùs infr. part. 6. §. 3., and on whose necke are laide all the actions, which either might bee intended against the testator by others, or against others by the testatorInstit. de perpetuis & temp. action. Tearms of law. verb. execut. & infr. part. 6. §. 3.: As also because the Codicill beeing (as I haue sayd) an vnsolemne last will, can no more con­taine al those solemnities, ceremonies, and for­malities which the Ciuill lawe doeth exacte in a testamentOlden. de action. class. 5. in princ., then a little boate is able to sup­porte, the tall mastes, broade sayles, the great store of the huge and weighty tackle and furni­ture belonging to a great ship, with the burthen whereof the boate must needes sincke and pe­rishAduerte tamē, quòd ista similitudo procedit intuitu iuris tantum ciuilis, quia iure quo in hoc regno vtimur, non magis onerantur testantes quàm codi­cillantes solennitatum obseruatione.. 7 And in deede when † Codicilles were first inuented, they were vsed very sparinglieNempe vt condimē ­ti non vt cibi suit olim codicillorum vsus. Ol­den. vbi supr., that is to say, in steede of a testament, when the testator had not oportunitie to make a testa­ment, by reason of the manifolde solemnities thereofL. Codicillorū §. co­dicilli ff. de codicil. Instit. eod tit. in prin.; which were remitted in a Codicill§. vlt. instit. de Cod.: or else as additions to the testament made, when as any thing was omitted in such a testa­ment, which the testator would adde, or some thing put in, which the testator vpon better ad­uise, would detract. Which emendation of the testament, was alwaies done by way of Codi­cillL. conficiuntur in prin. de iure codicil. Cuiacius in tit. de codi­cil. C.. [Page] And this was that reason (wherof I spoke before) wherefore this kinde of last will, was tearmed a Codicill: that is to say, a little booke or a little writing.

Concerning † the diuers kindes of Codi­cilles, 8 although it be denied by some, that there be such two kindes of Codicilles, as there is of testamentes, viz. written and nuncupatiueVasq. de succes. crea lib. 3. § 25. n. 25. Grass. Thesaur. com. op. §. co­dicil. n. 10.: yet it is graunted of the more part, that a Codi­cill may be made eyther in writing or without writingGloss in Rub. de co­dicil. C. Minsing in Rub. de codicil. Instit. Wesenb in tit. de iure codicil. ff. quamuis a­busiuè dici codicillos oporteat conditos sine scriptis quum Codicil­lus sit paruula scrip­tura..

Moreouer it is graunted of all, that a † Codi­cill 9 may be made either by him which dieth in­testate, or by him which dieth with a testa­mentL. conficiuntur in prin. ff. de iure Codicil. §. non tantum. instit. de condicil..

If the † Codicil be made by that person which 10 dyeth intestate: the Legacies therein giuen must be paied by him, that shal haue the admi­nistration of the goods of the deceased, as if he were executorL. ab intestat. ff. de Codicil. §. non tantū. Instit. de codicil. Brook Abridg. tit. de vise. n. 35. In so much that if the Codicill were made long before the death of the partie now deceased, who after the making of the Codicill did beget a childe, to whom the Ad­ministration of the goods is committed, (whe­ther he were borne during his fathers life, or after his fathers death,) he shal be charged with the paiment of the Legacies, as if he had beene borne when the Codicill was maded. L. ab intestat. L. si quis. §. sed etsi. L. graui. L. is qui. ff. de iure co­dicil. Minsing. in d. §. [...]on tantum. Ias. Si­chard. & alij in L. j. C. de codicillis..

If the † Codicill be made by him which hath 11 a testament; then whether the same were made before or after the testamentL. conficiuntur. ff. de Codicil. d. §. non tantū Instit. de Cod., it is reputed for parte and parcell of the testamentVigel. Method. iur. ciuil. part. 4. lib. 9. c. 23. in prin., and is to be performed aswell as the testament, vnlesse be­ing [Page 14] made before the testament, it appeare to be reuoked in the testament, or bee contrarye to that which is contained in the testamentMinsing post gloss. in d. §. non tantum. in­stit. de codicil..

12 Codicilles † and testamentes doe both agree in the efficient cause, (as they doe in diuerse o­thers thingesRoland. Bonon. de arte notari. vbi re­sert 4. casus, in quibus conuenit codicillus cum testamento. part. 2. c. 8. fol. 561.): Yet neuertheles they haue ma­nie contrarie effectesIn lib. quem appellāt Flores vltimarum vo­luntatum, octo nume­rātur differentiae inter codicillos & testamen­ta, quarum tamen pars maxima iam est ex­tincta.. They agree in the effici­ent cause, because euery person which maie make a testament, may also make a Codicil; and whosoeuer can not make a testament, the same person cannot make a CodicillBar. & alij in L. 2 de leg. j. Grass. Thesaur. com. op. §, codicil. n. 2. qui affirmat hoc pro­cedere non solum pro­hibente iure, sed etiam prohibente statuto testari..

They haue diuers contrary effectes. For first whereas no man can die with two testaments, (because the latter doeth alwaies infringe the former§. posteriore Instit. Quib. mod. testa. infir.:) Yet a man may die with diuers Co­dicilles, and the latter doth not hinder the for­mer, so long as they be not contraryL. cum proponat. C. de codicil.. Another contrarie effect is this. If two testamentes bee found, and it doe not appeare which was the former or latter, both testamentes are voydeL. vltim & ibi. DD. de edict diui Adria. toll. C.. But if two Codicilles bee found and it can not be knowne which was first or last, and one and the same thing is giuen to one person in one Codicill, and to another person in an other Codicill: the Codicilles are not voide, but the persons therein named ought to deuide that thing betwixt themGloss. & DD. in d. L. cum proponat. Grass. Thesaur. com. op. §. co­dicillus vbi attestatur hanc op. esse com..

Finally it is to be noted, that there be diuers wordes which are common, or indifferent, ey­ther to make a Codicill or a testamēt. In which case whether the Iudge is to pronounce for a Codicill or a testament, is hereafter discussedInf. parte 4. §. 5..

The definition of a Legacie.
§. vj.

1 What is a Legacie.

2 Foure thinges to be considered in this definition.

3 Euery legacie proceedeth of the liberality of the tes­tator.

4 Howe a legacie differeth from a gifte in regarde of death, or from other giftes.

5 Not lawfull for the legatarie to take his legacie by his owne sole auctoritie.

6 Legacies paiable aswell by the administrator as by the executor.

7 Diuers kindes of legacies in times past.

8 The distinction of legacies confounded.

A Legacie (otherwise tearmed of our common lawyers a Deuise Tearms of law, verb. de vise.) is † a 1 gifte lefte by the deceased, to bee paide or performed by the Execu­tor, or administrator§. j. Instit. de lega.. There bee other definiti­ons of a Legacie which I doe willingly omitte, because this one is sufficientConstat plures esse Legati definitiones, a­liam Florentini, aliam Modestini, aliam Iusti­niani, quarum nulla est, quam vnus aut al­ter nō tentauit euerte­re, sed frustrà quidē su­darunt omnes; quippe quorū fractis argumē ­tis nullā hatum nō per se iustam, legitiméque traditam, clarissimè o­stendit D. Gentilis Oxoniens. hodie Legistarum decus. lib. 1. Lection. & epistol. c. 14. 15. 16.. Wherein foure † 2 thinges especially are to be noted.

First, in that it is called a gifte, it argueth that it † proceedeth of the meere liberality, & free 3 good will of the dead man; and consequentlie that he is not of necessity tyed thereuntoMinsing. in d. tit. de legat. instit. §. j..

Secondly in that it is lest, it † differeth from o­ther 4 giftes; not onely those which are called deedes of gift, effected and executed in the life [Page 15] time of the Donor: but also from those giftes which be made in consideration of death, wherein the things giuē, are deliuered by the testator in his life time, to become their own to whō they are deliuered in case the testator die§. j. Instit de Donac.. For le­gacies are not deliuered by the testator, but are to be payed by his Executor, or administratorL. j. Quorum lega. ff L. non dubium. de l [...]ga C. & ibi DD. Pa [...]kins. tit. testa. c. 7. fol. 94. b..

And thirdly, because the legacy is to be paid by the Executor or administrator, (as appea­reth 5 by the definition,) it is noted, † that it is not lawfull for the legatarie, to take his legacie by his owne sole auctorityd. L. non dubium & Sichar. [...]bid. n. 2., (onely the execu­tor may of his owne auctority enter to the goodes and cattelles of the deceased,Infr. 6. § j. & iij.) other­wise if the legatarie presume to bee his owne caruer, & do enter to the possession of the thing bequeathed, without deliuery or cōsent of the executor, he therby loseth his legacyd. L. non dubium. C. de lega.: except in certaine cases, whereof hereafterInfr. part. 7. §. 22. in fin.. Fourth­lie, in that here is mention aswell of the admi­nistrator as of the Executor, the meaning is, 6 that † not onely those legacies are dew, which are left in a testament, wherin is appointed an executor, and where the party doth not die in­testate: But those legacies also which are left in a Codicill or last will, wherein no Executor is appointed, and where the partie dyeth inte­state§. non autem Instit. de Codicil.; which Legacies as they bee due, so are they payable in both cases: in the one by the Executor; and in the other case by the admini­stratorEod. §. non autem. & L. ab intestat. ff. de iure codicil.. Nay more then this; if any legacie be left in a testament, although the executor ther­in named can not bee executor, or doe refuse [Page] the executorship, and so the partie die in a ma­ner intestate, and thereupon administration of his goodes graunted, according to the statutes of this realmeStat. H. 8. an. 21. c. 5.. In this case also by the lawes and custome of this realme, the Legacies bee due and payable by the administratorBrooke Abridg. tit. testa. n. 20. inf. par. 7. §. 19., though it be otherwise by the ciuill laweL. j. in sin. de Iniust. testa. L. fidei commis. de Leg. j. L. Imperator. de Leg. 2. ff. Grass. The­saur. com. op. §. legatū. q. [...]8..

In auncient time † there were foure seuerall kindes of legacies. Per vindicationem §. sed olim. Instit. de lega., per dam­nationem Alij legunt per ven­dicationem, vt Porci­us, & Minsing. in d. §. sed olim., 7 per sinendi modum i. obligationem, vel condemnationem., per praeceptionem i. ante captionem. Minsin. in d. §. sed olim,. That is to say, by challenge, by condemnation, by suffering, by foretaking, being so distingui­shed, by occasion of a certaine solemnity or for­malitie of wordes, assigned to euery kinde of legacieAccipe singulorum legatorum exempla, 1. Titius rem illam ha­beto. 2. Haeres meus damnas esto dare. 3. Haeres meus sinito Titium rem illam su­mere, sibíque habere. 4. Haeres praedium il­lud praecipito. gloss. in d. §. sed olim.: With seuerall actions or remedies, as­cribed to euery such legacie, for the recouerie thereofLegato videlicet per vindicationem relicto, actio realis: per dam­nationem verò personalis nascebatur. Sinendi modo relictum, sola legatarij autoritate sine vitio capitur, legatum per praeceptionem actione familiae Herciscundae exigebatur. Minsing. & alij in d. §. sed olim.. But afterwardes the † lawes beeing more fauorable to dead mens willes, this pre­cise 8 solemnitye of wordes was taken away, and libertie graunted to make bequests by a­nie manner of wordesL. j. C. com. de lega. §. nostra Instit. de lega.. (As else where more fullieInfr. part 4. §. 4..) Whereby in the ende, all legacies bee came of one and the same nature, and are all at this present recouerable by like actionsd. §. nostra. Instit. de lega.. Which by the ciuill lawe is threefoldeIure ciuili tres actiones Legatarijs compe­tere dignoscitur, personalem, realem, Hypothecariam. Iure autem quo nos vtimur, quin prima actio qua executor ex quasi contractu teneatur, etiamnum vigeat, nulla est dubi­tatio. Secunda etiam qua rem Legatam persequimur competit quidem Legata [...]io pri­mo aduersus executorem, seu administratorem pro re tradenda, deinde adepta possessio­n [...], aduersus quemlibet possessorem conceditur actio transgressionis. Tertiae verò actio­ni qua res testatoris legatarijs pignorari dicitur, suspicor nullum in hoc regno locum esse relictu [...]., with [Page 16] vs if the executor detaine the legacie, or doe slacke the performaunce of the testators will. The legatorie must sue the executor in the Ec­clesiasticall courte, for the same Legacye so de­tained or not satisfiedTract. de repub. Ang. lib. 3. c. 9. Bracton. de legib. & cons. Angl. lib. 2. c. 26. in En. Brook A­bridg. tit. de vise. n. 27. 45. Fitzherb Nat. Bre [...]. fol. 50. in Br. de consul­tac. in princ. Plowd. a cas. inter Paramor & Yardley. Termes of law, verb. deuise..

The Definition of a gifte in considera­tion, or because of death.
§. vij.

1 What is a gift in consideration of death.

2 Three sortes of giftes in consideration of death.

3 Which of these three giftes is compared to a Lega­cie.

1 A Gifte in consideration of death, is † where a man mooued with the consideration of his mortalitye, dooth giue and deliuer something to another, to be his, in case the gi­uer dye; or otherwise if hee liue he to haue it a­gaineInstit. de donac in princ.. 2 Of † gifts in case of death there be three sortesL. 2. ff. de donac. mor. caus.. One when the giuer is not terrified with feare of any present perill, but mooued with a generall consideration of mans mortali­tie, giueth any thingd. L. 2. L. Seni. L. vbi ita. ff. de mor. cā. donac.. Another, when the giuer being mooued with imminent daunger, doeth so giue, that straight wayes it is made his to whom it is giuend L. [...].. The third is when anie being in peril of death, doeth giue some thing, but not so, that it shall presently be his that re­ceiued 3 it, but in case the giuer doe dieIbidem.. This † last kinde of gifte, is that which is compared to [Page] a legacieBar. in d. L. seni. Grass. Thesaur. com. op. §. donatio. q. [...].: But the other two are reputed simple giftes: If the giuer doe not make expresse men­tion of his death, and so they can not bee reuo­kedIul. Clar. §. donatio. q 4., but take full effect from the time of the making of the gifte, if the same bee not fraudu­lentStat. Eliz. an. 13. c. 5. & an. 14. c. 11..

The Diuision of Testaments.
§. viij.

1 Of the auncient diuision of testamentes.

2 An other threefolde diuision.

FOrasmuch as that † auncient diui­sion 1 of testamentes, whereby they † were first distributed into two 2 sortesInstit. de testa. ordin. §. j., the one testament beeing tearmed Calatis Comitijs [...]. vocatis comitijs, seu vocato populo, à graeco verbo [...], quod est voco. Tempo­re namque pacis, bis tantùm in anno Testa­tor con [...]ocato per cornicinem populo, eóque praesente, ac quasi teste, vltimam su­am voluntatem decla. rare solebat. Minsing. in d. §. j., the other Procinctum Ho [...] testamentum fieri consueuit ab exi­tutis in praelum ob du­biam bel [...] aleam. In de procinctum dicitur, nō quòd succincte sieret, sed quòd procin [...]i di­cuntur milites qua [...] praecincti & expediti. Vi [...]ius in d. §. j., (whereunto afterwardes a thirde kinde was added called Per aes & libram i. per imaginariam venditionem. praesentibus enim testibus, vnà cum libripende, se [...] estimatore patrimonij is qui successor defuncti futurus erat, mo [...]turi bena emebat, d. inde percutiés libram, illud aeris quasi pretium da­bat e [...]à quo haereditatem expectabat. Minsing. post Vigl. in d. §. j.) hath beene long since abolishedText. in d. §. j., and worne not onely out of fashion, but almost out of memo­ry; in so much that vnto some their very names may seeme straunge. Vnwilling therefore to offer any thing, more tedious then profitable, I thought good to make reporte of some other kinde of testaments, whereof happely we may haue some vse in England.

Vnderstand therefore, that † of testamentes 3 some be Solemne, some vnsolemne; some written, [Page 17] some vnwritten or noncupatiue Iure ciuili testa­mētum scriptum, non vocatur alia species a testamento solemni, plerun (que) enim haec duo consunduntur, & indifferenter, seu promiscue v [...]ui pantur. (Bar. in L. tabular. ff. Quemad. testa. app. & apertiùs. Minsing. in §. sed cum. Instit. de testa ord. & in §. fin. ibid. Grass. Thesaur. com. op. §. testa q. 10. n. 1.) At verò iure quo nos vtimur inspe­cto, planc diuersa sunt. Saepiùs etenim necessarium est, vt testamenta nostra sint scripta, sed vt sint solennia nunq̄, quinimo vel eod. iure ciuili testamentum insolemne diuiditur in scriptum & non scriptum. Grass. Thesaur. com. op. §. testa. q. 10. & q. 11. n. 3., some Priuile­ged, and some not priuileged Mantic. de contect. vlt. vol. lib. 1. tit. 7. Adde Iul. Clar. §. testm. q 3. vbi tradit nobis aliam testamen [...] torum diuisionem..

Of Solemne Testaments.
§. ix.

1 What is a solemne testament.

2 No vse of solemne testaments here in England.

3 The rigour of the ciuill lawe concerning testa­mentes.

4 This rigour iustely reformed.

5 What mooued Iustinian to exacte the number of seuen witnesses in testamentes.

6 Two or three witnesses sufficient by the law of God.

1 SOlemne testamentes are they †, wher­in bee all those solemnities of the ciuill lawe, (as the presence of vij. witnesses, and required thereunto, their subscription, their subsigna­tion, the expedition of the act at one time, &c.) [...] Solemn paulatim [...] testa ordin. [...] consul [...]s. m [...]. C [...]e testa. 2 But † of this kinde of testamentes, we haue no vse in EnglandSupr. [...] 1.. Wherefore it shall suffise, that I haue shewed (as it were onely by the poin­ting of the finger,) that such a kinde of testa­ment there is mentioned in the Ciuill lawe; to 3 the † obseruation whereof the Romane people [Page] were strictly tyed, in the making of their testa­mentes. (Much like as were the Iewes to their Iewish ceremonies:) so that if any one of these solemnities were omitted, the testament was voideL j. de Iniust. rupt. & i [...]rit. test. ff. Minsing. in d. §. sed cum. n. 12.. Which thing was not onely hard to be performed, but in some respectes also vngodly. For that it was not sufficient for any man, to prooue a testament by two or by three witnes­ses, (the lawe of God requireth no moeDeut. c. 18. Matth c. 18. Mantic. de con [...]ect. vl [...]. v l. lib. 6. tit 3. n. 18.) but it must be prooued forsooth by seuen witnes­sesd. §. sed cū paula­tim.. Wherefore with † good reason, was this 4 excesse reformed: First by the ecclesiastical law, which did reduce the number of seuen witnes­ses to three, (the parochiall minister beeing one,c. cum esses de te­sta. extr.) & in some cases to twoTesta. videlicet ad p [...]as causas condito. caelatum elij. de te­sta. extr.. And then by the general custome of this realme, which distinct­ly requireth no moe witnesses but two, so they be free from any iust cause of exceptionLindw. in c. statut de testa. lib. 3. prouincial. constitu. verb. probatis. Peckius in c. priuilegiū de reg. iur. lib. 6. n. 7.. The reason † wherewith Iustinian was mooued, to 5 approoue of these solemnities, and to adde thereunto as he did, was as he doeth franckelie acknowledge, (Propter testamentorum sincerita­tem, vt nulla fraus adhibeatur d. § sed cum paula­tim. instit de testa. ord..) For the sincerity of testamentes, and that no fraude shoulde bee practised. And I doubt not, but before hee dyd set down so precise a law, he had sufficient triall of great cunning, and craft practised, in the ma­king and proouing of testamentes. (I woulde there were none in England) which vrged him to goe from that rule †, and lawe of Vlpian the 6 famous lawyer, the same also being most agree­ble to the lawe of God. Vbi numerus testium non adijcitur etiam duo sufficiunt, pluralis enim elocutio, [Page 18] duorum numero contenta est L. vbi de testibus. ff..) Where the number of witnesses is not expressed, euen two are sufficient, for the plurall speach is content with two. Where hee sayeth the plurall speach is content with two, which is the reason of the lawe: It hath this sence. It was a thing very well knowne, that one witnesse alone, was not sufficient to decide a controuersie, (the testimony of one beeing as the testimonie of nonec. licet c. veniens &c. Iusiurandi de testi­bus. extr. c. admonere. 33. q. 2.;) and therefore there were required witnesses, but how many witnes­ses were sufficient was doubted of: whereupon Vlpian answereth, that albeit witnesses are re­quired; Yet that plural speach, witnesses, is satisfi­ed with two, and so two witnnesses are suffici­ent, where a greater number is not requiredDD. in d. L. vbi..

Of vnsolemne testamentes, and whether the aforesaid definition of a testament doe a­gree to our testaments in England.
§. x.

1 What is an vnsolemne testament.

2 Of the freedome we enioye in England, in makinge our testamentes.

3 Writing required in the deuise of landes.

4 Many thinges permitted which be not necessary.

5 Whether it be needefull that witnesses bee required in a testament.

6 Whether our testamentes in England doe agree, with the former definition of a testament.

7 Some reasons whereby it should seeme, that the for­mer definition, and our testaments doe not agree.

8 The former definition of a testament, doeth com­prehend both solemne and vnsolemne testaments.

[Page] 9 The reasons which prooue that this foresaide desi­nition doeth comprehend both testamentes.

10 Vlpian did floorishe before Iustinian.

11 The encrease or decrease of solemnities doe not make the testament to swarue from the former de­finition.

12 An vnsolemne mariage is a true mariage, in re­spect of the knot or essence of matrimonie.

13 A Military testament, though vnsolemne, is pro­perly a testament.

14 A testament amongest children is properly a testa­ment though vnsolemne.

15 A great inconuenience, if an vnsolemne testa­ment were not properly a testament.

16 What is a testament properly so called?

17 In England our testamentes though vnsolemne, haue the effect of testamentes properly so called.

18 An answer to those reasons, which seeme to prooue our testamentes doe not agree with the former de­finition.

19 The former definition is not of any speciall testa­ment.

20 The conclusion.

VNsolemne testamentes are † so tearmed, 1 whereas the solemnities of the Ciuil law aboue mētioned, or any of them are omitted, at the making of the te­stamentL. j. de iniust. rupt. & irrit. testa. ff.: Without the which by the Ciuil law, the testaments were voydd. L. j. I. Hac consul­tissima §. ex imperfect. C. de testa. Minsing. in § sed cum paulatim. Instit. de testa. ord. n. 12., except in certaine cases. But † with vs in England they are not 2 void: for that our testaments are not subiect, to [Page 19] the ceremonies of the Ciuill law, but are made with all libertie and freedome, and as (one re­porteth) Iure militari D. Smith. tract. de repub. Ang. lib. 3. c. 7. Quod tamē indistinctè non admitterem, quandoquidem multa priuilegia testamentis militaribus competere videantur, qualia sunt cum duobus testamē ­tis decedere, & id ge­nus alia (de quibus infr §. xiiij.) quae no­stratibus non licet ven­dicare. (vt eod. §. xiiij.) Et contra Rogatio te­stium quae pro solenni­tate in militari testo requiritur (communi interpretum calculo) ab Anglis testantibus, non ita necessario ob­seruatur.: And so wee are no fur­ther tied then to the obseruation of those re­quisites, that be necessary iure gentium Milites ad solennita­tes tantum iuris gen­tium astringi videre est apud Dec. in L. milites C. de testa. mil. post Bar. in L. j. C. de sacro­san eccle. & DD. in L. j. ff. de nul. testa. Quibus adde Tiraquel. de pri­uileg. piae causae. c. 3.. Which 3 requireth but two witnessesDec. in d. I. Milites Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 9. in f [...]n.: sauing that in † a legacie or deuise of lande, writing is also neces­sarie, and that to bee made in the life of the te­statorStat. H. 8. an. 32. c. 1.. How be it, it is not to be doubted, but that a man may make his testament in writing, wherein he disposeth of his goodes onely, and so hee may vse the testimonie of moe witnesses 4 then two. Also † if he will hee may procure the witnesses to subscribe their names to the testa­ment; yea to euery page of the testament, (if there be diuers) and it is a good & a safe course whereby many forgeries might be preuented, 5 or more easilie detected. But no † man is tied to the obseruation of these cawtelsLindw. in c. statutum de testa. lib. 3. prouincial; constit. Cant. verb. probat., (except as before) no not so much as to require the wit­nessesRatio est quia rogatio testium nō est iuris gentiū aut diuini. Ab. Couar. & alij in c. rela­tum. el. j. detest a. extr. Tiraquel. de priuilegijs piae causae. c. 3. quo posito constat Anglos pleniore libertate frui in condendis testamentis, quā quae vel ipsis militibus indulta fuit a iure ciuili: quo (si communi sit credendū opinioni) rogatio testium est necessaria. Iul. Clar. §. testim. q. 58 quamuis non desint qui contendunt rogationem huiusmodi, non ad solennitatem exigi, sed vt ex eo facilius diiudicari possit, Militem proferendo verba quae sonant in testm, ea deliberatè & seriò, animoque testandi, non ioco, non perfunctoriè pro­tulisse, vt saepè solent aliàs. Tiraquel. de priuileg. piae causae. c. 3. Wesenb. cōsil. 38. n. 65. Ad­de quod in testamēto inter liberos, vbi attēditur solennitas iuris gentium, nō est necessa­riū vt testes sint rogati. Grass. Thesaur. cō. op §. testm. q. 11. Clar. §. testm. q. 18. Dec. consil. 610. Denique nec in testo ad pias causas (in cuius confectionē adhibendaesunt iuris gen­tiū solennitates) requiritur vt testes sint rogati, vt habet com. op. teste Couar. in c. relatum. el. j. de testa. & infr. §. 16,: so beneficial are the laws of this realme to the subiectes of the same.

But † here me thinkes a question doeth of­fer 6 it selfe to be resolued. If all our testamentes in England be vnsolemne, and † if by the Ciuill 7 lawe regularlie, all vnsolemne testamentes bee voide, in so much that if but one onely solem­nity be omitted, the testament is no testamentL j. de iniusto rup. & irrit. testo. ff. L. ex im­perfect. L. si vnus. de testa. C.: Howe doeth the definition of a testament a­boue mentioned, borrowed out of the Ciuill lawe, agree with our testamentes heere in Eng­land, being al vnsolemne testamentes? It should seeme we had need to seeke a new definition, & that I haue erred, together with other our com­mon and temporall lawyers of this realme, in borrowing that definition, which agreeth so iust with their testamentes, with which testa­mentes our testamentes doe not agree. For if the definition did agree with both testaments, they should agree betwixt thēselues, but the te­staments doe not agree betwixt themselues; & therfore the definition doth agree but with one alone: If it agree but with the one, and we con­fesse it doeth agree with their testaments, how then can it agree with ours also?

To this question breefely my opinion is this, 8 that the † definition doeth comprehend, both solemne and vnsolemne testaments: and therefore is agreeable to our testaments. The antecedent I prooue thus †. The Definition (as appeareth) 9 was made by Vlpian Vlp. in L. j. de testa. ff., this Vlpianus † is one of 10 those auncient lawyers, whose aunswers, defini­tions, rules, and conclusions, are contained in the digestes l, and who florished no lesse then two hundereth yeeres before Iustinian Iustinianꝰ adeptuꝰ fuit Imperium an. Christi nato 527. Vlpi­anus autem floruit lō ­ge ante, nimirum, tem­pore Alex. Seueri Imp. Ro. paulo plus CC. annis post Christum natum. Cagnol. in L. vnic. si quis ius dicēti. ff. Which [Page 19] Iustinian did adde certaine other solemnities: without the which he ordained, that the testa­ment should be voide§. sed cùm paulatim verb. sed his Instit. de testa. ordin. L. iubemꝰ. L. cum antiquitas C. de testa.. It must bee graunted therefore, that the definition being perfect, be­fore those newe solemnities were deuised, and agreeable to those testamentes which had not these solemnities, because as yet they were not: so nowe the same solemnities beeing taken a­way, the definition comprehendeth those te­stamentes, which haue them not at this pre­sent, 11 as it did those other testaments which had them not at the beginningEadem enim ratio oppositi in oppo­sito, ac propositi in proposito. Socin. con­sil. 16. lib. 3. n. 15. Eue­rard. loc. a con [...]rarijs.. So that the † en­creasing or decreasing of the number of solem­nities, maketh not the testament to come nee­rer, or departe further from the definitionNam differētia quae est tantum secundum maius & minus, nō cō ­stituit diuersas species, & sic nec diuersas de­finitiones. L sin. de fūd. instruct. legat. ff. Oldē. de culpa.. In­deede the presence or absence of solemnities make the testamēt solemne, or vnsolemne, but 12 they doe not make it a testament, or no testa­mentSi enim equus caecus sit equus ita vt caecitas non faciat equum non esse equum, sed nō esse oculatū, à fortiori testamenti insolennitas, nō facit testā. nō esse testa­mētū, sed non esse solē ­ne à fortiori in q̄ quum cae citas sit defectus in iure naturae, insolenni­tas autem defectꝰ iuris tantum ciuilis. Nam illa requisita de quibus in c. cùm inhibitio de clan. despons. ext. non esse de forma & sub­stantia matrimonij, vel legittimationis prolis. sed de solennitate tantum, & ad ipsius decorem introducta post Theolog. & Ca­nonistas prodidit Granis. consil. ciuil. 168. & hanc op. communi calculo receptam di­cit. lo. Lup. & Mascard. de probac. verb. filius conclu. 798. n 8. Et licet hodie per concil. Tri­dentin. huiusmodi mattimonia fiant irrita. Nos tamen sequimur antiquum ius cōe. tanquam non mutatum. Stat. H. 8 an. 25. c. 19.. For † as an vnsolemne mariage is not therefore no mariage because it is vnsolemne, (the baynes perhappes not being published, or the mariage not being celebrated in the face of the church, but priuately in a chamber, or some other rite or ceremonie therof being omitted,) but is neuertheles reputed for a true mariagec. aliter. 30. q. 5. c. [...]. de cland. despons. extr., both in the ecclesiasticall courtes, in respect of the knot or essence of matrimonieAbb. in c. 1. de cland. despons. extr. Dec. consil. 163. Couar. de sponsal. secunda part. c. 6. in principio. n. 7. Lindwood. in c. Humana. de clandest. desp. lib. 4. prouincial. constitut. Cant.; and in [Page] temporall courtes in respect of the wiues dow­er, and other legall effectesPerk. tit. Dower. fol. sexagesimo pri. quod verum est iure hodier­no. Licet olim regnante H. 3. & longe ante cum contrarium ius obti­nait. Fitzh. Nat. Bre. fol. 150.: euen so an vnso­lemne testament doeth still remaine a testa­ment; when these solemnities do rather apper­taine to the proofe, or apparaunce, then to the substance of the testamentMinsing. in d. §. sed cū paulatim. Old. de Act. class. 5. in prin. Ripa. in L Nemo. de leg. j. & Io. Crot. in eand. L. col 6. Quorum opinione hae solennitates testamen­tariae non ad substantiā sed ad probac. testi. per­tinent: quae quidem o­pinio sine difficultate procedit hîc in Anglia vbi istiusmodi solenni­tates omnino non sunt necessariae. licet fortasse alias contraria tanquā communis opinio locū sibi vendicaret. Bar. in d. L. Nemo. Couar. in c. cum esses. de testa. extr. n. 8.. For it is not said in the definition; there must be this or that num­ber of solemnities in the testament, onely it is requisite, that there be a iust numberIusta sententia., that is to say, so many as the lawe requireth, and if the lawe require none, the definition requireth none; more then is sufficient for a due proofeBou. in c. cum esses. de testa. ext. in sin. Soarez. lib. rec. Senten verb. testa. n. 72. Ias. in L. cunctos de summa. tri. C. n. 39..

If an vnsolemne testament were no testa­ment, then testamentum militare, were no testa­ment: for it is an vnsolemne testamentWesenb. in tit de te­sta. mil. ff. Bald. in L. fi­lij. C. famil. Herciscun. n. 5.: And yet testamentum † militare is both in name and 13 nature a testamentTit. de testam. mil. ff. Instit. & C. Vasquius de success. crea. §. 21. n. 47.. Likewise if an vnsolemne testament were no testament, then testamentum inter liberos were no testament; being vnsolemn and vnperfectL. Hac consultissima. §. ex imperfecto. C. de testa.: But testamentum † inter liberos 14 though vnsolemne, euen properly, and by the Ciuill lawe, is a testamentGrass. Thesaur. com. op. §. testam. q. 11. n. 2. vbi refert hanc op. esse com. ex Alex. Decio. Curtio Nat. Emanuele Costa, Vasquio, & alijs, cont. gloss. in d. §. ex imperfecto.. Besides this, † if an 15 vnsolemne testament were no testament, then (all the testamentes here in England being vn­solemne,) we should all die intestateInstit. de haered. quae ab intestat in princ.: And dy­ing intestate, then (marke what an inconueni­ence would followe,) by the statutes of this realme, the administration of the goodes of e­uery man dying intestate, ought to be commit­ted to the widdowe, or next of kinne to the de­ceased. [Page 21] But the contrarie hath beene generally obserued, that is to say, where an executor hath beene appointed, able and willing to vnder­take the executorship; there the maker of this will, hath beene adiudged not to haue dyed in­testate, and so the administration of his goodes hath not beene committed to the widowe, or next of kinne, according to the statute, al­though the testament were vnsolemne, which administation otherwise, ought to haue beene cōmitted according to the said statute, as is a­foresaidId quod viridi obser­uac. ficri vbique conspicitur.. And therfore by cōmon obseruation also, an vnsolemn testamēt is not no testament: but rather euen properly a testamēt. For by the 16 † opinion of the most & best writers that is cō ­cluded to be properly a testament, the author wherof can not be said to die intestat: & whose executor therin named, is to succeede ex testa­mēto; Bald. in L. cunctos de summa trinitate C. n. 17. Sichard. in L. Hac consultissima. §. ex im­perfecto. C. de testa. n. 5 in sin. Grass. Thesaur. com. op. §. testa. q. 11. n. 2. Iul. Clar. § testm̄. q. 13. Euerard. consil. 185 n. 8.; though it be but in respect of the lawes or customs of the place wher the testamēt is made being cōtented with fewer solemnities then are 17 requisit in other placesAndr. Gail lib. 2. practic. obseruac. 123. Soarez. lib. recep. senten. verb. testm̄. n. 72. Baptist. Villabol. lib. com. op. verb. testm̄. n. 57. Gabr. Rom. lib. 4. tit. de testa. conc 4. Vasq. de success. crea. §. 21. n. 47. 48. Paris. cōsil. 12. n. 45. vol. 3. quorum opinio est proculdubio communis, licet aliter sentiat gloss. in d. §. ex imperfecto.. Which † effect our vn­solemne testaments haue wherin an able & wil­ling executor is named: For neither he is repu­ted to die intestat, which appointeth such an ex­ecutorHoc nemo nesei [...] qui vel mediocriter in alter [...]t [...]o [...]oro versatur., but is plainely, euen in laws of strict in­terpretatiō (I meane the statuts of this realme) tearmed a testatorStat. Ed. 3. an. 4. c. 7. & an. 25. c. 5. stat: H. 8. an. 21. c. 5. & alijs penè infinitis locis.: Nether is the administratiō of his goods cōmitted to the widdow, or next of kin, by the auctoritie of the ordinarie: accor­ding to the statute as in case of one dying inte­statId quod non semel dictum est, sed & saepius est dicendum.. But the executor deriuing his auctority frō the testator onely, doth succeed in the place of [Page] the dead man, by force of the testament, accor­ding to the testators meaning and dispositionPlowden in casu in­ter Greisbrook & Fox, fol. 280. his verbis: Lez executores nosmes sount executores magnetent & deuant probate del testament, Car le probate nest que confirmation & allowance de ceo que le testator fist, &c. lit ils poyent executeur deuant. probate, &c.. Wherefore an vnsolemne testament, is euen properly a testament. Which conclusion being true, the definition is not more proper to the one, then to the other.

Now for the answering of the argumentes obiected. First † where it is obiected, that al vn­solemne 18 testamentes are voide, although one onely solemnitie were omitted. That is true onely by the Ciuill lawe: But it doeth not ther­fore follow, that an vnsolemne testament is no testament, in respect of his definitionVasq. de success. crea. §. 11. n. 48., how so euer it haue not the same effect, to all intentes in lawe. But if it bee therefore a testament, be­cause it taketh effect in lawe, then are all our te­stamentes, (though vnsolemne,) good and suf­ficient testamentes; because they haue as much force without those solemnities, as if they had them al and C. moreSoarez. lib. recep. sen. verb. testm̄. n. 72. Grass. d. §. testm̄. q. 11. Clar. §. testm̄ q. 13. And. Gail. lib. 2. pract. obser. c. 123. Vasq. de success. crea. §. 21. n. 47. Sichard. in L. Hac con­sul [...]ss § ex imperfecto. C. de testa.. Secondly, where it is ob­iected, that the definition dooth agree to their testamentes; and that their testaments and ours doe not agree betwixt them selues: I answere, that the † definition is not of any speciall testa­ment, 19 that is to say, it is not of a solemne testa­ment alone, nor of an vnsolemne testament a­lone, nor of a written testament alone, nor of an nuncupatiue testament alone, nor is conuer­tible with any speciall kinde of testament, men­cioned in any part of the Ciuill lawe, from the which our testamentes made in England doo differ. For indeede if the definition were made of any speciall testament alone, mencioned in [Page 21] the lawe, from the which our testamentes doe differ: Then could not our testamentes diffe­ring from the testament defined, agree with the definitionQuod enim differt à definito, differt à defi­nitione: vt, quod non est homo, non est ani­mal rationale. Euerard & Olden. loc. à defini­cione. lo. Casus Oxon. tract. de dialect fo. 225.. But the definition is of a testa­ment which is also common to all those, or a­ny other kinde of testamentes, aswell solemne as vnsolemne, as appeareth before: and there­fore the testament so defined, although it bee speciall in respect of the definition, yet is it ge­nerall in respecte of the seuerall kinde of testa­mentes aboue recitedTestm. superius defi­nitum genus est subal­ternum: Id quod potest es [...]e & species & genus diuerso tamen respe­ctu; nimirum species respectu superioris, id est, sententiae; Genus respectu inferioris, id est, paganici, & milita­ris: scripti, & nuncupa­tiui; solennis, & insolē ­nis testamenti. Huius­modi autem testamen­ta differūt non nume­ro sed specie, & sic te­stamenta, cuius supra est definitio posita, ge­nus est, quia praedica­tur de pluribus diffe­rentibus specie., and is verified of euery of them; solemne or vnsolemne, and so conse­quentlie is common aswel to our testaments as to theirs, distributing both name and nature to euery speciall testamentId quod est generi proprium. Oldē. Topic Legal. Loco a genere., howe so euer they 20 differ amongest them seluesSpecies namque performā discrepat à spe­cie. Conueniunt autem omnes species in suo genere. Olden. & E [...]e­rard vbi supra.. To † conclude therefore, we neede not to seeke any newe de­finition, but rather they themselues, by reason of their newe solemnities, deuised since the ma­king of the olde definitionAlciat. in L. j. C. de sacrosanc. eccle. n. 12..

Indeed we haue not these solemne testaments of the Ciuill law, but that in respect we are the more happy, and our law the more godly?

Of a written testament.
§. xj.

1 What is a written testament.

2 A testament nuncupatiue is not made a written te­stament by after writing except in certain cases.

3 Some thinges common both to a written and to a nuncupatiue testament.

4 Some thinges peculier to a written testament.

5 Deuise of landes, tenementes, or hereditamentes, is not good without writing.

[Page] 6 In a written testement it is not necessarye that the witnesses be priuy to the contentes.

7 Causes wherefore testators many times would haue their willes secret.

8 In what manner the testament is to be made when the witnesses know not the contentes.

9 The witnesses must be learned, and must write their names on the testament, when they doe not know the contentes thereof.

A Written Testamentū in scrip­tis ansit alia species à testo solenni exami­naui. supr. §. 8. in mar­gine. testament, is † that testament 1 which at the time of the makinge thereof, is committed to writingMinsing. in §. sed cū paulatim. Instit. de te­sta. ordin.. By which wordes, at the time of the making thereof: are excluded † such testaments 2 as are afterwardes put in writing. For beeing made first by worde of mouth they doe still re­maine nuncupatiue, notwithstanding the redu­cing thereof to writingMinsing. in §. fin. Instit. de testa. ord.: Vnlesse the testament being first made by word, and afterward (in the life time of the testator) being written, it were brought to the testator, and by him approoued for his testament: Or vnlesse the testator, when he declared his testament, did wil that the same should be written, & that thereupon the same was written accordingly, during his life. For then it is effectuall, for the deuise of landes, te­nementes, and hereditaments, as if it had been written at the firstDier. fol. 72. & ita saepè audiui à nonnul­lis huius regni Angliae [...]urisperitis..

A written † testament albeit it haue some 3 thinges thereunto belonging, which also be­long [Page 23] to a nuncupatiue testament, and so com­mon to both; as the appointing of an execu­tor, (without the which there can be no testa­ment at all, neither written nor nuncupatiueInfr. part. 4. §. 2.,) and as the deuising or disposing of goodes or cattelles (which may be done indifferently ey­ther 4 by word or by writing:Supr. §. 9.) yet there bee † some thinges, which be proper and peculier to 5 a writen testament. One is the † deuise or graunt of landes, tenementes, and heredita­mentes; which can not passe by a nuncupatiue testament, or will without writingStat. H. 8. an. 32. c. [...].: As doeth afterwardes more fully appeare, where is also shewed, what landes, and how much, may bee deuised by willInfr. 3. part. §. 4.. An other thing peculier to a written testament is this: In a written testa­ment 6 † the testator hath this benefit; he maie conceale and keepe secreete the tenor or con­tentes of his will, from the witnessesL. hac consultis. C. de testa. & gloss. ibidem.: Which he cannot doe when he maketh a nuncupatiue testament. And therfore if the testator be loath to haue his will knowne, which thing happe­neth 7 very often †, either because the testator is afraid to offende such persones as doo gape for greater bequestes then either they haue de­serued, or the testator is willing to bestowe vp­on them: (least they peraduenture vnderstan­ding thereof, would not suffer him to liue in quiet,) or else because hee should ouer much encourage others, to whom he meante to bee more beneficiall then they expected, (and so giue them occasion to be more negligent hus­bandes, or stewards, about their owne affaires, [Page] then otherwise they would haue beene, if they had not expected such a benefit at the testators hands) or for some other considerations. In these and like cases, after the testator hath writ­ten his will with his owne hand, or procured some other to write the same, he may close vp the writing, without making the witnesses pri­uie to the contents thereof; and shewing the same to the witnesses, he may say vnto them: This is my last will and testament, or herein is con­tained my wil: and this is sufficientAuthen. Et non ob­seruato. C. de testa. & DD. ibidem.. Neither is the testament therfore the lesse auailable, be­cause the witnesses doo not know what is contained in the sameMinsing. in §. sed cū paulatim. Instit. de te­sta. ord. Cui accedit Kling. in eund. tit. in. 8., in case † the witnesses be able to prooue the Identity of the Writing; that is to say, that the writing nowe shewed, is the very same writinge which the testator in his life time, affirmed before them to bee his will, or to containe his willDD. in d. L. Hac cō ­sultiss. & in Auth. & nō obseruato. C de testa. Couar. in c. cum tibi de testa. extr. n. 5. & inf. par. 4 §. 25.. Other­wise the will can take no effect, through the defect of sufficient proofeBar. & alij in L. si ita scripsero. ff. de cond. & demon. Paris. cons. 19. vol. 3. n. 25. 26.. And therefore † 9 least the will should perishe for wante of due proofe, when the testator would not haue the contents knowne, it is not onely requisite that the witnesses be learned, but expedient also that they write their names, on the backside, or some part of the testamentSpecul. de Instr. Edi. §. compendiose. n. 10. Kling. in tit de testa. or­din. Instit. n. 8. & 9., or vse some o­ther like meanes, that they may be able to de­pose and testifie vndoubtedly, that the same is the very writing it selfe, which the testator affir­med to be his will, or to containe his willSichard. in Auth. quod sine. C. de testa. Couat. in c. cum tibi de testa. extr. Specul. vbi supr. & infr. part. 4. §. 25..

Whether a testament may be written with notes or figures, and whether it may be proo­ued [Page 24] without witnesses, by the hand and seale of the testator, with other like questions, is de­clared afterwardInfr. part. 4 §. 25..

Of a Nuncupatiue Testament.
§. xij.

1 What is a nuncupatiue testament.

2 Wherefore it is called nuncupatiue.

3 Of the force and efficacie of a nuncupatiue testa­ment.

4 At what time commonly nuncupatiue testamentes are made, and what is the reason.

5 Testamentes fauorablie expounded.

6 A nuncupatiue testament made diuers waies.

1 A Nuncupatiue testament † is, when the testator without any writinge, doeth declare his will, before a suf­ficient number of witnesses§. Fin. Instit. de testa. ordin. L. Haeredes pa­lam. ff. de testa.. And 2 it is called nuncupatiue † à nuncu­pando i. nominando, of namingMinsing. in d. §. fin. & Kling. in d. tit. de testa. ordin. n. 11.. Because, when a man maketh a nuncupatiue testament, hee must name his executor, and declare his whole 3 minde before witnessesMinsing. in d. §. fin.: And † a nuncupatiue testament, is of as great force and effecacie, (except for his landes, tenements, and heredi­taments,) as is a written testamentL. Hac consultissima §. per nuncupationem. C. de testa. d. §. fin. In­stit. de testa. ordin.. This kind 4 † of testament is commonly made, when the testator is now very sicke, weake, and past all 5 hope of recouerieTermes of law. verb. deuise.. For † (as one reporteth) it is receiued for an opinion amongst the ruder [Page] and more ignorant people, that if a man should chance to be so wise, as to make his will in his good health, when hee is strong and of good memorie, hauing time and leasure, and might aske counsell (if any doubt were) of the lear­ned; that then surely he should not liue long af­ter. And therfore they defer it vntill such time, whē it were more conuenient to applye them­selues to the disposing of their soules, then of their landes and goodesIbidem.. And † in conside­ration 5 hereof it is, that testaments are so much fauored which be made in such perilous times; namely, for that the testator then cannot con­ueniently stay to aske counsell of such pointes as be doubtfull in laweInfr. part. 4. §. 4..

A † nuncupatiue testament may bee made 6 not onely by the proper motion of the t [...]sta­tor; but also at the Interrogation of another, as is hereafter declaredInfr. part. 4. §. 26..

Of Priuileged Testaments.
§. xiij.

1 What is a priuileged testament.

2 Wherefore they be called Priuileged.

3 Diuerse sortes of priuileged testamentes.

PRiuileged testamentes are those, † 1 which are enriched with some spe­ciall freedome or benefit, contra­rie to the common course of lawMantic. de coniect. vlt. vol. lib. 1. tit. 57. infi.. They bee tearmed † priuileged à 2 [Page 25] priuilegio quasi a priuata lege Summa Hostiens. tit. de priuileg in prin.. For a priuiledge doeth signifie a priuate lawe. For as much ther­fore as by a priuate or speciall lawe, some testa­mentes be discharged or disburdened, from the vsuall orders, or obseruations of common or generall lawe: in that respect they are called priuileged.

3 Of † priuiledged testamentes there are three sortes, Testamentum militare, testamentum inter li­beros, testamentum ad pias causas, a testament made by a Souldier, a testament made by a fa­ther amongest his children, and a testament made for good and godly vses. And although there be some other priuiledged testamentes, yet their priuiledges are but small in compari­son of these threeVidelicet, testamēta rusticorum. testa. tem­pore pestis condita, & huiusmodi, de quibus Ripa. in tract. de pe­ste. c. 2..

Of a Militarie Testament.
§. xiiij.

1 The causes wherefore Souldiers enioy such priui­leges in making their testamentes.

2 Wherein Souldiers are priuileged concerning the making of their testamentes.

3 Souldiers priuileged in respect of their owne per­sons and of others also.

4 Souldiers priuileged in respect of solemnities testa­mentarie.

5 Souldiers priuileged in respect of the substance and forme of a testament.

6 Three sortes of men called Souldiers.

7 Whether all armed souldiers enioye these priuile­ges.

8 Whether doctors of the lawe, and clergie men en­ioy [Page] these priuileges.

9 The fruite which the common wealth reapeth by the studie and practise of lawe.

10 What benefite doeth redounde vnto vs by the Cleargie.

11 Whether the souldier, or the lawyer are more ho­norable.

12 VVhat manner testamentarie priuileges Di­uines and Lawyers doe enioy.

13 All Doctors and Diuines be not priuileged.

FOr as much † as Souldiers being bet­ter 1 acquainted with weapons then bookes, are presumed to haue so much the lesse knowledge in the lawes of peace, by how much they are the more expert in the lawes of armesL. fin. §. C. de iure de. lib in fin. Vigli & Min­sing. in tit. de testa. mil. Instit.. For as much al­so as noble warriors, in the defence of their countrie, doe often times vndertake perilous enterprises, wherein they loose their liues or their limmes; and seldome escape without woundes or bodily hurtL. quanquam C. de testa. mil. & ibidē. Dec.: As well therfore in regard of their small skill, in our peaceable laws on the one sideInstit. de mil. testa. in p [...]inc. And. Gail. lib. 2. practic. obseruac. c 118.; as in recompence of their great perilles and hurtes in furious and cruell battailes, on the other sideDec. in d. L. quan. quam C. de mil. testa. Atque hatum causarū p [...]or est impulsma, po­sterior finalis. Gail. vb [...] supr.: They enioy ma­nie notable priuiledges, and benefittes in the making of their testamentes, (especially by the Ciuill lawe,) which are not allowed vnto o­thersVasquius de success resolue. lib. 2. §. 20. vbi [...]nun [...]ra [...] [...]xx. priule­g [...], militibus in [...]lta..

Of these † priuiledges, some doe respect the [Page 26] person of the testator, some respect the person of the executor, or legatarie, some respecte the solemnities about the making of the testament, and some respecte the substaunce or forme of the testament madeL. neque enim ff de mil. test. & ibi Bar. Si­chard. in Rub. de testa. mil. C. Mantic. de con­iect. vlt. vol. lib. 6. tit. 1.. Concerning the first 3 kind of priuiledge, whereas † there bee manie which be disabled to make their testament, (as afterwardes doeth appeare)Infr. 2 part.: Yet a Souldier is not disabled by any of these impedimentes, vnlesse it be by reason of furor, or lacke of rea­son, or forsome other causes, whē he is disabled Iure gentium Bar. in d. L. Neque e­nim. Minsing in tit. de mil. testa. Instit in prin.. Concerning the person of the executor or legatarie: Whereas there bee dy­uers which be prohibited to be executors, or legataries, to other persons; yet they are not to be prohibited to bee executores or legata­ries to a Soldier (except in some fewe casesBar. in d. L. neque e­nim, & infr. par. 5..) 4 Concerning † the solemnities of the Ciuill lawe, to bee obserued in the makinge of testa­mentes: souldiers are clearely acquited from the obseruation thereofL. Dinus ff de test [...]. mil. § plane. Insi [...]. cod. tit.: Sauing that in the opinion of diuers, Souldiers when they make their testamentes, ought to require the witnes­ses to be presentQuorum opinio cō ­munis [...] vt [...]ert fal. Clar. § testm [...]. But for as much as no subiect of this land, is strictly tyed to this obseruation of requiring the witnesses, in the making of his testamenteSupr. §. [...]i [...] prin. cum nota [...] [...]., (those onely solemnities beeing necessary which be Iuris gentium Supr. §. x. in prin.:) Therefore that opinion is not to take place here in Eng­land; otherwise this absurdity would followe, that Souldiers should be tyed to more strickt obseruation, then men of greater skill; and en­ioye lesse libertie, then they of lesse deserteVide quae superius dicta sunt. §. x. n. 5. c [...] notis marg.. [Page] Concerning † militarie priuileges which re­specte 5 the forme and substaunce of the testa­ment made: First, whereas no other person, can die with two testamentes; yet a Souldier may, and both testamentes shall bee deemed good, according to the wil and meaning of the testatorL. Qu [...]rebatur ff. de mil. testa.. And whereas an other person, can not die partely testate and partly intestate; (at least by the Ciuill laweL. [...]us nostrum de reg. iur. ff.) yet a Souldier mayL. Miles C. de testa. mil.. And therefore if a Souldier make his testament, and therein appoint an executor for goods in one place, the next of kinne shall haue admini­stration of goods in an other placed. L. Miles.. But this priuiledge dooth also belong to euery subiect of this realmeFitzherb. Abridg. tit. exec. n. 26. & infr. par. 4. §. 17. & §. 18.. Other priuileges there bee, but it were to long to repeate them allVide (si placeat) Vasq. de success. reso­luc. lib. 2. §. 20. vbi enu­merat 70. priuilegia, quae militibus com­petunt..

After we haue viewed what priuiledges doe belong to Souldiers, it shall be expedient to shewe what manner of Souldiers they bee to whom these priuileges are graunted. Where­fore we are to vnderstand, that there † be three 6 sortes of men, which be tearmed in law by the name of Souldiers. The first be milites armati, ar­med Souldiers: (such as are aboue described) the second be milites literarij, lettered Souldi­ers, as Doctors of the lawe: the third sorte are milites caelestes, celestiall or heauenly Souldiers, as cleargy men and diuines: for so the lawe doeth tearme themMinsing. in Rub. de testa. mil. In. tit.. Concerning the first sort † eyther they be such as lie safely in some castle 7 or place of defence, not besieged by the eni­mie, onely in readinesse to be imployed, in case of inuasion or rebellion, and then they doe not [Page 27] enioy these militarie priuilegesIntellige stationa­rios & Limitancos mi­lites. de quibus Viglius, & post eum Minsing. in §. illis autem. Instit. de testa. mil. & lul. Clar. §. testm̄. q. 15. in fin. Adhibe duas alias micas salis, vnam ex Zasio in L. Miles. ff. de re. iud. n. 5 alteram è Decio in Rub. de testa. mil. C. n. 3.: Or else they be such as are in expedition or actuall seruice of warres, and such are priuilegedL. Pen. C. de testo. mil. Mantic. de coniec. vlt. vol. lib. 6. tit. 1. n. 32., at least during the time of their expedition§. Sed hactenus. In­stit. de mil. test. Clar. §. Testa. q. 15. n. 4. And. Gail. d obseruac. 118., whe­ther they be employed by lande or by waterMichael. Grass. The­saur. com. op. §. testm̄. q. 3. n. 1. Zas. in L. miles. ff. de re iud. n. 5. in fin., and whether they be horsemen or footemenDec. in Rub. de testa. mil. C. n. 5. Ripa. in L. centurio. ff. de vulg. sub. n. 11.. Concerning the other two sorts of Souldiers, many are of this opinion, that they doe not enioy the foresaid priuiledgesSichard. in Rub. de mil. test. C. 9. las. Ripa. & aljj in L. cen­turio. inde vulg. sub. ff. quo [...]ū op. com. est. vt refert. Vasq. de succes. crea. §. 24. n. 23., because that they are not souldiers properly so called, but metaphoricallyMinsing. in Rub. de nul. testa. Instit. n. 2.. Others are of a contrary opi­nion; 9 affirming † that the great paines, and stu­dious trauell of learned lawyers, (especially doctors of lawe and such like,) are no lesse be­neficiall to their countrie, then the hardy ad­uenturers, of those armed souldiers. For that without lawes no common wealth can be go­uerned: And in that respecte deserue as great 10 priuiledges as theyMichael. Grass. The­saur. com. op. §. testm̄. q. 4. Alex in d. L. cen­turio qui tamen alijs fundamentis nititur.. Much † more then (by all probabilities) are those spirituall souldiers worthy of all priuiledges by whose praiers and intercessions, the wrath of God is appeased, and victory many times obtained, and without whose ministery christianity would quickly be ruinated and subuertedAlex. in d. L. centu­rio. n. 18..

And yet doubtlesse it is more doubtfull in lawe, whether these militarie priuiledges doe appertaine to testaments made by cleargy men, then if they were made by lawyersRipa. in d. L. centurio. ff. de vulg sub. n. 19. post Socin. Iason. Claud. & alios ibidem. & Mathesilla. not. 61. Grass. Thesaur. com. op. §. testm̄. q. 5.. The rea­son may be, because howsoeuer deuines be worthy: yet they bee otherwise rewarded, though not in thisVasq. de succesi. c [...]e a. §. 24. n. 31. in sin., which reason notwith­standing [Page] dooth not so fullie satisfie. For if doc­tors and pleaders of the lawe be therefore pri­uileged, because they be compared to souldi­ersGloss. & DD. in L. miles. ff. de re. iud. Mē ­tionem autem feci nō solùm de doctoribus, sed de alijs etiam cau­sidicis, propterea quòd licenciati ratione ex­ercitij priuilegijs mili­taribus fruuntur. Te­ste Ripa. in d. L cen­turio. n. 18.; for that like valiant champions, by force of learning, strength of witte, and mightye power of eloquence, they defend their clients causes, against the subtilties, and iniuries of their aduersaries: how much more ought our cleargie men diuines, our captaines in the spi­rituall warfare of this life, by meanes of whose sacred ministerie and vertue of whose god­lye instruction, and might of preaching that powerfull and inuincible woorde: not our purses, nor our bodies, but euen our soules are defended and in safetie, against the cruell assaultes of that bloudy and mortall enemie of man kinde, (who seeketh by all malici­ous meanes, like a roaring lion whom hee may deuoure) and against his huge hoast of wicked spirites, who neuer rest day nor night, nor mi­nute of an hower, but still striue with might and maine to ouerthrow vs, and to bring vs all to euerlasting destruction: how much more, I say, are these our captaines in these so terrible conflicts, to be gratified and dignified, with all manner of military priuiledgesArg. à min. ad ma.. Wherefore if the matter rest vpon the issue of desert & wor­thinesse, without doubt of these three forena­med souldiers; the diuine is not the last, but the foremost. Concerning the other two, (the lawyer I meane and the souldier) whether of them deserueth better of the common wealth, and whether is to bee preferred before the o­ther, [Page 28] is a question so incident to this contro­uersie, and cleaueth so close thereunto, that there bee fewe writers which handle the one, but they also touch the otherAlex. Ias. Ripa. in d L. centurio. Vasq. de succes. creat. §. 24. n. 31. In the determi­nation whereof, if the interpreters of the lawe may be iudges in their owne cause, then the sentence must needes be, cedant arma togae Vasq. in d. §. 24. n. 31 Ias. in L. pen. C. de pactis. n 4. Angel. Arc. in §. fin. Instit de mil. testa. Alex. in d. L. cen­turion. 14. & Ripa. ibi­dem n. 15. Panor. & Canonistae in C. quan­do de magistr. extr. n. 3. Felj. in Rub. de ma­ior. & ob. extr. col. 2..

Comparisons be odious. For mine own part, if you will giue me leaue, I will tell you a tale out of Zasius Zas. in L. miles. de re. iud. ff. n. 8., writing vpon this Q. which shal­be as true as any is in Aesops fables. A certaine painter (saith hee,) meaning by his arte to de­scribe the strength of man, did paint a little man riding vpon a huge lion, as if a man were stron­ger then a lion. A lion passing by, demaunded of the painter, wherefore he made such a pic­ture. Because (quoth the painter) my man is a­ble to tame any lion, as easily as a horse or an asse. Well sir said the lion, if we could painte, thou shouldest see a lion deuouring a painter. Eloquent men are as painters, valiant souldi­ers as lions: hither to in iest: But nowe in ear­nest, yet without offence. It is not the golden chaine, nor the plume of fethers, nor the bigge lookes, nor the proud bragges, which make a right souldierZas. in d. L miles. n. 5. Neither is it the long gown nor the graue beard, nor the stately gesture which make a good lawyerCucullus non sacit monachum.. The counterfeit of either deserueth no honour: be hee neuer so braue, neuer so graue. If both be as they should, the praeeminence in matters of warre is the souldi­ers; in matters of peace it is the lawyersZas. in d. L. centurio. n. 20. Alex. in eand. L. n 14. Gail. lib. 2. pract. obser. n. 8. n. 16.. In o­ther matters, he is the more honorable, which [Page] doeth more honour the other. To returne to the former question, whether these souldier like lawyers may challenge these former testa­mentarie priuileges: we are to distinguish be­twixt priuileges graunted to souldiers, (so pro­perly called) in respect of their want of skill and ignoraunce in matters of that qualitie, (for such doe not belong to the learned;) and pri­uileges of prerogatiue or deserte. For these kinds of priuileges belong also to doctors and clergie menDD. in L. miles. & L. centurio. ff. de re iud. Michael Grass. Thesau. com. op. §. testm̄. q. 5. nu 5.: but † with this restriction; that as 13 they belong not to euery souldier, but onely to such as are in action: so they belong not to doc­tors vtterly non proficient, or clarkes vnlawfullie non resident, but such as painefully attend their profession, and diligently labour in their voca­tionGrass. d. q. 5. Viglius in d. §. j. Instit. de testo. mil. Sichard. in L. fin. §. si quis vero. C. de codicil. n. 5..

Of the testament of the father amongest his Children.
§. xv.

1 What is a testament amongest children.

2 That testament is presumed last which is made in fauour of children.

3 If two testamentes be found, and it doe not appeare which is first or last, neither is good.

4 The testament made in fauour of children, is not so easily reuoked as an other testament.

5 What manner mention is to be made in the latter testament, to take away the former made in fauour of children.

6 Certaine cases wherein the testament made in fa­uour of children, may be taken away by the second, [Page 29] without any mention of the former.

7 Whether a testament may bee prooued which hath no witnesses of the making thereof.

8 The priuilege of proofe without witnesses, whether it be peculiar to one kind of testament?

THe second kinde of priuileged testa­ments is, testamentum inter liberos; a testament amongst childrenMantic. de coniect. vlt. vol. lib. 1. tit. 7. in fin.: that is 1 to say, † wherin the father nameth his lawfull and naturall children his executors, gi­uing to them the residue of his goodesL. ex hac consultissi­ma. §. ex imperfecto. C. de testa. & ibi DD., vnto which kinde of testament diuers priuileges doe 2 appertained. §. ex imperfecto. & L. fin. C. famil. Hercis­cun. Mantic. de coniec. vlt. vol. lib. 6. tit. 2.. The first priuilege is this, if † two testaments bee found after the death of the te­stator, of diuers tenores, and it dooth not ap­peare which of them is the latter testament, in this doubte that testament is presumed the lat­ter, and so shall preuaile, which is made in fa­uour 3 of the childrenBar. in L. j. §. j. de bon. poss. secudū tab. ff. Clar. § testm. q. 100.. Whereas if † neither be in fauour of the children, nor otherwise priui­leged, neither testament shall preuaile, but both are voyd, the one destroying the otherL. sin. de haered. Insti. L. ius nostrum. de reg. iur. & Cagnol. ibidem. n 8. Bald. & Castr. in L. cum qui. de acquir. haer. ff.: Vn­lesse the testaments be made by a souldier, for then it seemeth that both testaments shall pre­uaile, because hee may, (if he will) die with two testamentesL. quaerebatur de testa mil. ff. Bar. in d. L. j. §. j. de bon. poss se­cundum. tab. ff..

4 Another priuilege is this, the † testament made in fauour of children, is not so easily re­uoked as other testaments areAuth. hoc inter libe­ros. C. de testa. & gloss. ibidem., for whereas in other testaments, the former is reuoked or in­fringed [Page] by the latter, and that ipso iure § posteriore. Instit. quibus mod. testa. infir.; with­out any expresse reuocation of the former, and without any kinde of mencion of the former testament either generall or speciallInfr. part. 7. §. 14. (certaine causes excepted). Yet † by the ciuill lawe, if the 5 father haue once made a testament, wherein he hath preferred his children as before, the same is not reuoked by a latter testament, wher­in straunger are preferred (whether the former be a written testament or nuncupatiue,) vnlesse in the latter testament there be speciall menci­on of the formerd. Auth. hoc inter li­beros. Alex. Ias. Sichar. ibidem. quorum opinio communis est contra Angel. vt inquit Grass. Thesaur. com. op. §. te­stm̄. q. 86. n. 11., so † that it is not sufficient 6 for the testator, to make generall mention, say­ing, I make this my last will, notwithstanding a­nie former testament, but he must make speci­all mention, as notwithstanding any former te­stament made amongest my childrenMantic. de coniect. vlt. vol. lib. 6. tit. 2. n. 19. & Sichard. in d. Auth. Hoc inter., or vn­lesse the second testament be made ad pias cau­sas [...]as. in d. Auth. hoc [...].: Or else some great displeasure, or enmity haue happened, betwixt the father and the children,Grass. Thesaur. com. op. § testm̄. q. 8 [...]. n. 11. or some like cause haue come to passe, whereby it may appeare that the father did repent him of the making of his said will.Grass. ibidem.

An other priuiledge graunted by the ciuill law, to fathers testaments amongst his chil­dren is this, that the † same may take effect, albe­it 7 there be no witnesses to prooue the same; as when there is a testament found in some chist, or like place, written or subscribed with the te­stators hand, or by him procured to be written by some otherBald. Paul. de castr. & Ias. in Auth. quod sine C. de testa.. Howbeit I doo suppose that by † the generall custome of this realme of 8 England, those two priuileges be not proper or [Page 30] peculier to fathers testaments alone, but that the same are common to al other English mens testaments, and namely the latter priuilege: when it dooth appeare vndoubtedly, to bee written or subscribed with the testators owne hand, or is prooued that the testator caused the same to bee written by another. Howe this proofe is to be made, that the testament is writ­ten or subscribed with the testators own hand, is declared in another placeInfr. part. 4. §. xxv..

Other priuileges there be, wherby these kinds of testamentes are free, from sundry obserua­tions and solemnities, wherewith other testa­mentes are charged. But because they are al­so 20 common to all our testaments here in Eng­land; it were improper to repeate them in this place vnder the title of priuileges.

Of a testament ad pias causas.
§. xvj.

1 A testament ad pias causas may be so tearmed either in respect of persons or places.

2 A testament ad pias causas may bee made by straung and vnaccustomed notes.

3 A testament ad pias causas being found cancelled, is not presumed to bee aduisedly cancelled by the testator.

4 In a testament ad pias causas whether the condi­tion ought to be obserued precisely.

5 A testament ad pias causas is not voyde by reason of vncertaintye.

[Page] 6 Whether all priuileges which belong to a militarye testament, or to a testament amongest the testators children, doe also belong to a testament ad pias causas?

7 What if there appeare two priuileged testaments, and it doeth not appeare which is later, whether, shalbe preferred.

THe third kind of priuileged testa­ments, is that testament ad pias cau­sas Mantic. de coniect. vlt. vol. lib. 1. tit. 7. in fin. & in lib. 6. tit. 3.: Which is so tearmed † not 1 onely in respecte of persons, (as when the testator willeth his goods to be distributed to younge Orphanes, widdowes, straungers, prisoners, lame, and dis­eased persons, so that they be poore and nee­die, such as the law tearmeth miserable persons:) but also in respect of places: as when the same is lefte to hospitalles, to churches, to repairing of high waies, bridges, walles of a towne or ci­tie when the same bee decaied; and stand in neede to be repairedLindw. in c. ita quo­rundam verb. pias causas de testa. lib. 3. prouincial. constituc. Cant. & latissimè Ti­raquel. tract. de priui­leg. piae causae. in prae­fac. eiusd., and such a testament hath very many priuilegesTiraquel. in d. tract. vbi enumerat 170. priuilegia piae causae, quarum tamen longe maxima pars compe­tit singulis Anglorum testamētis, etiamsi non sint condita ad pias causas..

One priuilege is, that † this kind of testament 2 may be written with straung & vnaccustomed characters, or notes; as in steed of A. the first fi­gure 1. in steed of B. the second figure 2. in steed of C. the third figure 3. or with some other more straung deuised letters. Yet neuerthelesse [Page 31] the same is as effectuall as if it hadde beene written after the vsuall and accustomed man­nerMantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 3. Tiraquel. de priuileg. piae causae. c. 12. vide inf par. 4. § 25..

3 An other priuilege is this, that if the † te­stament ad pias causas be found cancelled and it is not known, whether the testator did willing­lie and wittingly cancell the same; the law doth presume it to bee cancelled vnaduisedlyCouar. in Rub. de te­sta. 3. part. n 19. Gra­uetta. consil. 128. M [...]n­tic. de coniect. vlt. vol. lib. 12. tit. 1. n. 32., and so it is in effect, as if it had not beene cancelled at all, whereas in other testaments, the contra­rie is presumed: that is, that the testator did wittingly and willingly, cancell the sameAlex. consil. 104 n. 6 vol. 7. Mantic. de con­iect. vlt vol. lib. 12. tit. 1. num. 30.: whereby they are made voyd, as afterwarde is declaredInfr. part. 7. §. 16..

An other priuilege is, that for the obtai­ning of any thinge lefte condicionallie ad pias 4 causas, it † is sufficient the condition bee ac­complished by other meanes, then according to the precise forme of the conditionTiraquel. de priui­leg. piae causae. c. 83.: Wher­as in other testamentes or legacies, it is not sufficient, vnlesse the condition bee preciselye obseruedL. M [...]uius. L. qui hae­redi de cond. & demō. ff. vide inf. par 4. §. 7..

5 An other priuilege is, that the † testament ad pias causas is not voyd in respect of vncertain­tie, (as other testamentes are:) and therefore ‘if the testator say, I make the poore my execu­tors, or I will that my goodes be distributed a­mongest the poore: suc [...] manner of appoin­ting Executors or legacies is not voyd [...]ar. & Ias in [...]j C. de sac [...]sa. e [...]cle. [...]rass. Thesaur. com. op. §. In­stitut. q. 1 [...]..’

6 Generallie I suppose, that † whatsoeuer priuilege dooth belong, eyther to a Militarie testament, or to a testament made by the fa­ther [Page] amongest his children, in respecte of the solemnities to bee obserued in the making of testamentesIure ciuili non valet testm̄ ad pras causas, absque solennitatibus conditum, lecus iure com. modo adhibeatur solen. si [...]as iuris genti­um. & haec est commu­nis opinio. Grass. The­saur. com. op. §. testm̄. q. 18. Boer. Decis. 93. n. 3. vnde non requiritur, vt testes sint rogati in confection: testm̄ ad p [...]as causas, vt habet communis opinio. Testibus Couar. in c. relatum. cl. j. de testa. extr. n. 4. Tiraquel. de priuileg. piae causae. c. 3 & Grass. d. q. 18. n. 5., or the substance of testamentsc. cum tibi de testa. extr. Quid autem re­spectu personae testan­us Die, vt per Iu. Clar. §. testm̄. q. 5.; that the same doe also appertaine to a testa­ment ad pias causas, sauing in some cases, and namely, where the priuileges of both the for­mer kindes of priuileges be contrarie, as where two testamentes bee extant, and it dooth not appeare which is former or latter. In which case it seemeth, that if they bee militarie testa­mentes, that then they are both good, other­wise they are both voideSupr. §, 14.: But if the one of them be ad pias causas, then that is presumed last and so auaileable, the other not being pri­uilegedIas. & Sichard, in L. fin G. de edict. D. Adri­an. tollend..

But † what if both testamentes bee priuile­ged, 7 the one being inter liberos, the other ad pias causas, and it dooth not appeare, which is for­mer or latter; which shall preuaile? I suppose that which is inter liberos Mantic. de coniect. vlt. vol. lib. 6. tit 3 n. 13., for the children are to succeede in case both the willes were voideBar. in L. j. §. de bon. poss. secundum tab. ff. stat. H. 8. an. 21. c. 5., and so haue a double helpe, the one of the testament, the other of prouision of lawL. vtrum. §. vlt. ff de minor. Alciat de prae­sūp. reg. 3. praesup. 13. n. 3. And it were harde to take the testators goodes from his children, vnlesse it did plainelye ap­peare that the other were the latterVn ie Augu t. Qui­cūque (inquit) vult ex­haeredato filio, haeredē facere ecclesiam alium patronum quaerat q̄ Augustinū 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 latterMantic. de coniect. vlt. vol. lib. 6. tit. [...]. n. 43..

Of testamentes vnpriuileged.
§. xvij.

1 Vnpriuileged testaments what they are.

1 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.
  • [Page]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.
§. j.

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.

IN the second part of this Testamentarie treatise, shalbe 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 [Page] (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 willInstit. 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 § testm̄. q. 20., and may therein dispose of his goods and cat­tellesQuibus enim per­missum est testa [...] 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 customeEst enim edictum de testamētis, plubitoriū certarum personarum gloss. in §. j Instit Qui­bus non est permissum testa. fac. Grass. The­saur. com. op. testm̄ 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 2 forbidden by lawe, or custome to make testa­mentes, yet they are reduced of some vnto fower or fiue sortesBar. & Bald in L. Si quaeramus ff. de testa. Lindw. in c. cum viris de testa. lib. 3. prouinci­al constit. Cant.. Amongest the first † are 3 comprehended such as want discretion or iudge­ment, as childrenInfr. ead. part. §. 2., madde folkesInfr. ead. part. §. 3., and idiotsInfr. ead. part. §. 4., to whom also I may ioyne those persons who be so very olde, that they become childishe a­gaineInfr. ead. part. §. 5., and him that is drunkeInfr. ead. part. §. 6..

Amongest the second † sort are comprehen­ded 4 such as lacke freedome, & full liberty, as bond­slaue, slaues, and villeinesInfr. ead. part. § 7., vnto whome may be added captiues and prisonersInfr. ead. part. §. 8., and women couertInfr. ead. part. § 9..

In the third sort † are contained such as lacke 5 some of their principall senses, namely such as bee dombe and deafeInfr. ead. part §. 10., and blindeInfr. ead. part. §. 11..

Among the fourth sorte † are placed such as, 6 for some heinous crime, are depriued of abilitie, of making of testaments, as traitorsInfr. ead. part. §. 12., felonsInfr. ead. part §. 13., heretikes,Infr. ead. part §. 14., apostataesInfr. ead. part. §. 15., many othersDe quibus infr. ead. part. §§. 16, 17, 18, 19, 20 21, 22..

7 And last of all, others † for other causes here­after specifiedInfr. ead. part §§. 23. 24. cum sequentibus. vide Io. ab Imol. in c. qua ingrediētibꝰ. 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.
§. ij.

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.

IF we wil vnderstand when a child may make his testament, we must distinguish whether the testament be of landes, or of goods.

1 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 [Page] to be good or effectuall in lawStat. H. 8. an. 34. c. 5., for vntill that time, by the common laws of this realme, they be accompted infantesDoct. & Stud. lib. j. c. 21. lib. 12 c. 28..

If † of goodes we must distinguish, whether 2 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 she haue accomplished the age of 12. yeeresL. qua aetate. ff. de testa. §. praeterea. Instit. quibus non est permis­sum. testa. fac. L. si fra­ter. C. qui testa. fac. pos.. In so much that † if before these foresaide yeeres 3 they were of that ripenesse of witte, that they were doli capaces, capable of deceite, or able to discerne betwixt good and euill, and betwixte trueth and falsehood, yet could they not make any testament, nor dispose of their goodsDD. in d. L. qua aeta­te, quorum opinio cō ­munis est, vt aiunt Grass. Thesaur. com. op. §. testm̄. q. 20. & Viuius eod. lib. verb. pu­pillus. n. 7.: or if the boy were of that strength, that he were a souldiour, notwithstanding those great priuile­ges which doe belong to souldiours in making of their testamentes: yet could not hee make his testament, before he had accomplished his age of 14. yeresL. vlt. C. de testō. mil. Grass. & Viuius. vbi su­pra. referentes hanc op. esse com.. Neither can a boy before hee haue accomplished 14. yeeres of age, nor a wench before she haue accomplished 12. make a testament ad pias causas Ias. in L. si frater qui testa. fac. poss. C. atque haec opinio communi calculo comprobatur. Iul. Clar. §. testm̄. q. 5. & Grass. §. testm̄ q. 17.: Neither † is the testa­ment 4 good, made by the boy or wench before the said ages, although the same should bee made by the auctoritye or consent of the tu­torIas. in d. L. si frater. C. qui testa. fac. poss.: neither dooth † the testament become 5 good, being made in their minorities respec­tiuely aforesaid, albeit they should afterwardes attaine to their seuerall ages, wherein they might make their testaments§. pra terea. Instit. quibus non est permis. testa fac. L. si siliul fa­milias ff. qui testa. fac. poss..

Howbeit † a boy after the age of 14. yeeres, 6 and a wench after the age of 12. yeeres, maie [Page 36] make a testament and dispose of their goodes and cattellesd. L. qua aetate ff. de testa. Perkins. tit. de­uise. fol. 97. quamuis impressi. sit viciosa. vz. litera(x)omissâ, nam quod sic scribitur, iiij. ante scribi debuit xiiij. ans., and that not onely without the auctoritie or consent of their curator or gar­denIas. in L. si frater. qui testa. sac. poss. C., but also without the auctoritie and con­sent of the father, if he haue any goodes of his 7 owneVerum quidem est, quod iure ciuili filius-familias testari neque­at ob illam patriam, cui subijcitur, potesta­tem. At verò in Anglia cessat perampla haec potestas & praerogati­ua. trac. de repub. Angl. lib. 3. c. 7. & sic cussante causa, cessat effectus.. Or if † he or she haue attained to the last day of 14. or 12. yeres, the testament by him or her, in the very last day of their seuerall ages 8 aforesaid is as good and lawfull, as if the same day were already then expiredd. L. qua aetate. & ibi Bar.. Likewise † if after they haue accomplished these yeres of 14. or 12. he or she doo expreslie approoue the te­stament made in their minoritie, the same by this new will, and declaration is made stronge and effectuallPaul. de cast. & alij in L. si frater qui testa. fac. poss. C..

Of madde folkes and lunaticke persons.
§. iij.

1 Madde and Lunaticke persons cannot make a te­stament, and what is the reason.

2 Whether the testament made in the time of furour be good when the testator is come to himselfe.

3 A testament may be made by a Lunaticke person, betwixt his fittes.

4 Euery one is presumed to be of perfect minde and memorie, vntill the contrary be prooued.

5 He that obiecteth insanitie of minde must prooue the same.

6 Whether it be sufficient to prooue that the testator was madde before the making of the will.

7 Whether he that is once madde bee presumed so to continue.

[Page] 8 Insanity of minde hard to be prooued.

9 Witnesses must yeelde a reason if they will prooue a man to be madde.

10 Argumentes of madnes.

11 Whether a generall reason suffice to prooue insa­nitie of minde.

12 Whether madnes may be prooued by singuler wit­nesses.

13 Those witnesses are to be preferred, which depose that the testator was of sound minde.

14 What if the testament be made by a lunatike per­son, and the time of the making vnknowen, whe­ther is the testament good or no?

15 What if it cannot be prooued that the testator had quiet intermissions.

16 What if there be a mixture of wise things and fo­lish in the testament.

MAdfolkes † and Lunaticke persons, 1 during the time of their furor or insanitie of minde, cannot make a testament, nor dispose anie thing by will§. Praeterea. Instit. quibus non est permis­sum. L. furiosum. C. qui testa. fac. poss. L. nec codicillos C. de codi­cillis., no not ad pias cau­sas Bar. in L. j. C. de sa­crosanc. eccle. n. 16. Dec. in d. L. furiosū. & haec opinio cōmuniter est recepta. Iul. Clar. §. testm̄. q. 5. Grass. §. testm̄. q. 17.: the † reason is most forcible, because they 2 knowe not what they doGrass. d. §. testm̄. q. 21. in prin.: for in making of te­staments, the integrity or perfitnes of minde & not health of the body is requisiteL. senium. C. qui testa. fac. poss.; and there vpō arose that common clause, vsed in euery te­stament almost, sick in body, but of perfit minde & memory Minsing. in d. §. praeterea Instit. quibus non est per­miss. quae tamen clausula non est adeo necessaria, vt semper obseruetur.. And so † strong is this impediment of 3 [Page 37] insanitie of minde, that if the testator make his testament after this furor haue ouer taken him, and whiles as yet it doeth possesse his minde, albeit the furor afterwardes departing or cea­sing, the testator recouer his former vnderstan­ding: yet dooth not the testament made du­ring his former fit, recouer any force or strength 4 therebyd. L. furiosum. C. qui testa. sac. poss. d. §. prae­terea. Instit. quibꝰ non est permissum, &c.. How be it † if these madde or luna­tike persons haue cleere or calme intermissi­ons, then during the time of such their quiet­nesse and freedome of minde, they may make their testamentes, appointing executors, and disposing of their goodes at their pleasuresd L. furiosum. & d. §. praeterea. & DD. ibid.. So that neither the furor going before nor fol­lowing the making of the testament, doth hin­der the same testament begunne and finished in the meane timed. Locis..

5 And here note, that † euery person is presu­med to be of perfite minde and memorie, vn­lesse the contrary be proouedBar. in L. nec codicil­los. C. de codicil. Alciat in tract. de praesump. regula j. praesump. 78.. And therefore if any person goe about to impugne or ouer­throwe the testament by reason of insanitie of minde, or want of memorie, hee must prooue that impedimentBar. in d. L. nec codi­cillos. Minsing. in d. §. praeterea. Mantic. de coniect. vlt. vol. lib. 2. tit. 5.. If it bee asked wherefore then is that vsuall clause (of perfit minde and memorie) so duelie obserued in euery. testa­ment, if he that doth preferre the will bee not charged with the proofe thereof? It may be an­swered, that that which is notorious is to be al­ledged not proouedL. si adulterium. §. idē ff. de adul.: And so this beeing ac­compted notorious; (because where the con­trarie appeareth not, the lawe presumeth it) it neede not be proouedVas. de success. pro­gress. lib. 1. §. j. vbi con­tra Socin. & Boer. sen­tientes, quod allegans mentis sanitatem te­netur eandem probare, non dubitat hanc opi­nionem indignam tan­tis viris affirmare. Ego verò sententiae Vasquij subscribo, nisi constet testatorem ante fuisse furiosum. vide Mascar. de probac. concl. 814. n. 10, 11, 12, 13.: and therefore I sup­pose, [Page] that clause to be more vsuall then necessa­rie, and yet not hurtfullImmo prodest huius. modi clausula, quoad probationis adminicu­lum a Notario scripta. Mantic. de coniect. vlt. vol. lib. 2 tit. 5. in fin..

Seing then he whose intent is grounded vpon the madnesse & lunacie must prooue the same, it shall not be amisse, to set down some obserua­tions concerning the manner of proofe therof.

First therfore it may be deliuered for a rule, that † it is sufficient for the partie which plea­deth 6 the insanitie of the testators minde, to prooue that the testator was besides him selfe, before the making of the testament, although he doo not prooue the testators madnesse, at the very time of the making of the testamentGloss. in c. fin. de suc­ces. ab intestat. extr. Lanfranc. in c. quoniā contra de probac. extr. verb testm̄. depos. & est communis opinio, per praepos. in c. dilectus. despons. extr., the reason is: It being † prooued that the testa­tor 7 was once mad, the lawe presumeth him to continue still in that case, vnlesse the contrarie be proouedMantic. de coniect. vlt. vol. lib. 2. tit. 5. Dec. in L. furiosum. C. Qui testa. fac. pos.. For like as the lawe presumeth euery man to be an honest man, vnlesse the contrarie be proouedAlciat. de ipraesump. reg. 2. praesump. 8., and beeing prooued, then he which is euill to be euill stillc. semel malus. de reg. iur. 6.: So con­cerning furor; the lawe presumeth euery man to haue the vse of reason and vnderstanding vnlesse the contrarie be prooued, which being prooued accordingly, then hee is presumed in law to continue still void of the vse of reason & vnderstandingPanor. Io. And. & Bu­tr. in c. cum dilectus de success. ab intestat. ext. quorum op. com. esse multis testimonijs pro­bat. Mascard. de p [...]ac. verb. furiosum. concl. 825. n. 5., vnlesse the testator were be­sides him selfe but for a short time, and in some peculiar actions, and not continually for a long space, as for a moneth or moreBat. in L. 2. de bon. poss. infan. & furios. de­lat. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. n. 7. verb. sed tamen., or vnlesse the testator fell into some frenzie vpon some acci­dentall cause, which cause is afterwardes taken awayAre. in L. 2. ff. de te­sta. Couar. in tract. de­spōs. & in [...]ion. 2. parte. c. 2. n. 6. Mātic. vbi sup. verb. tertio., or vnlesse it be a long time since the te­stator was assaulted with the maladieBald. & alij. in L. fu­riosum. C. qui testa. fac. pos. Couar. in d. c. 2. n 6, for in [Page 38] these cases the testator is not presumed to con­tinue in his former furor or frensiePaul. de castr. in d. L. furiosum. & Mas­card. de probac. verb. furiotus. concl. 825..

8 An other obseruation is this, † that it is a hard and difficulte point, to prooue a man not to haue the vse or vnderstanding of reason; and 9 therefore † it is not sufficient for the witnesses to depose that the testator was madde, or be­sides his wittes, vnlesse they render or yeelde a sufficient reasonBald. in d. L. furio­sum. Mascard. tract. de probac. verb. furiosus. concl. 824. 827., to proue this their depositiō, as that they did see him to doo such things or heard speake such wordes, as a man hauing wit or reason, would not haue doone or spokenPaul de castr. in d. L. furiosum. Boer. Decis. 23. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. & Mascard. d. concl. 827. Minsing. in §. praeterea Instit. quibus non est permissum, &c.: 10 namely, † they did see him throwe stones a­gainst the windowesBald. in L. Diuus. ff. de offic. praesid. gloss. & DD. in L. si cum dotē. §. sin autem. Sol. matr. Adhibe micam salis, vt per Mantic. d. tit. 5. n. 12. & per Dec. cōsil. 448, or did see [...]im vsually to spit in mens facesCorn. consil. 22. vol. 4. Mantic. d. tit. 5. n. 11 Mascard. de probac. concl. 826. n. 29., or being asked a question they did see him hisse like a goose or barke lyke a doggeMascard. d. concl. 828. n. 28. Mantic. vbi sup. & Corne. cons. 319., or play such other parts as madfolks vse to doo. This or the like reason (whereby the iudge may be induced to esteeme the testa­tor not to be found of minde,) ought the wit­nesses to yeelde, although they be not interro­gated of the cause of their knowledgePaul. de castr. in d. L. furiosum. C. qui testa. fac. poss. Mantic. vbi supr. Boer decis. 23. n. 4. Mascard. de probac. concl 827. n. 4.. And 11 some † there be which holde this for a suffici­ent reason in this case, if the witnesses doo say, I knowe he was mad, for I did see him mad, al­though he doo not expresse anie particular act whereby such madnesse may be collectedAr [...]. in L. vlt. §. vlt. ff. de verb. ob. Boer. decis. 23. n 44. 45. Mantic. d. tit. 5. lib. 2. n. 16.. Fur­thermore 12 † this furor or madnes, may be pro­ued by singuler witnesseGabr. lib. 1. com. con­clus. tit. de testibus. cō. cl 2. n. 43. post Alex. [...]aus. Dec. & alios ibi nominatos.; so that the witnesses bee not singular in time (for if one witnesse de­pose, of the madnes of the testator at one time, and an other witnesse of his madnesse at an o­ther time, this dooth not sufficientlye prooue [Page] that the testator was madQuod procedit, siue agatur de probatione furoris in specie, siue in genere. vbi tempus est de substantia actus. Ruin. consil. 67. vol. 1. Mascard de probac. concl. 827. n. 9.:) But when the witnesses agreeing in time, one deposeth of one madde pranke, an other witnesse of an other madde acte at the same time, these prooue that the testator was then madde, though they doo not both depose of one and the same madde actMascard. post Ruin. vbi supr.. If some witnesses doe † depose that the te­stator 13 was of perfit minde and memorie, and others depose the contrarie, their testimo­nie is to be preferred, which depose that he was of sound memorieGabriel. lib. 1. com. concl. tit. de testibus. concl. 4. n. 19. vbi ad hunc finem citat Ias. Corne. Socin. Dec. Grauet: Boer. & alios, quibus adde Mascard. d. concl. 827. n. 11., aswell for that their testi­monie tendeth to the fauour and validitie of the testament, as for that the same is more a­greeable to the disposition of natureIdm̄. ibid. n. 18., for eue­rie man is a creature reasonable.

Simo de Praetis. de Inter. vlt. vol. lib. 2. solu. 4. n. 19.The laste obseruation is this, if † a Lunatike 14 person, or one that is besides him selfe at some times but not continually, make his testament, and it is not knowne, whether the same were made whiles he was of sound minde and me­morie or no: then in case the testament be so conceiued, as thereby no argument of frensy or follie can be gathered, it is to be presumed that the same was made during the time of his calm & cleer intermissions: and so the testament shal­be adiudged for a good testamentMichael Gras. The­saur. com. op. §. testm̄. q. 21. vbi attestatur hāc op. esse com. Vasq. de success. progress. lib. 1. §. j. n. 90. Viuius lib. com. op. verb. testm̄.. Yea † al­though 15 it can not be prooued, that the testator vseth to haue any cleer & quiet intermissions at al, yet neuertheles I suppose, that if the testamēt be wisely and orderly framed, the same ought to be accepted for a lawfull testamentHanc opinionem cō ­muniter receptam esse contra Abb. & alios, re­fert idem Gras. d. q. 25. n. 4. Idem Boer. q. 23. n. 88. veriorem eti­am & magis com. affir­mat Ioseph Ludo. de­cis. 1. n. 13. Quinimo ne ab hac opinione re­cedas, monet Grass. vbi supra.. But if in the testament there be mixture of wisedome and follie, it is to bee presumed that the same [Page 39] was made during the testators frensieBald. & Angel. in L. furiosum. C. qui testa, fac. poss.; in so much that if there be but one worde sounding to follie, it is presumed that the testator was not of sounde minde and memorie when hee made the same. And therefore in this case is the testament voideIdem Angel. in ead [...] L. furiosum., vnlesse that it may bee prooued, that there was intermission of furor the same time.

Of Idiots.
§. iiij.

1 What person is deemed an Idiote.

2 An Idiote can not make a testament.

3 He that is of a meane capacitie, or indifferent be­twixt a wise man & a foole, may make a testament.

4 Although a man be not an Idiote, yet if hee bee so very simple, that there is but small oddes betwixte him and a naturall foole, such a person can not make a testament.

5 What if an Idiote should make his testament wiselie and resonably to the shewe, whether were that te­stament good or not.

6 A pleasant iest of a very foole, which gaue a verie wise sentence.

7 An other iest of a foolish magistrate.

8 A naturall foole dooth not vnderstande what hee saith, although he seeme to speake wisely.

9 A fooles testament wiselye conceiued is sometimes good in law.

1 AN IdioteIdiota apud Cicero­nem & alios, indoctū, seu ill. teratum plerun­que significat., or a naturall foole is † he, who notwithstanding he bee of law­full age, yet he is so witlesse, that hee [Page] can not number to twentie, nor can tell what age he is ofFitzherbert Na. Bre. de idiota inquirendo.,Quid? estnè statim fatuus quisquis non potest demonstrare patrem? Absit. Nam, vt concedam filium illum meritò sagacem dici, suum qui nouit patrē: certè si concluderem reliquos omnes elle fatuos, vercor, ne ex­cluderem paucos. No­tum est, quod cecinit de Telemacho, insignis Homerus: Ex illo na­tum mater me dicit: At ipse Nescio. Nam certum quis possit scire parentem? Quod igitur scriptum reliquit Fitzherbert. ‘Que tiel person serra dit sot & ide­ote, que ne scier dire que fuit son pere ou mere, &c.’ ita exaudiendum est, si nesciat respondere, quis appellatur ipsius pater. nor knoweth who is his father, or mother, nor is able to answer to any such easie question. Whereby it may plainelye appeare that he hath not reason to discerne what is to his profite or dāmage, though it be notorious, nor is apt to be informed or instructed by anie otherFitzherbert. vbi sup. Such † an Idiote cannot make any te­stament 2 nor may dispose either of his landsStat. H. 8. an. 34. c. 5., or goodesSichard in Rub. qui testa. fac. poss. C. n. 16. Simo. de Praet. de in­terp. vlt. vol. lib. 2. dub. 1 fol. 4.. But † if a man be of a meane vnder­standing 3 (neither of the wise sorte nor of the foolish) but indifferēt, as it were betwixt a wise man & a foole, yea though he rather incline to the foolish sorte, so that for his dull capacity he might worthily bee tearmed Grossum caput, a dulpate or a dunse, such an one is not prohibi­ted to make a testamentSimo de Praetis. vbi supr. Minsing. in §. prae­terea. Instit. quibus non est permiss &c.: Vnlesse he † bee yet 4 moore foolish, and so very simple and sottishe, that he may easilie be made to beleeue thinges incredible or impossible, as that an asse can flie, or that in olde time trees did walke, beastes and birdes could speake; as it is in Aesops fables: For he that is so foolish, cannot make a testamentSimo de Praetis de interp. vlt. vol. lib. 2. dub. 1. fol. 4. n. 21., because he hath not so much witte as a childe of tenne or eleuen yeeres olde, who is there­fore intestable (as the text witnesseth) namelie for want of iudgementText. in d §. praeterea Instit. quibus non est permiss. testa. fac..

But what † if an Idiot or natural foole should 5 make his testament so well and wisely (in appa­raunce,) that the same may seeme rather to be made by a reasonable man, then by one voyde of discretion, whether is this testament good in lawe or no? Surely some haue beene of this o­pinion, [Page 40] that such a testament is good and auail­able in laweIta fuisse decisum in Senatu Romano com­memorant Io. And. & And. Barba, cum alijs. in c. ad [...]ram de con­suetud. extr., because almightye God dooth sometimes so illuminate the minds of the foo­lish, that for that present in that case they are not 6 much inferior to the wiseGloss. in d. c. nr̄am.. And † to this pur­pose diuers credible writers doe remember a mery accident, which (if they say truely) was no fable, but an vndoubted facteIo And. Panor. Bar­ba. & alij. in d. c. ad nr̄am. Hyero. Franc. in L. furiosi. de reg. iur. sf. Boer. decis. 23. n. 58. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. n. 8., and this it is.

‘At Paris one morning a hungrie poore man begging his almes from doore to doore, did at the last espie verye good cheere at a cookes house: whereat by and by his teeth beganne to water, and the spurre of his emptie and egar stomacke pricking him forwardes, hee made as much hast towardes the place as his feeble feet would giue him leaue, where he was no sooner come, but the pleasaunt smell partlye of the meate partlie of the sauce, did catch such sure hold of the poore mans nose, that (as if he had been fast holden with a paire of pinsers) he had no power to passe from thence, vntil he had (to stay the furie of his raging appetite) eaten a peece of bread, which hee had of charitie got­ten in an other place. In the eating whereof his sence was so delighted with the fresh smell of the cookes cates, that albeit he did not laye his lippes to any morsell thereof: yet in the end his stomacke was so well satisfied with the one­ly smell thereof, that he plainly acknowledged himselfe thereby to haue gotten as good a breakefast, as if he had in deede there eaten his belly full of the best cheere. Which when the cooke had heard, being an egregious wrangler [Page] and an impudent companion, what dooth hee but all hastily steppes foorth to the poore fel­lowe, laies fast hand vpon him, and in a whote cholericke moode, bids him pay for his breake­fast. The honest poore man halfe amazed at this straung demaunde, wist not well what to say: but the cooke was so much the more fierce and earnest, by howe much hee perceiued the good man to be abashed at his boldnesse, and did so cunningly cloke the matter, that in the ende the poore man was contented to referre the deciding of the controuersie to whatsoeuer person should next passe by that way, & with­out any more adoe to abide his iudgement. Which thing was no sooner concluded, but by and by commeth vnto the place, a very natural foole and such an notorious idiote, as in all Paris his like was not to be found. All the bet­ter for me thought the cooke, for more hee doubted the sentence of a wise man then of a foole. Well sir, to this foresaid iudge they re­hearsed the whole fact, the cooke cruelly com­plaining, and the other patiently confessing as before. A great multitude of people were ga­thered about them, no lesse desirous to knowe what would followe, then wonderinge at that which had gone before. To conclude, this naturall perceiuing what monie the cooke exacted, caused the poore man to put so much mony betwixt two basons, and to shake it vp and downe in the cookes hearing, which doone, he did arbitrate and awarde, that as the poore man was satisfied with the onely smell [Page 41] of the cookes meate, so the cooke should bee recompensed with the only noise of the poore mans monye. Which iudgement was so com­mended, that who so heard the same, thought, if Cato or Salomon had beene there to decide the controuersie, they could not haue giuen a more indifferent or iust sentence.’

7 The like † case is reported to haue happe­ned at Bononia And. Barl a. in d. c. ad nr̄am. de consuetud. extr. n. 8.. ‘There a certaine couetous man loste his purse, with 21. ducates in it, which when hee coulde not recouer with diligente search, he fared like a madde man, and in the ende was readye to haue hanged himselfe for sorrowe. An other honest man hauing founde such a purse, mooued with compassion came and deliuered the same to this couetous per­son, who neuer thanking the bringer, fell forth­with to telling of the monie, and finding but 20. ducates therein, with great greedinesse he exacted the odde ducate: which because the finder denied, he is brought before the magi­strate, a man of very great wealth, but of very little wit (but such magistrates are many times elected, where the matter lieth in the mouthes of the multitude.) The one partie sweareth, that there were 21. ducats in the purse which he lost. The other partie sweareth, that there were but 20. ducates in the purse which hee found. The magistrate although a foole, gi­ueth no foolish sentence, for hee pronounced that the purse which was found, was not that purse which was lost, and therfore condemned the couetous person to restore the 20. ducates [Page] to the other partie.’

By these reasons and examples, therefore it may be reasonablie inferred, that if a foole doe make a wise and reasonable testament, the same ought to be allowed as lawfull.

Neuerthelesse this is the truer opinion, that such a testament is not good in laweIas. & Dec. in L. fu­tiosi. C. qui testa. fac. poss., the rea­son is, because a testament is an act to be perfor­med with discretion and iudgementSupr. prim. part. §. 3. verb. Senten.. But † a 8 naturall foole by the generall presumption of lawe, dooth not vnderstand what he speaketh, though hee seeme to speake reasonablyDec. in d. L. futio­sum. C. qui testa. fac. poss. lim. 3., no more then did Balams asseNum. c. 22. vers. 28. 2. Pe. c. 2. versic. 10., when hee reasoned with his maister, or dooth a Parret speaking to the passengers. And although almightye God do sometimes so illuminate the minds of verie naturall fooles and idiotes, that they doe well perceiue, and vnderstand what they speake: yet because this thinge happeneth but verye sel­dome, the lawe dooth not presume the same by occasion of wordes onelyDec. in d. L. furiosi. & in L. in negotijs de reg. iur [...]f.. And therefore vnlesse further proofe bee made thereof, by other circumstances, the lawe dooth not ap­prooue such testamentes.

In deede if it † may appeare by sufficient con­iectures, 9 that they had the vse of reason or vn­derstanding at such time, as they did make their testamentes, then dooth the former opinion take place, that such testamentes are good in laweDec. in d. L. In nego­tijs, & in Hiero. Franc. in d. L. furiosi. de reg. iur. ff..

Of olde men.
§. v.

1 Age alone dooth neuer depriue a man of the power [Page 42] of making a Testament.

2 He that by extreame olde age is become a childe in his vnderstanding, cannot make a Testament.

3 He that hath lost his memorie, cannot make a Te­stament.

1 ALbeit † olde age alone doeth not depriue a man of authoritie and power of making a testamentL. 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 2 minde, that is requisite in testamentsd. L. senium.:) yet † if a man in his olde age, do become a very childe againe in his vnderstandingSimo 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 childeIbidem..

3 So it is, † if a man, either by reason of age, or some other infirmitie, become so forgetful, that he hath forgottē his own nameL. 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 idioteBald. 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.
[Page]§. vj.

1 Whether he that is drunke may make a testament.

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 laweVasq. 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 caseijdem. Vasq & Simo de Praetis. vbi supra..

Of slaues and villeines.
§. vij.

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.

[Page 43] 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.

1 OF all † men which be destitute of li­bertie or freedome, the slaue is in greatest subiectiō, for a † slaue is that person which is in seruitude or bon­dage to an other, euen against nature§. Seruitus. Instit. de iure personarū. Et dici­tur latinè seruus; non à seruiendo, sed a seruā ­do: propterea quòd ser­uandi non oriēdi sunt à dominis. Nam cùm antiquitùs multi sçuijs­sent in captiuos, eós (que) necassent, prohibitum id fuit, constitutúm (que) vt potiùs venderentur, quàm occiderentur. Et inde à seruando, nomé mutu arunt serui. §. serui autem. Instit. de iure personarum.. Neither 2 † hath he any thing of his owne, but whatsoe­uer he possesseth, all is his Lordes§. 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 3 meanes§. iterum. Instit. per quas personas.: But † euen his children also are in­fected [Page] with the Leprosie of his fathers bon­dageBracton. de legib. & consu. Ang. lib. 1. c. 6. principall grounds. fol. 44..

And although by † the ciuill lawe the wife 5 being a free woman, the children are likewise free, Quia partus sequitur ventrem §. 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 fa­therEod. [...] sed etsi.: Yet it † is otherwise by the lawes of the 6 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 freeBracton. 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 7 father were a bond-slaueBtacton. 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 manCui pater est populꝰ, 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 8 bond-man can not make a testamentL. liber. de petic. hae­red. L. seruus. Comm̄. de success. C. Vasq. de suc­sess. progress. lib. 1. §. j. vbi multis ampl. hanc propositionem ornat..

A villeine † howsoeuer he may seeme like vn­to 9 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§. Item nobis In­stit. per quas personas., not onely in respect of property, but also in re­spect of possession: for whatsoeuer a bond-slaue [Page 44] dooth possesse, he doth also possesse it for his LordEod. §. Item ibi, non solum.. But it is not so with a villeine, for the Lord hath no title to the goodes of his vil­leine before seasin; nor any title to his landes before entrie, nor anie title to any rent, reuersi­on, common, or the aduowsement of a church, belonging to the villeine, but by clamePerkin. tit. Grant. fol. 6. Brooke Abridg. tit. villenage. Doct. & Stud. lib. 2. c. 43.. And so the velleine in the meane time hath perfecte 10 propertie thereinDoct. & Stud. d. c. 43. lib. 2.. And therefore † a villeine is more like vnto him, which in the ciuill lawe is called Ascriptitius Glebae Ascriptitius Glebae, id est, adscriptus prae­dio. Spieg. Lexicon., (that is to say, one that is ascribed or assigned to a ground or farme, for the perpetuall tilling or manuring thereofQuemadmodum e­nim Ascriptitiꝰ verè ser uus non est, sed ser [...] li tantùm macula as [...]r­sus. Bald. in L. cū pre­cum. C. de lib. causa & sicut. qui ascribitur gle­bae, seu praedio perpe­tuò colendo, nunquam inde recedere debet: vel si aufugiat ad anti­quos penates, nempe vbi natus est, redire cō ­pellitur. L. omnes de A­gricul. censit. lib. 11. C. Eodem prorsus modo isti, quos Villeins appel­lat vulgus. Licet non sunt propriè serui; per­petuae tamen praedij culturae astringuntur nunquam inde reces­suri inuito vel ignorāte domino. Quod si au­fugiunt, conceditur statim breue, quod di­citur De natiuo ha­bendo. Fitzh. Nat. Bre.,) then to a slaue.

11 If you will † vnderstand whether a villeine, 12 may make his testament or not: we must † note that whatsoeuer villeines haue of their owne, be it landes or goodes, the lorde may by en­trie or seasing take and enioye the same as his owneBrooke Abridg. tit. villenage. Perkins. tit. Graunts. fol. 6. Litleton tit. villenage. Termes of law. verb. Them., onely he may not slay or maine his vil­leineOld tenur̄. tit. villen.. 13 And therefore † if the villeine make any deuise of landes or goodes, the Lord may be­fore the approbation of the will, or apprehen­sion of the goodes, by the executor, enter to those landes and sease those goodes or some parcell thereof, in the name of the whole, and by that meanes make voide the gifte or deuise of the villeineDoct. & Stud. lib. 2. c. 43.. The will is also voyd, though the Lord doe not really sease any goods of his villeine, in case he did claime the villeine in his life time, and by wordes onely did sease his goodes, for then the executor shall not haue them but the lord of the villeineBrooke. tit. villeine. n. 50..

But if † the will be prooued before the ordi­narie, 14 and by him approoued; and the execu­tors (by vertue of the same will or deuise) en­ioie or possesse the same landes or goodes, ac­cordingly, then I suppose the lord may not en­ter, to such landes or sease those goodes, no en­trie, seasing or claime being made beforeBrooke eodem titu. num. 73. Doct. & Stud. lib. 2. c. 43. Adde quod Ascriptitius po­test testm̄ facere. Spec. de Instr. edi. §. compē ­diose. Lindw. in c. statu­tū. verb. Ascriptitiorū. de testa. lib. 3. prouin­cial. constit. Cant.: for if a villeine purchase landes and alieneth the same to an other, before his lorde enter; then the lord may not enter afterwardes, but it shall be imputed to his owne follie, that hee entred not when the lands was in the villeines handsLitleton. tit. ville­nage.. And so it is of other goodes, which if the vil­leine sell or giue to an other before the Lorde doe sease them, the sale or gift is good, and the lord can not afterwardes haue the sameIbidem..

Neuerthelesse if the † prince haue anie vil­leine, 15 which purchaseth lands, and alieneth the same before the prince doo enter, yet maie the prince at any time after enter vnto the landes to whom so euer the same doe comeLitleton. vbi supr.. And likewise, if the princes villeine sell or giue any goodes, yet may the prince at any time after sease those goods in whose hands so euer they doo remaineIbidem., for the prince is not preiudized by any course of time. And therefore I doe col­lect, that if the princes villeine should by testa­ment dispose either landes or goodes, the prince (notwithstanding the approbation of the same testament, and execution thereof) might enter to the lands and sease the goods so deuised, or disposed, in whose hands so euer the same wereArg. à contract. ad vlt. vol. de quo Olden. Topic. Legal. loco à contract..

16 Note that † what I haue here spoken of vil­leines, is not to be vnderstood of such persons as onely holde lands in villenage, being them­selues no bond-men but free (for diuers per­sons holde by tenure in villenage, and yet be no villeines themseluesBrooke, Littleton, Old. tenures, tit. ville­nage.) but of such as bothe hold by villenage and are villeines also: For these are they whose testaments or last willes are voidable, sauing as before, where the will is prooued and the executor or legatary posses­sed of the thinges deuised: And sauing where 17 † the villeine is executor to an other person, for being executor himselfe he may appoint an o­ther executor, who shall haue those goodes which the villeine had as executor, and not 18 the Lord of the villeineBrooke tit. villenage. n. 73.. For if the † villeine himselfe were liuing the Lord could not take from him such goodes, as hee hath as executor to an other man, & if he did, his villeine might bring an action against him for the same, and recouer both the goods and dammagesBrooke. d. tit. ville­nage. n. 68.: the 19 † reason is, because that which the villeine hath as executor, hee hath it not to his owne vsec. Statutum. §. nullus de testa. lib. 3. prouin­cial. constituc. Cant. & infr. part. 6. §. j., but is to be imployed in the behalfe of the testator, as to the paiment of his debtes and legacies, and to other godlye vses: as appea­reth more at large in the office of an Execu­torInfr. 6. part. §. j. §. iij. §. xvj. §. xxj..

Of captiues and prisoners.
§. viij.

1 A captiue during his captiuitie, can not make a te­stament.

[Page] 2 If the captiue escape, whether the testament made during his captiuitie be good?

3 What if the testament were made before hee were captiue.

4 What if the testator be taken captiue, by some pirat, Turke, Insidle or christian, when warre is not pro­clamed.

5 Whether he may make a testament which is con­demned to perpetuall prison.

6 VVhat if the testator be imprisoned for dette.

HEe † that is taken captiue by the e­nemie, 1 during his captiuitie, can not make a testamentL. eius qui apud ho­stes. ff. de testa.: In so much that † if afterwardes hee doo escape, yet 2 the testament made whiles he was with the e­nemie, is voydEad. L. eius.. But if † his testament were 3 made before his captiuitie; then after his es­cape, the testament is of like force, as if he had not beene captiueL. ratio. ff. de capti­uis. Grass. Thesaur. cō. op. §. testm̄ q. 25. vbi hāc opinionem communi­ter approbatam often­dit.. Likewise if the testament were made before he were apprehended, and the testator die in captiuitie, yet is the testa­ment allowed, and the executor by force ther­of, is to haue all his goodes here within this realme of England, as if he had died the day before his captiuitieL. lege Cornelia. ff. de testa.. Likewise † if any person 4 be taken as captiue by any Piratte, Turke, Infi­dell or Christian, where warre is not procla­med, hee that is so taken remaineth still a free man: and therefore if hee make his testament whiles he is so deteined, the testament is good [Page 46] 6 and lawfullL. qui à latronibus. ff. de resta.. If a † lay man be condemned to perpetuall prison for some offence, it seemeth 7 that he can not make a testamentPanor. in Rub. de testm̄. extr. Grass. The­saur. com. op. §. testm̄. q. 28. cui tamē opinioni quantumuis commu­ni non acquiescit Clar. §. testm̄. q. 23.: but if † any person be imprisoned for dette, such imprison­ment being ordained for safety not for punish­ment, he is not thereby disabled to make his te­stamentBald. in L. 1. C. si quis aliq. testari pro­hib. n. 5.; sauing that the testamēt is not good, when it is made in his fauour, at whose suite the testator is imprisoned, of intent to extorte the sameL. qui carcerem. ff. quod me caus. Mantic. de coniect. vlt. vol. lib. 2. tit. 7. n. 2..

Of a vvoman couert.
[Page 47]§. ix.

1 A maried woman cannot make her testament of lands.

2 Especially not to her husband, and wherefore.

3 What if she be not constrained, but doeth deuise the same freely of her owne accord.

4 What if the testament be made before mariage.

5 What if the testament being made during mariage, she ouer liue her husband.

6 Certain cases wherin the deuise of lands is good, not withstanding the couerture of the testatrix.

7 A wife cannot make her [...]nent of goods, with­out her husbands licence [...] [...]sent.

8 The reason wherefore the wife cannot make her te­stament of goods, without the husbands licence or consent.

9 Whether it be necessarie that this licence or consent should goe before the making of the will, or concur, or may follow.

10 Whether, and when the husband may reuoke the [Page] licence giuen to his wife.

11 Certaine cases wherein the wife may make her te­stament without her husbandes consent.

12 Whether an Emperesse or a Queene may make a testament without the consent of the King or Em­perour.

13 Of that which is due to the wife, whereof the husband was neuer possessed, she may make her te­stament without his consent.

14 A woman contracted in matrimony, if the mari­age be not solemnized, may make her testament.

15 A wife being executrix, may make an executor to the former testator without her husbands consent.

16 The reason of the former position.

17 Whether a wife being executrix, may make her husband executor in her place.

18 A wife executrix may not giue away the testators goods by her will.

19 A wife both executrix and legatarie, cannot make a testament of that which she did accept not as ex­ecutrix, but as legatarie.

20 The reason wherefore an executor can not dis­pose the testators goods by legacies.

21 The reason wherefore a wife executrix and lega­tarie, may not make her testament of that which she did accept as legatarie.

22 Whether shall the wife which is bothe executrix, and legatarie, bee deemed to haue accepted of the testators goods as executrix or legatarie?

23 Whether the wife being licenced to make her te­stament may make any moe willes but one.

1 A Maried † woman by the lawes and statutes of this realme, can not make her testament of any mānors, lands, tenementes or hereditamentsStat. H. 8. an. 34. c. 5.. This conclusion is diuersly enlarged: And first shee 2 † cannot deuise the same to her husbandBrooke Abridg. tit. deuise. n. 32. 34.: the equitie of which prohibition, (If I may be so bolde with the good fauour of our temporall lawyers, to insert the reason & consideration of the ciuill lawe) is not obscure. For if this gappe were lefte open, fewe children should succeede in the mothers inheritaunceL. 1. 2. 3. ff de donac. inter vir. & vx.: But by howe much the husband were more cruel, & the wife more timerous, he crafty, she credulous, by so much the more were the lawfull heire in dāger to be disherited, and the cruel & deceitfull hus­band in hope to be vnworthilye enriched and aduaunced. Wherefore if the wife should de­uise any her mannors, lands, tenements, or he­reditaments or any part therof to her husband, this deuise were voide, because the same is pre­sumed to haue beene made by constrainte of the husband, or other sinister meanesBrooke. vbi supra.. Secōd­ly, 4 albeit † it did appeare by due proofe, that the husband did not constraine his wife there­vnto; but that she of her owne accorde or free motion did make any such deuise either to her husband or to any other person by his con­sent: yet is not the deuise goodIta saepius accepi à nonnullis huius regni iurisperitis, non vulga­ribus, quos ipse velim consulas., as well be­cause the words of the statute are generall (and [Page] where the lawe dooth not distinguish, there may not we distinguishL. p. ecio. ff. de pub­lic. in rem. action.,) as for diuers other reasons grounded in the common laws of this realme. Thirdly, albeit † the testament be made 4 before the mariage, yet she being intestable at the time of her death, by reason her husband is thē liuing, the testamēt is voydArg. §. alio. Institu. quib. mod. testa. infir.: for it is neces­sarie to the validity of a testament, that the testa­tor haue ability to make a testament, not onelie at the time of the making thereof, when the te­stament receiueth his essence or being: but also at the time of the testators death, when the te­stament receiueth his strength and confirmati­on.d. §. alio. & §. non ta­men. Instit. quib. mod. testa. infir. L. 1. §. exigit. ff. de bon. poss. secundū tab. Porcꝰ in §. in extra neis. Instit. de haered. qual. & dr̄ia.. Fourthly, albeit † the wife doo ouerliue 5 the husband, yet the testament made duringe the mariage is not goodc. Non firmatur de reg. iur. 6. L. 1. § j. de leg. 3.: the reason is yeelded before, because she was intestable at the time of 6 the will makingArg. §. praeterea. In­stit. quib. non est p [...]r­miss. testa. fac. verb. nec ad rem. Plowd. in cas inter Br [...]t. & Rig­den. fol. 341.. But if † the testament beeing made during the couerture, she doo approoue and confirme the same after the death of her husband, in this case the deuise is good, by reason of her new consent, or new declaration of her willL. 1. §. j. de leg. 3. ff. & ibi Paul. de castr. & alij.. What if the testament be made be­fore the mariage, and shee ouer liue her hus­band, whether in this case is the testamēt good or not? By the ciuil law it is of as great force, as if she had not beene maried at alld. §. non tamen. & §. pen. verb. deni (que). Instit. de mil. testa.: and so I am informed that it is by the lawes of this realmePlowd. d. cas. inter Bret & Rigden. fol 343. Neuerthelesse I shall willingly referre thee to the learned professors thereof. This much of the deuise of lands.

Of † goods and cattelles the wife can not make her testament, without the licence or [Page 48] consent of her husbandBracton de legib. & consuc. Ang. lib. 2. c. 26. Brooke. tit. deuise. n. 34 & in tit. testamēt. n. 21. Lindw. in c. stat. verb. propriorum de testa. lib. 3. prouincial. con­stituc. Cant. cui tamen hoc durum videtur., (except in certaine 8 cases hereafter specifiedHoc ipso. §. n. 11. cum sequen.) because † by the laws and customes of this realme, so soone as a man and a woman be married, al the goods and cat­tels personal that the wife had at the time of the spousals, or celebration of the mariage, or af­terTract. de repub. Ang. lib. 3. c. 6. Doct. & Stud. lib. 1. c. 7., and also the cattelles reall, if he ouer liue his wife; belong to the husband, by reason of the said mariageDoct. & Stu. lib. 1. c. 7: and therfore with good rea­son she can not giue that away which was hers without the sufferance or graunt of the owner:L. id quod nostrum. de reg. iur. ff. c. filius de testa. extr.: 6 Notwithstanding † vpō licence or cōsent of the husband the wife may make her testament, euen of his goodsLindw. in d. c. statutū verb. propriorum. de testa. lib. 3. prouincial. constituc. Cant. Bract. d. lib. 2. c. 26. Brook. tit. deuise n. 34.. And albeit the nature of a licence is to goe before the actePhil. Franc. in c. Ra­tishibitio. de reg. iur. 6., and the pro­pertie of auctoritie, or auctorizable consent is to concurre with the acteTiraquel. de legib. Conub. gloss. 4. in prin.: yet by the lawes of this realme, if a wife make a testament of her husbands goods, the husband not vnderstan­ding thereof, and after her death the executors prooue the same, if the husband deliuer the goods deuised in the will to the executor, ther­by he hath made the testament good, notwith­standing hee were not priuie to the making thereofPerkin. tit. deuise. c. 8. fol. 97. Tiraquel. vbi supr.; because in this case the same law pre­sumeth, that the husband gaue his cōsent in the beginning, at the time of the will making. And therfore the same being proued and the goods deliuered accordingly, it is thē too late for him 10 to reuoke the samePerkin. vbi supr.. Albeit otherwise, if † the husband doo giue licence to his wife, to make a wil of his goods, yet he may reuoke the same, not onely at the making of the wil, but after her [Page] death, at the least before the will be prouedBrook. Abridg. tit. deuise. n. 34..

The † cases wherein a wife may make a te­stament 11 of goodes and cattelles, without her husbands licence and consent are these. First I suppose that an Emperesse † or a Queene maie 12 make her testament without the licence of the Emperor or King her husband, so that it be not in preiudice of her said husbandDe Augusta, & Regi­na, an & quādo exēptae sint à legibus, vel sta­tutis, quibus cauetur, ne vxor testamentum condere valeat sine mariti consensu, videre est apud Peckium, in praeclaro suo tractatu de testam. coning. lib. 3. c. 26.. The second case is when any thinge is † due vnto the wife, 13 wherof she was not possessed during the mari­age: For it seemeth that she may make her testa­ment thereof, and that she may make her hus­band executor in that caseBrook. Abridg. tit. testam. n. 11. Fitzherb. Abridg tit. executor. n. 109.. Thirdly, if † a man 14 and a woman be contracted together in ma­trimonie, and the woman die before espousals or celebration of the mariage, albeit the lawe dooth often call this woman thus betrothed and assured by the name of wife, because of the certaine hope of mariage, shortly to be solem­nized, whereby she shall become a wifeCouar. de sponsal. 2. part. c. 1 n. 4. Peckius. de testa. coniug. lib. 4. c. 5.: yet I take it for a cleare case, that the woman so dying may make her testament without his agree­ment, to whom she was contracted in matri­moniePerkins tit. feoffmēt. c. 3. fol. 40. quod verum est iure huius regni. Caeterum attenta le­gistarum opinione cō ­muni, si statuto caue a­tur, ne quid coniuges inuicem relinquere possi [...]t: intelligitur eti­am de sponsis. Peckius. tract de testa. coniug. lib. 4. c. 11.. Fourthlie † if the wife bee executrix 15 to an other man, she may make her testament without the licence of her husbandFitzherb. Abridg. tit. exec. n. 40. Brook. eod. tit n. 11. Perkins. tit. de use. c. 8. fol. 97.: the rea­son † is because such goods as she hath as exe­cutrix, 16 are not her husbands, but are to be distri­buted for the deade, as for the paiment of his dettes, performance of his wil, & for such other good and godlye purposesLatiùs inf. par. 6. §. j.: and therefore if the executrix should make no executor but die intestate, administration might be obteined of [Page 49] the goods not administred by the next of kinne of the testator deceasedPlowden in cas. inter Greisbrook & Fox., (for where an execu­tor dieth intestate, the testator from that tyme is esteemed to die intestateBrook Abridg. tit. administrator. n. 45.,) so farre is it from the husband to haue any of those goods wher­of his wife is executrix; much like vnto that lord whose villeine is executor, in which case he can not take from his villeine that which did belong to the testator, but his villeine may haue an action against him for the same and may recouer bothe the goodes and damma­ges, (as hath beene said before.Supr. ead. part. §. viij. n. 18.) Although o­therwise whatsoeuer dooth appertaine to the villeine, the lord may take the same from him, 17 and (as our common lawyers tearme it) maie euen robbe his villeineOldē tenures. tit. villenage.. Furthermore † it is not onely lawfull for the wife being executrix to make a testament without her husbands li­cence, 18 but she may name and appoint him exe­cutorBrook Abridg. tit. exec. n. 11.. Howbeit this positiō †, that the wife be­ing executrix, may make her wil of those goods wherof she is executrix, without her husbands licēce is restrained in two cases: the one is whē shee dooth not make an executor, but be­queatheth the goods whereof she is executrix, 19 by deuise or legaciePlowd. in casante [...] Bransby & Grantham. fol. 525 imo nec cum consensu marits, potest legare testatoris bona.. The other is, when † she is not onely executrix, but legatary also, and hath accepted of the thing bequethed, not as execu­trix but as legataryInfr. hoc ipso. §. n. 21.. In these two cases the will 20 is void, the † reason of the former of these two limitations is, because an executor may not dis­pose of the goods of the testator, otherwise then to the vse of the testator, as to the paiment [Page] of his dettes performaunce of his will, and to o­ther charitable vsesc. statutum. lib. 3. prouincial. constituc. Cant. Plowd. d. cas. in­ter Bransby. & Gran­tham. & infr. 6. part. §. j. & §. iij.: and therefore may not giue or deuise the same by legacie, for that were to dispose of the testators goods, as if they were the proper goods of the executor, and to con­uert the same to the priuate vse of the legataryPlowden. vbi supr. fa­cit. c. filius. de testa. ext., and not to the vse of the testator. But when an executor dooth onely make an other execu­tor, the second executor dooth stand chargea­ble and accomptable for the distribution of the first testators goods to the vse of the same testa­tor, as did the former executor, and is by the lawes of this realme reputed for the executor, not of the executor, but of the former testatorBrook Abridg. tit. ex­ecut. n. 132. & infr. par. 6. §. j. & §. iij tu vide Bar. in L. veluti. ff. de petic. haer.; so is not a legatarie. The reason † of the second 21 limitation is this, for that which one hath as legatarie, hee hath it to his owne priuate vseL. legatum. de leg. 2. L. à Titio de furtis ff., and not to the vse of the testator: and the wife being not onely executrix, but legatarie also; accepting of the thing bequeathed, not as executrix, but as legatarie; doth thereby make it her owne proper goods, & consequently her husbandes: For that which is the wiues, is by reason of the mariage her husbandes, and be­ing inuested in himTract. de repub. Ang. lib. 3. c. 6., (as hath beene saide before:) cannot bee giuen from him with­out his licence or consentL. id quod nostrum. de reg. tur. ff.. Great difference there is therfore betwixt these two cases, of ac­cepting the thing bequethed as executrix, or as a legatarie, for in the one case it is not her hus­bands, and so she may make a testament therof, by appointing an executor to distribut the same to the vse of the first testatorBrook. tit. exec. n. 11.: and in the other [Page 50] case it is her husbands; and so she can not make any testament of the same without his li­cenceSupr. eod. §..

22 But † here ariseth an other question, what if it doo not appeare whether the wife did accept the thing bequeathed, as executrix or legatary: In whether name is shee presumed in lawe to haue accepted the same? as executrix? or as le­gatarie? Some are of this opinion, that she is esteemed to haue accepted the same as execu­trix, not as legatariePlowd. in cas. inter Paramor & Yardley. lib. 2. fol. 543., because it is not lawfull for legataries to carue for thēselues, taking their legacies at their own pleasuresL. 1. Quorum lega. ff. L. nō d. [...]rum. de leg. C; but must haue them deliuered by the executorPerkins tit. testam. c. 7. fol. 94. b.. And there­fore if any shold determine to accept such a le­gacie, it behoueth him by protestations or o­ther acte answerable, to manifest the sameL. detestatio. de verb. sig. L. pro haerede de acquir. haered. ff.. Others are of contrarie opinion, namelie that in this case she is reputed to haue accep­ted the thing bequeathed as legatarie, not as executrixePlowd. in d. cas. inter Paramor & Yardley, vbi varijs arg. [...]t [...]git hoc ipsum confirmare.: Because where any act may be doone, or any thing taken or possessed by a double right, the party is presumed to doe that act, or to take and possesse that thinge by force and vertue of that right, which is more fauora­ble and more beneficiall to the partieAlciat de praesump. reg. 3. praesump. 36. n 4. 5. post Alex. [...] L. Gallꝰ. §. vlt. de lib. & post. ff. n. 10. & Io. And. in c. si suꝑ de offic. del. in 6. Mas­card. tra [...]. de probac. concl. 42. n. 30.. Nowe it is more profitable for euerye one which is both executor and legatary to accept the thing bequeathed as legatarie, then as executor: be­cause the legatarie hath full right in the thinge bequeathed and may dispose therof at his plea­sureL. legatum. de leg. 2 L. à Titio. de sur. ff.: Whereas an executor hath not any such right, but must dispose the testators goodes to [Page] the only vse & for the onely behoofe of the te­stator:c. statutum de testa. §. null▪ lib. 3. p [...]incial. constituc. Cant. Magna charta, c. 18. Perkin. tit. deuise. fol. 97. And therefore vnlesse by solemne pro­testationsNam declaranti ꝑti credendum est, cùm dubitatur an ex hac vel illa causa rem posside­bat DD. in d. L. Gerit. ff. de acquir. haered. M [...]scard. tract. de pro­bac concl. 47. n. 9., or other meanes it maye appeare that the executor did accept of the thinge be­quethed as executor, the party shalbe deemed to haue accepted the same as legatary, which o­pinion (if I doe not erre) is more agreeable to the rules of the ciuill laweL. in toto iure. de reg. iur. ff. Mascard. tract. de probac. concl. 46. n. 29. 37. 57. Grauet. consil. 197. n. 4.. As for the reason of the other opinion, that a legatarie may not take his legacie of his owne auctoritie: that is true, when an other person is appointed exe­cutor, otherwise notSichard. in L. non dubium. C. de lega. n. 53. & Ias. in ead. L. lim. 2.

What † if the case be such, as the wise can not 23 make her testament without licence, and that the husband dooth graunt licence to the wife, to make her testament of a certaine portion of his goodes (as many times it hath happened and may againe fall out, by reason of bondes and couenauntes at or before the mariage) and that the wife so licenced to make a testament, dooth first make one testament, and after­wardes an other, and peraduenture the third, or fourth, whether shall the licence bee exten­ded to the last testament, or shall it bee vnder­stood of the first testament onely? For that te­stament is to bee approoued by the ordinarie for the makinge whereof the wife is licensed. Diuers and those of great auctority, are of opi­nion, that the licence is to be vnderstoode of the first testament, and not to be extended to any other testamentSocin. consil. 89. vol. 1 Dec. consil. 512.. Others are of this iudg­ment, that the licence is to bee extended to the last testamentSarm entus. tract. de redditibus ecclesiast. c. 4.: otherwise the former testament [Page 51] should be voyde, because it is reuoked by the latter§. posteriore. Instit. quib. mod. testa. infir., and the latter testament should be voyd for want of the husbands licence:Lindw. in c. statutum verb. propriorum vx. de testa. lib. 3. prouincial. constituc. Cant. and so no testament at all should take place; or if the for­mer testament were not reuoked by the latter, as being vnlawfull, then it must bee graunted that a testament may take place not onely with­out the will, but euen against the will of the te­statorQuod certè valdè absurdum est. Quum potius tolerandum sit, vt quis decedat intestatus, quàm vt te­stamentum contra vo­luntatem testatoris su­stineatur. Mantic. de coniect. vol. lib. 2. tit. 15, whereas it ought to be directed and ru­led according to the will of the testator, from whence it hath his life & beingSupr. prim. par. §. 3.. And although it be so, that when licence is graunted to anie to doe an iterable acte, otherwise against lawe, it ought to be restrained to the first acte onelyL. Boues. §. hoc ser­mone. de verb. sig. ff., wherof a hūdreth instāces might be broughtTiraquel. in repet. d. §. hoc sermone.: yet that rule is to be vnderstood, when the first acte dooth or may take effect in the life time of the person to whom such licence is grauntedSarmientus. vbi supr.. But in our case the acte, that is to say, the testa­ment is of no force before the death of the te­statorc. Marthae. de celebr. miss. extr., and therefore that ought not to mini­ster an impediment, which is without effect in lawec. non praestat. de reg. iur. 6..

Of those vvhich be Deafe and Dumbe.
§. x.

1 Some persons are both deafe and dumbe; others deafe but not dumbe; and others againe dumbe but not deafe.

2 Whether he which is bothe deafe and dumbe maie make a testament.

3 Whether he may make a testament which is deafe, [Page] but not dumbe.

4 Whether he may make a testament which is dumbe but not deafe

WHere it is said, that some persons can not make a testament by reason of the defect of some of their principall sencesSupr. ead. part. §. j., that wee may the better vn­derstand who those be; wee are to note † that 1 some persons can neither heare nor speake; o­thers can speake but not heare; some againe can heare and not speakeMinsing. in §. Item surdus. Instit. quib. non est permiss. testa. fac.. Touching the first sorte †, that is to say, those which are both deafe and 2 dumbe, if any be so by nature, then can hee not make any kinde of testament or last willL. discretis. C. qui te­sta. fac. poss. §. Item sur­dus. Instit. quib. non est permiss. testa. fac.; vn­lesse it doo appeare by sufficient argumentes, that he vnderstandeth what a testament mea­neth, and that he hath a desire to make a testa­ment, for if he haue such vnderstanding, and desire, then hee may by signes and tokens de­clare his testamentDec. in d. L. discretis. Tiraque l. de priuileg. piae causae c. 9. Hoc sci­licet subintellecto, vt in confectione testamen­torum Anglicorum sufficiat probatio iuris gentium. Id quod non semel dixi, sed, & saepiùs est dicendum., if he be not deafe & dumbe by nature. But beeing once able to heare and speake, if by some accident afterwardes he loo­seth both his hearing and the vse of his tongue, then in case he be learned and be able to write, he may with his owne hand write his testa­ment or last will, and so by arte supplie the de­fect of natured. §. Item surdus. In­stit. quibus non est per. miss. testa fac.. But if he be not able to write, then is he in the same case that they are, which be both deafe and dumbe by nature, that is to say, if he haue vnderstāding he may make his te­stament [Page 52] by signes, otherwise not at allDec. in d. L. discretis Tiraquel. de priuileg. d. c. 19. piae causae..

3 Such † as can speake and can not heare, they may make their testamentes, as if they coulde both speake, & heare: neither skilleth it whether that defect came by nature, or otherwiseMinsing. in d. §. item surdus.. But there is none found so deafe, but that he is able to heare somewhat, if not the crying voice of a man, yet the loude voice of some instrument, as of a horne, or a trumpet, or a gunnePaul. de castr. & I [...]s. in d. L. discretis.: and if he can speake, it is certaine that hee could once heare, otherwise if he could neuer haue heard, he could neuer haue spoken, for howe coulde he bee instructed to speake, if hee could neuer heareDD. in d. L. discretis & in d. § Item surdus..

4 Such † as bee speechlesse onely, and not voyde of hearing, if they be learned, may very wel make their testamentes themselues by wri­ting, or beeing vnlearned, may also make their testamentes by signes, so that the same signes be sufficient, well knowen to such as then be presentDD. in L. discretis..

Of a blinde man.
§. xi.

1 A blinde man may make a nuncupatiue testament.

2 Whether a blinde man may make a written testa­ment.

1 HE that † is blinde may make a nuncu­patiue testament, by declaring his will before a sufficient number of [Page] witnessesSed an requirantur omnes solennitates, de quibus in L. hac con­sultissima. C. qui testa. fac. poss. & videtur eas adhiberi debere, quia communi Doctorum opinione, solennitas huius L. adhibenda est, vel in testamento ad pias causas, à caeco cō ­dito; nec aliàs quicquā valet. Grass. Thesaur. com. op. §. testm̄. q 31. Ego verò adhaereo Alex. Ias. Decio. Sichardo, & alijs in ead. L. hac consultissima. & Tira­quel. qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento, sed sufficere probationem iuris gentium, & hanc opinionem recepit generalis regni no­stri consuetudo.: But † he cannot make his testament 2 in writing vnlesse the same be reade before the witnesses, in their presence, and acknowledged by the testator for his last will. And therefore if a writing were deliuered to the testator, and he acknowledged the same for his will, this were not sufficiēt; for it may be that if he shold heare the same reade hee would not acknow­ledge the same for his willDD. in d. L. hac consultissima. C. qui testa. fac. poss..

Of Traitours.
§. xij.

1 Traitours loose both their liues, landes and goods, and consequentlie, are intestable.

2 Traitours are intestable not onely from the time of their conuiction, but from the time of the crime committed.

3 A traitour pardoned and restored, may make his testament.

OF those who are prohibited to make their testaments as malefac­tors (who now are to make their appearance and to shew thēselues in the course of this treatise) trai­tours, because they are most pernicious to the [Page 53] common wealth, are most worthie the first place in punishments.

1 Vnderstand † therefore, that whosoeuer is lawfully conuicted of high treason, by verditte, confessiō, outlawrie or presentment, besides the losse of his life, shall forfeite to the prince all his goods and cattelles, and all such landes, tene­ments and hereditaments; as he shal haue in his owne right, vse or possession, of any estate or in­heritance at the time of such treason commit­ted, or at any time afterStat. Ed. 6. an. 5. c. 11., and so consequentlie 2 is intestableL. quisquis. §. j. C. ad L. Iul. maiest. L. si quis. de iniust. test. L. nemo. ff. de leg. 1. Vasq. de succoss. progress. lib. 1. §. j. n. 165. qui multis ampli. hanc. concl. ornat.: in so much † that traitours are not onely depriued of making any testament, or o­ther kinde of last will, from the time of their conuiction, but also the testament before made dooth by reason of the same conuiction be­come voide, both in respect of goodes, and al­so in respect of lands, tenements and heredita­mentsStat. Ed. 6. an. 5. c. 11. DD. in d. L. nemo. de leg 1. ff. & Vasq. vbi. sup.

3 Neuerthelesse if † any person being attain­ted of treason obtaine the princes pardon, and be thereby restored to his former estate; then may he make his testamēt as if he had not been conuictedL. si quis. § quatenus ff. de iniust. rupt. & irrit. testa.: or if he made any before his con­uiction and condemnation, the same by rea­son of such pardon recouereth his former force and effect, as hereafter is more fully de­claredInfr. 7. part. §. xvij..

Of Felons.
§. xiij.

1 Felons loose life and goods, and so be intestable.

2 Who shal haue felons landes.

[Page] 3 Whether hee that is onely indited of felonie maie make his testament.

4 Whether he that standeth mute may make his te­stament of his landes.

5 Whether a man after he is apprehended for felonie, may make his testament.

6 Felons goods not to be seased before attainder.

7 The testament of a Felon conuicted is void, though he be neuer executed.

IF any person † be condemned of 1 felonie he ought to suffer death, and † the Prince shall haue all his 2 goods, where so euer they bee foundStat. Eliz. an. 5. c. 14. Termes of law. verb. robberie.: and if he † haue any free 3 holde it shall forthwith be seased into the Prin­ces hands, and the Prince shall haue the profite thereof by the space of a yeere and a day, and also wastePraerog. Reg. c. 16. Eliz. an. 5. c. 14.: and after the Prince haue had it, the yeere and the day, and waste, the land shall be restored to the cheefe lord of the fee, except in certaine places, as in the countie of Glocester, where after a yeere and a day the lands and te­nements of felons, shal reuert to the next heire to whom it ought to haue descended, if the fe­lonie had not beene committedPraerog. reg. c. 16.: Or in Kent in Gauelkind, whereas it dooth descend to al the heires males, equally to be deuided, or to the daughters, where there be no sons, to be deui­ded amongst thē, for there it is said, the father to the boughe, and the son to the ploughe Eod. c. 16.. Felons ther­fore lawfully conuicted can not make any te­staments, or other dispositions of anie goods or [Page 54] landes, whereof (as wee see) the lawe hath dis­posed alreadyDuplici ratione dā ­natus ad mortem, fit intestabilis: nimirum, bonorum publicatione & damnatione ad mor­tem. Damnatus autem ad mortem naturalem efficitur seruus poenae, quod communi opi­nione nititur, aduersus eos, qui existimarunt ingenuum hodie non effici seruum poenae hu­iusmodi damnatione: sed procedit prior opi­nio, siuè quis damna­tus sit secundum ius commune, siuè etiam secundum statutum a­licuius loci. Iul. Clar. §. testm̄. q. 21. Couar. in Rub. de testa. extr. 3. part. n. 27. Michael. Grass. Thesaur. com. op. §. testm̄. q. 26..

4 But † if any man be indited onely of felony and die before he be conuicted or attainted, he may make his testament of his goods and also 5 of his landsQuia non condem­natus non reperitur prohibitus. vide stat. R. 3. an. 1. c. 3.: or if † he be indited at the Prin­ces suite, and so beeing arraigned vpon that in­ditement will not answer, but standeth mute or dumbe, whereupon he is to receiue paine (as it is tearmed) Forte & Dure, and bee pressed to deathDo. & Stu. lib. 2. c. 41.. In this case his goods onely be confis­cate, but not his landsibidem., and therefore in this case I suppose he may make his testament of his landesQuia viz. non ꝓhibe­tur, q̄ non condēnatur..

6 If a felon † bee indited, and afterwards at­tainted by verdit or confession, the time of the fact committed comprised in the inditement, is to be regarded in respect of his lands: but in re­specte of his goodes, in the time of his iudge­mentPerk. tit. grants. fol. 6. And therefore if before iudgement he doe sell, giue, or otherwise alienate his goodes, such saile, gift, or alienation is goodPerkins. vbi supr. cō ­cordatius ciuile. L. post contractum. ff. de donac. cum distinctio­ne tamen, vt per Bar. in d. L. Grass. §. testm̄. q. 26.. Neither 7 † may the Sherife or other person, take or sease the goods of any person arrested and impriso­ned, before the same person be conuicted or at­tainted of felonie, according to the law, or that the goods bee otherwise lawfullie forfeitedStat. R. 3. an. 1. c. 3.. Howe be it if hee make his testament before the condemnation, for as much as the te­stament is not good before his deathc. Matthae. de celebr. miss. extr., such disposition beeing preuented by iudgement or condemnation, is made frustratePanor. in Rub. de te­sta. ext. Iul. Cla. §. testm̄. q. 21. Grass. §. testm̄. q. 26 Vasq de succes. resol. lib. 1. §. 6. n. 18., in so 8 much that if the † testator beeing conuicted [Page] of felonie, be neuer executed, for that perhaps he dieth in prison, or escapeth out of prison & dieth naturally: yet is the testament voyde by force of the condemnationPanor. in Rub. de te­sta. extr. Iul. Clar. §. testm̄. q. 21. Grass. §. te­stm̄ q. 26. Vasq. de suc­cess. resoluc. lib. 1. §. 6. n. 18., vnlesse hee doo obtaine his pardon, and there withall full resti­tution to his former estateL. si quis. §. quatenus ff. de iniust. testo..

Of Heretikes.
§. xiiij.

1 An heretike can not make a testament.

2 Whether and when dooth an heretike forfeite his landes or goods.

3 Whether is the testament good, if the heretike were neuer conuicted.

4 An heretike may be condemned after his death.

5 Whether an heretike hauing reclaimed his heresie. may make a testament.

AN † heretike can not make a testa­mentAuth. credentes. C. de haere. Lindw. in c. 1. de haeret. Vasq. de suc­cess. resoluc. lib. 1. §. iiij. n. 23. Simo de Praetis. de inter. vlt. vol. lib. 2. dub. 1. soluc. 4.. And albeit by the lawes and customes of this realme an † 2 heretike do not forfeite his lands; vnlesse beeing deliuered to laye mens handes, he be executed for his heresieDoct. & Stud. lib. 2. c. 29.; nor his goods, vnlesse being cōuicted of here­sie, he be deliuered to lay-mens handesIbidem.: Yet if he be conuicted, and publikelie excommuni­cated, though not as yet deliuered, he can not make a testament of his goods or cattelsBar. in d. Auth. cre­dentes. Grass. § testm̄. q. 24. Clar. § testm̄. q. 24. Gabr. com. conc. lib. 4. tit. de testa. c. 1. Quaere tamen p stat. 2. Hen. 5. c. 7..

If he † were neuer conuicted of heresie, and 3 yet die an vndoubted heretike, in this case it [Page 55] may seeme that his testament is void, in respect of his goods; the rather by force of the excom­munication, into the which by reason of his heresie he did fall ipso facto c. Abolend. de sen. excom. extr. Lindw. in d. c. 1. de haeretic. & inf. ead. part. §. 18., especially if in his life time he were so publikely denouncedAt non sufficit excō ­municatio, etiam ob crimen, quo efficitur quis intestabilis, nisi fit publicata, si verum di­cat Simo de Praetis. de interp. vlt vol. lib. 2. fol. 148. n. 75.: yea 4 though he were not so denounced, yet † so o­dious is the crime of heresie, that hee may bee condemned of heresie after he bee deadc. sané profertur. 24. q 2. L. ex iudiciorum ff. de accu. L. Manichaeos. C. de haeret. c. vrgentis de haer. extr. Iul. Clar. §. haeresis. n. 21. Aegid. Boss. tract. var. tit. de haeretic. Bellam. dec. 677. cum seq.: at least the exception of intestabilitie, may be op­posed 5 against the probate of the testamentPer ea quae habet Dec. in L. 1. de secundis nuptijs. C. n. 7. Cardi­nal. in clem. eos de se­pultur. q. 19 & infr. ead. part. §. 18.. If the † testator reclaime his heresie, thē he is not intestable; although hee did not reclaime the same before condemnation, so that hee doe it before he be deliuered to the seculer powerHoc verum iure quo nos vtimur, nam iure ciuili reclamans haere­sim post sententiam so­lùm euitat paenam mor tis. Panor. in c. pen. de haeret. extr. Boer. decis. 343. Boss. tract. var. tit. de haereticis.. But how so euer he recouer abilitie to make a testament, which reclaimeth his heresie, yet the testament made by an heretike, whiles he per­sisteth in his heresie, doth not recouer any force by such recantationSimo de Praetis. de in­terp. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 56. cuius rei ratio est, quia testm̄ suit ab initio nullum.: and if he fall againe into the heresie, by such relapse hee dooth incurre all the punishments, whereunto he was subiect before: neither is his recantation any more to be acceptedClar. Boss. Carerius, Grillandus, & alij de haereticis..

Of an Apostata.
§. xv.

1 An Apostata can not make a testament.

2 An Apostata woorse then an heretike.

3 Who is an Apostata.

4 The state of the heretike and of the Apostata dam­nable.

[Page] 5 Three kindes of Apostasie.

6 Euery Apostatae is not intestable.

THat † which hath beene spoken 1 of an heretike may also be verifi­ed of an ApostataL. 1, 2, & 3. C. de apo­stat. Summa Hostiens. tit. de apostat. §. qua­liter.. For he is † as 2 bad or rather worse and more execrableWesenb. in tit. de apost. C.L. vlt. C. eod.. For † an Apostata is 3 he which dooth wholie starte backe from the Christian faith, which once hee did professe and wherin he was once baptized, and becom­meth in profession a Iewe,Summa Hostiens. tit. de apostat. extr. c. non potest. 2. q. 7. c. quidam de apost. &c. contra christianos. de haere. 6. or a Turke, or some other infidel approouing their detestable rites, and superstitions: wheras an heretike, albeit he doo obstinately perseuer in his error; yet he er­reth not wholy, but particularly in some part of christian religionSumma Hostiens. tit. de haere. & de Aposta.. Both in truth are abhomina­ble 4 and the † state of either miserable, and dam­nable. But of the two the Apostata is more hor­rible, and better were it neuer to haue knowne the way of trueth, then after the knowledge thereof, to reiect it or start away from it2. epistol. Petr. c. 2. vers. 21. epist. Paul. ad Hebraeos. c. 6. vers. 6.; wor­thily therefore is the Apostata to be as seuere­lie punished, as an heretikePanor. in c. 1. de apo­stat. ext..

There † be three kinds of Apostasie: Persidiae, 5 Inobedientiae, Irregularitatis; one of misbeleefe, an other of disobediēce, the third of irregulari­tieSumma Hostiens. tit de aposta. §. quot spe­cies.. Apostasie of misbeleefe is where a man dooth vtterlye forsake the christian beleefe, as mention is made before: so did Iulian the A­postata. [Page 56] Apostasie of disobedience is, when the subiect refuseth to obey the lawfull commaun­dement of his ordinary or superiorSumma Hosticas. d. tit. de aposta. epist. ad Hebr. c. 13. vers. 17.: and so do many Anabaptistes at this day. Apostasie of ir­regularity is, when he that hath entred into the ministery and taken holy orders, forsaketh his spirituall profession; and becommeth not in ha­bite 6 onely, but in actions a laie manc. à nobis. de aposta. extr.: But † I suppose that an Apostata from obedience, or from spirituall profession, is not disabled to make his testamentBar. in Rub. de apo­sta. C., though he bee worthilie subiect to other greeuous punishmentsDe quibus Ab. in c. 1. de aposta. ext. & Ho­stiens. summa eod. tit. §. qualiter puniantur..

Of Vsurers.
§. xvj.

1 A manifest vsurer can not make a testament.

2 Euery vsurer is not intestable.

3 Who is a manifest vsurer.

4 Whether one acte may make an vsurer to be mani­fest.

5 VVhether he be an vsurer which lendeth for gain, but dooth not receiue any more then the principal.

6 An vsurer is not intestable in England, vnlesse hee take aboue 10. in the 100. for a yeeres forbea­raunce, or after that rate.

7 The punishment for vsury in England.

8 A manifest vsurer is not to bee buried in anie church or churchyard.

1 A † Manifest vsurer cannot make a te­stament, and though he make one, it is voyd in law concerning goods [Page] and cattelles, vnlesse he satisfie for the vsury, or put in caution for satisfaction to be madec. quanquam de vsur. lib. 6. Clar. §. testm̄. q. 26 Michael Grass. The­saur. com. op. §. testm̄. q. 33..

Where it is † said, a manifest vsurer, we are to 2 note, that not euery vsurer is excluded from making a testament, but a manifest vsurer one­lyd. c. quanquam. & ibi gloss. & DD., that is to say, † such an one as hath beene 3 condemned for an vsurer, or hath publikly con­fessed that he hath taken vsurie, or is publikelie reputed and taken for a vsurer amongest his neighbours, who are presumed to know his life and conuersationGemi. & Franc. in d. c. quanquam.. And † albeit some are of 4 this opinion, that a man can not be said to be a manifest vsurer, vnlesse he haue diuers times ta­ken vsurieBat. in L. 3. de furt. ff, yet that opinion is not helde for sound, amongst the writers of the ecclesiastical laws; who thinke that a man may be a manifest vsurer, by occasion of one onely acte the same being publike and manifestCard. in clem. eos de sepul. q. 19.. Neuerthelesse † 5 it is not sufficient in lawe to depriue a man of the auctority or libertie of making a testament, because he hath lente his mony or goods to v­surie, vnlesse he haue taken encrease, ouer and aboue the principallDom. & Franc. in d. c. quanquam de vsur. lib. 6. Ripa. respons. 116.. Neither † is it suffici­ent, 6 to haue taken vsury, and that manifest­lie, to the effect of making the vsurer intestable; vnlesse he haue receiued aboue the summe of 10. pound for the lone or forbearing 100. poūd for one yeere or after that rateStat. Eliz. an. 13. c. 8.. For † although 7 all vsury be worthily condemned by the lawes and statutes of this realme, as vnlawfull and vn­godlyd. Stat.: Yet neuerthelesse euery kind of vsury, is not punishable with like penaltie: for if anie doo receiue vsurie onely after the rate of 10. [Page 57] pound in the hundreth for a yeeres forbea­rance, or vnder that rate, he shall onely forfeite so much as shal be reserued or receiued by way of vsurie aboue the principallIbidem.: but if any shall receiue aboue that rate, hee dooth not onelie loose his principall together with the interest, but is also to be punished and corrected accor­ding 8 to the lawes ecclesiasticallEod. stat. Eliz. an. 13. c. 8.. By † the which lawes ecclesiasticall, if any be a manifest vsurer, not onely his testament is voide, as is a­foresaid, but his body after he bee dead is not to be buried amongst the bodies of other chri­stian men, in any church or church-yard, vntill there be restitution or caution tendered accor­ding to the value of such goodsd. c. quanquam. de vsur. 6..

Of Incestuous persons.
§. xvij.

1 Whether incestuous persons may giue any thing by their testament and to whom.

2 VVhat mariages be incestuous.

3 VVhat degree of consanguinitie dooth hinder ma­riage.

4 Certaine cases wherein the testators may bequeath some thing to their incestuous children.

1 HE † which dooth contracte incestu­ous mariage, is prohibited to dispose any goods or cattelles by his testa­ment or last will, either to his chil­dren begotten in such incestuous mariage, or [Page] to any other personL. si quis. C. de in­cest. nup., sauing to his children be­gotten in lawfull mariage (if he haue any by a former wife) or to his parents, or to his bro­ther, 2 or sister, or to his vncle or aunted. L. si quis. Per libe­ros autem intellige nō solùm siliam & siliam, sed nep [...]tem, & neptē, & d [...]inceps altos vtri­usque sexus descendē ­tes: & per parentes, nō solùm patrem & ma­trem, sed etiam auum, auiam, & altos ascen­dentes. Accurs. Bald. & alij in d. L. si quis. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. so­luc. 4. n. 92.. By † in­cestuous mariage in this place, I vnderstande such mariages as are solemnized or had be­twixt a man and a woman, being of kinred or aliaunce, the one to the other, within those de­grees of consanguinitie or affinitie, within the which it is not lawfull to marrieCouar, de spons. & matr 2. part. c. 6. §. 8. c. le cilla. §. incestus. 36. q. 1.; that is to say, within the leuiticall degrees, or the degrees prohibited by Gods lawe. For at † this pre­sent, 3 by the statutes of his realme it is declared and established, to be lawfull for all persons to marry, which be not prohibited by Gods law; and that no prohibition (Gods lawe excepted) shall trouble or impeach any mariage, without the leuitical degreesStat. H. 8. an. 32. c. 38.. And therfore whosoeuer dooth marie being prohibited by Gods lawe, or being within the leuiticall degrees, can not dispose any thing by testament but to the persons aboue named, and especiallye not to his or her children begotten in such incestu­ous mariages; vnlesse † the parentes were igno­raunt 4 of the impediment of such consanguini­nitie or affinitieSimo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4 n. 92.: In which case the mariage being publikly solemnized; the children which are borne during such their ignoraunce, or the ignorance of one of them are legitimatec. cum inhibitio. §. si quis. de cland. despons. ext. & ibi Panor. Brook. tit. bastardie. n. 23. Fitz­herb. tit. bastardie. n. 2., albeit the parentes afterwardes should be diuorcedCouar. epit. de spon­sal. 2. part. c. 8. §. j. con­trarium tenet Brook. tit. bastardie. n. 23. & alibi ꝑ eundem intersu­os casus an. 24. Hen. 8. quem locum diligen­ter obserues cupio.: or vnlesse so much onely were lefte vnto their said children, as would serue for their compe­tent sustentation or nourishmentPlad ita [...]ure Can. c. cū haberet de eo quit dax. in vx. ext. quod. c. locum habet non solū in spurijs, sed etiam in incestuosis, vt est com. op. teste Decio, in c. in patria de prob. extr. n 39. Gabr. lib. 6. de ali­men concl. 1. n. 5.: or vnlesse [Page 58] the children were appointed bare executors without any other benefit: In which cases the testamente is goodInf. 5. part. §. 7 Petr. Duen. reg. 366. Limitae 9. verb. filius. Simo de Praetis. de interp. vlt. vol. lib. 5. fol. 17. n. 27., as heereafter more at largeInfr. part. 5. §. 7..

Of a Sodomite.
§. xviij.

1 VVho is a Sodomite.

2 A Sodomite can not make a testament.

3 VVhat if he were neuer condemned of Sodomitrie.

1 A † Sodomite, that is to say,Sodomia autem di­citur non solùm illud nefandum peccatum inter masculos, sed etiā flagitium illud contra naturam cum faemina. Et haec opinio commu­nis est contra Socin. contendentem istius­modi peccatum, non sodomiam, sed extra­ordinariam quandam pollutionem dici de­bere, quem DD. com­muniter reprobant, vt refert Viuius, lib. com. op. verb. sodomia. Dec. in L. j. de secundis nup­tijs. n. 9. C. Card. in clem. 1. de consang. & aff. q. 13. he or she that dooth commit that wicked & horrible sinne against nature, as did the Sodomites, whereof men­tiō is made in the holy scriptureGen. c. 19., 2 is † prohibited to make a testamentSpec. de Instr. edit. §. compendioso. n. 5., and to be­queath his goods and cattelles. And albeit hee 3 were neuer conuicted, † or condemned there­of in his life time, yet I suppose this exception may be obiected against the probate of the te­stamentDec. in L. 1. de secundis nup. C. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 97., for that he was intestate at the time of the fact committedSimo de Praetis. & Dec. vbi supra. Adde Cardinal. in clem. eos. de sepul. q. 19..

Of a Libeller.
[Page]§. xix.

1 VVhat is a famous Libell.

2 A Libeller intestable.

A † FamousFamosum quando (que) in malam partem su­mi multis exemplis ostēdit Petrus à Placa. epit. delict. c. 3. Libell is a writing made 1 to the infamie of any man, published abroad to that endeSumma Angel. Sum­ma Siluest. verb. libellꝰ.: and he that † is 2 condemned for deuising, writing, or publishing the same, is thereby depriued of the abilitie of making a testament, or disposing of any his goods or cattellesL. si cui. §. si quis. ff. de testa. L. vnic. de fa­mos. libel. C. Petr. á Pla. epit. delict. lib. 1. c. 3..

Of him that killeth himselfe.
§. xx.

IF any mā do wittingly & willingly kil himself, his testamēt, if he made any, is voydL. si quis filio. §. eius. de testa. ff. L. 2. qui te­sta. fac. poss. C., both concerning the appointment of the executor, and also concerning the legacie or be­quest of any goods, for they are confiscateVasq. de success. re­soluc. lib. 1. §. 3. n. 31..

Of him that is outlavved.
§. xxj.

1 An outlawed person looseth his goods and benefite of the lawe.

2 VVhat if the action be personall?

3 VVhat if the action be vniust?

4 VVhether an outlawed person may make his testa­ment?

5 VVhat if the prince giue the goods to the executor, whether is he therefore chargeable with the pai­ment of legacies?

[Page 59] 6 He that is outlawed dooth some time forfeite not goods onely but lands also.

7 An outlawed person may make his testament of landes not forfeited.

8 An outlawed person may assigne tutors testamenta­rie to his thildren.

9 Certaine other cases, wherein hee that is outlawed may make his testament.

1 AN † outlawed person is not onely out of the protectiō of the Prince, & out of the aid of the laws of this realmeFitzher. Nat. Br. fol. 161. Termes of law. verb. vt legarie., but also all his goods and 2 cattelles be forfeited to the Prince, by meanes of the outlawrieDoct. & Stu, lib. 2. c. 3, although † hee were outlawed but in an action personallTermes. vbi supr., and 3 although † also the action peraduenture were not iust: neuerthelesse his goodes and catelles are forfeited, by reason of his contempt in not appearing: for it is a maxime in the common lawes of this realme, that he that is outlawed doeth forfeite all his goods and cattelles to the Prince; without distinction whether the action 4 be iust or vniustDoct. & Stu. lib. 2. c. 3. And therefore † it followeth, that he that is outlawed can not make his testa­ment of his goodes so forfeitedIul. Clar. §. testm̄. q. 19.. In so much 5 that † if the prince hauinge seased the forfeited goods of the testator, should giue the same a­gaine to the executor; neuerthelesse the testa­ment is voide in respect of such goods; neither can the legatarie recouer the same at the hands [Page] of the executorDoc. & Stu. lib. 1. c. 6., for by the forfeiture and sea­sin the propertie thereof is altered, and so cea­sing to bee the goodes of the testator, doe not charge the executor, as assetsDoc. & Stu. lib. 2. c. 3. & lib. 1. c. 6.

If † the testator be outlawed by an outlawrie 6 for felonie, then he doth not onely forfeite his goods and cattelles, but also his landes and te­nementes, whether they be holden in fee sim­ple or for terme of lifeTermes of law. verb. vt legat.: And hee that is thus outlawed, can neither make his testament of those goods nor of those landes, for they are none of his.

Howbeit † I suppose that he that is outlaw­ed 7 in an action personall, may make his testa­ment of his landes, for they are not forfeitedVide quae sequuntur hoc §. litera L. quo etiā tendit quod scripserūt Brook. Tit. Gard. n. 6. & Perkins. tit. grants fol. 6.. Or if † he doe assigne tutors to his children (as 8 within the prouince of Yorke and other places by custome there vsed parentes may doeInfr. part. 3. § vij.) the same assignation is to be confirmedIs enim qui nostrati­bus dicitur vt legatus, parùm differt à relega­to. Cùm relegatio (sicut vtlegatio) nihil aliud est, quàm exilium tem­porarium. L. relegati. ff. de paen. Quinimo & re­legati quandoque (prout etiam vtlegati) bona confiscata sunt. Iul. Clar. §. testm̄. q. 22. Attamen non amittit testm̄. factionē relega­tus quoad bona, si quae sint non confiscata. Iul. Clar. d. q. 22. Quare, si­cut relegatus, ita etiam vtlegatus testandi facultatem retinet: Si quid supersit non pro­scriptum, siue publica­tum. Porrò bannitus non est intestabilis. Clar. q. 17. Deni (que) nec deportatus ad pias causas. Grassus. §. te­stm̄. q. 17. n. 9. multò minùs efficitur vtlegatꝰ intestabilis, quoad ea quae non sunt appli­canda fisco., by the or­dinarie to whom the probate of testaments ap­pertaineth. Or † if there be any error or discon­tinuaunce 9 in the sute, or processe, by meanes whereof the outlawrie is reuersed or anulled: Or if the partie outlawed were beyond the seas at the time of the outlawrie pronouncedTermes of law. verb. vtleg., or if three proclamations were not made according to the statute lately made in that behalf, viz. one in the open countie courte, an other at the ge­neral quarter sessions, & the third at the church or chappell where the partie defendant dwel­lethStat. Eliz. an. 31. c. 3.; in respect whereof the outlawrie is reuer­sed and voide: In these and like cases the testa­ment is good, notwithstanding such outlawrie: [Page 60] And so it is if pardon be obtained, and he ther­by fullie restoredL. si quis. §. quate­nus. de iniust. test. ff..

Of an Excommunicate person.
§. xxij.

1 An Excommunicate person may make a testament.

2 Sauing in certaine cases.

1 WHether † an Excommunicate person may make a testament or not is a question which hath many patrons, both of the affirmatiue and negatiue parte, howbeit the affirmatiue hath moe in number. And those also greater in weight or auctorityGabr. Rom. lib. 4. cō. concl. tit. de testa. concl. 1. Grass. The­saur. com. op. §. testm̄. q. 24. Petr. Duen. tract. reg. & sall. vbi citantur & huius, & illius opini­onis Authores paenè infiniti.: And this affirmatiue conclusion pro­ceedeth, although he be publikelie exommuni­catedGrass. & Duen. vbi supra., 2 vnlesse he be † excommunicate for he­resie, or manifest vsury, or for some other cause, for the which he is prohibited to make any te­stamentSed an hîc etiam o­pus sit denunciatione; vide quae superiùs di­cta sunt ead. part. §. 14. & § 18.: or vnlesse he be excommunicate with that great curse, which is called Anathema, which is not to bee inflicted but vpon great cause, with great deliberation and solemnitieSocin. tract. reg. & fall. verb. excommuni­catus..

Of Prodigall persons.
[Page]§. xxiiij.

1 Diuers persons intestable by the ciuill lawe, which are not prohibited by the lawes and customes of this realme.

OThers † also for other causes are for­bidden 1 to make their testaments, by the ciuill laweDe quibus Vigelius in sua method. iur. ci­uil. lib. 9. c. 5. & 6. cum sequentibus., namely prodigall personsL. is cui. ff. de testa. §. Item prodigus. Instit. quibus non est permiss., and such as are doubtfull of their state of freedome or bondageL. de statu. de te­sta. ff.; the son also, so long as his father liued (in whose power he was) could not make a testament, by the ci­uill laweL. qui in potestate. ff. de testa.. But seeing the lawes of our realme are contrarie, I shal not neede to enter into any discourse of that lawe about these persons.

Of him that hath svvorne not to make a Testament.
xxv.

1 It is an olde question, whether he that hath sworne not to make a testament, may notwithstanding make a testament.

2 The greater parte holde the affirmatiue.

3 No cautele vnder the same whereby the libertie of making a testament, may be taken away.

4 Whether it be needefull that the testator doe ex­preslie reuoke his oath.

IT is † an olde question, whether he 1 that hath taken an oth not to make a testament, may notwithstanding make a testamentDe qua. q. Bar. in L. si quis. ff de leg. 3. Io. And. in c. quod semel. de reg. iur in 6. Blad. in Auth. hoc inter. C. de testa. Spec. de Instr. edi. §. compendiose. vers. quid si quis. Summa Hostiens. tit. de sepultu­ris. §. an licitum. Ol­drad. cons. 127.: and † although 2 there were many which did hold, [Page 61] that in this case he could not make a testamētSpecul. Hostiens. Ol­drad. & alij. vbi supra., yet the greater nūber are of the contrarie opini­onBar. in d. L. si quis. Iul. Clar. §. testm̄. q. 94. Michael Grass. §. testm̄. q. 87. Soarez. lib. rec. senten. verb. testm̄. n. 67. & haec opinio pro­culdubio communis est, testimonio eorun­dem Clar. Grass. Soa­rez.; esteeming the othe [...] not to be lawfull, and consequently not of force to depriue a man of the libertie of making a testamentBar. vbi supr. cui ac­cedunt etiam Olden. de action. class. 5. in prin. Couar. in Rub. de testa. extr. 2. part.. And there­fore if a mā first make a testament, & then swea­reth neuer to reuoke the same, yet notwithstan­ding he may make an other testament and ther­by 3 reuoke the formerBar. Clar. Grass. vbi supr. Gabr. lib. 2. com. concl. tit. de iureiuran. concl. 1. n. 8. cum infi­nitis alijs.: for † there is no cautele vnder heauen, whereby the libertie of making or reuoking his testament can be vtterly taken 4 awayBar. & Olden. vbi supra.. Howbeit if † the testator will make his testament contrarie to his othe, then it is ne­cessarie that he reuoke his othe also, for the for­mer testament is not reuoked, vnlesse the othe be also specially or expreslie reuokedIul. Clar. §. testm̄. q. 94. Soarez. lib. rec. sen. verb. testm̄. n. 67. Grass. §. testm̄. q. 87. vbi dicit hoc esse valdè notandum..

Of him that is at the verie point of Death.
§. xxvi.

1 He that is at the pointe of death cannot alwaies make his testament.

2 VVhat if it appeare that he is of perfite minde and memorie.

3 VVhat if his words can scarcely be vnderstood.

4 VVhat if it bee doubted whether hee bee of perfite minde and memorie.

5 Whether the testament made at the point of death by the motion of an other be good or not.

6 What if the person be suspected which dooth aske the question.

[Page] 7 They which be extreamely sicke doo easilie answer (yea) to anie question.

8 The former testament is not reuoked by the second, made by him that is readie to die at the interroga­tion of a suspected person.

9 Whether the testament be good, which is made at the interrogation of a person not suspected.

10 What if the sicke mans meaning doo not appeare but by his bare answer.

11 Whether that testament bee good, which beeing written by the Kinsfolkes of the sicke man, and af­terwardes reade vnto him, and hee demaunded whether he be content to haue the same stande for his will, answereth (yea?)

WHether † he that is at the very pointe 1 of death may make a testament, or whether the testament made by him when hee is halfe dead bee good or no, may be knowen by these cases following.

The first case is, when a man beeing so ex­treamely sicke, that he is wel nie dead, yet † ne­uertheles 2 it appeareth vndoubtedly by his ge­stures & sēsible speeches, that he is of good vn­derstanding and sounde memorie; in this case there is no question, but he may make his testamentL. quoniam indig­num. C. de te­sta. & DD. ibidem. Mā ­tic. de coniect. vlt. vol. lib. 2. tit. 6. Simo de Praetis. de interp vlt. vol. lib. 2. dub. vlt. soluc. 4., for the integritie of the minde, and not of the bodie, is required in the testatorL. 2. ff. de testa. L. se­nium. C qui testa. fac. poss., and the libertie of making a testament, dooth continue euen vntill the last gaspeL. 4. de adimen. leg. ff.. In so much that † if the testator bee not able to pronounce 3 [Page 62] his wordes so plainely and distinctly as he had beene accustomed, but scarcelie and with great difficultie can be vnderstood of such as be pre­sent, (his tongue perhappes being swolne or become stiffe, and vntrulie, or otherwise distur­bed by meanes of his sicknesse,) yet dooth not the testament therefore loose his force or ver­tued. L. quoniam indig­num. Simo de Praetis. vbi supr. Phil. Franc. in Rub. de testa. lib. 6. Alex. consil. 33. vol. 3. n. 7..

4 The second case is, † when a man is at the pointe of death, but it dooth not appeare plainely whether hee bee of perfect minde and memorie. In which case, some are of opinion, that neuerthelesse he is to be presumed of per­fect minde and memoriePanor. in c. fin. de success. ab intestat. extr. n. 9.. Others are of the contrarie opinion, comparing him that is in this case to a dead man, partely through the in­tollerable extremitie of the sicknesse, and partly through the cogitation of imminent deathPaul. de Castr. consil. 155. vol. 1.. O­thers more indifferent do reconcile these con­trarie opinions, with this distinction: either the sicke person dooth speake so distinctlie as hee may be vnderstood, and then he is presumed to be of perfect minde and memorie, and so to be in that case that he may make his testament: or else hee can not speake so distinctly as hee may be vnderstood, and then hee is not in case to make his testamentDD. in L. iubemus. C. de testa. Mantic. de coniect. vlt. vol. lib. 2. tit. 6. n. [...]. Viglius. in §. sed cùm paulatim. In­stit. de test. ord. vbi hoc distinctionum soede­re conciliat istas con­trarias leges, nempe L. quoniam indignum. & L. iubemus. C. de testa..

5 The † third case is, when hee that is at the point of death and hardlie able to speake, so as he may be vnderstood, dooth not of his owne accorde make or declare his testament, but at the interrogation of some other, demaunding of him whether he make this or that person his [Page] executor, and whether he giue such a thing to such a person, answereth yea, or I doo so. In which case it is a question of some difficultie, whether the testament be good or not, neither can it be answered simplie, either negatiuelie, or affirmatiuelie, but diuerslie in diuers re­spectsDe hac q. consulas velim Mantic. de con­iect. vlt. vol. lib. 2. tit. 6. & Gab. Rom. lib. [...]. cō. conclus. tit. de testa. concl. 2. vbi non paucis contentus est distincti­onibus., for if † the which doth aske the question 6 of the testator, be a suspected personPaul. de Castr. consil. 155. col. pen. vol. 1 Zas. cons. 3. vol. 1. n. 37. So. cin. Iun. consil. 183. n. 27. vol. 2. qui refert hanc op. esse magis com., or be im­portunate to haue the testator to speakeZas. d. cons. 3 n. 37. vol. 1. vbi attestatur hanc op. esse com., or make request to his owne commoditieSocin. d. consil. 183. vol. 2. n. 39. Sichard. in L. iubemus. C. de testa. n. 7. in fin.; as if he say, doe you make me your executor, or doe you giue me this or that? And therupon the te­stator answer yea: in this case, it is to bee presu­med, that the testator did answer, yea, rather to deliuer himselfe of the importunitie of the de­maundant, then vpon deuotion or intente to make his willPaul. de Castr. in L. hac consultistima §. at cum humana. C. qui testa. fac. poss. Mantic. de coniect. vlt. vol. lib, 2 tit. 6. n. 10. Socin. Iun. consil. 144. vol. 2. n. 49. Sichard. in d. L. iube­mus. C. de testa. n. 7. Peckius. tract. de testa. coniug. lib. 1. c. 17.; because it † is for the most part 7 painefull and greeuous to those that be in that extremitie, to speake or bee demaunded a­nie question: and therefore are readie to an­swere (yea,) to anie questionHic, cui moribundus (ait Alex.) responde­ret; Ita: etiamsi interro­gares num interfecis­set hominem, cons. 33. vol. 3. almost, that they may be quiet: which aduantage, craftie and co­uetous persons knowing verie well, are then most busie, and doo labour with toothe and naile, to procure the sicke person to yeelde to their demaundes, when they perceiue he can­not easilie resist them, neither hath time to re­uoke the same afterwardes beeing then pas­sing to an other worldd. L. iubemus. & DD. ibidem.. And therfore worthi­lie and with great equitie and reason, is that to be deemed, for no testament, when the sick per­son answereth, yea, the interrogation beeinge made by a suspected person; aswell in respect of [Page 63] presumption of deceite in the one, as of defecte of meaning of making of a testament in the o­therMantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 9. Couar. in c. cum tibi. de testa. ext n. 4. Peckiꝰ. d. c. 17. n. 2.. And † this is true especiallie, when there is an other former testament, for that is not to be reuoked by a second testament made at the interrogation of an other, in maner aforesaidSocin. Iun. d. consil. 183. n. 34. Zas. d. cons. 3. n. 45. Molineus in ad­dic. ad consil. Decij. 489. vbi non dubitat af­firmare, Decium & a­lios contrarium con­sul: pessimè consulu­isse.. 9 But † if the person which maketh the motion be not anie waie suspected, and it dooth ap­peare withall by some coniectures, that the sick person had a desire to make his will, as if the 5 sicke person send for his freend, who being co­men vnto him, asketh him whether hee make this or that man his executor, which otherwise were to haue the administration of his goodes if he died intestate; to whō the sicke person an­swereth; yea, or I doe make him my executor: In this case this testament is goodZas. d. consil. 3. n. 37. Socin Iun. consil. 183 n. 31. Couar. in d. c. cùm tibi. n. 4. Peckius. d. c. 17. n. 5., albeit it were in preiudice of an other testament made 10 beforeDec. d. consil. 489. Socin. Iun. consil. 144. vol. 2. n. 44. 45.. But † what if it doe not appeare by any coniecture, that the testator had a meaning to make his testament, and yet no suspition can be conceiued against the person which demaun­deth the question, whether is the testament good, if the testator doo onelie answer, yea? I suppose, that without some coniecture of the testators meaning, it is not sufficientMantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 9. Socin. Iun. consil. 183. vol. 2. n. 6. 37..

11 The fourth case is, when the † sicke mans kinsfolkes, or some other persons doo cause a testament to be written, after then inditinge, (the sicke man as yet no [...] knowinge thereof) and then afterwardes the same being read vn­to him, and he being demaunded, whether the same, shall stande for his testament, aunswe­reth, [Page] yea, and shortlie after dieth: in this case the testament is not goodMantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 10. qui dicit hanc op. esse magis com. Couar. in d c. cùm tibi. n. 4., vnlesse the testator had first vttered his meaning to the writer or inditer therofSichard. in L. iube­mus. C. de testa. n. 7. Gabr. lib. 4. com. con­clus. tit. de testa. concl 2. n. 13. 17., or had requested them to write his willGabriel. vbi supr., or vnlesse the testator being of good minde & memorie, had by plaine and expresse wordes, or other apparant coniectures, confir­med the same, then onelie by answering yeaMantic. de coniect. vlt. vol. lib. 2. tit. 6. in sin..

But what if a will bee brought to the sicke man, which beeing reade ouer in his hearing, and hee demaunded whether the same shall stand for his last will and testament; answereth yea: and it doeth not appeare whether the same was written and prepared by the direction of the sicke man, or else of his kinsfolkes and frin­des, whether is it to be presumed, to haue been prepared by his direction or by theirs? It see­meth by the sicke man, in fauour of the testa­mentAlex. consil. 33. vol. 3. Gabr. lib. 4. tit. de testa. concl. 2. n. 15.; but when it appeareth indeede to haue beene made readie by others, then albeit the testator beeing interrogated doe answere as before, it is presumed that the question was made by the suggestion or of the executorMantic. de coniect. vlt vol. lib. 2. tit. 6. n. 10., and so the testament is not good, as is afore­said.

Of Ecclesiasticall persons.
§. xxvij.

1 Two sorts of Ecclesiasticall persons, regular, and se­cular.

2 Who are meant by regular persons.

3 Religious persons compared to bond-men.

4 Religious persons compared to dead men.

[Page 64] 5 Who be here meant by secular clerkes.

6 Ecclesiasticall persons are not simplie prohibited to make their testamentes.

7 Ecclesiasticall persons may make their testamentes of all goods, which they haue not in right of their church.

8 Ecclesiasticall persons can not make their testa­mentes of thinges immoueable, which they possesse in right of their church.

9 An Ecclesiasticall person may make his testamente of the glebe by him sowen.

10 Whether an ecclesiasticall person may make his testament of the fruites not receiued.

11 All fruits which happen during the vacation, are due to the next incumbent.

12 Whether an ecclesiasticall person may make his testament of all moueable goodes, which hee hath in right of his church.

13 Some cases wherein ecclesiasticall persons cannot dispose of their goods.

1 OF † Ecclesiasticall persons there be two sortes, the one Regular, the o­ther 2 Secular c. duo. 12. q. 1. gloss. in Rub. de regularibus. extr.. By Regular † I doo vnderstand Monkes, friers, and other religious personsc. 2. de testa. extr., where­of because we haue none this day in the church of England, I shall not neede to enter into any discourse concerning them: Onelie this by the waie, that these religious persons in respecte of their canonicall obeisaunce, vowed vnto their [Page] Abbots and prelates, are in lawe compared vn­to bond-menSpecul. de statu. Mo­nach., and † in respect of their vowe of 4 their perpetuall pouertie, or renouncing the world, they are compared vnto dead menLitleton. tit. ville­nage. circa medium., & in these respectes they could not make a testa­mentQuod si quis scire cupiat, an, & quatenus Monachus sit testabi­lis, legat Iul. Clar. §. testm̄. q 28, 29, 30. Mi­chael. Grass. §. testm̄. q. 34. & Ferdinan. Vasq. de success progress. lib. 1. §. j.. But if a religious man had made a testa­ment before his enteraunce into that professi­on, then was the same to haue beene prooued and executed, as if hee had beene naturallie deadLitleton. vbi supr.: and if he had made no testament, when he had entred into religion, then the ordinarie might haue cōmitted the administration of his goods, as of one that had died intestateIbidem.. But it was and is otherwise with secular clerkes, who albeit they be sometimes comprehended vn­der the name of religious personsPanor. in Rub. de regular. extr., yet the law disposeth otherwise concerning their testa­mentes, then of the testamentes of religious personsvt statim sequitur hoc §..

By † Secular clerkes I vnderstande Archbi­shops, 5 Bishops, Deanes, Archdeacons, Preben­daries, Parsons, Vicars, and other ecclesiasticall ministers or cleargie menMichael Grass. The­saur. com. op. §. testm̄. q. 34. Iul. Clar. §. testm̄. q. 27.. These persons † are 6 in some respectes prohibited to make their te­staments, but they are not simplie forbiddenc. 1. c. cū in officijs. c. relatum. el. 2. c requi­sisti. de testa. extr. Co­uar. in d. c. 1.. Wherefore that we may the better know when they may make a testament, & when they may not; we are first to consider whether the things whereof they make their testamentes, doe belong vnto them in anie other respect then in the right of the church, or of their ecclesiastical liuingIta distinguitur in d. c. relatum. cl. 2..

For † of other thinges then such as are 7 [Page 65] gotten by right of the church, whether the same be lefte vnto them by their parentes, or giuen by some friend, or whether they got the same by their owne industrie, either by prea­ching of the gospell or by teaching of schol­lers, or other labourPanor. in d. c. relatū. cl. 2. de testa. extr. flores vlt. vol. part. 1. fol. 4., of such thinges they may freelie dispose and make their testamentes, as­well as laie personsd. c. 1. de testa. extr. & Couar. ibidem. Grass. §. testm̄. q. 34. Perkins. tit. deuises. c. 8. in prin., although the same be gi­uen, or gotten after they be entred into the mi­nisterie, and also after they haue obteined such spirituall promotionCyn & alij in Authē. licentiam. C. de Episco­pis & Cler. Grass. d. §. testm̄. q. 34. n. 2..

If any thing doe appertaine vnto them in 8 right of their church, then wee are to consider, whether the same be moueable or not. For of † immoueable thinges, as of houses, or of demea­nes, or of glebe, and such like, ecclesiasticall per­sons can not dispose by their testamentsL. iubemus. C. de sa­crosan eccle. c. cùm in officijs. c. relatum. cl. [...]. de testam. extr. Perkins tit. deuises. in princ., nor of the trees, or fruites, growing vpon the same 9 demeanes, or glebePerkins vbi supr. Epi­stola cuiusdam libri qui inscribitur, An an­swere to an Abstracti, &c.: Sauing † whether the in­cumbent before his death, hath caused anie of his gleebe landes to be manured and sowen, at his proper costes and charges, with anie corne or graine, for in this case such incūbent, maie make and declare his testament of all the pro­fits of the corne, growing vpon the same glebe landes, so manured and sowenStat. H. 8. an. 28. c. 11.. And although 10 † heretofore, as well by generall custome of this realmeLindw. in c. nullus rector. de consuetud. lib. 1. prouincial. con­stituc. Cant., as by speciall constitutionc. cùm inter rectores tit. de consuetud. lib. 1. prouincial. constituc. Ebor., it was lawfull for parsons and vicars, after the feast of the annūciatiō of the blessed virgind. c. nullus., & in some places after the feast of S. Marked. c. cùm inter recto­res. lib. 1. prouincial. constit. Eborac., to make their testaments of the fruites of their liuings, albeit not as yet receiued, but paiable that yeere or [Page] haruest following. Neuerthelesse by the statuts of this realme, such custome and constitution is taken awaie, by which statutd. Stat. H. 8. an 28. c. 11. † al fruits, tithes oblations, and other emolumentes whatsoe­uer belonging to anie Archdeaconrie, denary, prebend, parsonage, vicarige, hospitall, warden­ship, prouost-ship, or other spirituall promoti­on, benefice, dignitie or office, (chaunteries onelie excepted) growing, rising or cōming, du­ring the time of the vacation of the same spiri­tuall promotion, belonge to the next incum­bent, and to his executors towards the paiment of the first fruites.

Of goods † moueable which an ecclesiasticall 12 person possesseth, albeit the same were gotten in right of the church, or by meanes of his ec­clesiasticall liuing, he may make his testament, like as of anie other his temporal goodsLindw. in d c. nullus. verb. legata. Doct. & Stud. lib. 2. c. 39, 40. quod verum quidem est, iure seu consuetu­dine huius regni An­gliae: sed attento iure cano. non procedit in­distinctè. Abb. in d. c. relatum cl. 2. de testa. extra., whe­ther such ecclesiastical person be bishop, deane, archdeacon, prebendarie, parson, or vicar, or o­therwise tearmed or intituled (certaine cases onelie excepted)Iul. Clar. §. testm̄. q. 27. Grass. §. testm̄ q. 34. viz. † of goodes which a bi­shop 13 hath common with a deane or chapiterc. relatum. cl. 2. de testa. extr. Perkins. tit. deuises in princ. Doct. & Stud. lib. 2. c 39., or which a deane or chapiter haue common to themseluesFitzherb. Abridg. tit. testm̄ n. 1., or which a maister or brethren of an hospitall or colledge haue also amongest themselues, in the right of their housePerkins. Doct. & Stu. vbi supra., or of goods which are dedicated to the seruice of God, as ornamentes of the churchAetiologia, est quia huiusmodi rerum nul­lum est commercium. §. nullius. Instit. de re­rum diuis., or of the ecclesiasticall rightes, not receiued or not due, nor paiable in the time of the incumbencie of the testator, but reserued to the next incum­bentd. Stat. H. 8. an. 28. c. 11.: In which cases it is not lawfull for ec­clesiasticall [Page 52] persons to make their testaments of such goods; which cases excepted, it is law­full for an ecclesiasticall person to declare his willExceptio enim fir­mat regulam in non exceptis. Dec. in L. 1. de reg. iur. ff., either of the goods themselues, (if the re­maine and are extant) or of the mony taken for the same being solde or alienatedIstud verum iure quo nos vtimur. artic. cler. c. 1. Doct. & Stud. lib. 2. c. 39. secùs iure can. Panor. in d. c. relatum. cl. 2. n. 3. Grass. d. §. testm̄. q. 34. Iul. Clar. §. testm̄. q. 27..

Of Kinges.
§. xxviii.

1 Examples borrowed out of the olde testament, whereby it maie seeme lawfull for kinges to giue awaie their kingdomes.

2 Certaine humane reasons, tending to the same pur­pose.

3 Other examples taken out of prophane histories of Kinges, which haue disposed of their kingdomes by their testamentes.

4 By the ciuil and cannon lawes, a King can not giue awaie his kingdome.

5 Whether by the lawes of this realme, a King maie giue awaie his kingdome.

6 An vncertaine conclusion.

IT may seeme lawful for a king by his testament, to make his heire whom­soeuer he shall thinke good, or to leaue his kingdome to whome hee will, both by gods lawe and mans lawe.

1 By gods law, because † Moses a man, to whom God did speake as it were face to face, lefte the [Page] principallitie or gouernement of the Isralites to Iosua Deutero. c. vlt. vers. 9. 10., being of the tribe of Ephraim Gloss. in c. Moses. 8. q. 1., and not to anie of his owne tribe, which was the tribe of Leui Phil. Franc. in Rub. de testa. lib. 6. post gloss in d. c. Moses.. King Dauid likewise, a man after gods owne heart did bestowe the kingdome on Salo­mon Lib. 1. reg c. 1. versic. 28, 29, 30. cum sequent., hauing the same time an elder son, name­lie, Adoniah eod. c. versic 41. cum sequen.: the same Salomon, the wisest man that euer was or shalbe [...]. reg. c. 3. vers. 12., whiles he raigned as king did giue vnto Hyram king of Tyrus, twen­tie citties of the kingdome of Israell, situate in the lande of Galile 1. reg. c. 9. vers. 11.. The holy Patriarke Iacob al­so, euen he that wrastled with an angellGenes. c. 32. vers. 24. &c., depri­ued his eldest sonne Ruben of his birth right, and gaue the same to the sonnes of Ioseph Genes. c. 49. Paralip. c. 5. in princ..

By mans lawe, because † the voice and will 2 of a Prince hath the force of a lawe§. sed & quod. Instit. de iur. na. gen. & ciuil.; because also a king is said to be a mortal GodBald in §. praeterea. de prohib. alienac. feud. per feder. n. 14. psal 82. vers. 6.; and ther­fore what he commaundeth ought to be obey­ed without resistaunceBald. in auth. hoc ampliꝰ. C. de fidei com. n. 10. quem velim vi­deas., if it doe not repugne the lawe of God immortallAct. Apost. c. 4. vers. 19. &c. 5. vers. 29.. To be shorte, if a king might not dispose of his owne kingdome at his owne pleasure, then his state were not so good as the state of his subiectOldrad. consil. 94 in fin., for the meanest subiect may freelie dispose of his ownSupr. ead. part. in prin.. Besides which vrgent reasons, whereby appeareth the roote and life of this humaine lawe, there bee sundrie pregnant examples, which as branches springing from that liuelie roote, haue in sun­drie ages and countries brought foorth faire and goodlie fruite; whereby the force and effi­cacie of that lawe hath beene made manifest to all the world; let these fewe suffice for a taste. It is recorded that Attalus a king in Asia the lesse, [Page 67] did in his testament institute the Romane people his heire, who by vertue of that testament did enioie the kingdomeFlorus lib. 2. Hot­toman. illustr. quaest. c. 1.: likewise that Alexander king of Aegypt, did bequeath vnto the same Ro­maine people the kingdomes of Alexandria and Aegypt Cicero Ora. 1. pro le­ge agrar. aliàs lib. 2. c. 15., Ptolemaeus the king of Aegypt gaue away the kingdome of the Cyrens Hottoman. d. c. 1., Vnguinus was king of the Gothes by the appointment of Halda­nus Eodem loci.: To come neerer (I meane in respect of place not of time) we maie reade how Prasuta­gus, one of the kinges of this realme of Eng­land, a little after the death of Christ, did make the Emperour Nero his heireCornel. Tacitus. lib. 14. Camden. fol. 290. aliàs fol. 355.: And diuers o­ther kinges haue doone the likeQuorum meminit Gentilis disp. 2 fol. 45.. So that it is neither newe or straunge, that kinges haue by their testamentes giuen away their kingdomes from those, who otherwise should haue enioy­ed the same.

4 Notwithstanding † aswell by the ciuill lawBar. & Angel. in L. prohibere. §. planè. ff. quod vi aut clam. Ias. in L. debito [...]um C. de pa­ctis. Bald. in proem de feudis. n. 32. Vasq. de succes. crea §. 26. lim. 3. as by the cannon laweInnocen. Cardinal. Imol. Panor. Io. de A­nan. & alij. in c. inte­lecto. de iureiur. extr. Felin. in c. dilecti de maior. & ob. extr., (with the which lawes the lawes of this our realme of England, doe in this point seeme to ioyne handsFitzherb. Abridg. tit. deuise. n. 5. tit. execut. n. 108. hisce verbis: L o­pinion de plus Iustices & Doctors del cannon & ciuil ley, assembles in le Eschequer chambre, quant Roy Henry quart morust, fuit que il puit saier testm̄ & legacy des biens que il auer, mez dez biens de Royalme, cest assauoy­er ancient, Corone & Iuells il ne puit. Eodem tendunt quae à Guiliel. Lamberto, viro doctissimo, trāscripta sunt, sub hac verborū serie: Debet verò de iure rex onmes terras & honores, omnes dignitates, & iura, & libertates Coronae regni liuius, in integrum cum omni integritate, & sine diminutione seruare, & defēdere, &c. lib. de priscis Angl. legib. tit. de reg. offic. fol. 130.:) It is vnlawfull for a king to giue awaie his king­dome from his lawfull heires, for the confir­mation whereof diuers writers vse diuers rea­sonsDe hac q. consulas Frāc. Hotto. iurisconsultorū omniū, quos ista peperit aetas, celeberrimū. lib. 1. illustr. quaest. c. 1..

5 But † amongest all their reasons, I see no rea­son to induce me to aduenture anie further in­to [Page] the examination of this deepe and dange­rous question, much lesse to proceede to the conclusion; not onelie because the same beeing so high an obiect, dooth farre exceede the slen­der capacitie of a meane subiecte: but also for that this princelie controuersie, as it hath sel­dome receiued ordinarie triall heretofore; so hereafter if the case were to be argued in verie deede, verie likelie it is to bee vrged with more violent arguments and sharpe syllogismes, then by the vnbloodie blowes of bare words, or the weake weapons of instrumentes made of paper and parchment: And on the other side to bee answered with flatte denials of greater force, and distinctions of greater efficacie, then can proceede from anie legall or logicall engine; and in the end to be decided and ruled by the dead stroke of vnciuill and martial cannons, ra­ther then by anie rule of the ciuill or cannon lawe.

Videant quorum interest.

THE THIRD PART OF THIS TESTAMEN­TARIE TREATISE: WHEREIN IS EXAMINED what thinges may be deuised by will.

The Paragraphes, or Chapters of the third parte.
  • WHat thinges are examined in this third part §. 1.
  • Landes, tenementes and here­ditamentes, can not passe by will but in certaine cases §. 2.
  • Certaine cases approoued by cu­stome, wherein it is lawfull to bequeath, or deuise landes, tenementes and heredi­tamentes. §. 3.
  • Certain cases auctorized by the statuts of this realme, whereby it is lawfull to deuise landes, tenementes, and hereditamentes §. 4.
  • Of the deuise of goods and cattelles §. 5.
  • Diuers kindes of goods and cattelles not deuisable by will §. 6.
  • Of the assigning of tutors, and disposing of childrens portions §. 7.
  • Of committing the tuition of children, and custodie of their portions, within the prouince of Yorke §. 8.
  • [Page]Who may appoint a tutor §. 9.
  • Who may be appointed tutor §. 10.
  • To whom a tutor may be appointed §. 11.
  • Of the manner of appointing tutors §. 12.
  • Of the office and auctoritie of a tutor §. 13.
  • By what meanes the tutor-ship is ended §. 14.
  • What quantitie of landes may be deuised §. 15.
  • What quantitie of goods or cattelles may be deuised §. 16.
  • If the testator doe in fact bequeath more then he may by lawe, which legacie is to be preferred, or what o­ther course is to be followed §. 17.

VVHAT THINGES ARE EXAMINED IN THE THIRD PART.
The third part.
§. j.

1 The thirde principall parte deuided into two members.

2 The first member three-foulde.

IN the third parte of this Testamentarie treatise, there is to bee shewed, firste what thinges, & then how much the testa­tor maie dispose, or deuise by his testa­ment.

Concerning the former of these, it shall not be a misse to speake first of the bequeathing or deuising of landes, tenementes, and hereditaments Infr. ead part. § §. 2, 3, 4..

Secondlie of the bequeathing or deuising [Page] of goods and cattelles Infr. ead. par. §§. 5, 6., and thirdlie of the com­mitting of the tuition of children, and custodie of their portions and rights, during their minori­tiesInfr. ead. part. §§. 7, 8, &c..

Of the deuise of landes.
§. ij.

1 The rule of the deuise of landes is negatiue.

2 The exceptions of this rule are of two sortes.

TRue it is, that this matter of the de­uise of landes, tenementes and here­ditamentes, which in this realme of Englande with all questions inci­dent thereunto, is to be determined according to the lawes temporall of this realme; and is not subiecte to the rules and decisions of the lawes ciuill or ecclesiasticall: lest therefore whi­lest I would seeme a meere professor of the ci­uill lawe, I might seeme altogether to neglecte both lawe and ciuilitie, by thrusting my sickle into an others haruest, and setting my foote in an others possessions without licence first ob­tained: for the auoiding of this offence, before I go any further, I am to craue this fauour (lear­ned professors and serious students of the laws temporal of this realm,) that for as much as this your fielde, wherein groweth all these questi­ons concerning the deuise of landes, dooth lie so iust betwixt me and those other groundes, wherein the marke whereat I aime, is placed, [Page 70] and wherein the fruite which I would gladlie vtter is planted: so that I can not (as nowe my iourney lieth) haue readie accesse vnto the one but through the other: It would there­fore please you giue mee a little leaue to walke through a corner of your large dominions, vn­to those foresaid places, more proper to them of mine own professiō. (Your territories I con­fesse are verie fertile, and ful of hidden treasure, the fruite also of that soile, I meane the golden cases much like the golden fleece of Colchos: the growing very pleasant & profitable: How­beit you neede not be afraid of any preiudice, for neither wil I disturbe your quiet possession with any long abode: neither cā I if I wold, cō ­ueigh away the riches you should reape, by dis­closing of the mysteries of your gaineful arte to me vnknown, vnles I would seeme to be more bold then blinde baiarde, more arrogant then the ignoraunt Cobler, who for his saucinesse receiued this admonition: Ne sutor vltra crepi­dam.) And further that as a poore passenger, I maie bee allowed to take a taste of those thinges which you haue set abroache to all the world, and which by your sundrie bookes you haue made common to all trauellers, the rather for that I am prepared in some sorte to requite the same. This onelie I desire, and this I hope you will not denie, to the purpose therefore.

Touching the bequest or deuise of landes, tenementes and hereditamentes, this appea­reth to be a true position, and ground agreea­ble to the ciuill lawec. imperialis. de pro­hib. feud. alien. lib. 2. Feud. Bald. in c. 1. de success. feud., and also the laws of this [Page] realmeStat. H 8. an. 27. c. 10. in princ. Doct. & Stud. lib. 1. c. 8. Perkins. tit. deuise. 102., that landes, tenementes or heredita­mentes, can not be disposed or deuised by will, but in certaine cases, of which some are appro­ued by force of certaine customes Infr. §. prox., within this realme; and some by force of certaine statutes Infr. ead. par. §. 4..

Certaine cases approoued by custome, wherein it is lawfull to deuise landes, te­nementes, or hereditaments.
§. iii.

1 Gauelkinde landes may be deuised by will.

2 The cause wherefore the custome of Gauelkinde did continue.

3 Burgage lande deuiseable by will.

4 To whom and after what manner Burgage landes be deuiseable.

5 Whether anie other person maie deuise Burgage landes but a citizen.

6 Burgage tenure a kinde of tenure in Soccage.

7 Whether liuerie or seasin bee needefull, where bur­gage land is deuised.

8 Whether the Iointenaunt may bequeath his part of Burgage land otherwise deuiseable.

9 Of landes deuised to certaine vses.

10 The custome of deuising landes to feoffes refor­med.

11 The causes of this reformation.

12 The statute or acte of reformation.

THe first case wherein by custome of this realme of England, it is lawfull for a man by his laste will or testa­ment, to deuise or bequeath landes, [Page 71] tenements or hereditamēts, is this, namely, whē lands, tenements or hereditaments, are holden 1 in Gauel-kind: for such † landes, tenements or hereditaments by ancient custome, maie be gi­uen or deuised by wilDyer. fol. 153 verb. deuise. Termes of law. verb. Grauelkind & ita saepissimè accepi à nonnullis huius regni iurisperitis., (the same otherwise be­ing 2 duelie made.) For † after that William duke of Normandie, had inuaded and conquered all England, Kent onelie excepted, at last also the kentish-men yeelded, but vpon condition that they might enioy their auncient customes of Gauelkind, which was graunted vnto them, & since hath continuedLambert. perambu­lation of Kent. fol. 23.: amongest which cus­tomes, being verie large and benificiall, this is one; that they which holde landes in Gauel­kinde, may giue and sell the same, without li­cence asked of their lordes: sauing vnto the lordes, the rentes and seruices due out of the same tenementesTermes of law▪ vbi supr. Lambert. vbi supr. fol. 416..

3 The † second cause is, when the lands or te­nementes be holden in Burgage tenureFitzherb. Nat. Bre. ex graui querela. in prin. Doct. & Stud. lib. 1. c. 7. & 10.. For it is the custome of diuers Cities and Bor­roughes of this land, (as in London, Yorke, Oxford, &c.) that such persons as are seased of landes, tenementes, or hereditamentes, lyinge and being in such cities or boroughes, and hold the same in burgage tenure, maie by their testamentes or last willes, giue or bequeath the same to whom they willBrook. Abridg. tit. deuise. n. 22. 51. Fitzber in d. Br. ex graui que­rela. Doct. & Stud. d. c. 7. & 10. Lindw. in c. statut. de testam. lib. 3. prouincial. constituc. Cant. verb. de consuc­tudine. & verb. laicalis feodi. eod c., to holde in fee sim­ple, or in fee taile, or for life or yeeres, or other­wise, and such bequest or deuise is goodFitzherb. in d. Breui ex graui querela., the will being lawfullie made, and prooued before the ordinarie, as touching the goodes and cat­telles bequeathed in the same, and enrowled [Page] before the maior of the said citie or boroughFitzher. in d. Bre. ex graui querela.. Howbeit, it is not alwaies necessarie, that the testament be proued before the ordinary, or in­rolled, wherein landes onelie, and no goodes and cattelles are bequeathedBrook Abridg. tit. deuise. n. 43.: For in some pla­ces by the custome there vsed, the deuisee maie enter to the landes deuised of his owne aucto­ritie, without any probation or inrolment prae­cedent, and in other places hee is to bee put in seasin or possession by the BalifeBrook. d. tit. deuise. n. 43. principall grounds. tit. burgage. fol. 43.. And it see­meth not to be needeful, to the validitie of the deuise in this case, that the testator should be a citizen, or burgesse of that citie or boroughe, where the landes or tenementes deuised doo lie: but it is sufficient, if the landes and tene­mentes be holden in burgageBrook tit. deuise. n. 22: For that not he onelie is said to holde in burgage, who is a citizen or burgesse of the place where the lands or tenementes be, and holdeth of the kinge, or other lorde landes or tenementes lying in the citie or borough, yeelding therfore to his said lord a certaine yeerelie rent: but he also that is no citizen or burgesse, which holdeth of anie lord landes or tenementes in burgage, yeel­ding vnto him a certaine rente by the yeereOld. tenures. verb. burgage., which tenor in burgage is but a kind of tenure in soccageLitleton. tit. bur­gage. in princ.. Howbeit there is this difference betwixt citizens, burgesses and freemen, and those which be not citizens, burgesses or free­men, that is to saie, citizens, burgesses and free­men, maie bequeath their burgage landes to Mortmain, which others can not doeBrook Abridg. tit. custome. n. 7. 38. 41. tit. deuise. n. 22. 28. Doct. & Stud. lib. 1. c. 10.. And in some borough by the custome thereof, a man [Page 72] may deuise by his testament lawfullie made, his landes and tenementes, which hee hath in fee-simple within the same borough at the time of his death, and by force thereof the deuisee, after the death of the testator, maie enter into the tenementes to him deuised, to haue and to holde to him after the forme and effect of the deuise, without anie libertie of seasin thereof to be made vnto himLitleton. tit. burgage. But if there be two iointe tenauntes in fee-simple, within one borough, where the landes and tenementes within the same be deuisable by testament, if one of the said iointe tenauntes deuise that which to him belongeth, by testament and die, this deuise or legacie is voidePrincipall grounds. fol. 20. b.: The reason is, for that no de­uise can take effect till after the death of the te­stator, who did bequeath and deuise the same, but by his death all the lande dooth inconti­nentlie by the lawe of this realme, come to the suruiuor, who neither claimeth nor hath anie thing by deuise but of his owne right by the suruiu [...]ir according to the course of the lawe of this lande, and for this cause such deuise is voidePrincipall grounds. fol. 20. b..

An other case there was also some-times v­sed and practised, of deuising lands, tenements, and hereditamentes by willes to certaine vses, intentes and trustes: which willes or testamen­tes of landes, tenementes and hereditamentes in feoffees handes were for the time accomp­ted and taken for goodStat. H. 8. an. 27. c. 10..

But this custome was reformed in manie things, for diuers good considerations: name­lie, [Page] because by the common law of this realme, lands, tenements & hereditaments, be not de­uisable by testament: and also for that such de­uises were not onelie hurtfull to the heire of the testator, beeing manie times thereby disin­herited, but also for that diuers other inconue­niences did by reason thereof insue: as that the lordes lost their wardes, mariages, reliefes, har­riots, escheates, aids, Pur faire fitz chiualer & pur file marier. Furthermore by occasions of suche willes, and other conueiaunces, to secrete in­tentes, vses and trustes, men could not be cer­tainelie assured, of anie landes by them purcha­sed, nor knew not against whom they should vse their actions & executions, for their rights and titles. Besides this men married lost their tenāces by the curtesie, women their dowries; finally the prince himselfe lost the profits of the landes of persons attainted: For reformation whereof a statute was made in the time of King Henrie the eight, and enacted as followethd. Stat. H. 8. an. 27. c. 10..

‘That is to say, that where anie person or per­sons, stand or be seized, or at anie time hereafter shal happen to be seized of and in anie honors, castels, mannors, landes, tenementes, rentes, seruices, reuersions, remainders, or other here­ditamentes, to the vse, confidence or trust of a­nie other person or persons, or of anie body po­litike, by reason of anie bargaine, saile, or feof­ment, fine, recouery, couenant, contract, agree­ment, will, or otherwise, by anie maner meanes whatsoeuer it be, that in euerie such case, all & euerie such persō & persons, & bodies politike, that haue or hereafter shall haue anie such vse, [Page 73] confidence, or trust, in fee simple, fee taile, for terme of life or of yeeres, or otherwise: or anie vse, confidence, or trust in remainder or reuer­ter, shall from hence-foorth stand and bee sei­zed, deemed, and adiudged in lawfull seizon, e­state, and possession of and in the same honors, castels, manors, lands, tenements, rentes, serui­ces, reuersions, remainders, and hereditaments with their appurtenances to all intents, con­structions, and purposes in the lawe, of and in such like estates as they had or shall haue, in vse trust, or confidence, of or in the same. And that the estate, title, right, and possession, that was in such person, or persons, that were or hereafter shall be seized, of anie landes, tenements, or he­reditaments, to the vse, confidence, or trust, of anie such person or persons, or of anie bodie politike, bee from hence-foorth cleerelie dee­med and adiudged to be in him or them, that haue, or hereafter shall haue, such vse, confi­dence, or trust, after such qualitie, maner, forme and condition, as they had before, in or to the vse, confidence, or trust, that was in them.’

‘And bee it further enacted by the authoritie aforesaid, that where diuers and many persons be or hereafter shall happen to be, iointlie sei­zed of and in anie landes, tenements, rents, re­uersions, remainders, or other hereditaments, to the vse, confidence, or trust, of anie of them that bee so iointlie seized, that in euerie such case, that those person or persons, which haue, or hereafter shall haue, any such vses, confi­dence, or trust, in anie such landes, tenements, [Page] reuersions, remainders, or hereditaments shall from hence foorth haue and bee deemed & adiudged to haue, only to him or them, that haue, or hereafter shall haue, such vse, confi­dence, or trust, such estate, possession and sei­zon, of and in the same lands, tenements, rents, reuersions, remainders, or other hereditaments in like nature, maner, forme, condition, and course, as he or they had before in the vse, con­fidence, or trust of the same landes, tenements, or hereditaments: sauing and reseruing to all & singular persons, and bodies politike, their heirs and successors, other than those person or per­sons, which be seized, or hereafter shall be sei­zed, of anie landes, tenementes, or heredita­ments, to anie vse, confidence or trust, all such right, title, entree, interest, possession, rents, and action, as they or anie of them had or might haue had, before the making of this acte.’

‘And also sauing to all and singuler those per­sons, and to their heires, which be or hereafter shall he seized, to anie vse, all such former right, title, entree, interest, possession, rents, customs, seruices, and action, as they or anie of them might haue had to his or their own proper vse, in or to any manors, lands, tenements, rents, or hereditaments, wherof they be or hereafter shal be seized to anie other vse, as if this present act had neuer beene had or made: any thing con­teined in this acte to the contrarie not with­standing.’

‘And where also diuers persons stand and be seized of and in any lands, tenements, or here­ditaments, [Page 74] in fee simple, or otherwise, to the vse or intente that some other person or persons, shall haue and perceiue yeerely to them, and to his or their heires, one annuall rent, of tenne pounds, or more, or lesse, out of the same lands and tenements, and some other person, one o­ther annuall rent to him and his assignes, for terme of life, or yeeres, or for some other speci­all time, according to such intent and vse, as hath bin heretofore declared, limited, & made thereof. Be it therefore enacted by the authori­tie aforesaid, that in euery such case, the same persons, their heirs, and assignes, that haue such vse and interest, to haue and perceiue any such annuall rents, out of any lands, tenements, or hereditaments, that they and euery of them, their heires, and assignes, be adiudged and dee­med to be in possession and seizon of the same rent, of and in such like estate, as they had in the title, interest, or vse of the said rent or profit, and as if a sufficient grant, or other lawful con­ueiance, had bin made & executed to them, by such as were or shalbe seized to the vse or entēt of any such rent, to be had, made, or paied ac­cording to the very trust & intent therof. And that al & euery such person or persons, as haue, or heereafter shall haue, any title, vse, and in­terest, in or to any such rent or profit, shall law­fully distreine for non paiment of the said rent, and in their owne names make aduouries, or by their balifs or seruants, make cognizances and iustifications, and haue all other sutes, en­tries, and remedies for such rents, as if the same [Page] rents had bin actually and really graunted to them, with sufficient clauses of distresse, reen­tree, or otherwise, according to such conditi­ons, paines, or other things, limited and ap­pointed vpon the trust and intent, for paiment of suretie of such rent.’

‘And be it further enacted by the authority aforesaid, that where as diuerse persons haue purchased or haue estate, made and conueied, of and in diuers lands, tenements, and heredi­taments, vnto them and to their wiues, and to the heires of the husband, or to the husband and to the wife, and to the heires of their two bodies begotten, or to the heirs of one of their bodies begotten, or to the husband and to the wife for terme of their liues, or for terme of life of the said wife: or where any such estate or purchase of any lands, tenements, or heredita­ments, hath bin or hereafter shall bee made to any husband and to his wife, in manner and forme aboue expressed, or to any other person or persons, and to their heires and assignes, to the vse and behoofe of the said husband and wife, or to the vse of the wife, as is before re­hearsed, for the iointer of the wife: that then in euery such case, euery woman married, hauing such iointer made or hereafter to be made, shall not claime, nor haue title to haue any dower of the residue of the lands, tenemētes, or heredita­ments, that at any time were her said husbands by whom she hath any such iointer, nor shall demand nor claime her dower of and against them that haue the lands and inheritaunces of [Page 75] her said husband. But if she haue no such ioin­ter, then she shall be admitted and inabled to pursue, haue and demand her dower, by write of dower, after the due course and order of the common lawes of this realme: this act or any law or prouision made to the contrarie thereof notwithstanding.’

‘Prouided alway, that if any such woman be lawfully expulsed or euicted from her said ioin­ter, or from any part therof: without any fraud or couin, by lawfull entree, action, or by discō ­tinuance of her husband: then euery such wo­man shal be indowed of as much of the residue of her husbands tenements, or hereditaments, whereof she was before dowable, as the same lands and tenements so euicted and expulsed, shall amount or extend vnto.’

‘Prouided also, that this act, nor any thinge therein conteined or expressed, extend, or be in any wise hurtfull or preiudiciall to any wo­man or women heretofore being married, of, for, or concerning such right, title, vse, interest, or possession, as they or any of them haue, claime, or pretēd to haue, for her or their ioin­ter or dower, of, in, or to, any manors, lands, te­nementes, or other hereditamentes of any of their late husbands, being now dead or decea­sed, any thing conteined in this act to the con­trary notwithstanding.’

‘Prouided also, that if any wife haue, or here­after shall haue, any manors, lands, tenements, or hereditaments, vnto her giuen or assured, af­ter mariage for terme of her life, or otherwise [Page] in iointer, except the same assurance be to her made by act of parliament, and the said wife, af­ter that fortune to ouer-liue the same her hus­band, in whose time the said iointer was made or assured vnto her, that then the same wife, so ouer liuing, shall and may at their liberty, after the death of her said husband, refuse to haue & take the lands and tenements, so to her giuen, appointed, or assured, during the couerture, for terme of her life, or otherwise in iointer: ex­cept the same assurance be to her made by acte of parliament, as is aforesaid, and thereupon, to haue, aske, demaund and take, her dower by write of dower or otherwise, according to the common law, of and in all such landes, tene­ments, and hereditaments, as her husband was and stood seized of any state of inheritance, at any time during the couerture, any thing con­teined in this act to the contrary, in any wise notwithstanding.’

‘Prouided also, that this present act, nor anie thing therein conteined, extend, or be at anie time hereafter interpretated, expounded, or ta­ken to extinct, release, discharge, or suspend a­nie statute, recognizance, or other bond, by the execution of any estate, of or in any lands, te­nements, or hereditaments, by the authority of this act, to any person or persons, or bodies po­litike: any thinge conteined in this acte to the contrary thereof notwithstanding.’

‘And for as much as great ambiguities and doubts may arise of the validity and inualidity of wils heretofore made of any landes, tene­ments, [Page 76] & hereditaments, to the great trouble of the kings subiects, the kings most roial maiesty, minding the tranquillitie and rest of his louing subiects, of his most excellent and accustomed goodnesse, is pleased, and contented, that it be enacted by the authority of this present parlia­ment, that all maner true and iust willes and te­staments heretofore made by any personne or persons, deceased, or that shall decease before the first day of May, that shall be in the yeere of our Lord God 1536, of any lands, tenements, or other hereditaments, shall be taken and ac­cepted good and effectual in the law, after such fashion, maner, and forme, as they were com­monly taken, and vsed at any time within forty yeeres next afore the making of this acte: anie thing conteined in this act, or in the preamble thereof, or any opinion of the common law, to the contrarie thereof notwithstanding.’

‘Prouided alwaies, that the kinges highnesse shall not haue, demand, or take any aduantage or profit, for or by occasion of the executing of any estate onely, by authority of this act, to any person or persons, or bodies politike, which now haue, or on this side the said first day of Maie, which shall be in the yeere of our Lorde God 1536, shall haue any vse or vses, trustes or confidences, in any manors, lands, tenements, or hereditaments, holden of the kinges high­nesse, by reason of primer seizon, liuerie, Ouster le maine, fine for alienation, releefe, or hariotte: but that fines for alienations, releefes, and ha­riots, shalbe paied to the kings highnesse. And [Page] also liueries and Ouster le maines shall bee sued for vses, trusts, and confidences to be made and executed in possession, by authority of this act, after and from the said first day of May, of lands and tenements, and other hereditamentes hol­den of the king, in such like maner and forme, to all intents, constructions, and purposes, as hath heretofore beene vsed or accustomed, by the order of the laws of this realme.’

‘Prouided also, that no other person or per­sons, or bodies politike, of whom any lands, te­nements, or hereditaments, be or hereafter shal be holden mediat or immediat, shal in any wise demand or take any fine, releefe, or harriot, for or by occasion of the executing of any estate by the authority of this acte to any person or persons, or bodies politike, before the said first day of May, which shall be in the yeere of our Lord God 1536.’

‘And bee it enacted by the authority afore­said, that all and singuler person and persons, and bodies politike, which at any time on this side the said first day of Maie, which shall be in the yeere of our Lord God 1536, shall haue a­nie estate vnto them executed of and in anie lands, tenements, or hereditaments, by the au­thority of this act, shall and may haue and take the same or like aduantage, benefit, voucher, aid, praier, remedy, commoditie, and profit by action, entree, condition, or otherwise, to all in­tents, constructions, & purposes, as the person or persons seized to their vse, of or in any such lands, tenements, or hereditaments, so execu­ted, [Page 77] had, should, might or ought to haue had at the time of the execution of the estate there­of by the authority of this act, against any o­ther person, or persons, of or for any wast, dis­seizon, trespasse, condition broken, or any o­ther offence, cause or thing concerning or tou­ching the said lands, or tenements, so executed by the authority of this act.’

‘Prouided also, and be it enacted by the au­thority aforesaid, that actions now depending against any person or persons, seased of or in a­ny lands, tenements or hereditaments, to any vse, trust, or confidence, shal not abate ne be dis­charged for or by reason of executing of any e­state therof by authority of this act, before the said first day of May, which shall be in the yeere of our lord God. 1536. any thing conteined in this act to the contrarie notwithstanding.’

‘Prouided also, that this acte nor any thing therein conteined, shall not bee preiudici­all to the kings highnes for wardships of heires now being within age, nor for liueries or for Ouster le mains, to be sued by any person or per­sons, now being within age, or of ful age, of any landes, or tenementes, vnto the same heire or heires now all ready descended: any thing in this act contained to the contrarie notwith­standing.’

‘Prouided also, and be it enacted by the au­thority aforesaid, that all and singuler recogni­sances heretofore knowledged, taken, or made to the kinges vse, for or concerning any reco­ueries of any landes, tenementes, or heredi­taments [Page] heretofore vsed or had, by write or writs, of entree vpon disseizon in Le post, shall from henceforth be vtterly voide and of none effect, to all intents, constructions, & purposes.’

‘Prouided also, that this act, nor any thing therein conteined, be in any wise preiudicial or hurtfull to anie person or persons borne in Wales, or the marches of the same, which shall haue any estate to them executed by authority of this act in any lands, tenements, or other he­reditaments within this realme, whereof any o­ther person or persons now stand or be seized, to the vse of any such person or persons borne in Wales, or the marches of the same: but that the same persō or persons borne in Wales or the marches of the same, shall or may lawful­lie haue, reteine and keepe the same lands, te­nements, or other hereditaments, whereof e­state shall be so vnto them executed by the au­thority of this act, according to the tenor of the same: any thing in this act conteined, or any o­ther acte or prouision heretofore had or made, to the contrary notwithstanding.’

Certaine cases wherein by the statutes of this realme, it is lawfull to deuise landes, tenementes or he­reditaments.
§. iiij.

NOwe follow certaine other cases au­thorised by the statuts of this realme of England, wherein it is lawfull to [Page 78] bequeath or deuise lands, tenements and here­ditamentes by will; sometimes wholy, and sometimes in part onely, or rateably, according to the nature of the tenure of such lands, tene­ments and hereditamentes, as in the same sta­tuts, which I haue here set downe at large doth appeare.

An Acte, declaring how by the Kinges grant landes, tenementes and heredita­mentes, may be by will, testament, or other­wise disposed, and concerning wards and primer seasin, &c.Anno 32 II. 8. c. 1.

‘WHere the kinges most roiall maiestie in all the time of his moste gratious and noble reigne hath euer beene mer­cifull, louing and beneuo­lent, and most gratious soue­reigne lord vnto all and sin­guler his louing and obedient subiectes, and at many times past hath not onelie shewed and imparted to them generally by his manie and often great & beneficial pardons heretofore by authority of his parlemēts granted, but also by diuers other waies and meanes many great and ample grants and benignities in such wise, as al his said subiects bin most bounden to the vtter­most of all their powers and graces by them re­ceiued of God, to render and giue vnto his ma­iesty [Page] their most humble reuerence & obedient thanks and seruices, with their daily and conti­nuall praier to almighty God, for the continual preseruation of his most roiall estate, in most kingly honour and prosperity: yet alwaies his maiesty being repleat and endowed by God with grace, goodnes, and liberality, most ten­derly considering that his said obedient and lo­uing subiects can not vse or exercise thēselues, according to their estats, degrees, faculties and qualities, or to beare themselues in such wise, as that they may conuenientlie keep and main­taine their hospitalities and families, nor the good educations, and bringing vp of their law­full generations, which in this realme laude be to God, is in all parts very great and abundant, but that in maner of necessity, as by daily expe­rience is manifested and knowen, they shal not be able of their proper goods, cattelles, and o­ther moueable substāce to discharge their deb­tes, and after their degrees set foorth and ad­uance their children & posterities: Wherefore our said soueraigne Lord most vertuously con­sidering the mortality that is to euery person at Gods will and pleasure most common & vn­certaine, of his most blessed disposition and li­berality being willing to releeue & help his said subiects in their said necessities and debility, is contented and pleased that it be ordained, and enacted by authority of this present parliament in manner and forme as hereafter followeth; that is to say, that all and euery person and per­sons hauing, or which hereafter shall haue any [Page 79] manours, landes, tenements or hereditaments, holden in socage or of the nature of socage te­nure, and not hauing any manours, lands, te­nements, or hereditaments, holden of the king our soueraigne Lord by knights seruice, by so­cage tenure in chefe, or of the nature of socage tenure in cheef, nor of any other person or per­sons by knights seruice from the 20. day of Iu­lie in the yeere of our Lord God 1500. & for­ty, shall haue ful and free liberty, power and au­thority to giue, dispose, will and deuise, as well by his last will and testament in writinge or o­therwise, by any acte or actes lawfully execu­ted in his life, all his said manours, landes, tene­mentes, or hereditaments, or any of them at his free will and pleasure, any lawe, statute, or other thing heretofore had, made or vsed, to the contrary notwithstanding.’

‘And that all and euery persone and per­sons, hauing manours, landes, tenementes, or hereditamentes, holden of the king our soue­raigne Lorde his heires or successours in so­cage, or of the nature of socage tenure in cheefe, and hauing any other manours, lands, tenementes, or hereditamentes holden of any other person or persons in socage, or of the nature of socage tenure, and not hauing anie manours, landes, tenementes, or heredi­tamentes, holden of the king our soueraigne Lorde by knightes seruice, nor of anie other Lorde or person by like seruice, from the 20. daie of Iulie in the said yeere of our Lord God 1500, and fortie, shal haue full and free liberty, [Page] power and authority to giue, will, dispose and deuise, as wel by his last wil or testament in wri­ting or otherwise, by any acte or actes lawfullie executed in his life, all his said manors, landes, tenements and hereditaments, or any of them at his free will and pleasure, any law, statute, cu­stome or other thing heretofore had, made, or vsed to the contrarie notwithstanding. Sauing alway and reseruing to the king our soueraigne lord his heires and successors, all his right, title, and interest of primer seizon, releefes, and also all other rights and duties for tenures in socage or of the nature of socage tenure in cheefe, as heretofore hath beene vsed and accustomed, the same manors, lands, tenements or heredi­taments to be taken, had, and sued out of and from the hands of his highnesse his heires and successors by the person or persons to whome any such manors, lands, tenements or heredita­ments, shall be disposed, willed, or deuised in such and like manner and forme as hath beene vsed by any heire or heires before the makinge of this estatute. And sauing and reseruing also fines for alienations of such manors, landes, te­nements, or hereditaments holden of the king our soueraigne lord in socage, or of the nature of socage tenure in cheefe, wherof there shal be any alteration of freehold or inheritance, made by will or otherwise as is aforesaid.’

‘And it is further enacted by the authority a­foresaid, that al and singuler person & persons hauing any manors, lands, tenemēts or heredi­taments of estate of inheritance, holden of the [Page 80] kings highnesse in cheefe, by knights seruice, or of the nature of knights seruice in cheefe, from the said twentie day of Iulie, shall haue full power and authoritie, by his last wil by writing or otherwise by anie act or acts lawfullie exe­cuted in his life, to giue, dispose, will or assigne two partes of the same manors, landes, tene­ments or hereditaments, in three partes to bee diuided, or else as much of the saide manors, lands, tenements or hereditaments, as shall ex­tend or amounte to the yeerelie value of two parts of the same in three partes to be deuided in certentie and by speciall deuisions, as it may be knowen in seueralty, to and for the aduance­ment of his wife, preferment of his children, and paiment of his debtes, or otherwise at his will and pleasure, anie law, statute, custome or other thing to the contrarie thereof notwith­standing. Sauing and reseruing to the king our souereigne lord, the custodie, wardship, & pri­mer seizon or any of them, as the case shall re­quire, of as much of the same manors, lands, te­nements or hereditaments, as shal amount and extende to the full and cleere yeerelie value of the third parte thereof without any diminuti­on, dower, fraud, couin, charge, or abridgment of anie of the same third part, or of the full pro­fits thereof: Sauing also and reseruing to the king our said soueraigne lord, all fines for alie­nations of all such manors, lands, tenementes, and hereditamentes, holden of the kinge by knights seruice in cheefe, whereof there shal be any alteration of free-holde or inheritaunce, [Page] made by will or otherwise, as is abouesaide.’

‘And be it enacted by authority aforesaide, that all and singuler person and persons, ha­uing manors, lands, tenementes, or heredita­ments of estate of inheritance, holden of the king in cheefe by knights seruice, and hauinge other manors, lands, tenements, or heredita­ments, holden of the king, or of any other per­son or persons, by knights seruice or otherwise, euerie such person and persons, from the said twentie daie of Iulie shall haue full power and authoritie to giue, dispose, will or assigne by his last will in writing or otherwise by anie acte or acts lawfullie executed in his life, two parts of same manors, lands, tenementes, or heredita­mentes, in three partes to be deuided, or else as much of the same manors, lands, tenemēts, and hereditaments, as shal extend or amount to the yeerelie value of two parts of the same, in three partes to be deuided in certeintie and by speci­all diuisions, as it may be knowen in seueraltie, to and for the aduancement of his wife, prefer­ment of his children, and paiment of his debts, or otherwise at his will and pleasure, any lawe, statute, custome or other thing to the contrarie thereof notwithstanding. Sauing alwaie and reseruing to the king our souereigne lorde, the custodie, wardship, and primer seizon or any of them, as the case shal require, of as much of the same manors, lands, tenements, or other here­ditaments, as shall amounte and extend to the full and cleere yeerelie value of the third parte thereof, without anie maner diminution, dow­er, [Page 81] fraud, couin, charge, or subtraction of the same third parte, or of the full profites thereof.’

‘Sauing alwaie & reseruing to our saide soue­raigne lord the king all fines for alienation of a­nie such manors, lands, tenements, or heredita­ments, holden of the king by knightes seruice in cheefe, whereof there shall be anie alteration of freehold or inheritaunce, made by will or otherwise, as is abouesaid.’

‘Be it further enacted by the authoritie aboue­said, that if anie person or persons, hold any ma­nors, lands, tenementes, or hereditaments, one­lie of any other lord or person, than of the king our said souereigne lorde by knightes seruice, and other lands, and tenementes in socage, or of the nature of socage tenure, that then euerie such person shall or may giue, dispose, or assure, by his last will or otherwise by anie act or actes, lawfullie executed in his life, two partes of the said manors, lands, and tenementes, holden by knights seruice, or of as much thereof as shall amount to the full yeerelie value of two partes, in maner and forme as is aboue declared: and also all the landes and tenementes, holden by socage, or of the nature of socage tenure, at his will and pleasure as is aboue written, sauinge and reseruing to the lord of the lands and tene­ments, holden by knightes seruice, for his cus­todie and wardship, as much of the same lands and tenementes, as shall extend or amounte to the full and cleere yeerelie value of the third part of the same landes and tenements, holden by knights seruice, without anie diminution, [Page] dower, fraud, couin, charge, or subtraction of anie portion of that third part, or of the cleere yeerelie value thereof in manner and forme a­foresaid.’

‘And be it further enacted by the authoritie abouesaid, that if any person or persons hold a­nie manors, landes, tenementes, or heredita­mentes, onelie of the king our soueraigne lord by knightes seruice and not in cheefe, or hold anie manors, landes, tenementes, or heredita­mentes of our said soueraigne lord by knights seruice and not in cheefe, and also holde other manors, landes, tenementes, and other heredi­tamentes, of anie other person or persons by knights seruice, and also holde other manors, landes, tenementes, or hereditamentes, of anie other person or persons in socage, or of the na­ture of socage tenure, that then all and euerie such person and persons, shall and maie giue, dispose, will, deuise, and assure, by his last wil or otherwise, by anie acte or acts lawfullie doone and executed in his life two partes of the same manors, landes, tenements and hereditaments, holden of our said soueraigne lord the king by knights seruice, and two partes of the manors, landes, tenements, and hereditaments, holden of anie other person or persons by knights ser­uice, or as much of either of them as shall a­mount to the full yeerelie value of two partes, in maner and forme as is aboue declared: and also of all his lands and tenements, so holden in socage, or of the nature of socage tenure, at his free will and pleasure. Sauing and reseruing to [Page 82] the kings highnesse, the custodie and wardship of as much of the same manors, landes, tene­mentes, or other hereditaments, as shal extend and amount to the ful and cleere yeerelie value of the third part of the said manors, lands, tene­mentes, and hereditaments, so holden of his highnesse by knightes seruice, without anie di­minution, dower, fraud, couin, charge, and sub­traction of anie portion of that third part, or of the full profites thereof. And also sauinge and reseruing to the lords of whom anie of the said manors, landes, tenementes, or other heredita­mentes beene holden by knightes seruice for custodie and wardship, as much of the same manors, lands, tenementes or hereditamentes, holden of them or anie of them by knights ser­uice, as shall extend and amount to the full and cleere yeerelie value of the third parte of the same, without anie diminution, charge, fraude, couin, or subtraction of anie portion of that third, or of the cleere yeerelie value of the third part therof, in maner & forme aboue declared.’

‘Prouided alwaie and it is further enacted by the authority aforesaid, that if that third part of the manors, landes, tenementes, or heredita­ments, of anie of the kings subiectes, which in anie of the cases aboue said, shal hereafter come to the kings highnesse, his heires or successors, by vertue of this acte, as is abouesaid, be not or doo not amount to the cleere yeerelie value of the third part of all the said manors, lands, tene­mentes, or other hereditaments, whereof the kings highnesse is or shall be intituled to haue [Page] the custodie or primer seizon, as is aboue said: that then our said soueraigne lorde, and his heires shall and maie at his or their free liber­tie and pleasure, take into his or their handes & possessions, as of the other two partes of the said manors, landes, tenementes, and other he­reditamentes, as with that of the same manors, lands, tenementes, or hereditamentes, holden and remaining in the kings hands, shal make vp the cleere yeerelie value of the full third parte of the said manors, and tenementes, so to bee had to the kinges highnesse in title of ward­ship and primer seizon, or anie of them, as the case shall require, and like benefit and aduan­tage to be giuen to euerie lorde and lordes, of whom anie such manors, lands, tenementes, or hereditamentes, beene or shall bee holden by knightes seruice as is abouesaid, concerninge onelie his third part of or for title of wardship.’

‘Prouided alwaie, and bee it further enacted by the authoritie aforesaid, that euerie person and persons, shall sue their liueries, for possessi­ons, reuersions, or remainders, and also paie re­leefes and heriots after such maner and forme, as they should or ought to haue doone before the making of this acte, and as if this acte had neuer beene made. And that fines for aliena­tions shall be paid in the kinges chancerie, for and vpon writes of entree in the post, to be ob­teined in the same courte of chancerie, after the said twentie daie of Iulie, for common reco­ueries, to be had or suffered of anie manors, landes, tenementes, or hereditamentes, holden [Page 83] of the king in cheefe: in like maner and forme as is vsed vpon alienations of such manors, landes, tenementes, or hereditamentes, so hol­den in cheefe, by fine or feoffement.’

‘Prouided also and be it enacted by the au­thoritie aforesaid, that in such cases, where fines for alienations shal be paied in the kings chāce­rie, for writes of entree in post, as is aforesaide, that then none other fine shall bee paied in the same courte for anie such writes, anie vsage or custome to the contrarie thereof notwithstan­ding.’

‘And be it further enacted by the authoritie afore-saide, that where two or more persons now holde, or hereafter shall holde anie ma­nors, landes, tenementes or hereditamentes, of the king our soueraigne lorde by knightes ser­uice, iointlie to them and to the heires of one of them, and he that hath the inheritance ther­of dieth, his heire being within age, that in e­uerie such case the king shall haue the warde and mariage of the bodie of such heire so be­ing within age, the life of the freeholder or freeholders of the said manors, landes, tene­ments, or hereditaments, so holden by knights seruice notwithstanding. Sauing and reseruing to all and euerie woman and women all and e­uerie such right, title, interest of dower, as they or any of them ought to haue, or bee or shall be iustlie intituled to haue claime or demand of anie manors, landes, tenementes or heredi­tamentes by the lawes of this realme, to be ta­ken or assigned vnto them or anie of them, out [Page] of the two partes of the said manors, landes, te­nementes or hereditaments, seuered and deui­ded from the third part, as is aboue said, and not otherwise: And sauing also to the king our soueraigne lord, his heires and successours, the reuersions of all such tenauntes in ioyntenure and dower, immediately after the death of such tenauntes, if they shall happen to die, duringe the minoritie of the kinges wardes.’

An other acte for the Explanati­on of the former, concerning willes, and the deuise of landes.

‘WHether in the laste parlia­ment, begunne and hol­den at Westminster the 28. day of Aprill, in the 31. yeere of the kinges most gratious raigne (cap. primo willes. 2.) And there by di­uers prorogations holden and contiued vnto the 24. daie of Iulie, in the 32. yeere of his saide raigne. It was by the kings most gratious and li­berall disposition, shewed toward his most hū ­ble and obedient subiects, ordeined and enac­ted, howe and in what manner, landes, tene­mentes, and hereditamentes, might by will, or testament, in writing, or otherwise by anie acte or actes lawfullie executed in the life of euerie person giuen, diposed, willed, or deuised, for [Page 84] the aduauncement of the wife, prefermente of children, paiment of debtes, of euerie such per­son, or otherwise, at his wil or pleasure, as in the same acte more plainelie is declared. Sithen the making of estatute, diuers doubtes, questions, and ambiguities, haue risen, beene moued and growen, by diuersity of opinions taking, in and vpon the exposition of the letter of the same e­statute.’

‘For a plaine declaration and explanacion whereof, and to the intent and purpose, that the kinges obedient and louing subiectes, shall and may take the commoditie and aduantage of the kinges said gratious and liberall disposi­tion, the lordes spiritual and temporall, and the commons in this present parliament assem­bled, most humbly beseeching the kings maie­stie, that the meaning of the letter of the same estatute, concerning such matters hereafter rehearsed, may be by the authority of this presēt parliament enacted taken, expounded, iudged, declared, and explaned, in manner and fourme following.’

‘First where it is contained in the same for­mer statute, within diuers articles & branches of the same, that all and singuler person and persons, hauing any manors, lands, tenements, or hereditamentes, of the estate of inheritance, should haue full and free libertie, power and authoritie, to giue, will, dispose, or assigne, as well by last will and testament in writing, or o­therwise, by anie act or actes lawfullie executed in his life his manours, landes, tenementes, or [Page] hereditaments, or anie of them in such man­ner and fourme, as in the same former act more at large it dooth appeare. Which wordes of es­tate of inheritaunce, by the authority of this present parliament, is and shall be declared, ex­pounded, taken, and iudged, of estates in fee simple onelie. And also that all and singu­ler person and persons, hauing a sole estate or interest in fee-simple, or seized in fee-simple, in copercenarie, or in common in fee-simple, of & in anie manors, lands, tenements, rents, or other hereditaments, in possession, reuersion or remainder, or of rents or seruices incident to a­nie reuersion or remainder, and hauing no ma­nors, lands, tenements, or hereditaments hol­den of the king, his heires or successors, or of a­ny other person or persons by knights seruice, shall haue full and free liberty, power and au­thority to giue, dispose, will or deuise, to anie person or persons (except bodies politike and corporate) by his last wil and testament, in wri­ting, or otherwise, by any act or actes, lawfullie executed in his life, by him selfe soly, or by him­selfe and other iointly, seuerally, or particular­lie, or by al those waies or any of them, as much as in him of right is or shall be, all his said ma­nors, lands, tenements, rentes, and heredita­ments, or any of them, or any rents, commons, or other profits, or commodities, out of, or to be perceiued of the same, or out of any parcell thereof, at his owne free will and pleasure any clause in the saide former acte notwithstan­ding.’

‘And further be it declared & enacted by the authority aforesaid, that al & singuler person & persōs, hauing a sole estate or interest in fee-sim­ple, or seized in fee-simple in copercenery, or in cōmon in fee-simple, of or in, anie manors, lāds tenements, rentes, or other hereditamentes, in possession, reuersion, or remainder, or of & in, any rents or seruices incident to any reuersion or remainder, holdē of the king by knights ser­uice in cheef, or of the nature of knights seruice in cheefe, hath & by the authority of this pre­sent parliament shall haue full and free liberty, power, & authoritie to giue, dispose, will, or as­signe to any persō or persōs (except bodies po­litike & corporate) by his last will & testament in writing, or otherwise by any act or acts, law­fully executed in his life, by him selfe soly, or by himself & other iointly, seuerally, or particular­ly, or by al those waies or any of them, as much as in him of right is or shall be, two parts aswell of al the said manors, lands, tenementes, rents, and hereditaments, as of all and singuler his o­ther rents & hereditaments, or of any of them, or anie rents, commons, or other profits or cō ­modities, out of, or to be perceiued of the same two parts, or out of any parcell thereof, in three partes to be deuided, or as much therof as shal amount to the full and cleere yeerelie value of two parts thereof, in three parts to be diuided, of what person or persons so euer they be hol­den, at his free will and pleasure. And that by the authority aforesaid, the said will so decla­red shalbe good and effectuall for two parts of the said manours, lands, tenements and heredi­taments, [Page] although the will so declared be made of the whole, or of more than of two parts of the same.’ The same diuision to be made and set forth, by the deuisour or owner of the same manours, lands, tenements and hereditaments by his last will in writing, or otherwise in wri­ting. And in default therof, by a commission to be graunted out of the kinges courte of the wards and liueries, vpon the enquirie of the true value therof, by the othes of 12. men, and returne or certificate thereof had in the same court, of the said manours, lands, tenementes, and hereditaments, diuision to be made by the master of the wards and liueries, if the maister of the wards and liueries for the time beeing, and the parties therunto can not otherwise a­gree vpon the same diuision. And that the is­sues and profits of the two partes of the same manours, lands, tenements, and hereditaments vpon euery such diuision, to bee restored to them, that shall haue right, or title to the same, frō the death of the owner or deuisour therof.

And further be it enacted and declared, by authoritie aforesaid, that all and singuler per­son and persons, hauing a sole estate or interest in fee-simple, or seized in fee-simple, in coper­cenary, or in common, in fee-simple, of and in any manours, lands, tenements, rents, or other hereditaments, in possession, reuersion or re­mainder, or of and in any rents, or seruices, in­cident to any reuersion or remainder, holden of the king, his heires or successours by knights seruice, and not in cheefe, or holden of any o­ther [Page 86] person or persons by knights seruice shall haue full and free libertie, power and authori­ty, to giue, dispose, will, or deuise, to any person or persons, except bodies politike and corpo­rate, by his last will and testament in writing, or otherwise, by any act or acts lawfully executed in his life, by himselfe solie or by himselfe and other iointly, seuerally, or particularly, or by all those waies, or any of them, as much as in him of right is or shall bee, two parts of all the saide manors, lands, tenements and hereditaments, or any of them so holden by knights seruice, or any rents common or other profits or commo­dities, out of, or to be perceiued of the same two parts, or out of any parcell thereof, in three parts to be deuided, or as much thereof, as shal amount to the full and cleere yeerely value of two parts thereof, in three parts to be deuided, at his free will & pleasure. And that the said will so declared, by authority aforesaid, shalbe good and effectuall, for two parts of the said manors, lands, tenements, or hereditaments, although the will so declared be, or shalbe made, of the whole landes, and tenementes, so holden by knights seruice, or of more, than of two partes of the same. ‘And also for the whole of all other such manours, lands, tenements, and heredita­ments, or any of them, not holden of the kinge by knights seruice in cheefe, or otherwise by knights seruice, nor of anie other person by kinghts seruice, and of any rents, commons, or other profits or commodities, out of, or to bee perceiued of the same, or out of any parcell [Page] thereof at his free will and pleasure. The same diuision to be made and set foorth, by the ow­ner of the said manours, lands, tenementes, and hereditaments, by his last will and testament in writing, or otherwise in writing. And in de­fault thereof, for as much of the same manors, lands, tenements, and hereditaments, as shall concerne the kings interest, by commission, to be directed out of the kings court of the wards and liueries, in maner & forme as is aforesaid, if the master of the wardes and liueries for the time being, and the parties thereunto can not otherwise agree vpon the same diuision. And that restitution of the issues and profits of the two parts thereof, shalbe had and made, in ma­ner and fourme abouesaid. And for such of the same manors, lands, tenementes, and heredita­ments, as shall concerne the interest of any o­ther lord or lords, by commission to be graun­ted out of the kings court of the Chauncery, to enquire thereof, by the othes of 12. men, if the same lord or lordes, and the parties thereunto can not otherwise agree vpon the same diuisiō.’

‘And be it further enacted and declared by authority aforesaid, that the sauings, reseruings, and prouisions, concerning sauing of the cu­stodie, wardship, releefe, and primer season to the king, of such manors, lands, tenements, and hereditaments, or as much thereof, as shall appertaine vnto him, by vertue of the said former act, and by the declaratiō and expositiō thereof, declared by this present act, during the kings interest therein. And also of the custody [Page 87] and wardship to other lords, of as much of such manours, lands, tenements, and hereditaments holden of them, as shall amounte and extende to the cleere yeerelie value of the third parte thereof ouer and aboue all charges, without a­ny diminution or abridgement of the thirde part, or of the full profits thereof, comprised and mencioned in diuers articles in the saide former act contained, by the authority afore­said be and shalbe intended, expounded, and taken, as hereafter ensueth: that is to say, that the king shall haue and take for his full thirde part, of all such manours, lands, tenements, and hereditaments, where vnto he is or shall be in­titled by the said former act, and by this pre­sent act, such manours, lands, and tenements, as shal by any meanes discend, or come by dis­cent, as well of the estate of inheritaunce in fee taile, as in fee-simple, or in fee taile onely to the heire of any such person or that shall make any will, gifte, disposition, or deuise, by his last will in writing, or by any act or acts lawfully execu­ted in his life, immediately after the death of the same deuisour or owner thereof. And that the will, gift and deuise, of euery such deuisour or owner, of and for the two partes of the saide manours, lands, tenements, and hereditaments residue, shall by the authority aforesaid, be and stand good and effectuall in the law, albeit, the same will, gift or deuise, be had and made of all his fee simple lands, tenementes, and here­ditamentes, and in case the same manours, landes, tenementes, and hereditamentes, which after the death of anie suche owner [Page] or deuisour, which shall make any such gift, dis­position, or deuise, by his last will, in writing, or otherwise, by any act or acts, lawfully executed in his life, to his wife, children or otherwise, as is aforesaid, which shall immediatly after his death, discend, reuert, remaine or come, to his heire or heires, as well of estate of inheritaunce in fee taile, as of estate in fee simple, or fee taile onely, be not, or shall not amount or extend to the full cleere yeerelie value of the full thirde part, with the full profites thereof, of all the said manours, lands, tenements, or other heredita­ments of the said deuisour or owner, according to the true intent and meaning of the said for­mer act, and of this present acte, that then the king shall and may haue & take, into his handes and possession, to make vp his full third parte, with the full profites thereof, according to his interest therein, as much of the other manours, lands, tenements, or hereditaments, willed, gi­uen, disposed, or assigned by any such person, to his wife, children or otherwise, as is afore­said, as with such of the same, manours, lands, tenements, and hereditaments discended, or by any meanes come vnto the heire, as heire of anie such deuisour or owner, shall make vp the cleere yeerelie value of the said full third parte with the full profits thereof, of all the said ma­nours, lands, tenements, hereditaments, of eue­rie such owner or deuisour, so to bee had to the king, in the title of wardship or primer sea­son, as the case shall require. And the deuision thereof, to be had and made, and with the re­stitution [Page 88] of the profits of the two partes of the said manours, lands, tenementes, and heredita­mentes, in such maner and fourme as is aboue rehearsed. And like benefit and aduantage, to be giuen, had and taken, by the said authority, to euerie Lord and Lordes, of whom anie such manours, lands, tenements, or hereditaments, beene or shall be holden by knightes seruice, in maner and fourme as is aboue said, concerning onelie his or their third partes thereof, accor­ding to their said interest therein.’

‘And be it further enacted, by the authoritie aforesaid, that if it happen the same third parte, or anie part thereof, left, willed, or assigned, to the king or other lord, at anie time during their interestes therein, to be lawfullie euicted or de­termined, that than the king and the other lord, shall haue as much of the two partes residue, as shall accomplish and make vppe a full thirde part, in cleere yeerelie value, after the rate and portion of such manours, landes, tenementes, and hereditamentes, as shall then happen to re­maine of the same third part, not deuicted nor determined, and of the other two parts of such manours, landes, tenementes, and heredita­mentes, as the kinge or other lorde shoulde or ought to haue had, by vertue of the said former act, and this present act: and the same to be de­uided, in maner and fourme aboue rehearsed, anie clause in the said former acte notwithstan­ding.’

‘And be it further enacted and declared by the authoritie aforesaid, that the sauing and re­seruing [Page] for fines for alienation, by anie such last will and testament, of such manours, landes, te­nements, or hereditaments, holden of the king by knightes seruice in cheefe, or of the nature of knightes seruice in cheefe, or by socage in cheefe, or of the nature of socage tenure in cheefe, or for fines for alienation, of such ma­nours, landes, tenementes, or hereditamentes, whereof there shall be anie alteration of free­holde, or of inheritance, made by anie such last will, comprised in diuers and sundrie articles, mencioned in the said former acte, be and shall be intended, expounded, taken, deemed and iudged, by the authoritie aforesaid, that all such person or persons, to whom the said manours, landes, tenementes, or hereditamentes, or anie of them, be or shall be giuen, disposed, willed, or deuised, by anie such last will, shall be exone­rated, acquited and discharged for euer, against the king, his heires, and successours, for all such fines for alienations, by anie such last will or te­stament, without licence, by suing forth of the kinges pardon for alienation out of the kinges courte of Chauncerie, paying to the king, his heires or successours, for the fine of euerie such alienation, the third parte of the yeerelie value of the same manors, landes, tenementes or o­ther hereditamentes, to him or them willed or deuised, and this acte from time to time, shall be a sufficient warrant, to the lord chauncellor of England, or keeper of the great seale, for the time being, for the graunting out of the saide pardon or pardons, vnder the kings great seale [Page 89] as heretofore hath beene vsed for pardons for alinations, without anie further suite to bee made to the king for the same.’

‘And it is further declared & enacted, by the authoritie aforesaid, that willes or testamentes, made of any manours, lands, tenements, or o­ther hereditaments, by any woman couerte, or person within the age of 21. yeeres, idiote, or by any person de non sane memorie, shall not bee ta­ken to be good or effectuall in the lawe.’

‘And further be it enacted by the authoritie aforesaide, that if anie person or persons ha­uing estate of inheritaunce, of or in, manours, landes, tenementes or hereditamentes, holden of the king by knightes seruice in cheefe, or otherwise of the kinge by knightes seruice, or of anie other person or persons by knights ser­uice, hath giuen at anie time sithen the 20. daie of the said month of Iulij 32. H. 8. An. do. 1540. or hereafter shall giue, wil, deuise, or assigne, by will or other acte executed in his life, his ma­nours, landes, tenementes, or hereditamentes, or anie of them by fraude or couin, to anie other person or persons, for terme of yeeres, life or liues, with one remainder ouer in fee, or with diuers remainders ouer for terme of yeeres, life or in taile, with a remainder ouer in fee simple to anie person or persons, or to his or their right heires, or at anie time sithen the said 20. daie of Iulie, hath conueied or made; or hereafter shall conueie or make by fraude or couin contrarie to the true intent of this act, anie estates, conditions, menalties, tenures, or [Page] conueiaunces, to the intent to defraud or dis­ceiue the king of his praerogatiue, primer seasō, liuerie, releef, wardship, mariages or rights: or a­ny other lord of their wardships, releefs, heri­ots, or other profites which should or ought to accrue, grow or come vnto thē or any of them, by or after the death of his or their tenant, by force and according to the former estatute and of this present acte and declaration: and the same estates and other conueiaunces, beeinge found by office to be so made or contriued by couin, fraude or disceipt, as is abouesaid, con­trarie to the true intent and meaning of the said former acte, and of this act: That then the king shall haue as well the wardshippe of the bodie, and custodie of the landes, tenementes and he­reditamentes, as liuerie, primer season, releefe, and other profites, which shoulde or ought to appertaine to the kinge, according to the true intent and meaning of the said former acte, and of this present acte, as though no such estates or conueiaunces by couin, had neuer beene had or made vntill the said office bee lawfullie vndon by trauers or otherwise. And that the other lord and lordes, of whom anie such ma­nours, landes, tenementes, or hereditamentes, shalbe holden by knightes seruice, as is afore­said, shall haue their remedie in such cases, for his or their wardships of bodies and landes, by write of right of warde, and shall distreine and make auowrie or cognisaunce, by themselues or their balifes, for their releefes, heriots, and o­ther profits, which should haue beene to them [Page 90] due, by or after the death of their tenaunt, as if no such estate or conueiaunce had bene had or made. Sauing and reseruing alwaies, by the au­thoritie aforesaid the right and title of the do­nees, feoffees, leassees, and deuisees thereof, a­gainst the said deuisour and his heires, after the interest and title of the king or other lord ther­in ended and determined.’

‘Prouided alwaies that this acte, explanati­on, and declaration, or anie of them, or anie thing in this said acte, explanation or declarati­on contained, shall not extend to the wil or de­uise of sir Iohn Gaynsforde, late of Crowherst in the coūty of Surrie knight deceased: Nor to the will or deuise of sir Peter Filpot knight de­ceased: Nor the wil or deuise of Richard Cres­wel late of Mattingley in the countie of South. gentleman deceased, nor to the will or deuise of Thomas Vnton late of the countie of Berk. gentleman deceased, sonne of sir Thomas Vn­ton knight also deceased: or shal be in anie wise preiudiciall or hurtfull, to anie person or per­sons, for or concerning anie manours, landes, tenements, or hereditaments, conteyned or specified in the said willes or deuises, or in any of them, but that the said last willes and deuises, and euery of them, shall stande, abide, remaine, and be, in the same case, force and effect in the law, to all intents, purposes and constructions, as the said last willes and deuises, and euerie of them, were before the making of this act, decla­ration, and explanation, and of none other ef­fect or force: this act, declaration, & explanatiō, [Page] or anie of them, or anie thing therein contai­ned to the contrarie thereof in anie wise not­withstanding.’

‘Prouided alwaie, and bee it enacted by the authoritie aforesaid, that all and euerie person and persons from whom the king or other lord or lordes, shall take anie manours, landes, tene­mentes or hereditamentes for his or their full thirde part, or to make vp his or their third part, shall and maie, by authoritie of this present act, in anie of the cases aforesaide vpon his or their bill exhibited in the kinges courte of Chaun­cerie, against al and euerie such person and per­sons, which shall be entitled by or vnder anie such will, gifte, disposition or deuise, to the o­ther two partes, haue such contribution or re­compence for the same, as by the chancellour of England, or by the keeper of the great seale of England for the time being, shall be thought good and conuenient.’

Of the deuise of goods and Chattelles.
§. v.

1 All manner of goods and chattelles may be deuised by will, certaine cases excepted.

2 The rule of the deuise of landes contrary to the rule of disposing of goodes.

COncerning the secōd kind of thinges deuiseable by te­stament, namelie goods & chattelles; this may be de­liuered for a rule: That all manner of goods and chat­telles, maie be bequeathed or deuised by will or testamentL. caetera. ff. de leg. 1. §. tam corporales. Inst. de legat. & ibid. DD. Lindw. in c. statutum. de testa. lib. 3. prouin­cial. constituc. Cant. Perkins. tit. deuise. c. 8. fol. 99., certaine cases onelie exceptedDe quibus. §. pro [...]..

Which rule is cleane contrarie to the for­mer of the deuise of lands, tenementes, and he­reditamentes; for they can not be deuised, sa­uing where some custome, or statute hath gai­ned libertie, of bequeathing or deuising of the sameVt supr. ead. part. §§. 2, 3, 4.: But here in steede of the Negatiue rule, is set downe the Affirmatiue, the exceptions of which rule are prosecuted in the next Para­graphe.

Diuers kindes of goodes, not deuise­able by will.
§. vj.

1 Goods which a man hath iointlie with an other, [Page] can not be deuised by will.

2 What if the other ioint-tenannt be made Executor whether is the bequest good?

3 Goods which a man hath as administratour, can­not be giuen by will.

4 Euerie administrator accomptable to the ordina­rie.

5 Difference betwixt the executor, and the executor of an administrator.

6 Goods of the realme, that is to saie, of the auncient crowne and iewelles, can not bee giuen by will.

7 Goodes belonging to a church or hospitall, can not be deuised.

8 Goodes belonging to a citie, boroughe or commu­naltie, can not be deuised.

9 Church goodes can not be deuised.

10 Things which descend to the heire and not to the executor, are not deuiseable by will.

11 Whether the corne growinge vpon the grounde, whereof a man is seased in right of his wife, be de­uiseable?

12 Whether corne on the ground be deuiseable by the lessee, the lessor being seased in right of his wife.

13 Corne growing deuiseable by the tenaunt, by the curtesie of England.

14 Corne growing deuiseable by the tenaunt in dow­er.

15 Whether corne growing on lande morgaged, bee deuiseable?

16 Whether corne growing, maie be deuised by the testators daughter, where a sonne and heire is af­terwardes borne, or wherein the mother dooth re­couer her dower?

[Page 92] 17 The testator cannot bequeath that which is an o­ther mans.

FIrst a man can not giue or be­queath by wil any of those goods or catelles which he hath iointlie with an other, for if he should be­queath his portion thereof to a third person, this bequest is voide by the laws of this realmePerkins. tit. deuise. fol. 101. Doct. & Stud. lib. 1. c. 6. licet ius ciuile contrarium dictet. L. cùm alienum. C. de legatis., and the suruiuor, which had those goodes or cattelles iointlie with an o­ther, shal haue that portion so bequeathed not­withstanding the said willHoc verum iure reg­ni nostri Angliae. Doct. & Stud. lib. 2. c. 25. se­cùs iure ciuili, vt latè per Olden. de action. class. 4. action. pro socio. In so much that if the testator make the other iointenaunt his ex­ecutor, against the which executor, an action is commenced in the ecclesiasticall courte in a cause of legacie: neuerthelesse the executor is not to be adiudged to possesse the said goodes as executor, or by right of the will, but by the title and right of the suruiuorDoct. & Stud. lib. 2. c. 25., and so the exe­cutor is to be dismissed, and the will in that re­spect to be iudged voideVide supr. ead. part. §. 3. n. 8..

Secondlie, an administrator can not make a testament of those goods which he hath as ad­ministrator, to anie person dying intestateBrook tit. admini­strator. n. 7. Fitzherb. eod. tit. n. 3., be­cause he hath not anie such goodes to his own proper vsePlowd. in cas. inter Bransby & Grantham. fol. 525. 526., but ought there withall to paie the debtes and legacies of the dead person, and to distribute the rest, (if anie thing doe remaine) in Godlie and charitable vsesc ita quorundam. de testam. lib. 3. prouinci. const. Cant. stat. Ed. 3. an 31. c. 11., and for that cause, euerie administrator is accomptable to [Page] the ordinarie for such distribution of the goods of the deceased, committed to his administra­tiond. Stat. Ed. 3. an. 31. c. 11.. And albeit an executor of an executor maie administer the goodes of the former te­statorStat. Ed. 3. an. 31. c. 25.: yet the executor of an administrator can not administer the goodes of the former deceased, but a new administration is to be cō ­mitted by the ordinarie of all the goods vnad­ministred, by the late administrator, as if he had also died intestate; any testamēt or assignatiō of an executor by him notwithstādingBrook. Abridg. tit. administ. n. 7. Princi­pall grounds. fol. 61.. By this thē it appeareth, that the authority of an executor is greater then of an administrator: for an execu­tor maie appointe an executor to the first testa­tor, so can not an administrator: Howe be it an executor can not giue awaie the goodes of the testator in his will by legacies, no more then an administratorPlowd. d. cas. inter Bransby & Grantham., for those goodes are not the proper goodes of the executor: but are to bee imploied for the behoofe of the testatorc. stat. de testa. lib. 3. prouincial. constit. Cant.; and in that respecte also is the executor accompta­ble to the ordinary as wel as th'administratorEod. c. statutum.; I meane of a bare & mere executor, of whose di­ligence the testator made special choise, to whō nothing is bequeathed in the said testament.

Thirdlie, by the opinion of diuers iustices of this realme, and doctors of the cannon and ci­uill lawe, the goodes of this realme, that is to saie, of the auncient crowne, and iewelles, can­not be disposed by willFitzherb. Abridg. tit. exec. n. 108., as is aforesaidSupr. part. 2. §. vlt..

Fourthlie those thinges, which belong to a­nie colledge or hospitall, can not bee deuised by the testament or laste will of the maister of [Page 93] the sayde Colledge or HospitallPerkins. tit. deuise [...] fol. 96. Doct. & Stud. lib. 2. c. 39.. The same maie bee saide of a Maior of anie citie or bo­rough, for hee can not by his testament, be­queath anie thing belonging to the citie, bo­rough or comminaltiePerkins. tit. deuise. fol. 96. §. non solùm. In­stit de lega. vers. sed si., no more then a ma­ster of a colledge or hospitall, such thinges as he hath in right of the colledge or hospitallPerkins. vbi supra..

Fiftlie, the goodes of the church can not be deuised by testamentc. 1. de testam. extr.: But the corne growing vpon the glebeStat. H. 8. an. 28. c. 11, and certaine other goods may be bequeathed, as hath beene before decla­redSupr. part. 2. §. penul..

Sixtlie, those thinges which after the death of the testator, descende to the heire of the de­ceased, and not to his executor, can not bee de­uised by testamentPerkins. tit. deuises. à quo sequentes casus mutuatus sum., except in such cases, where it is lawfull to deuise landes, tenementes, or he­reditaments. And therefore if a man seased of landes in fee or fee taile, bequeath his trees growing vpon the said lande at the time of his death, this deuise is not good except as before: but if hee deuise the corne growing vpon the same lande at the time of his death, from the heire to some other person, this deuise is good, albeit the land whereupon it groweth bee not deuiseable: the reason of the difference is, be­cause the trees are parcell of the free-hold, and descend together with the lande to the heire and not to the executor: but it is not so of corne, for the same shall goe to the executor as parcell of the testators goodes. And therefore if a man be seased of landes in the right of his wife, and sowe the lande, and deuise the corne [Page] growing vpon the same lande, and die before the corne be reaped: in this case the legatarie shall haue the corne and not the wife: but it is otherwise of grasse, and hearbes not separated from the ground, at the time of the death of the testator. If a man seased in fee in right of his wife doe let the same lande for yeeres to a straunger, and the lessee soweth the grounde, and afterwardes the wife dieth, the corne not being ripe: In this case the lessee may deuise the same corne, notwithstanding his estate bee de­termined. So is it, if he that is tenaunt by curte­sie of England of landes, tenementes or here­ditamentes for his life, let the same lande to an other for yeeres, and the leassor die within the tearme of those yeeres: In this case the lessee maie deuise the corne which shall bee grow­ing vpon the same lande, not ripe at the time of the death of the testator. Likewise if the tenante in dower, sowe those landes which he hath in dower, and make his executors, and after dieth, the corne not separated, there the executors shall haue the corne, notwithstanding the same be not seeded, and so the tenant in dower, may deuise the corne, growing vpō that land which she holdeth in dower at the time of her death. But it is not alwaies lawfull for a man or a wo­man to deuise the corne by them sowen, for if a man seased of lande in fee doe infeoffee a straunger in morgage vpon paimente, and not paiment made on the partie of the feoffer, at a certaine daie: and the feofee sowe the land, and the feoffer paie the monie at the daie appoin­ted, [Page 94] and enter: in this case it is thought, that the feoffee cannot deuise the corne growing vpon the said lande. Likewise if he that is tenaunte in taile of certaine land, doe let the same lande for terme of life, and the lessee doe sowe the same lande, and the tenaunte in taile die, and the is­sue do recouer the same in form don in the dis­cent before the corn be separated: it is thought in this case that the issue in taile maie bequeath the same by his testament. Moreouer if a man seased in fee, haue issue a daughter and die, his wife being great with childe, and the daughter enter and sowe the ground, and afterwarde be­fore the corne be seuered, the wife is deliuered of a son, and thereupon his next freind do en­ter for him; yet the daughter maie deuise the corne growing vpon the same land: but if after the sowing of the corne and before the birth of the son, the mother hath recouered her dow­er against her daughter, and the same land that is sowen, is alotted or assigned vnto her by the Sherife, for her dower, in allowance of other lands, there the mother may deuise the corne, growing vpon the saide lande, and not her daughter.

Finallie, whereas by the ciuill law, it was law­full for the testator to bequeath not onelie his owne thinges, but an other mans also§. Nō solum Instit. de lega. L. cùm alienum. C. de lega.: in so much that the executor was compellable to re­deeme the same thing, and deliuer it to the le­gatarie, or if the owner would not sell it, then to paie the iuste value thereof to the same legata­rieEod. §. non solùm. L. non dubium. ff. de le­ga. 3., vnlesse the testator were ignorant that the [Page] same thing did belong to an other, and did sup­pose it to be his owne: In which case the lega­cie is void, so that the executor is neither boūd to buie the thing, nor to paie the value therofd. §. non solùm. L. si vnum. §. si rem. ff. de lega. 2., because peraduēture if the testator had knowen that it had been an other mās, he wold not haue bequeathed the samed. §. non solū. Instit. de lega.: yet neuertheles both by the laws ecclesiasticalc. filius. de testa. extr. & ibi Couar. in fin. Pa­nor. in repe. c. cùm esses. eod. tit n. 18. Bar. tract, de differentijs interius can. & ciuil. n. 86., & also by the laws of this realmPlowd. in cas. inter Bransby & Grantham. huc etiam pertinent quae superiùs scribun­tur in initio huius §. de coemptore, seu con­domino disponente., no mā can bequeath or deuise anything by his testament or laste will, sauing onelie that which is his own, and that which he hath to his proper vsePlowd. vbi sup.; and if hee do bequeath anie other mans, the bequest is void; so that the executor is neither bound to redeeme the thing for the legatarie, nor to pay the value thereofCouar. Panor. Si­chard. vbi supra.; and that without distinction, whether the testator did know or not know, whether the thing bequea­thed were his own, or an other mansSi enim ignorasset rē esse alienam, tunc vel ciuili iure non valet le­gatum. §. non solùm. Instit. de lega.. But what if the testator do bequeath some thing, which at the time of the making of the testamente is not his, but the testator afterwardes dooth buy the same: Whether is this thinge due or reco­uerable by the legatarie yea, or naie? By the ci­uill lawe it is not dueL. 1. ff. de regul. Catō., but in some fewe casesRepertor. Bertachni. verb. regula. Caton.. By the lawes of this realme it seemeth that we are to distinguish, whether some speciall thing be deuised or not; for if a special or certain thing be deuised, as if the testator doo bequeath the manour of Dale, then albeit the testator had no such manor when the wil was made: yet by the purchase made afterwards, the testator is presu­med to haue had this meaning from the begin­ning, to purchase the same for the benefit of the [Page 95] legatarie, and so the deuise is goodPlowd. in cas. inter Bret & Rygden. fol. 344. But if the legacie be not speciall but generall, as if the te­stator doo bequeath all his landes, then the te­stator hauing some lands at the time of making the testament, and purchasing other lands after­wardes, these landes purchased after the ma­king of the testament shal not passePlowd. vbi supra.. But how­soeuer the lawes of this realme haue determi­ned concerning the deuise of lands, tenements and hereditaments, purchased after the making of the testament: yet concerning goods, if the testator doo bequeath anie such thing in gene­rall tearmes, as a horse or an oxe, although the testator haue neither horse nor oxe at the time of his testament made, neither yet at the time of his death, the legacie is not therefore voideBar. Paul. de Castr. & al [...]j. in L. legat. gene­raliter. de leg. 1. ff., but the executor is bound to deliuer an horse, or an oxe, as else where is confirmed, where al­so is shewed to whom the choice belongeth in this case, and what manner thing is to be deli­ueredInfr. part. 7. §. x..

Of Assigning tutors, and disposinge of childrens portions, during their mino­rities generallie considered.
§. vij.

1 Manie questions about the tuition of children.

2 The matter of tuitions both large and vncertaine.

IF I should vndertake to speake fullie of the assignement, or appointinge of tutors to children, and custodie [Page] of their portions or other rightes during their nonage, not onelie manie questions would of­fer themselues to be handled, (namelie who maie graunt the tuition, of whom, to whom, after what manner, what is the office and au­thoritie of a tutor, when the tuition is finished, what action the pupill hath against the tutor for the recouerie of his rightes, or the tutor a­gainst the pupill for the charge of his educati­on and conseruation of such thinges as are due to the childe; and finallie if the tutor testa­mentarie excuse him selfe, or refuse the tutor­ship, what order is to be taken in the behalfe of the child,) which questions are so ample & mi­nister so great aboundance of matter, that it is not possible to comprehend the same within a­nie compasse fitte for this breefe treatise. And further the customes of this realme are so di­uers and contrarie one to an other, which doe concerne this matter, that I might easilie fall in­to diuers errors.

Wherfore as well for that this matter should not exceed the proportion of a iust member, as also for that I would be loath to play the blinde guide, I thought it better, and more safe, to re­fer the Reader to the learned of euery place, of whom he may be more sufficiently certified of their particular customes, then to fill vp this volume with the multitude of different; yea and contrarie obseruations, of sundrie countries, and places within this Realme, whereof I can obteine no sounder warrant nor better assu­rance of the legalitie thereof, then the bare re­ports, [Page 96] and relations of others.

Howbeit, forasmuch as within the Prouince of Yorke, I my selfe haue had some reasonable experience in these affaires for many yeeres, I thought it not amisse briefly to signifie what is there obserued.

Of the committing of the tuition of chil­dren, and custodie of their portions, within the prouince of York.
§. viii.

1 No parents of any Countrey haue like power ouer their children, as had the Romanes.

2 Whence the authoritie of assigning children, did descend.

3 The customes of the North parts of this Realme, doe very much resemble the Ciuill lawe.

ALbeit neither within this Realm of England, nor within anie realme christian, anie parents haue the like power ouer their childrē, as had the Romans§. Ius autē. Instit. de tutelis. & ibi glossa in qua enumerātur septē aut octo in quibus ius patriae potestatis con­sistit.; to whō alone that patria potestas was proper and particularEod. §. nec non tract. de repub. Angl lib. 3. c. 7. Intellige tamen vt in gloss. in d. §. ius autē.; which was the cheefe cause wherby they did & might by their testa­mentes, commit the bodies of their children, and their portions at their pleasures to the cu­stodie of others according to the ciuill laweL. 1. ff. de testa. tutel. §. permissum. Instit. de tutel.: yet in diuers places within this realme, and namelie throughout the prouince of Yorke, [Page] there dooth remaine a certaine resemblance of that power and determination of the ciuil law; as in manie other things, so also in the assigning or appointinge of tutors by their testaments or last wilsVt patet ex his quae subsequuntur §§. 9, 10, 11, 12, 13, 14., whether we regard the person of the testator or of him that is assigned tutor, or of the children, or the maner of assignation, or the office and authoritie of the tutor, or the meanes wherby the tuition is ended, which I must one­lie point at.

Who maie appoint a Tutor.
§. ix.

1 The father maie appoint a tutor, by his testamente or last will.

2 Whether the mother maie appoint a tutor.

3 Whether a straunger maie assigne a tutor.

4 Whether the ordinarie maie assigne a tutor.

VNderstand therefore that by gene­rall custome obserued within the prouince of YorkeDe qua consuetudi­ne apertissimè, per in­dubitatae fidei acta & instrumenta antiqua, in archiuis Archiepis­copi E [...]o [...]ac. reposita, constat., the father by his last will or testament maie for a time commit the tuition of his childe, and the custodie of his portionFat [...]or quidem no­stratium liberos ab illa prima potestate ferè solutos, & quasi eman­cip [...]tos esse, vt refert D. Smith in suo tract. de repub. Angl. Qu [...] tamen haec consuetudo, quae vel praecipuè in partibus borealibus viget, summa nitatur aequitate & ratione, negari non potest. Quis enim diligentiùs de pupilli rebus cogitat quàm parentes? aut cui maiori curae esse poterit, vt ex eo maximè quantúms nulla alia subesset causa, ijs liceret morientibus, in testamentis suis designare liberis vice parentes cos, quorum experta fide norunt futuros esse liberis suis tutores, id est, tu [...]ores, siue defensores., for within that prouince, children haue their fili­al portions of their fathers goods according to the ciuill laweEt quidem debetur eadem prorsus quantitas, nam vt quandoque triens, quandoque semis competit. (auth. nouissimo C. de inoffic. testō) pro numero liberorum, ita iure quo nos vtimur, media pars debetur liberis, nulla relicta vx­ [...]re, quà superstite, certia pars bonorum ijs competere dignoscitur. infr. ead. part. §. 16., except he be heire, or aduaun­ced [Page 97] in the life time of his fatherVide infr. ead. part. §. 16., which testa­ment and assignation is to be confirmed by the ordinarieId quod iuri ciuili consonat (sed) si pater filio emancipato tuto­rem assignauerit omni­no Iudicis sententia confirmandus est. §. fin. Instit. de tutel., who also is to prouide for the exe­cution of the same testamentInfr. part. 6. § j..

If the father die, no tutor being by him assig­ned, and the mother doo in her last will and te­stament appointe a tutor, the same will is to be prooued, and the assignation of the tutor con­firmedConfirmatur quidê tutor à matre datus, sed cum inquisitione propter fragile mulie­ris consilium. Sufficit verò modica inquisitio filius si instituatur, alias requiritur magna. L. mater. C. de testa. tutel. L. 2. ff. de confir. tut. Bar. in L. naturali. §. si quaeratur. eod..

And if no tutor be assigned by either of the parents, then maie a stranger if he make the Or­phane his executor, and giue him his goodes, assigne a tutor vnto himL. patronus. ff. de consir. tit. nam qui in­stituit impuberem vi­detureum eligere quasi in filium. Et ipse habe­tur loco patris. Bald. in d. L. si patronus., which tutor is by the ordinarie to be confirmedd. L. si patronus..

And if there be no tutor testamentarie at all, then maie the ordinarie commit the tuition of the childe to his next kinse-manDe hac potestate te­stimonium non obscu­rum perhibent omnia ferè acta & instrumenta tùm recentia, tùm antiqua, quae in archi­uis publicis Archiepiscopi Ebor. fideliter custodita. demaunding the same, according as in administratiōs where anie dieth intestateNam vbi successionis emolu­mentum ibi residet tutelae onus. L. 1. ff. de tutel., so that the childe be not warde, for then the ordinarie maie not dispose of the custodie of his person, as is hereafter de­claredInfr. ead. part. §. xj..

Who maie be appointed Tutor.
§. x.

1 He that cannot be executor cannot be tutor.

2 Whether he that is vnder age or lunatike maie bee appointed tutor.

3 Whether a woman maie be tutrix.

ANie person maie bee assigned tutor which is not forbiddē Quando excipiun­tur aliqui, reliqui pro­culdubio admittuntur. Nam firmat exceptio regulam in non excep­tis. Dec. & Cagnol. in L. 1. de reg. iui. ff., who is forbiddē may appeare by that which is her­after [Page] spoken of an executorInfr. part. 5., for hee that can not be an executor can not be tutorL. testa. ff. de testa. tutel..

He that is not 21. yeeres olde, or is not of perfect minde and memorie, maie be assigned tutor: but it is to be vnderstoode that hee shall be tutor when he is of ful age, or when he doth returne to sanitie of minde§ furiosus. Instit. qui tut. testa. dari poss..

By the ciuill lawe a woman (the mother and grand-mother excepted) can not bee assigned tutrixL. iure nostro de te­sta. tuit. ff.: but it is not obserued as a law within the prouince of Yorke, where not onelie the mother and grand-mother are admitted, but o­ther women also, albeit they bee married, and vnder the gouernement of their husbandsVt per acta & instru­mēta. d. scacarij Archi­episcopi Ebor..

To vvhom a tutor maie be ap­pointed.
§. xj.

1 A tutor may bee assigned to him that is not 14. yeeres olde, and to her that hath not accomplished twelue.

2 After 14. and 12. he and she maie chuse their cura­tors.

3 When the curator is to be confirmed.

4 A tutor may be assigned to the childe vnborne.

5 No tutor can be assigned vnto him that is warde by reason of his landes.

6 Neither to infants or idiots wardes.

7 Who shall haue the ward-ship of a childe that hath landes.

8 What the Gardian maie doo.

9 The hard estate of wardes.

[Page 98] 10 All infantes wards, are not subiect to like conditi­ons.

11 Who shalbe Gardian to the infante, which hath landes in socage.

12 Procheyn amie accomptable to the ward after his full age.

13 Idiots in the custodie of the prince, whether the custodie of an infant or ideote may be deuised by the testator.

BY the said custome generallie ob­serued within the prouince of Yorke, a Tutor maie be assigned to a boie at anie time vntill hee haue accōplished the age of 14. yeeres, and to a wench vntil she haue accomplished the age of twelue yeeresL. tutelae. C. de testa. tut. §. permissum. In­stit. de tutel. tit. quibus modis tut. finitur. In­stit. in prin.. But after those yeeres he or she respectiuelie maie chuse their owne curators, notwithstandinge their fathers will§. Item inuiti. Instit. de curator. L. diuus. §. curatores. ff. qui pe. tut. L. matris. C. eod. in fin. quam op. longaeuus approbauit vsus.: but if they doo not electanie other curator af­ter their seuerall ages, then hee that is assig­ned in the will, is to bee confirmed curator to either of the said children, albeit hee were a­boue 14. yeeres, and she aboue 12. when the wil was madeL. tutelae. C. de testa. tut. §. dantur. Instit. de cura..

A tutor maie also be assigned to a childe that is not borne§. cum autem. Instit. de tut.: likewise to an ideote, or him that is lunatike§. furiosi. Instit. de cura. & licet huiusmo­di personae, maiores sint 25. annis erunt sub curatione. d. §. furiosi. an haec authoritas fit penes testatorem, vel ordinarium, an ad re­gem spectet iure prae­rogat. Quaere vt inf. in d. §..

But all this which is here aforesaid is to bee restrained, so that it be not to the preiudice of him that is a Gardian, or hath the wardship of [Page] anie infant or minorHabenti tutorem tu­tor non est dandus. §. interdum. Inst. de cura., or of anie idiote, by rea­son of anie landes, tenementes or heredita­ments, belonging to such infant or idioteStat. praerogatiuae regis. c. 9. Fitzh. Bre [...]e de idiota inquirendo.. For by the common lawes of this realme of Eng­land, the lorde of whom the infant dooth hold his landes, so soone as the father dieth, hath the wardship and keeping of the heire, and thereby maie sease vpon the bodie of the warde and his landesTract. de repub. Ang. lib. 3. c. 5. per stat. de praerog. regis. an. 17. Ed. 2. c. 1. & 6., whereof also he maie take the profites, without accompt, so that he nourish and bring vp the warded. tract. de repub. An.: And not that onelie, but also offering to his warde conuenable marriage, without disparagement before 21. yeeres, if it be a man, or 14. if it be a woman; if the ward refuse to take that mariage, he or she must paie the va­lue of the mariageStat. West. c. 22., which is commonlie rated accordinglie to the profites of his lands, which is a thing vtterlie condemned of some & great­lie lamented of manie, both graue and godlie; because of the insatiable couetousnesse of di­uers in these daiesVide d. tract. de re­pub. Angl. lib. 3. c. 5. Termes of law. verb. gardein., for that therby it commeth to passe manie times, that a free man and a gen­tleman whiles he is an infant, of slender discre­tion and lesse experience, destitute of his beste friende, that is to saie, his naturall father, and consequentlie subiect to the subtilties and im­portunities of his craftie and couetous Gailor, is bought and solde like a beast, to such as seeke to make most aduantage of him; and in the ende besides manie moe inconueniaunces, matched to my maisters daughter, sister, cosin, or some other female, to whom for her vertues and gentle conditions, if thine enimie shoulde [Page 99] be preferred in mariage, thou couldest wishe him no greater tormēt (if it were lawful forthee to wishe him anie torment) hell excepted.

To these perils are these infants subiect which holde landes of other by knightes seruice, cal­led in french Garde noble d. tract. eod. c. 5., for there is an other kind of seruice, called Gard Returier alias Gard in socage, or tenure by the plougheEodem loco.. This ward­ship falleth to him that is next of kin, and can not inherite the lande of the wardeStat. Marleb. c. 17. an. 52. H. 3., as the vn­ckle on the mothers side, if the land descend by the father; or the vnckle on the fathers side, if the land descend by the motherBrook. tit. gardeins & prochein amye. n. 11 12. 13. Termes of law. verb. prochein amye..

This Gardyan otherwise called prochein amie is accomptable for the profites and reuenues of the lande to the warde, as the tutor for the goods and chattelles to the pupill when he is of full aged. stat. Marleb. c. 17. d. tract de repub. Angl. lib. 3. c. 5..

Concerning Idiottes such is the praeroga­tiue of the princes of this lande, that they shall haue the custodie of all the landes of naturall fooles, and maie take the profite thereof with­out waste or destruction, of whose fee so euer the same be holden, findinge to them necessa­riesStat. Ed. 2. de praerog. reg. c. 9.: And after the death of such Idiottes, the lande must be restored to the right heiresEod. stat.. But in the meane time, that is to saie, during the no­nage of the warde, or during the life of the Idi­ote, the tuition of the bodie of the warde or I­diote, or of his landes can not bee deuised by testament, to anie other person contrarie to the course of common lawe, in preiudice of him to whom the wardship dooth belongQuia tutorem habēti tutor non datur., sauing the [Page] testator maie committe the custodie of suche goods and chattelles, as he dooth bequeath to the said infant or ideot, to whom hee will and during so long time as he willSiquidem vnusquis (que) potest rebus suis quam velit legem imponere. Mantic. lib. 7. tit. 1. nu. 38. & testatoris volun­tas habetur pro lege. L. seruus. ff. de manumiss. licet alias videatur per Fitzherb. Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt, suo gardiano accrescunt. Quaere tamenper Stamford. suꝑ d. praerog. reg. c. Idiot..

Of the manner of appointing Tutors.
§. xij.

1 A tutor maie be appointed simplie or conditionally to a daie or from a daie.

2 The condition depending, what is to be doone in the meane time.

3 Lawfull to appointe one or manie tutors.

4 Whether where one tutor is appointed an other maie be receiued.

5 Whether diuers being assigned, one tutor alone may be admitted.

6 By what wordes a tutor maie be appointed.

7 What if the testator saie, I committe my children to thy power or to thy handes.

8 What if he saie, I committe my children vnto the quicke and deade.

9 What if he saie, I desire thee to take care of my son.

10 The testator maie vse anie language in the assig­nation of a tutor.

BY the saide generall custome it is obserued within the prouince of YorkeDe qua per plurima acta & testa. in d. sacro. existen., that a tutor maie bee assig­ned either simplie, or conditional­lie§. ad certum. Instit. qui testa. tutor dari poss., [Page 100] and vntil a certaine time, or from a certaine timeEod. §. ad certum. L. tutor. §. tutorem. de testaria. tut. ff.. But no tutor maie intermeddle as tutor, vntill he be confirmed by the ordinarie, albeit he be assigned tutor simplieL. legitimus & ibi Bar. ff. de legit. tutel., much lesse where he is assigned conditionallie, or from a certaine time, maie hee intermeddle as tutor vntill the condition be extantL. qui sub conditione ff. de testa. tutel., or the time limited be ex­piredd. L. qui sub condi­tione.: but the ordinarie maie in the meane time commit the tuition, and hee that is so ap­pointed by the ordinarie, maie for that time administerBar. & alij in d. L. qui sub conditione..

Moreouer it is lawfull to appoint either one tutor alone, or manie togetherL. si plures. ff de te­sta tut.. Where one a­lone is appointed tutor by the testator, the or­dinarie ought not to ioine an other tutor§. interdum. Instit. de cura., vn­lesse he that is named tutor be lunatikeL. non solùm. §. vlt. ff. de excus. tut. gloss. in d. §. interdum. Instit. de curator., or bee absent about the affaires of the cōmon wealthL. tutor. §. si quis ab­futurus. ff. de suspect. tut., for in these and other like cases an other tutor maie be ioinedGloss. & Minsing. in d. §. interdum. Instit. de cur.; at leaste duringe the impedi­ment. Where diuers are appointed, there one alone may administerL. 3. de administ. tut. ff.: which conclusion doth proceede with lesse difficultie, when cotutors can not or wil not meddleL. legitimos. §. in le­gitimis. ff. de legit. tut. L. 47. de administ. tut. or transferre their authoritie to him which dealethBald. in L. qui pupil­le. C. de negotijs. gest., for they maie doo that, and so also be his suretiesL. Romanus. ff. de tutor. vel curator. dat. ab his..

It skilleth not by what wordes the tutor bee appointed, so that the testators meāing doo ap­peare: for they are neuerthelesse to bee confir­med tutorsL. 1. de confir. tut. ff. & ibi Bar. L. quoniam. C. de testa. Socin. con­sil. 83. vol. 1..

Wherefore if the testator saie, I commit my children to the power of A.B. or I leaue them in his hands, it is in effect, as if the testator had said, I make A.B. tutor to my childrenIas. in L. manumissio­nis. ff. de Iustit. & iure. Boer. decis. 124. vbi at­testatur hanc opini­onem, & tutiorem, & veriorem esse.: so it is if [Page] he saie, I leaue them to his gouernement, regi­ment, administration &cMolin. in addic. ad Decium. in c. ex parte de app. extr. Socin. consil. 83. vol. 1..

If the testator saie, I commit my sonne to A. B. both quicke and dead with all his legacies by me giuen, by these wordes it is presumed that the testator meant, that A.B. should be tutor to his child if he liued, and if he died, then to haue those legaciesSocin. d. consil. 83..

If the testator saie, I desire my wife to take care of my children, during their minorities, al­beit those wordes doo not necessarilie infer or conclude a tuition of their owne nature, but ra­ther that she should chastice them, when they deserued to be correctedDec. in d. c. ex parte de app. extr. Boer. decis. 124 in princ., (for to haue tuition of children is a greater thinge and extendeth further then to haue a care of them onelieDec. in d. c. ex parte.:) Neuerthelesse for as much as the ruder sorte of people, doe not know the difference of termes, nor the naturall force of wordesSocin. d. consil. 83. vol. 1.: Therefore if any be assigned tutor by these foresaid words he is to be confirmedL. 1. de confir. tut. ff. & ita limitatur. §. quā (quam) in L. qui aliena. ff. de neg. gest. vt per Ias. in L. manumissiones. ff. de Iustit. & iur..

The same also maie be saide where the testa­tor dooth commit his childe to the custodie of an other: For albeit, it be a greater thinge to haue the tuition of a childe, then to haue the bare custodie of a child committed vnto himRom. Sing. 164. Dec. in c. ex parte. de app. extr.: Yet in all thinges the will and meaninge of the testator,d. L. 1. de confir. tut. & DD. in eand. L. mo­lin. in addic. ad lect. Decij in d. c. ex parte. M. is to be obserued and preferred before the propertie of the wordesL. quoniam indignū. C. de testam., whereof perhaps he is ignorant, which meaning is to be collec­ted by that which went before or folleweth af­ter in the will, and by other circumstances, which the discreete iudge ought to enquireBoer. decis. 124..

Finallie, it skilleth not in what language the tutor be assigned, whether in English, Latine, Greeke, or anie other tongueL. vlt. C. de testa. tur..

Of the office and auctoritie of a Tutor.
§. xiij.

1 The office of a tutor dooth principallie respect the person of the pupill.

2 The office of a tutor dooth secondarilie respecte the good administration of the pupilles goods.

3 The tutor ought to make an inuentarie and is chargeable with an accompt.

4 Whether a tutor ought to enter into bondes for the performaunce of his office.

5 Of the authoritie of a tutor.

6 Whether the tutor maie alienate the goodes of the pupill.

THe office and authoritie of the Gar­dyan or him that hath the wardship of any infant, by reason of anie lands, tenements or hereditamēts, whether the same be holdē by knights seruice, or by soc­cage tenure is alreadie declaredSupra ead. part. §. x, n. 8. 9., wherefore in this place I shall onelie touch the office and au­thoritie of a tutor, according to the custome obserued within the prouince of Yorke, not greatlie differing from the disposition of the ci­uill lawe.

This therfore is the office of a tutor. Firste and principally to defend the person of his pu­pillInde rutores quasi tuitotes, id est, defenso­res, à tuendo, & defen­dendo appellantur, si­cut aeditui dicuntur, qui aedes tuentur. §. tu­tores. Instit. de tutel. L. 1. ff. eod., that is to saie, to prouide that hee bee ho­nestlie and vertuouslie brought vp, and to pro­uide for him meate, drinke, cloth, lodging, and other necessaries, according to the childs estate or condition and abilitieNec tantùm alimēta praestari debent pupil­lo, sed etiam in studia impensae debent impé­di pro facultate pa­trimonij, & dignitate natalium. Wigand. Happel. tract. de tutel. tit. 138. n. 44. fol. 350..

Secondarilie, the office of a tutor consisteth in the good and faithfull administring, or dis­posing of the goodes and cattelles of the saide pupill§. datus. Instit. de excus. tut. & Minsing. ibidem., that is to saie, the tutor maie not com­mit anie thinge that maie bee hurtfull, nor o­mit anie that maie be profitable to his pupillLatiùs de offic. tuto­ris. Happelius tract. de tutel. tit. 38. per totum.; and in the ende restore vnto the pupill all his goodes and cattelles, by him the said tutor be­fore receiuedL. tutorem quendā. C. de arbitr. tut. Olden. de action. class. 4. actiō. tutel. directa.. And for that purpose euerie tu­tor ought euen at the verie entrie into his office, to make a true inuentorie of al the goods and cattelles of his pupillL. tutor qui reperto­rium. ff. de administr. tut. L. tutores, vel cura­tores. C. de administr. tut. Bar. in d. L. tutor.: and to make a iuste and true accompt of his dealinges, in the be­halfe of his pupillL. 1. §. offic. de tut. & ration. distrahend. ff., and it is generallie ob­serued within the saide prouince, that eue­rie tutor as well testamentarie, as other ap­pointed by the ordinarie, dooth enter into bonde with suerties to the effecte aforesaide, accordinge to the discretion of the ordina­rieHoc vsitatissimū esse infr. prouinc. Ebor. cer­to certius est, vtcun (que) iure ciuili tutor testa­torius, vel datiuus, sa­tisdare non teneatur. L. testamento. de testa. tutel. L. 2. de confir. tut. ff..

Concerning the authoritie of a tutor, assoone as he is confirmed, he maie sease vpon the bo­die of the pupillAymo. consil. 18., and maie likewise take posses­sion of all his goodsL. 1. ff. de adm̄str. tut.. And if anie doe conueie awaie the person of the said pupill, hee maie be conuented and in the ende compelled to re­store [Page 102] himGabr. lib. 5. com. cō ­clus. c. 1. n. 41. post Cas. consil. 120. Aym cons. 18. n. 6. fortè etiam in­cidit in sententiam ex­cōmunicationis, quia impedit executionem testamenti. per c. statu. de testa. lib. 3. prouinci. constit. Cant. Fitzh. Nat. Bre. fol. 44.. Likewise if anie person do detaine anie thing belonging to his said pupill, recoue­rable in the ecclesiasticall courte, hee is vsuallie conuented by the tutor in the behalfe of the pupillSed an debet agere, vel conueniri nomine tutorio. Bar. in L. 1. §. sufficit. ff. de adm̄str. tut. Brooke Abridg. tit. gard. el. 2..

Furthermore the tutor maie alienate and sell such goodes belonging to the pupill, as can not be kept vntill he come to lawfull ageL. lex C. de adm̄str. tut.: but o­ther goods which maie conuenientlie be kept, and continued vntill the pupill attaine to law­full yeeres, and especiallie goodes immooue­able, the tutor maie not sell nor alienateEadem L. lex. & ibi Angel. & alij..

By vvhat meanes the tutor­ship is ended.
§. xiiij.

1 The tutor-ship is ended by diuers meanes.

2 In respect of pupill the tutor-ship is ended when he commeth to lawfull age.

3 Sufficient age in a man at 21. sometimes at 14.

4 Sufficient age in a woman, at 12. 14. 16. yeeres in di­uers respectes.

5 In respect of the tutor his office is ended, if he can­not be executor or doe excuse himselfe.

6 Likewise if he be remooued as suspected, or become lunatike or deafe and dumbe, or be absent or die.

7 Howe the tutorship is ended in respect of the forme of the tuition.

THe tutor-ship is ended by diuers meanes, whereof some respecte the person of the pupill, some doe respect [Page] the person of the tutor, and some doe respecte the manner and forme of the tuition it selfeVigel. method. iur. ci­uil. part. 2. lib. 5. c. 8. Wigand. Happel. tract. de tutel. tit. 55. 56. &c..

In respect of the person of the pupill, the tu­torship is finished, when the pupill hath accō ­plished sufficient age. Sufficient age in a man is sometimes at 21. yeeres and not before, some­times at 14Minor quibus casibꝰ habetur pro maiore, vide Repertor. Ber­tachni. verb. minor. gloss. & DD. in c. ex part. de restitue. spol. extra.. In a woman sometimes at 12. sometimes at 14. and sometimes at 16Tract. de repub. Ang. lib. 3. c. 5. Principall grounds. fol. 35. Brook tit. gard. el. 2.. He that is warde by reason of landes holden in knights seruice is not out of ward-ship vntill hee bee of the age of 21. yeeresMag. Char. c. 3. an. 9. H. 3. Bract. de leg. & cēs. Angl. lib. 2. c. 37. Brook tit. gard. n. 111.: he that is ward by reason of lands holden in socage, is then out of ward­ship when he is of the age of 14. yeeresTermes of law. verb. prochein Amy., at which yeeres hee maie refuse his gardian, and call him to an accomptMarlebr. c. 17. an. 52. H. 3., at the same age also is the tutor-ship ended (if he haue no landes but goodes) and the minor maie then also call his late tutor to accomptL. indecorum. C. cū tut. esse desin. Instit. quib. mod. tut. fin. in prin.: and if he will hee maie then choose a curator, either the same person that was tutor or some otherSupr. ead. part. §. x..

A woman assoone as she is 12. yeeres of age, is out of the gouernement of her tutorInst. quib. mod. tut. fin. in princ., vnles she be warde in respect of landes, for then shee shall continue warde vntill shee bee 16. yeeres oldeBrook tit. gard. el. 2. n 7. Principal grounds. fol. 35., except she be of the age of 14. yeeres at the death of her auncestors, for being of those yeeres at her auncestors death, for as much as she maie haue an husband able to doo knights seruice, she shall not be wardeTract de repub. Ang. lib. 3. c. 5. Fitzh. Nat. Bre. fol. 141. D..

In respect of the person of the tutor the tui­tion is ended, if he become such a one, as cā not be made executorL. testament. de te­sta. tut. ff., of whom mention is made hereafterInfr. 5. part., or if he iustlie excuse himselfeInstit. tit de excus. tut. l. 2. §. remittit. ff. eod.: (But [Page 103] those lawes concerninge excusinge of tutors and curators are verie seldome or not at all practised: for tutors now a daies are so far from excusing themselues, that on the contrarie they striue and labour mightilie to bee admitted, turning that to a benefit, which was wont to be a burthenOlden. in L. 12. tab. tit. 3. fo. (mihi) 55. Trac de repub. Ang. lib. 3. c. 5 or if the tutor be remooued as sus­spected, the tuition is determinedL. si arrogati. §. pen. ff. de tut. §. pen. Instit. de suspec. tut., (and he is said to be a suspected tutor which dealeth not faithfullie in his office§. suspectus. Instit. de susp. tut. vel cur. or if the tutor become lunatike, or deafe and dumbe, or in that case, that hee can not gouerne or administer his goodesL complurima ff. de tutel. L post susceptum de excus. tut., or if he dieL. Cuius bonis. C. de curator. furios., or is absent, being taken of the enemieL. si arrogati. ff. de tutel..

In respect of the manner and forme of the tuition, the office and authoritie of the tutor is determined, as if the tutor bee appointed vpon condition, which condition is broken, or if the tutor bee appointed duringe a certaine time, which time is finished§ praetereà. Instit. quib. mod. tut. fin. L. si adrogati. §. sed etsi. & §. fin. ff. de tut., in these and manie o­ther respectes (which for breuitie I omitte) the tutor-ship is determinedVideāt Iustinianistae Vigelij methodum iuris ciuilis, vbi perplu­res traduntur causae finiendi tutelam..

Of the quantitie of landes deuiseable by will.
§. xv.

1 Of landes, tenementes, and hereditamentes, some­times all, sometimes but two partes of three, is de­uiseable.

NOwe that I haue shewed what kinde of thinges maie be deuised by will, it remaineth to shew how much is de­uiseable, [Page] of landes or goodes.

And first concerning landes, tenements and hereditamentes, sometimes they maie be deui­sed wholie, as landes, tenementes and heredi­tamentes holden in socage, or of the nature of socage tenureSup [...]. ead. part. §. 4.: sometimes two partes of three maie be deuised, namelie of landes, tenements and hereditaments holden in cheef by knights seruice, or of the nature of knightes seruice in cheefeEod. § 4., as appeareth more fullie heretofore, where I haue set downe the statutes at large.

What quantitie of goods or chattels maie be deuised by testament.
§. xvj.

1 Legacies to be paid out of the cleere debtlesse goods.

2 The executor compellable to paie dettes out of his owne purse, if he paie legacies first.

3 Funerall expenses to be deducted out of the whole goodes.

4 The testator maie sometime bequeath all his det­lesse goodes, sometimes halfe, and sometimes but a third part.

5 When halfe the testators goodes is due to the wife or children.

6 When the wife and children ought to haue either of them a third part.

7 Whether the wife and children ought to haue anie part of the dettes due to the testator.

8 Whether the wife and children maie claime anie reasonable part of leases.

9 Whether the wife and children maie claime a rea­sonable [Page 104] part of goodes, where there is no custome.

10 The reason of the lawe which leaueth all to the disposing of the testator.

11 The reason of the custome wherby the power of the testator is restrained.

COncerning the quātitie of goods and chattelles to be disposed, this is first to be noted, that the testa­tor can not bequeath anie parte of the goodes, but where some­thing remaineth cleere, the moderate funerals, and the debtes due by the testator first dischar­gedBracton de legib & cōs. Angl. lib. 2. c. 26. n. 2 L. scimus. §. & si praesa­tam. C. de iure de lib. In qua lege assig­natur ratio quare legatarijs praefe­runtur creditores: nē ­pe legatarij de lucro captando, creditores autem de damno vitā ­do contendunt. d. L. scimus. Et licet haeres qui inuētario legitimè confecto, leg atarijs sa­tisfaciat, securus sit iu­re ciuili aduersus cre­ditores, quibus eodem iure concessum estacti­onem intentare, non contra haeredem, sed contra legatarios. Lon­gè tamen aliter iure nostro, cautum est, quo non legatarios, sed ip­sum executorem con­uenire permittitur, vt statim subijcitur.. And therefore if the testator doo be­queath any legacies by his testament where his goodes and chattelles will not suffice to dis­charge his funeralles and debts, and the execu­tor paie anie of those legacies, before hee haue discharged the debts, by meanes wherof there is not sufficient goodes lefte wherewith to pay the testators debtes: in this case the executor shall be charged with the payment thereof out of his owne purseFitzherb. Abridg. tit. deuise. n 1. Brook. tit. adm̄str. n. 37. Perkins. tit. deuise. fol. 109., as one that had otherwise wasted the goodes of the testatorDoc. & Stud. lib. 2. c. 11. quam conclusionē facile admitterem, cōscio executore aeris ali­eni. Sichard. in d. §. & si praefatam. verb. 3. vtilitas. & Minsing. in §. sed nostra Instit. de hae­red. qual. & diff. n. 12. Ca terùm quod nonnulli ex nostratibus eandem conclusionem ex­tendunt, vt locum habeat vel ignorante executore, alios esse creditores: An istud verun. sit dubito, durum esse non inficior. Et quidem summus Iusticiarius Brook oppositam senten­tiam tenet, nisi vbi principi quid sit debitum, quia regia debita suo periculo scire debet. Brook. tit. exec. n. 116..

This then being vnderstood that no legacie is due, but where there cleerlie remaine some [Page] goodes and cattelles, the funeralles and debtes first deducted (for funeral expēces are to be de­ducted foorth of the whole goods both by the ciuill laweL. scimus. §. in com­putatione C. de iure delib., and by the lawes of this realmeFitzh. Na. Br. fol. 121 Doct. & Stud. lib. 2. c. 10. Brook Abridg. tit. exec. n 172..) Thou shalt vnderstande that of that which re­maineth, sometimes the whole, sometimes the halfe, and sometimes the third part, maie be be­queathed or deuised by the testator, according to the diuersitie of these cases following.

The first case is, when the testator hath nei­ther wife nor childe, at the time of his death, for then hee maie dispose all the residue of his cleare goodes and cattels at his pleasureLindw. in c. statut. de testam. lib. 3. ꝓuincial. constit. Cant. verb. de­functum. Bracton. de legib. & consuetu. Ang. lib. 2. c. 26. Tract. de re­pub Angl. lib. 3. c 6. Fitzherb. Bre. de ratio­nabil. parte bon..

The second case is, when the testator at the time of his death hath a wife and no childe, or else some child or childrē, but no wife. In which case by a custome obserued, not onely through­out the prouince of Yorke, but in manie other places besides, within this realme of England; the goodes are to be deuided into two partes, and the testator can not bequeath anie more then his part, that is to say, the one halfe, for the other halfe is due to the wife, or else to the chil­dren, by vertue of the said customeLindw. Bracton. & Fitzherb. vbi supr..

The third case is, where the testator leaueth behinde him bothe a wife, and also a childe or children: In which case by the custome obser­ued in diuers places of this realme of England, and namelie within the prouince of Yorke: the testator can not bequeath anie more of his goods, then the third part of the cleere goodsAct. & computat. in scaccario Archiepisco­pi Ebor. Lindw. Bract. & Fitzher. vbi supr., for in this case the said cleere goodes are to be deuided into three partes, whereof the wife [Page 105] ought to haue one 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 whō he thinketh goodLind. 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 beforeBrook Abridg. tit. exec. n. 112. Siquidem si ista ex cō ­suetudiue tantum de­bentur, hac non prob [...] ­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 beforeFitzh. in Br. de ratio­nab. part. in quo Breui fit mentio, non solùm bonorum, sed etiam. cattallorum. At (que) 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 cōmon [Page] 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 partesIn 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 multā disputationem inquit. Et fuit dit pue. ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn com̄en ley & nun (que) demurr, & ideo videtur que ceo est le com̄en 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 customeFitzh. d. Br. de rati­onab. part. bonor. Brac. de legib. & cōsuet. Ang. lib. 2. 26. Tract. de repub. Angl. lib. 3. c. 6., and cō ­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 childrenBracton. 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 [Page 106] 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 testatorHisce rationibus vti­tur Bracton in desensi­onem [...]u [...] 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 presu­medc. 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 chil­drenMediam viam elegit Iustinianus, tàm quoad vxorem, quàm 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. m [...]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 [...]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.
§. xvij.

1 If the testator bequeath more then the deaths parte, whether one legacie is to be preferred before an o­ther?

2 Diuers opinions about this question.

3 First concerning this question wee are to consider, whether there be an inuentarie or not.

4 An inuentarie beeing made the legatarie neede not paie anie one whole legacie, where there is not suffi­cient to paie the rest.

5 Certaine cases wherein an inuentarie being made, the executor is forced to discharge some legacies wholie, though there be not sufficient goods where­with to discharge the rest.

6 If the executor paie to some legatarie his whole le­gacie, whether he thereby tie himselfe to paie the rest wholie also.

7 Whether the legacie beeing vnduelie paied, maie be recouered.

8 No inuentarie being made, how farre the executor is bound to paie legacies.

NOwe that we haue seene when the testator maie dispose all the resi­due of his cleere goodes or halfe, or but the third part onelie: and [Page 107] what be the reasons of enlarging or restraining of the libertie of the testator in that behalfe, for as much as it dooth often fall out in facte, that the testator dooth bequeath more by his testa­ment, then he maie by lawe or custome, that is to saie, more then the whole residue where hee maie dispose all, or more then the halfe, where hee can giue but the halfe, or more then the third, where he can giue no more but the third. It shall not bee vnprofitable to examine which of the legacies are first to bee discharged, and namelie whether that legatarie which is firste named in the will, ought to haue his legacie first answered before the rest, and that he that is named in the seconde place to haue his lega­cie next, and so the third and fourth, vntill the deathes part be wholy spent, & then the rest of the legataries to haue nothing: or whether the executor maie gratifie which of the legataries he will, without differēce whether he be first or last named in the will, or else whether ought e­uery legatarie to suffer defalcatiō, or ratable de­duction from euerie legacie, to wit, frō the grea­ter legacie the greater part, and from the lesser legacie the lesser part, proporcionably, so that the legacies doo not exceede the deathes part, and that the deaths part maie suffice to paie the legacies.

It seemeth by the opinion of some, that a ra­table part is to be deducted, & taken from eue­rie legacie, and that it is not in the power of the executor to gratifie anie one legatarie to the preiudice of an other legatarie, whether he bee [Page] first or last in the testamentL. si quis testamento § apud Iulianum. ff. de leg. 1. & Ias. ibid. Paul. de castr. in L. scimus. §. legitimam creditorib. C. de iure delib., but rather, if the executor paie to one legatarie his whole lega­cie, that then he bindeth himself to paie to the rest of the legataries their whole legacies alsoIn Auth. de haered. & falcid. §. non autem. & ibi Bar..

On the contrarie it seemeth by the opinion of others, that if the executor doe make an in­uentorie, then it is in the power and choise of the executor, to paie to which of the legataries he will, his whole legacieL. scimus. §. & si prae­fatam. C. de iure delib. & ibi Ias. verb. tertia vtilitas. Plowd. in cas. inter Paramor & Yard. his verbis: Si home de­uise a A. 20. li. a B. 20. li. & a C 20. li. & fait son. exec. & morust ayant biens fors (que) al value de 20. li. Orc. il est id election de executor, a queux de euxe Troyes il voyl payer lez 20. li. & sil payer a lune, lau­ter ne poyet cōtradire ceo, ne ad ascun reme­dy pur son legacy. fol. 545.: like as it is in his choise to paie to which creditours hee will his whole debted. §. & si praefatam., albeit he be not ignorant of o­ther debtes, of the same natureEt hoc ita iure huius regni. vt infr. part. 6. §. 16. secus iure ciuili. vt eod. §. 16., and that pai­ment being made accordinglie, and no assettes remaning in the hand of the executor, the le­gatarie hath no more remedie against the exe­cutor for his legacie, then hath the creditor for his debt, who by the lawes of this realme is vt­terlie excluded, and by which lawes it is lawfull for the executor, to gratifie which of the credi­tors he willDo. & Stu. lib. 2. c. 10., sauing in certaine cases else where mencionedInfr. part. 6. §. 16..

In which contrarietie of opinions this is first to be considered: whether the executor doo make an inuentorie or not.

If the executor doo make an inuentorie, ac­cording to the lawes and statuts of this realme, then hee neede not paie to anie legatarie his whole legacyPaul de Castr. in L. scimus. §. Im̄a. credito­ribus. C. de iure delib. Alex. in d. L. §. & si prae­fatam., though he be first named in the willIas. in L. si quis testa. §. apud Iul. ff. de leg. 1., (I meane where there is not sufficient, to aunswer to euerie legatarie his whole legacie) but maie retaine a ratable part, according to the proportion aforesaidImmò iure ciuili le­gatarius partem inde­bite solutam restituere tenetur. Castrens. & A­lex. vbi supr. vnde frustra peteret, quod statim restitueret. c. dolo. de reg. iur. 6. non tamen potest executor falcidiam retinere. Spec. de Instr. edit. §. xij. n. 26.; sauing in certaine cases, [Page 108] whereof one is, when some speciall thing is be­queathed, as the testators signet or his white horse, which speciall legacie, (as some doo deeme,) is to bee satisfied and paied wholie without diminution in respecte of anie other generall legacies, or of legacies which doe con­sist in quantitieIas. post Paul de Castr. in d. L. si quis te­sto. §. apud Iul. quāuis non negē propositionē hanc non sine difficul­tate procedere.. An other case is when the lega­cie is to be distributed in pios vsus Castrens. in d. §. a­pud Iul.. An other is when the father doth bequeath some thinge to his daughter for her dower, or towardes her marriageCastrens. vbi supr.. An other is when the testator doeth bequeath anie thinge in satisfaction or recom­pence of some iniurie by him don, or of goods euill gottenCastrens. in d. §. Fe­deric. de senis consil. 243., for those legacies also are not to be diminished by reason of other generall le­gacies, or legacies consisting in quantitie, the which shall remaine wholie vnsatisfied, rather then those foresaide legacies shall bee dimini­shed: and consequentlie in these cases it is not in the power of the executor, to gratifie anie o­ther legatarie at his electionPaul. de Castr. in d. §. apud Iul. cuius consilio haec sunt menti tenen­da, quia (inquit) sunt singularia..

Furthermore if the executor doo make an inuentorie, and afterwardes paie to some lega­tarie his whole intire legacie, yet is he not ther­by tied, to paie the rest of the legacies wholie, (the deathes part not being sufficient) and this is vndoubtedlie true, if the executor were igno­raunt of other legacies giuen by the testatorPlowden in cas. inter Paramor & Yardley. Quod verò Bar. scripsit quòd haeres subtiliter seu scienter vni legata­rio integraliter soluēs, omnibus alijs in soli­dum soluere compelli­tur, omni penitus incō ­stantia amota, intelli­gendum est, sine dedu­ctione salcidiae, id est, quartae haeredi debitae. (Bar. in §. non autem. de haered. & falcid. in Auth.) Nec enim dixit, neque profecto somni­auit Bartolus haeredem compellendum soluere reliqua legata sine di­minutione legatorum, quae superant vires haereditatis, facto scili­cet inuentario. DD. in Auth. sed cùm testator. C. ad L. falcid., exceeding the deathes parte when he did paie the whole legacieL. scimus. §. & si prae­fatam. C. de iure delib. & ibi gloss. ibidem.. But neither the executor nor anie other legatarie, can reclaime or reco­uer that ouerplus paide and deliuered to the handes of the legatarie, as vnduelie paide vnto [Page] him, in respect that there is not sufficient to pay all the reste of the legacies out of the deathes partHoc verum iure quo nos vtimur, quo neque executori, neque lega­tario competat indebi­ti condictio, vel aliqua actio quae sapiat eius naturam. Immo verò vel ipso iure ciuili, vt­cunque creditoribus, vel legatarijs, per hu­iusmodi actiones sub­ueniatur; at certe exe­cutori legis Falcid. vel Trebel. beneficium prorsus denegatur. Spec. de Instr. edit. §. nunc verò aliqua. n. 26..

If the executor enter to the testators goodes and will make no inuentarie thereof, then maie euerie legatarie recouer his whole legacie at his handesL. scimus: C. de iure delib. facit. c. in literis. de raptor. extr., for in this case the law presumeth that there is sufficient goodes to paie all the lega­cies, and the executor dooth secretlie and frau­dulentlie substract the sameSichard. in d. L. sci­mus. §. & si praefatam. quod intellige nisi executor doceat de bonorum insufficientia, nam tunc licet non conficiat inuentarium, non tenetur vltra vires haereditatis. Ias. in d. § & si praesatam. limitac. 4. Couar. in c. 1. de testa. extr. n. 15. De iure verò regni nostri, siue sit in­uentarium confectum, siue non, creditor, seu qualiscunque petens, sufficientiam probet bonorum, vt videtur per Dyer. M. 6. Hen. 8. c. 3. & alibi., whereas other­wise the executor is presumed not to haue anie more goods which were the testators, then are described in the inuen­tarie, the same being lawful­lie madeBald. & Sichard. in §. Im̄ia. d. L. scimus. & haec opinio communis est, vt ait Franciscus Herculan. tract. de probac. ne­ [...]a. n. 256..

THE FOVRTH PART OF THIS TREATISE, SHEWING HOWEORIN what manner Testaments maie or ought to be made.

The Paragraphes or Chapters of the fourth part.
  • OF the formes of testamentes §. 1.
  • Of the generall, substauntiall, forme of a testament §. 2.
  • After how manie sortes an ex­ecutor maie be made §. 3.
  • Of a simple assignation of an executor §. 4.
  • Of a conditionall assignation, or nomination of an ex­ecutor §. 5.
  • Of the effect of a conditionall disposition §. 6.
  • Whether euerie possible condition ought to bee obser­ued preciselie §. 7.
  • Whether the condition be accompted for accompished in lawe, when it dooth not stand by the executor or legatarie, wherefore the same is not accomplished. §. 8.
  • Whether he that is made executor, or to whom any le­gacie [Page] is bequeathed conditionallie, maie in the meane time whiles the condition dependeth, be ad­mitted to the executorship or obteine the legacy by entring into bonds to perform the condition, or else to make restitution. §. 9.
  • Whether it be sufficient that the condition was once accomplished, though the same doo not continue. §. 10.
  • Of diuers conditions which maie seeme doubtful whe­ther they be lawfull or vnlawful: And first of those conditions whereby the libertie of making testa­mentes is hindred; how far the same are lawfull or vnlawfull §. 11.
  • Of those conditions whereby the libertie of mariage is hindered; howe far the same are lawfull or vnlaw­full §. 12.
  • Whether the prohibition or forbidding of alienation of the goods bequeathed be good or not §. 13.
  • Within what time the condition maie or ought to bee performed, no certaine time being limited by the will §. 14.
  • Of the vnderstanding of this vsuall condition, (If he die without issue.) §. 15.
  • What order is to be taken concerning the admi­nistration of the goodes of the deceased, whiles the condition of the executorship dependeth vnaccom­plished §. 16.
  • Of the making of an executor, to or from a certaine time §. 17.
  • Of the making of an executor vniuersallie or particu­larlie §. 18.
  • Of making of executors by degrees §. 19.
  • How manie maie be appointed executors §. 20.
  • [Page 110]Of those things which doe appertaine to the apparance of testamentes §. 21.
  • Of the particular formes of testaments §. 22.
  • Of the forme of a solemne testament §. 23.
  • Of the forme of an vnsolemne testament §. 24.
  • Of the forme of a written testament §. 25.
  • Of the forme of a nuncupatiue testament §. 26.
  • Of the particular formes of other testamentes or laste willes §. 27.

IN VVHAT MAN­NER TESTAMENTES OR LAST WILLES ARE to be made. The fourth part.
Of the formes of testaments.
§. j.

1 So manie seuerall formes of testamentes as there bee kindes.

2 Of testamentarie formes some be generall, some par­ticular.

3 The generall forme of testamentes is two-fold essen­tiall and accidentall.

HEere followeth the fourthe principall part of this testamē ­tary treatise: wherin I vndertook to shew how or in what ma­ner testamentes or laste willes maie or ought to be made.

For performaunce whereof I thought it cō ­uenient, first to deliuer certaine aduertisemēts, and then to proceede.

The † first aduertisement is this, that as there 1 be diuers kindes of testamentes or laste willes (wherof heretoforeSupr. 1. part. §§. 7, 8, 9, &c.) so there be diuers formes of testamentes or last willes: for euerie kinde hath his seuerall forme, and euerie kinde diffe­reth from an other by his formeL Iulianus §. si quis. ad exhibend. ff..

The † next aduertisement is this, that albeit 2 euerie particular kinde of testament haue his proper forme peculier to it selfeSupr. 1. part. §§. 7; 8. &c. & infr. ead. par. §. 22. cum reliq. vs (que) ad finem; neuerthelesse they haue also generall formes common to them allVt infr. eod. §. & §. p [...]ox..

Wherefore before I speake of those particu­lar formes, order requireth that I speake of the generall.

Of † which generall formes some doe respect 3 the substance or inward essence of the testamente, whereby that is made to be, which was notBar. & Ias. in L. ne­mo ff de leg. 1., and some doe respect the outward appeeraunce or proofe of the testament, whereby that is made to appeare, which otherwise though it were shold not seeme to beOlden. de actiō. class. 5. in prin. vbi tenet con­tra Bar. & alios, solen­nitatem testamenta­riam non esse de forma substantiali, s [...]u essen­tiali, sed de forma pro­batoria. Cu us opinio hand dubie vera est, vbi solennitas non est de necessitate eius­dem, vt hic in An­glia Conar in c. cùm esse [...]. de testa. extr. n 8. Minsing in §. sed cùm pa [...]latim. instit. [...]e t [...]a. o [...]din. n 4..

Of the generall substantiall forme of euerie Testament.
§. ij.

1 The essentiall forme common to euerie testament, is the naming of an executor.

2 What it is to appoint an executor.

3 The naming of an executor is said to be the head of the testament.

[Page 112] 4 The naming of an executor is also saide to bee the foundation of the testament.

5 No will properlie tearmed a testament, wherein no executor is named, albeit other legacies be left ther­in.

6 The effect of dying without or with an executor.

7 An occasion of further consideration concerning the making of an executor.

1 THe generall, † substantiall, or essen­tiall forme common to euerie te­stament, is the naming or appoin­ting of an executorL. 1. de haered. Instit. L. 1. de vulg. sub. L. hae­redes palam de testa. [...]nce obstat quod ius ciuile mentionem fa­ciat de haerede, non d executore. N [...]m exe­cutores quales passim constitutos videmus in Anglia, ex omni ferè parte conueni [...]e cum ijs, quos (nomen tant [...] ̄ si excipias) ciuile ius appellate haeredes cō ­pertum est, ita, vt exe­cutor huiusmodi [...] ­ritò vice haeres dici de­beat. Quinimo & legi­stae, & canonistae om­nes, illum pro haerede agnoscūt executorem, qui nullo allo instituto haerede deputatus est ad distribuendum bo­na defuncti in pios v­sus. Bar. in L. nulli. C. de episcopis & cler. Zas. in L. precibus de vulg. sub. Ripa. in L. filiosa de leg. 1. n. 21. ff. Pano [...]. & Couar. in c. cùm tibi de testa. ext. Lindw. in c. statutum de testa. lib. 3. prouincial. const. Cant. verb. prius. Mantic. de coniect. vlt. vol. lib. 4 tit. 1. n. 7., the which a­lone dooth make a testament, and without the which no will neither is, neither can be rightly tearmed a testamentL. quod per manus. de iu­re codicil. Bar. & Ias. in d. L. nemo de leg. 1. ff. Idipsum Ias. in Rub. de leg. 1. qua etiam in re conspirant iura huius regni, vt per Brook his verbis: Alias citatis, & nunc denuo citandis. Nota per lez doctors del ciuil ley, & seriants del commen ley, si home sait son testament & nosme nuls executors, ceo nest testament, &c. Et alibi per Plowd. sub hac verborum for­ma: Sans testamēt home ne serra executor. Brook tit. exec. n. 20. Plowd. in cas. inter. Gre [...]s­brook & Fox. fol. 276. b.. To † name or to appoint an executor, is to place one in the steede of the testator, who maie enter to the te­stators goods and cattels, and who hath action against the testators debters, and who maie dis­pose of the same goodes and cattelles, towards the paiment of the testators debtes, and perfor­maunce of his willSichard. in Rub. de haered. Instit C. Termes of lawe. verb. ex­ecut., which if he neglect to do, he maie be conuented by the said creditors, & legataries, so long as he hath assets in his handTermes of law. verb. exec. & latiùs infr. part. 6. §. 3..

This † naminge or appointinge of an execu­tor, 3 is said to be the head of the testament§. ante Instit. de lega.. And as the bodie is dead which lacketh a heade, so the testament is as it were dead, wherein no ex­ecutor is appointed§. imprimis. Instit. de fide [...]com. haered.: it is also said † to be the foū ­dation 4 of the testamentd. §. ante. Instit. de lega., wherefore as no buil­ding can stand without a foundation, so no te­stament can stande without the appointinge of an executord. L. quod per manus de iure codicil. ff. & DD. ibidem. Iul. Clar. §. testm̄. q. 5. n. 2., neither can be properlie named a testament. And † although neuer so manie le­gacies 5 or deuises be giuen, al those legacies and deuises notwithstanding such disposition maie be called a codicill, or a will, or otherwise tear­med, but certainelie a testament, it is not, nei­ther can be properlie so namedQuippe legata sunt accidentia quae adesse, & ab [...]sse possunt, sine subiecti (id est, testa­menti) interitu. Ias. in Rub. de leg. 1. ff. Vasq. de success. crea. §. xvij.: and therefore † he that made anie such disposition, shall bee 6 deemed to haue died without a testamentd. L. quod per ma­nus. de iure codicil. ff. Instit. de haered. quae ab intestat., and so the administration of his goodes to be com­mitted to the widdowe or next of kinne, as of one dying intestateStat. H. 8. an. 21. c. 5.: whereas on the contrarie, if an executor be appointed, suppose no other legacie be lefte nor deuise made, yet such dis­position both is and maie be lawfullie and pro­perlie said to be a testamentL. 1. §. qui neque de haered. Instit. ff., whether the same be solemne or vnsolemne, written or nuncupatiue, priuiledged or vnpriuiledged Supr. part. 1. §. x., and the person so disposinge is called a testatorStat. Westm. 2. c. 23. an. 13. Ed. 1. stat. Ed. 3. an. 4. c. 1. & an. 25 c. 5. stat. 4. Brook & Fitzh. Abridg tit. execut. & tit. testam. omnibus in locis cum sexcentis si­milibus clare constat, testatorem & executo­rem testamentarium relatiuorum naturam sape [...]e.: and in this case the ordinarie can not commit the admini­stration of the dead mans goods, as of one that died intestate; the executor being able and wil­ling, to vndertake the execution of the testa­ment [...]atr. part. 7. §. xix..

Seeing † therefore, the force and efficacie of 7 [Page 113] making of an executor is such, as without the which no will or disposition is, or deserueth to bee tearmed, a testament, and without the which the partie deceased shall bee deemed to haue died intestate, notwithstandinge the multitude of other legacies or deuises, and so administratiō of the goods to be committed as is aforesaid: It shal be therfore behooful to step a litle further into the consideratiō of this mat­ter, of making an executor, as the most excel­lent parte and foundation of euerie testament, and to shewe after howe manie sortes an exe­cutor maie bee madeInfr. §. prox., and what are the diffe­rent effectes of euerie seuerall sorte or manner of appointing an executorInfr. ead. part. §. 4..

After hovv manie sortes an Executor maie be made.
§. iij.

1 An executor maie be appointed simplie or conditi­onallie, from or vntill a time, directlie or indirect­lie, vniuersallie or particularlie, in the first degree, second, third, &c. and one alone maie be appointed executor or manie.

2 After how manie sorts an executor maie bee made, after so manie maie a legacie or deuise be giuen.

1 AN † executor maie be appointed af­ter diuers manners, especiallie after these following. First either sim­plie Infr. ead part. §. 4., or conditionallie Infr. ead. part. §. 5.. Secondlie ei­ther [Page] from a certaine time, or to a certaine time Infr. ead. part. §. 17.. Thirdlie either vniuersallie or particularlie Infr. ead. part. §. 18.. Fourthlie either in the first degree, or in the seconde degree, or in the third degree, or in the fourth, &c Infr. ead. part. §. 19.. & last of al either one maie be appointed sole ex­ecutor, or diuers maie be appointed executors togetherInfr. ead. part. §. 20., of which I meane to intreate seueral­lie. But by the waie I would haue the reader to obserue, that † as an executor maie be made di­uerslie, 2 so a legacie maie bee giuen or a deuise made accordinglie, that is to saie, simplie or cō ­ditionallie, from a time or for a time, vniuersal­lie or particularlie, in the first, second, or thirde degree, &c. and to one or manie, which or­der of semblaunce or imitation, if the diligent reader shall note (which thing is verie easie to be performed; for that which is said of the one maie also be said of the other, in euerie respect almost, sauinge where I haue noted the diffe­rence) hee shall reape two benefites in one rea­ding, and case me of double labour.

Of a pure or simple assignation of an Executor.
§. iiij.

1 The cheefe pointes considerable about the simple as­signation of an executor.

2 What is a pure or simple assignation of an execu­tor.

3 Diuers examples of a simple appointment of an ex­ecutor.

4 Whether is hee vnderstood to be made executor to whō the testator dooth giue all, or the residue of [Page 114] his goodes.

5 It is not alwaies needefull to expresse this word ex­ecutor, in making of an executor, namelie when the testators meaning is knowen.

6 Other examples of the former conclusion.

7 The generall legatarie is not alwaies vnderstood to be executor.

8 What if the words be indifferent either to make a te­stament or a codicill.

9 An executor maie bee made either by the proper motion of the testator, or at the interrogation of an other.

10 The testator must haue a firme purpose of makinge his testament, otherwise wordes are of no force.

11 It skilleth not of wordes, so that the meaninge ap­peare, neither in what part of the testament, the ex­ecutor be appointed.

12 Of the effect of a pure or simple nomination of an executor.

13 Certaine cases wherein the mention of a condition dooth not make disposition conditionall.

14 Whether impossible or vnhonest conditions doo make the disposition conditionall.

15 Whether necessarie conditions make the dispositi­on conditionall.

16 Conditions referred to that which is paste or pre­sent are not properlie conditions.

17 Conditions necessarilie vnderstoode doo not make the disposition condicionall.

18 The application of that which hath beene spoken of the assignation of an executor to a legacie or de­uise.

19 Certaine cases of the deuise of landes wherein the [Page] meaning of the deuisour is preferred before the pro­prietie of wordes.

20 The different effectes of a simple assignation of an executor and a simple legacie.

21 A legatarie maie not of his owne authoritie take his legacie, and what is the reason.

22 What remedie a legatarie hath for the obtaining of his legacie.

23 Certaine cases wherein the legtarie may of his own authoritie apprehend his legacie.

COncerning † the pure and simple 1 making of an executor, I thought good to remember these points, viz: what it is, in what forme of words it maie be made, what is the effecte thereof, & finallie how a simple nomination of an exe­cutor, and a simple legacie or deuise doo agree or dif­fer.

A † simple nomination or appointinge of an 2 executor is, whē the testator maketh his execu­tor without anie condition§. haeres. Instit de haered. Instit. & Min­sing. ibidem. Grass. Thesaur. com. op. §. le­gatum. q. 43. n. 2., as if the † testator 3 saie, I make A.B. my executor, or thus, I insti­tute A.B. my executor, or thus, I will that A.B. be my executor, or thus, I desire A.B. to bee my executor, or thus, A.B. shall be my executor, or thus, let A.B. be my executorL. quoniam indig­num. C. de testa. & DD. ibidem.: For the lawe re­gardeth not so much the wordes, as the mea­ning of the testatord. L. quoniam Man­tic. de coniect. vlt. vol. lib. 4. tit. 3. Grass. The­saur. com. op. §. Insti­tutio. q. 14.. And therefore if the te­stator saie, I commit all my goodes to the dis­position of A.B. it is in effect as if he say, I make [Page 115] him my executorCùm tibi de testa. extr. summa Rosella. verb. testm̄. §. j. vers. quibus verb.: So it is if the testator saie, I commit my soule and all my goodes to the handes or disposition of A.B.Io. de An. And. Bar­ba. in d. c. cùm tibi. Brook Abridd. tit. exe­cutor. n. 98. or I make A.B. LordL. his verbis. ff. de haer. Instit. of all my goodes: or I make my wife la­die of all my goodsBald. in d. L. his verb., or I leaue all my goodes to A.B.Gloss. Bar. & Bald. in d. L. his verbis. Grass. Thesaur. com. op. Insti­tutio. q. 14. quem velim videas. or I make A. B. legatarie of all my 4 goodesMantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 8. Bald. in L. id quod pau­peribus. C. de episcopis & cler. n. 1. verb. con­trarium.: Or I leaue † the residue of all my goodes to A.B.Panor. in c. Ranu­tius de testa. ext. n. 3. for in those cases he to whom all or the residue is bequeathed, is thereby vn­derstood to be made executorRationem assignat Panor. in d. c. Ranutius Quia (inquit) iuris im­periti nesciunt aptiùs loqui.. And this I sup­pose to bee true when it dooth sufficientlie ap­peare by other meanes also, to be the meaning of the testator not to die intestate, but that he to whō all or the residue is bequeathed, shold im­mediatelie by vertue of the will, enter to all the 5 testators goods, and (paying his debts and lega­cies) retaine the residue to himselfeQuo c [...], nihil reor interesse, n [...]é testamé­tum solenne, vel non solemne. Nam quod quidam volunt verbum (relinquere) adiectum vniuersitati bonorum: in voluntate minus so­lenni importare sidei­commissum, non insti­tutionem, actumque valere iure codicillorū donationísue causa mortis non testamenti (vt in apostil. ad Panor. in d. c. Ranutius.) ita est intelligendum, quando testamentum aliàs non valeret. Bald. L. epistola. C. de fideicom. n. 4. Sichard. in L. sin. C. de codicil. n. 4. Couar. in d. c. Ranutius. §. j. n. 3.. For † it is not alwaies necessarie to expresse this worde (Executor) in making of an executorc. cùm tibi de testa. extr. Brook. tit. exec. n. 98., neither hath euerie testator skill so to dooPanor. in. d. c. Ranutius. n. 3., wherefore it is sufficient if the testators meaning doo ap­peare by other words of like sence or purposeL. quoniam indignū. C. de testa. Mantic. de coniect. vlt. vol. lib. 4. tit. 3.. 6 And † hence it is that if the testator write after this manner: In all my goods mooueable and immo­ueable, I make A.B. though the testator doo not adde executor, yet it is to be vnderstoode, and supplied, and so is in effect as if the testator had said, In all my goodes mooueable and vnmooueable, I make A.B. my executorPaul. Castrens. & alij in L. errore. C. de testa. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 5.. Hence also is it that [Page] if the testator saie, I will that A.B. be my execu­tor, if C.D. will not: In this case C.D. is pre­sumed to be appointed executor: and maie if he will be admitted to the executor-ship, and exclude the other executorIul. Clar. §. testm̄. q. 35 n. 2.. Likewise if the executor supposing his childe, brother, or kins­man, to be dead, do saie in his will; for as much as my childe, brother, or kinse-man is deade, I make A.B. my executor: in this case if the child or other person whom the testator supposed to be deade, bee aliue: hee that is named execu­tor shall not be admitted to the executorship, but the child, brother or kinse-man, whom the testator thought to haue been deadSichard. in Rub. de haered. Insti. C. n. 3., for that it is presumed to haue beene the meaning of the testator, to haue made that childe, brother or kinse-man, his executor, if he had thought him to haue beene liuinge, and not the partie na­medSichard. vbi supr. ꝑ L. fim̄r. C. de in of. Testa. Alex. consil. 185. lib. 2..

But † if on the contrarie, it doo appeare to be 7 the testators meaning, not to make him execu­tor to whom he dooth bequeath his goodes, as when the testator hauinge bequeathed his goodes to one person, dooth expreslie name an other to be his executorBar. in L. his verbis: de haered. Instit. ff. cu­ius opinio communi­ter approbatur, ait Grass. Thesaur. com. op §. Institutio. q. 14. Berous in c. Ranutius de testa. extr. n. 20., or if he to whom all is bequeathed, be vnableInstit. de haered. quae ab intestat. in princ. to execute the te­stament, or if the testator bequeath the residue of his goodes, the debtes dischargedImol. in d. c. Ranutius n. 8. Berous ibi. 37. quae opinio communis est, teste Grass. d. §. Instit. q. 14. n. 6.: In these cases the vniuersal legatarie dooth still remaine legatarie, and is to receiue his legacie, at the hands of the executor, or administrator.

If the † wordes be indifferent either to make 8 an executor or an vniuersall legatarie; a testa­ment [Page 116] or a codicillDefunctꝰ quādo cen­sendus est voluisse co­dicillari, vel testari. Pulchrè Bald. in L. filij. C. familiae Herciscund. sed pleniùs Mantic. de coniect. vlt. vol. lib. 2. tit. 3., and no circumstances to or fro, to maintaine the one rather then the other, either else the circumstances being indifferent: although in this case the iudge ought rather to pronounce the deceased to haue made a testa­ment, then a codicill, and to haue lefte an ex­ecutor rather then to haue died intestate, in re­spect of the ciuill and ecclesiasticall lawesLegistae. in L. verbis ciuilibus. de vulg. sub. ff. Canonistae. in c. cùm tibi, de testa. extr. Man­tic. de coniect. vlt. vol. lib. 2. tit. 3. n. 12.: Yet in regarde of the statute, it is more safe to cōmit the administratiō to the widdow or the next of kin demanding the same, for feare of forfeiture of tenne poundsStat. H. 8. an. 21. c 5., least peraduenture the iudge before whom the penaltie is to be demaunded shall deeme the partie to haue died intestate.

9 Furthermore † the testator maie lawfullie make his executor not onelie of his owne ac­corde without interrogation, but also at the in­treatie or request of an other (except in certaine cases else where declaredSupr. part. 2. §, xxvj.,) and that not onelie by the wordes aforesaid, but by others of like effectMantic. de coniect. vlt. vol. lib. 4. tit. 3.. And therfore if the testator beeing de­maunded by an other, whether he doe make A. B. his executor, doo answere yea, or I doo, or what else, or why not, or whom else shoulde I make executor, or I cannot denie; this is a pure and a simple assignation of an executorRipa. Alcia. Zasius & alij Doctores. in L. 1. §. si quis ita. de verb. ob. ff. Clar. §. testm̄. q. 37..

10 Prouided † alwaies in all the cases afore­said, and in euerie other like case, that the testa­tor haue a firme & constant purpose and mea­ning to make his will, when hee vttereth anie such wordsMantic. de coniect. vlt. vol. lib. 4. tit. 4. in prin. supr. 1. part. §. iij. verb. sententia., for otherwise if the testator haue no meaning to make his will, although he vsed the most plaine wordes that might be deuised, [Page] for the making of an executor, yet (as I saide ere while) it were no more a testamente or a will, then a painted lion is a lionSupr. part. 1. §. 3. n. 25, for the pur­pose and meaning of the testator is the life and soule (as I maie tearme it) of the testamente, without the which the testators wordes are but winde: if that doo not appeare, suche onelie words shal not be admitted for a willL. diuus L. Lucius. ff. de mil. testa. § plane. Instit. de mil. testa. Mantic. de coniect. vlt. vol. lib. 2. tit. 4., for what if the testator saie in ieaste, I make thee my exe­cutor? what if he said so for fear? what if he were ouercome with drink? therfore it is not inough to prooue the testators wordes, vnlesse it bee prooued that the testator had animum testandi: which how it is proued, is else where declaredInfr. 1. part. §. xiij..

Note also that as it skilleth not by what 11 wordes the executor is appointed, so † it is not material in what part of the testament he be ap­pointed, whether in the beginninge or in the middest, or ending§. ante Instit. de lega Grass. Thesaur. com. op. §. Institutio. q. 1..

The † effect of a pure and simple assignation 12 of an executor is this, that the executor maie immediatelie after the death of the testator vndertake the executorshippe, and enter vpon the testators goodes and cattellesWesemb. in tit. de ac­quir. haered. ff. & in tit. de haered. Instit. Et hoc verum est, etiam ante probationem testamēti Plowd. lib. 1. in cas. inter Greisbrook & Fox. Cagnol. in L. si precibꝰ C. de impub. & alijs. sub. n. 276. 277. 278.: whereas on the contrarie, the effect of a conditionall as­signation, dooth suspend his admission and ex­ecution of the testament, as afterward more ful­lie dooth appeareInfr. ead. part. §. 6. 7..

And † there note that if the testator say, I make A. 13 B. my executor according to the cōditions afterwards expressed, if the testator afterwardes expresse no conditions, it is in effecte as if the testator had made him his executor simplieL. pen. C. de Instit. & sub.. And so hee [Page 117] maie enter vpon the testators goodes present­lie after his death, for the testator in not expres­sing anie conditions, is presumed to haue alte­red and reuoked his purpose concerninge the adding of conditionsDD. in d. L. Pe [...]., and consequentlie that he would haue the appointment of the execu­tor to be pure and simple: howbeit if the testa­tor making his executor vpon conditions, to be then expressed afterwardes, in the meane time, whiles he is in making his will, be sodain­lie preuented by death, or insanitie of minde, that he can not expresse those conditions, ac­cording to his purpose and determination: In this case the assignation is voide, and he which is so appointed executor is not to be admitted to the executorshipL. si quis destinaue­rat. aliàs, si is qui. ff. de testam. Paul. de Castr. in L. iubemus. C. de testa. & latiùs infr. part. 7. §. 12.. Likewise if the testator doo make his executor after this maner: I make A.B. my executor if I shall expresse anie condi­tions, in this case no conditions beeing expres­sed, he that is so appointed ought not to be ad­mittedDec. & alij. in d. L. Pen. C. de Instit. & sub.

14 It is † also to be noted, that, that assignation of an executor is in effect pure & simple, where the condition is impossible or vnhonest, for such conditions are reputed as not written but omitted§. Impossibilis. Instit. de haered. instituend. L. obtinuit. de cond. & demon. L. conditiones. de condic. Instit. ff., and so the executor without accom­plishment of anie such condition, is forth with to be admitted to the executorship, excepte in some cases, as hereafter is declaredInfr. ead. part. §. 6. 7..

15 Furthermore † when it is certaine, that the condition will necessarilie followe or bee ex­tant; the appointmente of the executor made vnder such condition, is reputed pure and sim­ple, [Page] as if the testator make A.B. his executor if the sunne shall rise the next daieL si pupillus. §. sub conditione. ff. de no­uac. Alex. consil. 59. n. 14. vol. 4.: vnlesse the time when the condition will be extant, be vn­certaine, as I make A.B. my executor if my sonne shall die, for though it be most certaine that he will die: yet nothing is more vncertaine then the time when, and therefore the assigna­tion is in effect conditionallSichard. in Rub. de condic. Instit. C. & fusi­ùs. infr. ead. part. §. 17. & part. 7. §. 23..

And the like maie be said, † when the condi­tion 16 is referred to that which is paste or pre­sent, as if the testator saie, I make A.B. my execu­tor, if he be bachelar of the ciuill lawe, or if hee haue beene student in the vniuersitie of Ox­forde, for this kinde of condition, is not pro­perlie a conditionL. si ita stipulatus. ff. de verb. ob. Bar. in L 1. de cond. & demon. ff., but rather a finall cause, wherefore the testator made his executorIas. in L. stichum. de leg. 1. ff.. And although the testator be vncertaine whe­ther the executor be bachelar of lawe, or haue beene student, yet it is certaine in respect of the facte it selfe: and is either true or false at that instant when it is made, and so the conditi­on worketh no delaie or suspension, but is ei­ther a good or void assignatiō at that momentDD. in d. L. si ita stipulatus..

Finallie † that assignation of an executor is 17 pure and simple, when that condition is expres­sed which is necessarilie vnderstoodeL. haec verba de leg. 1. ff. L. conditiones. de cond. & demon. ff. as if the testator saide, I make A.B. my executor if the lawe willMantic. de coniect. vlt. vol., or if he will vndertake the executor­shipGrass. Thesaur. com. op. §. legatum. q. 47..

That † which hath beene spoken of the ma­king 18 of an executor (accordinge to my former aduertisementes) maie easilie bee applied to a legacie, mutatis mutandis: wherefore as that no­mination [Page 118] or assignation of an executor is pure and simple which is made without condition, so that legacie is pure and sure which is giuen without condition.

Secondlie, by the like application it maie ap­peare, that it is not materiall in what forme of wordes a legacie be bequeathed, so that the te­stators meaning doo appeare: which meaning is to be preferred before the proprietie of wor­des§. nostra. Instit. de lega., and that not onelie concerninge goodes and cattelles, but also concerning lands and te­nementes, for further declaration whereof I haue added these examples following which I haue borrowed out of a little booke called the tearmes of laweVerb. deuise..

19 ‘First † therfore if a man doo by his will deuise to A.B. all his landes and tenementes: In this case not onelie all his landes and tenementes, which the testator hath in possession doo passe, but those also which hee hath in reuersion by vertue of this word tenements.’

‘Item if landes be deuised to a man to haue to him for euermore, or to haue to him, and his assignes: in these two cases the deuise shall haue a fee-simple, wheras if it be giuen by feoffemēt in such tearmes, the feoffee hath but an estate for his life, for a deuise made without expresse wordes of heires is good euen in fee-simple.’

‘Item if a man deuise his lande to an other to giue or sell, or doo therewith at his pleasure, & will this in fee-simple.’

‘Item a deuise made to one and to his heires, males, dooth make an estate in taile, but if suche [Page] wordes be put in deede of feoffement it shall be taken in fee-simple, because it dooth not ap­peare of what bodie the heires males shall bee begotten.’

‘Item if landes be giuen by deede to A.B. and to the heires males of his bodie, who hath issue a daughter, which daughter hath issue a sonne, and dieth, there the lande shall returne to the donor, and the sonne of the daughter shall not haue it: because he cannot conueighe himselfe by heires males, or his mother is a let thereun­to. But otherwise it is of suche a deuise giuen by will, for there the sonne of the daughter shal haue it, rather then the will shall be voide.’

‘Item if one deuise to an infante in his mo­thers wombe it is a good deuise, though such a feoffement, graunt or gift be voide.’

‘Item if one will that his sonne shall haue his lande after the death of his wife, heere the wife of the deuisour shall haue the lande firste, for tearme of her life. So likewise if a man deuise his goodes to his wife, and that after the de­cease of his wife, his sonne and heire shall haue the house where the goodes are, there the son shall not haue the house during the life of the wife: for it is presumed that his intente was, that his wife shoulde haue the house also for tearme of hir life, notwithstanding it were not deuised vnto her by expresse wordes.’

‘Item if a deuise of land be made to A.B. and to his heires males of his bodie begotten. After the deuise hath issue a sonne and a daughter, and dieth, heere the daughter shall haue the [Page 119] lande, and not the sonne; howsoeuer he bee the more worthie person, and heire to his father, but because the will of the deade person is that the daughter shall haue it: therefore lawe and equitie would that it should so be.’

Thirdlie it maie appeare by that which hath beene saide of an executor, that the legacie is voide where the testator hath not animum te­standi Infr. part. 7. § 13..

Fourthlie that there bee diuers conditi­ons, which doe not make die legacie conditio­nallInfr. §. 5. 6..

20 Lastlie † concerning the effect of the one & the other, albeit otherwise the appointinge of an executor, and the bequeathing of a legacie doo agree in diuers thinges: yet in this they do differ greatlie. That is to saie, an executor sim­plie instituted, maie as soone as the testator is deade, enter to the goodes and cattelles of the 21 deceasedL. cùm haeraedes. ff. de acquirend. poss. Bar. in L. ex facto. ff. de haered. instituend. Cagnol. in L. precibus. C. de imp. & alio. subst. n. 276.: But † a legatarie or deuisee maie not of his owne authoritie take the legacie, & serue himselfe, but muste receiue the same at the handes of the executorL. 1. quorum lega. ff. L. non dubium. C. de lega. Perkins. tit. testa­ment. c. 7. fol. 94. Brook. tit. deuise. n. 3.: the reason is for that the executor is charged with the pai­ment of all the testators debtes, so farre as the goodes and cattelles will extend, and the lega­cies are not to be paide but of the residue, if a­nie 22 thing remainePerkins vbi supr. & in tit. deuises. (vbi etiā tradit aliam cautelam, sed parum honestam frustrandi legata & fraudandi testatorem.) Aliam rationem assig­natius ciuile; nempe, ob detractionem falci­diae, quae ratio quàm sit apud nos debilis, facile est conijcere, quandoquidem nullu [...] est falcidiae locus infra regni nostri limites.. And † the legatarie hath no remedie by the common lawes of this lande, for anie legacie of goodes to him bequeathed, if the executor will not deliuer the same: But it behooueth the legatarie in this case to take a citation against the executor of the testamente, [Page] to appeare before the ordinarie or other eccle­siasticall iudge competent to answer him in a cause of legacieTract. de repub. Angl. lib. 3. c. 9. Fitzh. Na. Br. breui de consultatione Brook. tit. deuise. n. 3. 27. 44. Plowd. in c [...]s, in­ter Paramor & Yard. Termes of law. verb. deuise.. Notwithstandinge † in some 23 cases the legatarie may be lawfullie possessed of his owne legacie, without deliuerie thereof to be made by the executor, for if there be suffici­ent goodes and cattelles in the handes of the executor, to paie all the testators debtes and le­gacies, & the legatarie is possessed of the thinge bequethed, at the time of the death of the testa­tor: in this case the legatarie doubtlesse by the ciuill lawe maie still retaine the same in his own handesSocin. consil. 11. vol. 1. Ripa in. L. 1. ff. quorū lega. n. 15. Olden. de ac­tion. clas. 2. act. 2. fol. 113.: Neither is he to deliuer the same to the executor, and afterwardes to receiue the same againe at his handsc. dolo. de reg. iur. 6.. Likewise if the testa­tor giue licence to the legatarie, to enter to his legacie: In this case the legatarie maie without the priuitie or consent of the executor take his legacie and keepe the same, so that there be suf­ficient besides to discharge the testators debtsIas in L. non dubiū. C. de lega.. Peraduenture also in case of such sufficiencie of goods, a certain special thing being bequeathed (as the testators riding horse, his bookes, or his signet) though an other person then the execu­tor detain the same, the legatarie maie as wel by the laws of this realmeBrook Abridg. tit. de­uise. n. 6. 30., as by the ciuill laweSichard. in L. 3. C. de lega. n. 16., commence sute against: the occupier therof and recouer the same legacieRatio est quia domi­nium rei legatae statim post mortem testatoris transit in legatarium, etiam nondum facta traditione. gloss. & DD. in §. in nostra In­stit. de lega. & in L. à Titio. ff. de fur., vnlesse this third per­sō were able to iustify his possessiō, euen against the executor or against the testator himselfe if he were liuing: for that is a lawfull barre or ex­ception against the legatarie alsoL. si rem legatum. ff de excep & praeiudic.. But if there bee not sufficient goodes to paie the testators [Page 120] debtes, or if the legacie consiste in quantitie or be generall, (as if the testator bequeath twen­tie poundes or a horse) the legatarie can not of his owne authoritie take so much of the testa­tors monie, nor anie horse which was the testa­tors without licence giuen by the testator or permission of the executorBrook. tit. deuise. n. [...]. & n. 30., nor maie bring a­nie action against anie thirde person for the same legacie, albeit he possesse all the testators goodesQuod autem diximꝰ iure ciuili triplicem concedi actionem le­gatario, ꝓ consequédo legato, procedit specie relictâ, sed si quantitas, vel genus relinquatur, non competit rei ven­dicatio. Bar. in L. [...]. ff. de leg. 1. Sichard. in I. nō dubium. C. de lega. nisi fortè quantitas, nō vt quantitas, sed vt cor­pus relinquatur, vel ni­si genere relicto, facta sit electio debita, tunc enim idem iuris est, ipsòque iure transit rei dominium, ac si legata fuit species. Angel. Are. & alij. in d. §. mr̄a. Instit. de lega. vide supra part. 1. §. 6. in fin. & quae ibidem adnotantur.. Finallie if the legatarie bee also ex­ecutor, then maie he if he will as legatarie accept the sameSichard. in L. non dubium. C. de lega. n. 13.. But what if it doo not appeare whe­ther he did accept the same as legatary or as executor, whether is it presumed that hee did ac­cept the same as executor or as legatarie, this question is else where absolued.

Of a conditionall assignation of an executor.
§. v.

1 The cheefe pointes considerable about the conditio­nall assignation of an executor.

2 When the assignation of the executor is condutio­nall.

3 By what wordes the disposition is made conditio­nall.

4 Of conditions some be necessarie, some impossible, some indifferent or possible.

5 What conditions be necessarie.

6 Two sortes of necessarie conditions.

7 Of impossible conditions there be diuers kindes.

8 Impossible by nature.

[Page] 9 Impossible by lawe.

10 Impossible in respect of some persons.

11 Impossible by reason of contrarietie or perplexi­tie.

12 Possible conditions are those which are indifferent betwixt necessarie and impossible.

13 Of possible conditions, some be arbitrarie some ca­suall, some mixt.

14 Item of possible conditions, some consiste in chan­cing, some in dooing, some in giuing.

15 Of conditions some are affirmatiue, and some ne­gatiue.

COncerninge a † conditionall assig­nation 1 or nomination of an execu­tor, I thought good to deliuer first, what it is Eod. § n. 2. secondlie what manner of wordes doo make the disposition to be conditionall Infr. n. 3., thirdlie how manie kindes of conditi­ons there be Infr. n. 4. fourthlie what is the effect of a condi­cionall assignation of an executor Infr. ead. part. §. 6., fiftlie I haue examined certaine questions, not impetinent hereuntoInfr. ead. part. §. 7. §. 8. § 9. cum sequé. vs (que) ad §. 16..

The assignation † of an executor is conditi­onall, 2 when the testator dooth not make his ex­ecutor simplie, but dooth adde some qualitie to the assignation, wherby the effect of the dis­position is suspended or hindred, and depen­deth vpon some future euentSichard. in Rub. de Instit. & sub. C. n. 1. Grass. Thesaur. com. op. §. legatum. q. 46., as for example, the testator maketh A.B. his executor, if his ship shall returne from Venice.

3 Diuers † words there be wherby the dispositiō of the testator is made cōditionall. First & prin­cipallie, by this word (If) Bar. in L. 1. de cond. & de [...]n. ff. Mantic. de coniect. vlt. vol. lib. 10. tit. 5., as in the former exā ­ple, by this worde also (when) the disposition is sometimes made conditionall, namelie when it is ioined to a verbe of the future tense: as I make A.B. my executor, or giue him a hundred poūd when he shall bee of the age of twentie one yeeresSichard in Rub. de Instit. & sub. C. n. 4., or when he shall bee marriedBar. in d. L. 1. de cōd. & demon. ff. n. 8. 9. & Paul. de Castr. in eand. L. Vasq. de succes. pro­gres. lib. 3. §. 29. n. 3. in fin.. Some­times by this worde (whiles:) as I make my wife executrix, or giue her a hundred pound, whiles she shall abide with my children: for it is in ef­fect as though the testator had said, if she abideSichard. in d. Rub. Bar. in L. si. Titio. ff. quādo dies lega. cedit.. Also these wordes (when so euer, where so euer) the disposition is made conditionallL. si ita scriptum. §. fin. de leg. 2. ff. Sichard vbi supra.: sometimes also by these wordes (which, what person, whosoe­uer:) as I make him my executor, or giue him a hūdred poūd which shal marie my daughterSichard. in d. Rub. n. 4.: sometimes the ablatiue case absolute, dooth infer a condition, as (my sonne being deade) I make A.B. my executorRipa. in L. centurio. ff. de vulg. & pupil. sub n. 160. 161. in which case not onelie A. B. is assigned conditionallie, that is to saie, if the testators sonne be deade, but also the testators sonne if he be liuing, is presumed to bee assig­ned, during his lifeRipa. vbi supr. Alex. consil. 185. lib. 2.. Diuers other words there bee whereby the disposition is made conditio­nall, wherein Bartolus Bar. in L. 1. de cond. & demon. ff. hath not onelie taken great paines, but hath also beene at some coste (as it should seeme) in making a great feaste, marshalling togeather all such nowns, pro­nownes, verbs, &c, which make the dispositi­on conditional, to whom I referre the reader to be satisfied.

Manifolde † are the diuisions of conditi­onsVide Sichard. in Rub. de Instit. & sub. C. à quo multifariam diui­ditur conditio, 1. in ta­citum & expressum, quarum deinde vtra (que) species in tres species subdiuiditur. Tacita nimirum (ait) ex dispo­sitione vel naturae, vel iuris, vel testatoris sub­oritur: expressa autem aut est necessaria, aut impossibilis, aut indif­ferens, seu possibilis. Et harum rursus quae­libet species multiplex, quas ego species in hoc §. explicaui., 4 but the plainest and fittest for this treatise, I suppose to be this, viz. Of conditions some be necessarie, some impossible, some possible Sichard. in d. Rub. or indif­ferent.

Of necessarie † conditions some maie bee so 5 tearmed in respect of facte, some in respecte of law Bar. in L. 1. de cond. & demon. ff. Mantic. de coniect. vlt. vol. lib. 10. tit. 5.. By necessarie conditions in respecte of facte I vnderstande those conditions, whereof there is a certaine and infallible naturall cause, by force whereof the condition must necessari­lie followe: as if the testator make A.B. his ex­ecutor, or giue him a hundred pound if the sun shall rise the next daiePaul. de Castr. in L. si pupillus. §. sub cond. ff. de Nouac. Alex. cōsil. 59. n. 14. vol. 4. Sichard. vbi supra.. Of † this kinde of neces­sarie 6 conditions there be two sortesTu si placeat (Iu­stinianista) videas Bald. in d. L. si pupillos. §. qui sub cond. vbi post gloss. ponit tria exēpla necessariae conditionis; vnum necessitatis fu­t [...]rae secundum natu­ram, veluti si moriar: a­liud necessitatis futurae secundum fidem catholicam, vt si Antichri­stus natus fuerit: tertiū necessitatis praesentis, veluti si non tetigero caelum digito., some are certaine in euerie naturall respecte, that is to saie, it is not onelie certaine that the condition will follow, but also when, as in the former ex­ample of the risinge of the sunne: and some a­gaine are certaine but not in euerie respecte: As when the testator maketh A.B. his executor if his sonne shal die, or when his sonne shal die; for albeit, it bee certaine that euerie man must die, yet when, where, or how, it is vncertaineSichard. in d. Rub. de Instit. & sub. C.. By necessarie conditions so tearmed in respect of law, I vnderstande all such conditions, which the lawe requireth in euerie acte, albeit the same were not expressed, as for example, the testator saith, I make A.B. my executor, if hee will intermeddle therewithGrass. Thesaur com. op. §. legatum. q. 47., or I giue A. B. a hundred pound, if he willL. haec verba. de leg. 1. ff.. This kinde of ne­cessarie [Page 122] condition is sometimes expressed by the testator and sometimes not expressedDD. in d. L. ch [...] verba..

7 Of † impossible conditions there bee foure 8 sortesSichard in d. Rub. de Instit. & sub. C. cui adde Zasium in L. impossibi­lis. de verb. ob. st.; in the first sorte † are contained those whereunto nature is an impediment: for exam­ple, the testator maketh A.B. his executor, or gi­ueth him a hundred pounde if hee touche the skies with his finger: or if hee drinke vp all the 9 water in the sea§. impossibilis. Instit. de haer. instituend. & Minsing. ibid. L. impos­sibilis. ff. de verb. ob. & Bar. ac alij ibid.. In † the second sorte are con­tained those conditions which bee contrarie to lawe or good maners, as for example, the testator maketh A.B. his executor, or giueth him a hun­dred pound if he murther such a man, or de­flower such a womanMinsing. in d. §. im­possibilis. & DD in d. L. impossibilis.: this condition is vn­lawfull and vnhonest, and consequentlie to be deemed impossible: For the lawe would haue vs to thinke euerie thing impossible to be don, which is vnlawfull to be doneL. si filius. ff. de cond. Instituc.: heere vppon it is saide, id possumus quod de iure possumus, as if euerie thing vnlawfull were also impossibleDD. in d. L. si filius.. 10 In † the thirde sorte are contained these condi­tiōs, which albeit they are not otherwise vtterly impossible in respect of nature or of law, yet in respect of the person are so harde, that they seeme impossible: as if the testator make A.B. his exe­cutor if hee shall marie the kinges daughter, he 11 being but a base subiecteSichard. in d. Rub. de Instit. & sub. C. Minsin. in d. §. impossibilis. Zas. in d. L. impossibilis. ff. de verb. ob.. In † the fourth sorte are contained those conditions which by rea­son of contrarietie or repugnant perplexitie be im­possible, or incompatibleL. si Titius. ff. de con. Instit., as if the testator say if my sonne be executor, I make my daughter my onelie executrix, & if my daughter be execu­trix I wil that my sonne be sole executord. L. si Titius. Minsin. in d. §. impossibilis..

Possible † conditions are those which are as it were in the middest betwixte necessarie and 12 impossible conditions, and which are indiffe­rent either to be, or not to beSichard. in Rub. de Inst. & sub. C. n. 9.. Of † possible cō ­ditions some are tearmed casuall, some arbitrary, 13 and some are said to be mixt conditionsL. vnic. §. sin autem. C. de cad. tol. Bar. in [...] L. 1. de Instit. & sub. C. Mantic. de coniect. vlt. vol. lib. 10. tit. 5. n. 3. Wesenb. in tit. de cond. Instit ff.. Casu­all cōditions are those wherof the euent is vn­certain, in respect of humane knowledgeSpiegel. Lexic. verb. fortuitum.: as for example the testator doth make A.B. his execu­tor, or giue him a hundred pound, if the king of Spaine die this yeereMinsing. in §. pen. In­stit. de haered. instit.. Arbitrarie conditions are those which the lawe esteemeth to bee in his power, on whom the condition is imposedSichard. in d. Rub. Vigl. & Minsing. in §. pen. de haered. instit.: as for example, the testator maketh A.B. his execu­tor, or giueth him a hundred pound, if he shall goe to the churchIas. in L. si filius à pa­tre. ff. de lib. & posthu. n. 1.. Mixt conditions are those which are partlie abitrarie and partlie casuallBar. in L. 1. de Instit. & sub. C., or partlie in his power on whom the conditi­on is imposed, and partly in the power of some other: as for example, the testator maketh A.B. his executor or giueth him a hundred pound, if he marie the testators daughter. Furthermore † of possible conditions some consiste in chaun­cing, some in giuing, and some in dooing L. in facto ff. de cond. & demon.. Final­lie 14 † of conditions some be affirmatiue, some ne­gatiue d. L. in facto., the vse of all which distinctions dooth 15 hereafter ensueInfr. ead. part. §. pr [...]x cum sequen. vsque ad §. 16..

Of the effect of a conditionall dispo­sition.
§. vj.

1 Diuers and contrarie effects of conditions.

[Page 123] 2 Two rules whereof the former is, that necessarie and impossible conditions doo not suspend the effecte of the disposition.

3 Examples of this former rule.

4 The second rule is, that possible conditions doe su­spend the effect of the disposition.

5 Example of the same rule.

6 Conditions partelie certaine, and partlie vncertain, doo suspend the effect of the disposition.

7 Necessarie conditions beeinge otherwise expressed then vnderstood, suspend the effect of the dispositi­on.

8 Impossible conditions which the testator supposed to be possible, doo suspend the effect of the dispositi­on.

9 Diuers restraintes of this laste position beeinge the fourth limitation of the former rule.

10 Verie hard conditions or almost impossible, doo suspend the effect of the disposition.

11 A restraint of this last position beeing the fifte li­mitation.

12 Impossible conditions negatiuelie conceiued, are not voide themselues, but make voide the dispositi­on.

13 A restraint of this last conclusion being the sixt li­mitation.

14 Conditions which become impossible being at the first possible, doo hinder the effecte of the dispositi­on.

15 A restraint of this conclusion being the seuenth li­mitation of the former rule.

16 The condition which is both impossible and vn­honest maketh void the disposition.

[Page] 17 Conditiōs which be impossible by reason of repug­nancie, make voide the disposition.

18 A restraint of this last limitation.

19 Possible conditions doo suspend the effect of the dis­position vntill they be accomplished.

20 Diuers limitations of this position being the secōd rule.

21 A further consideration of the former conclusions together with other questions.

THe † manifolde diuersitie of conditi­ons 1 breedeth many sundrie and con­trarie effectes. For sometimes hee that is appointed executor conditi­onallie, or to whom anie legacie is giuen con­ditionallie, is not to be admitted to the execu­torshippe, nor can effectuallie demaund the le­gacie, vntill the condition bee accomplished. And againe, sometimes hee that is named exe­cutor, or to whom anie thinge is bequeathed vpon condition, maie presentlie be admitted to the executorshippe, or demaunde the legacie, though the condition be not yet accomplished, or as though no condition at all were expres­sed.

Wherefore that we maie knowe, when the condition is to bee firste accomplished, before the executor can be admitted, or the legatarie demaund his legacie; and contrarie wise when the executor maie be admitted, or the legatarie make his demaund before the accomplishment [Page 124] of the conditiō; I thought good to deliuer two rules with their limitations.

2 The † former rule is this, that when the con­dition is extreame, that is to saie, either necessarie or impossible, such condition hindereth not the executor nor legatarie, but that he maie be admitted to the exe­cutorship or recouer the legacie, as if such had not 3 beene at all expressed L. si pupillus. §. qui sub conditione de No­uac. L. nā etsi. L. quod si ea. de cond. indeb. L. Iulianus de iure. de lib L. haeres meus. de cond. & demō. L. 1. L. conditi­ones. L. filius. L. q̄dam. L. mulier. de condic. Instituc. ff. L. repraehē ­denda. de Instit. & sub. C. §. impossibilis. Inst. de haered. inst.: for example, † the testa­tor dooth make thee his executor, or dooth giue thee a hundred pounde if the sunne shall arise vpon Easter daiePaul. de Castr. in d. L. si pupillus. §. qui sub condic. Sichar. in Rub. de Instit. & sub. C. n. 7.: Or if the testator dooth make thee his executor, or giueth thee a hun­dred pound if thou shalt drinke vp all the wa­ter in the seaMinsing in §. impos­sibilis. Instit. de haered. instit.; bothe these conditions are ex­treame, the one necessary, the other impossible: and therefore in these two cases thou maiest be admitted executor, or obtaine the legacie, as if the disposition had beene simple or without a­nie such conditionPer LL. supradictas..

4 The † second rule is this, that when the condi­tion is not extreame, but indifferent or possible, then the same condition must first be satisfied before the ex­ecutor can be admitted, or the legatarie recouer his le­gacie L. qui haeredi. de cōd. & demon. L. si quis sub conditione. si quis o­mis. cā. Testa. L. cede­re diem. de verb. sig. ff. Grass: com. op. §. e­gatum. q. 52. Simo de Praetis. de interp. vlt. vol lib. 5. interp. 2. dub. 2. fol. 66. n. 109.. 5 For † example, the testator dooth make thee his executor, or dooth giue thee a hun­dred pound if his ship shal returne from Venice; this condition is indifferent, neither necessarie nor impossible. In the meane time therefore vntill the same condition be extant, thou canst neither be executor nor obtaine the legacie by force of that dispositiond L. qui haered. & ibii gloss. Bar. & alij..Minsing. in §. haeres. Instit. de haered. instit. To returne to the former rule the same is diuerslie limitted or restrained.

The first limitation thereof may be this, that albeit † that condition which by course of na­ture 6 must needes followe, is accompted as it were alreadie accomplished by reason of the infallible certaintie, yet when the condition is not in euery respect certain, but certaine & vn­certain in diuers respects: as for example, the te­stator maketh A.B. his executor, or giueth him a hundreth pounde if or when his sonne shall dienihil interesse vtrū testator dixerit si mo­rietur, vel cùm morie­tur prius per Bar. Ca­strens. & Alex in L. ex­traneum. el. 1. C. de hae­red. instit. quorum opi­nio communis est, ait Alex. in d. L. extranaeū. licet secus sit in con­tractibus.: howsoeuer this condition be certaine in respect of death, because it is not certaine in re­spect of the time of his death, therefore in the meane time the executor or legatarie, where there is suche a condition can not obtaine the executorshippe or legacie, but must expect the euent of the conditionPaul. de Castr. & Ias. in d. L. extraneum. Si­chard. in d. Rub. de In­stit, & sub. C..

An other † limitation to the former rule is 7 this, although the disposition bee not made conditionall by expressing of that condition, which by the lawe is necessarilie vnderstoodL. haec verba. ff. de leg. 1.: Neuerthelesse, if the condition be expressed in other manner then is vnderstood, the dispositi­on is thereby made conditionallL. si ita. §. illi. ff. de leg. 1.; so that in the meane time, the effect thereof is suspended, as for example, the testator saith, I giue to A.B. twentie pound if he wild. §. illi. ibi, si volet, id est, si se velle decla­rauerit.. In which case except the legatarie doo by some meanes declare his willingnesse, the legacie is not due, and if hee die in the meane time, before hee haue decla­red his willingnesse, the legacie is not trans­ferred to the executor or administrator of the legatarieIas. & alij in d. §. illi. Quaere tamen, isto si­quidem casu distinguit Practic. Papiens. in for­ma libelli, pro legat. rei singular. fol. 455., whereas if no such condition had beene expressed, but that the legacie had beene [Page 125] left simplie, then albeit the legatarie had died not knowinge of the saide bequest, his execu­tors or administrators might haue obtained the sameBar. Zas. & alij in d. L. haec verba. ff. de leg. 1..

The third limitation is, when it dooth ap­peare to be the testators meaninge, by the ex­pressing of the said necessarie cōdition to make the disposition conditionallGrass. Thesaur. com. op. §. legatum. q. 47. vbi etiam ostenditur quomodo appareat hu­iusmodi testatoris vo­luntas..

8 The fourthe is, that † although impossible conditions, whether they be impossible by na­ture or by lawe, doo not hinder the effecte of the disposition, beeing reputed as if they were not written nor vtteredL. 3. ff. de cond. & de­mon. §. impossibilis. Instit. de haered. instit. Grass. Thesaur. com. op. §. legatum. q. 50.: Neuerthelesse if the testator did suppose the same condition to bee possible or lawfull, then is not the condition voide but the disposition whereunto it is ad­dedL. seruo manumiss. ff. de cond. indebit.. As for the example, the testator maketh A.B. his executor, or giueth him a hundred pound if he marrie his, the testators daughter, supposing her to be liuing whereas she is dead: in this case the condion is impossible, for the legatarie can not marrie a dead woman: And yet neuerthelesse, because the testator did think her to be liuing, and so the condition to be pos­sible. A.B. cannot be executor, nor obtaine the legacie, for it is not likelie, that the testator would haue made him executor, or haue giuen him a hundred pound, if he had knowen or be­leeued his daughter to haue beene deadDD. in d L. serue manumisso.. How­beit † there be diuers cases, wherein the dispo­sition is not voide by reason of an impossible condition, which the testator did accompt pos­sible and lawfull, but the condition itselfe is [Page] voide howsoeuer it seemed possible in the opi­nion of the testator: one is where the condition maie bee accomplished by some equiualent meanes though not in the same manner descri­bed in the dispositionL. huiusmodi §. si ita cui. ff. de leg. 1. Bar. in L. 1. de con. & demon. ff. Ias. in d. L. si ita. §. illi. de leg. 1.. An other case is, when the testator after the making of his will vnder­standing the condition to be impossible, did ne­uerthelesse confirme his will by codicilsIas. in d. L. seruo ma­numiss. Arc. in L im­possib. de verb. ob. ff.. The like is, when the testator was doubtfull whe­ther the condition were possible or noBar in L. ab omni­bus. §. in testō. de leg. 1. Arc. in L. impossibilis de verb. ob. Ias. in d. L. seruo manumiss. de cond. indeb. ff., or the bequest were in fauour of libertieL. ciuitatem. §. falsum iuncta gloss. de cond. & demon. L. cùm Sti­chus. de statu lib. ff. & Ias. in d. L. seruo., or in fauorem piae causae, when the testator doth bequeath any thing to be imployed to godly vses, for then the condicion which he supposed possible is reiected, and the disposition auaileable as pure and simpleBald, in L. 1. C. de com. seruo. manumiss. Bar. in L proxime. §. 1. de his quae in testa. del. ff. & clarius per Ias. in d. L. seruo manumiss..

The fifth, is when the † condicion is not vt­terly 01 impossible, but very harde and as it were impossible to bee performed by him on whom it is imposed. In which case it seemeth to bee the purpose of the testator, that the partie shall reape no benefit by that disposition: Otherwise the testator would not haue imposed so harde and difficult a conditionSichard. in Rub. de Instit. & sub. C. Minsin. in §. impossibilis. Instit. de haered. instituend., and therefore in this case the condition doth suspend the effect of the disposition, vntill the condition perhaps bee accomplishedL. cùm haeres. §. 1. de statu lib. L. continuus. §. illud. de verb. ob. ff.. Notwithstanding † if the 11 condition be impossible onely in the respect of the shortnes of the time prescribed by the te­stator: as if he make A. B. his executor, or giue him an hundred pound, if he doo erect a mo­nument within three daies after his death: in this case the condition hurteth notL. si mihi & tibi, § 1. ff. de leg. 1., for that it [Page 126] respecteth the execution and not the substance of the will. And it is to be vnderstood that the testator would haue it performed with as great expedition as is possibleIas. Lanc. Dec. & alij in d. §. 1. Zas. in L. con­tinuus. §. illud. de verb. ob. ff..

12 The sixt is when † the impossible condition is conceiued negatiuely, for then it is not ac­compted as if it were voide it selfe, (as is the af­firmatiue possible conditiō) but it maketh void the disposition whereunto it is adioyned: as for example, the testator chargeth his executor to whome he hath also giuen the residue of his goods, that if hee doo not touch the skies with his finger, or doo not kill his father, then to pay to A.B. an hundred pound; in this case the le­gacie is voide§. L. vltim. Instit. de lega. in fin. L. ab eo. C. de fideicom. L. vnic. C. de his quae Paen. nomine.: The reason is, because the exe­cutor who otherwise shoulde haue the same thing bequeathed, is not to be punished for not doing that thing which is impossible or vnho­nest 13 to be doneMinsing. in d. §. vlt. Instit. lega. Castrens. in d. L. vnic. C. de his. Paen. But † if the negatiue impossi­ble condition bee not set downe in way of pe­naltie but simply, the disposition is not voyde but taketh effect presently: as for example, the testator maketh A. B. his executor or giueth him an hundred pound, if hee doo not drinke vp all the water in the sea: In this case (if any were so fonde as to adde any such condition) the effect of the disposition is not hindred, and so A.B. is to be admitted executor, or may ob­teine the legacie, as if no condition were ex­pressedL. impossibilis. de verb. ob. ff. Bar. & alij in eand. L. Paul. de Castro. in d. L. vnic. quem videas..

14 The seuenth limitation is, when † the con­dition was not impossible at the first, but becō ­meth impossible afterwardes, for then it is not [Page] void, but maketh the disposition void: for ex­ample, the testator maketh A.B. his executor, or giueth him a hundred pound if he marie his, the testators daughter: afterwardes and be­fore mariage this woman dieth, whereby the condition is made impossible: In this case the condition although nowe impossible is not void, but maketh void the disposition; and so A.B. cannot be executor, nor obtaine the lega­cie by vertue of such dispositionMantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 23.. But † if the 15 woman were not dead, but did refuse to be ma­ried, and so the condition become as it were impossible, for lacke of her consent; In this case the disposition were not void, & so he might be admitted to the executorship or obtaine the le­gacie, as if no condition had beene imposed, or rather as if the same had beene accomplished: as else whereInfr. ead. part. §. 8., is more fullie declared.

The eight is when † the condition is both 16 impossible and vnhonest, for then the dispositi­on is thereby void: and that in disfauour of the the testator, who added suche a conditionBald. in L. si pater. de Instit. & sub. C. n. 5., whereas if the condition had beene onelie im­possible or vnlawfull, the disposition had beene good, and that in fauour of the testamentGloss. in §. impossibi­lis. Inst. de haered. instit. aliud autem in contra­ctibus obtinet..

The ninth is when the condition is impos­sible by reason of perplexitie, whereof there is example before, for then the disposition is voidL. vbi repugnantia. de reg. iur. ff. & ibi Cag­nol. limitans eand. reg. gloss. in d. §. impossibi­lis. adde Petr. Duen. Tract. reg. & fal. verb. conditio: vbi tradidit tres limitationes..

The tenthe is, when † the condition is re­pugnant 17 to the nature of the disposition, as in captious dispositiōs, wherof I haue spokē here­after more at largeInfr. ead. part. §. 11.. Notwithstanding † if the 18 [Page 127] repugnancie be not in such sort but that it maie be reconciled, it hurteth not the dispositionCagnol. in d. L. vbi repugnantia. de reg. iur. ff.: And therefore if the executor doo name two executors, for example, his son and his daugh­ter with a condition or prouiso that his daugh­ter doo not administer: albeit here seeme a re­pugnancie in the assignation of the daughter, for that it is the office of euerie executor to ad­minister: yet because the same may be reconci­led, the daughter is to be admitted to the exe­cutorshippe, namelie, to prosecute anie action, though not to administer further of any goods wherof they are in possession or which shal af­ter be by action so recoueredBrook Abridg. tit. executor. n. 2..

The eleuenth limitation is, when the vnho­nest condition is referred to the time past, for then it is not reiected, but doth either presently cōfirme or infirmeCouar. Tract: de spō ­sal. part. 2. c. 3. §. 1. n. 9. the effect of the disposition.

Now that we haue seene the limitations of the first rule, let vs take a viewe of the limitati­ons 19 of the second rule, which is that, when † the condition is possible, the effect of the disposition is su­spended, vntill the condition bee accomplished. So that he which is made executor or to whom a­nie thing is bequeathed vnder such condition, can not be admitted to the executorshippe, nor obtaine the legacy in the meane timeL. qui haered. de cond. & demon. L. si quis sub conditione. Si quis omiss. causa. testa. L. caedere diem. de verb. sig. ff. Grass. Thesaur. co. op. §. legatū. q. 52. Simo de Praetis. de in­terp. vl. vo. li. 5. Interp 2. dub. 2. n. 109.: In so much that it is not enough to perform the con­dition by an other equiualent meanes, but it must be accomplished in that precise manner and forme of the condition, without varyinge in anie one iotL. qui haeredi. L. Me uius. de cond. & de­mon. f [...]..

20 The first limitatiō of this 2 rule is this † when [Page] it dooth not stand by the executor or legatary wherefore the conditon is not performed: for then it is accounted to be accomplishedc. Imputari. de reg. iur. lib. 6.. An o­ther limitation is this, when the conditiō is ne­gatiue, for there the executor or legatary may in the mean time be admitted to the executorship, or recouer the legacy entering first into bond to make restitution,L. Mutianae. ff. de cond. & demon. if the condition be not per­formedo.

The third limitation is when the condition was once accomplished, though it do not con­tinueL. in substitutione. ff. de vulg. sub..

The fourth limitation is, when the conditi­on is possible in respect of facte but not lawfulL. filius. ff. de cond. instituc. supra ead. par. §. 5..

But † for as much as none of these conclusi­ons 21 dooe proceede simplie or indistinctlie, I thought good to examine euery of them seue­rally and at large, namely;

First whether euery possible condition ought to be obserued preciselie and ad vnguem Infr. ead. part. §. ꝓx..

Secondly, whether it be sufficient for the ex­ecutor or legatary that it stande not by them, wherefore the condition is accomplishedInfr. ead. part. §. 8..

Thirdly, when and in what cases the execu­tor or legatarie is to be admitted to the execu­torship, or may obtaine his legacie before the accomplishment of the condition by entringe into bondeInfr. ead. part. §. 9..

Fourthly, whether it bee sufficient that the condition was once performed, though it doo not so endureInfr. ead. part. §. 10..

Fiftlie, whereas it may be doubted of diuers conditions, whether they bee lawfull or no: I [Page 128] haue declared how farre the same be lawfull or vnlawfullInfr. ead. part. §§. 11, 12, 13..

Vnto the which questions I haue also added these following.

Within what time the condition maie or must be accomplished, when no certaine time is limited by the testatorInfr. ead. part. §. 14..

Than how that vsual conditiō (if he die with­out issue) is to be vnderstood, or when it is said to be accomplishedInfr. ead, part. §. 15..

Finally, what order is to bee taken concer­ning the administration or possession of the goodes of the deceased, whiles the condition of the institution of the executor dependeth vnaccomplishedInfr. ead. part. §. 16..

Whether euerie possible condition ought to bee obserued pre­ciselie.
§. vij.

1 Conditions are of a strict interpretation.

2 Conditions inducing a forme are to bee obserued preciselie.

3 Examples hereof.

4 When the testator dooth respect the ende it skilleth not of the meanes.

5 Voluntarie conditions are to be obserued preciselie, not necessarie conditions.

6 He in whose fauour the condition is made, may cō ­sent to other meanes.

7 The condition of paiment to be made to the infante is satisfied by paiment to the tutor.

[Page] 8 In substitutions it sufficeth that the condition be effected by other equiualent meanes.

9 In fauour of libertie or of godlie vses the condition neede not to be preciselie obserued.

10 Whether the condition may be performed by an o­ther person then him that is named in the condi­tion.

11 Where the lawe alloweth other meanes the precise forme neede not to be obserued.

FOr as much † as conditions are 1 said to be of a strict interpretatiō Michael. Grass. The­saur. com. op. §. legatū. q. 52. n. 1., and to induce a forme to euerie disposition, whereunto they are ioynedBald. in Authen. vt li­ceat C. quādo Mul. Tut offic. Fung. Tiraquel. de retract. §. 1. gloss. 21. n. 13., vnto which forme no­thing maie bee added, nothing detracted, no­thing alteredTiraquel. de retract. §. 1. gloss. 11. n. 11 Pec­kius in c. cùm nom. de reg. iur. in 6. n. 6.. Therfore it is holden for a rule that † euerie possible condition ought to bee 2 preciselie obserued, neither is it sufficient (but in some cases) to accomplishe the same by any other meanes,Grass. Thesaur. com. op. § legatum. q. 52. vbi attestatur de commu­ni opinione. or in any other manner then is prescribed. For † example, the testator maketh 3 thee his executor, or giueth thee a hundred pound if thou shalt giue to A.B. tenne pound, thou not knowing of the testators will, doost of compassion or good will giue tenne pound to A.B. because he is poore, and thou art riche: In this case thou shalt not bee reputed to haue accomplished the condition, because thou be­ing ignorant of the disposition, diddest it not with a minde or purpose to satisfie the conditi­onGloss. & DD. in L. si quis haeredem. C. de Instit. & sub. & haec est communis opinio, vt per Michael. Grass. d. §. legatum. q. 52. n. 3.: [Page 129] Neuerthelesse, if thou diddest first knowe of the condition, thou art presumed to haue gi­uen the tenne pound with a minde to perform the condition, vnlesse the contrarie doo ap­peareBar. & Paul. de Cast. in L. 2. de cond. & de­mon. ff.: So that it is not necessarie to protest or to affirme by words, that thou diddest giue the tenne pound with a minde or intente to per­form the cōdition, seeing the same is presumed vnlesse the contrarie be proouedBar. & Paul. de Cast. in d. L. 2.. An other example to the same effect is this, the testator maketh thee his executor or giueth thee a hun­dred pound if thou paie tenne pound to C.D. before a certaine time, within which time C. D. dieth, and thou paiest the same tenne pound within the same time, to the executor or ad­ministrator of C.D. in this case the condition is not said to be performed, and so thou canst not bee executor nor obtaine the legacie of a hundred pound, because thou diddest not pay the tenne pound to C.D. himselfe, for the pai­ment ought to haue beene made to C.D. him­selfeL. sub diuersis. §. vlt. & ibi Bar. de cond. & demon. ff. Mantic. de coniect. vlt. vol lib. 11. tit. 17. n. 25. & hoc qui­dem sine difficultate in haerede legatarij, quia haeredi legatarij solu­tio fieri non potest per d. § vlt sed an idem iuris sic in haerede hae­redis, quaest [...]o est ma­gis dubia, de qua legen­dus est Mantic. vbi supr., and not to his executors or administra­tors.

4 The first limitation of this foresaid rule is, † when it dooth appeare that the testator hath more respect to the end, then to the meanes; for then it is sufficient that the testament be ac­complished, although in other manner then it is expressed in the conditionMantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 3.

5 The second limitation is, when † the condi­tion is not voluntarie, but necessarie: for in ne­cessarie conditions it skilleth not, whether the same bee accomplished in that manner expres­sed [Page] by the testator, or in anie other good man­nerBar. in L. Gallus. §. quid si tantum. n. 2. de lib. & posthu. ff. Grass. Thesaur. com. op. § legatum. q. 52. Simo de Praetis. de interp. vlt. vol. lib. 1. in fin. vbi etiam respondit quae­nam conditio sit di­cenda necessaria, vel voluntaria..

The third limitation is, when † the person 6 in whose fauour the condition was made, doth consent that the same bee accomplished in o­ther manner;Simo de Praetis. de interp. vl. vo. lib. 1. solue. vlt. n. 34. for example, the testator maketh thee his executor or giueth thee a hundred pound, if thou giue to A.B. tenne pound: So it is that A.B. did owe vnto thee tenne pound, & is contented to be released of that tenne pound which he oweth, in steede of that tenne pound which he is to receiue: In this case the conditi­on shall bee accompted for accomplished, as if the tenne pounde had beene reallie paideSimo vbi supr. licet ortasse contrarium obtineat in cōtractibꝰ, attenta dispositione huius regni Angliae. Perkins. tit. condit. fol. 146.. These three limitations (especiallie the first of them,) be so generall, that they maie seeme to comprehend the residue of the limitations, neuerthelesse it shall not be amisse, if I ex­presse them for the better vnderstandinge of those former limitations.

The fourthe limitation therefore † is this, 7 when that is paid to the tutor, which is limited to the childe:L si fundus. ff. de cond. & demon. for example, thou art made exe­cutor, or a hundered pounde is bequeathed to thee, if thou pay vnto the testators son (being an infant) tenne pound: in this case the condi­tion is sufficientlie performed, if paiment bee made to the tutor of the childed. L si fundus. Grass. d. §. legatum. q. 52. Mā ­tic. de coniect. vlt. vol. lib. 11. tit. 17. n. 29.: especiallie if the monie be conuertede to the benefitte of the childBar. in d. L. si fundus. Mantic. d. tit. 17. n. 29.. And albeit this condition may bee saide to be a voluntarie condition, because it dooth consist in giuing, yet in this case the testator is presumed to haue more regard to [Page 130] the condition, namelie, the benefit of the child, then to the forme of the condition: For if pai­ment should be made to the childe, it might ea­sily be cōsumed & do the childe little benefitMantic. vbi supr., and therefore better for the childe, and more a­greeable to the meaning of the testator, and more safe for him that paieth the monie, to pay the same to the tutor, rather then to the in­fanteAlciat. de verb. signif lib. 3. col. 81. in fin..

8 The fifte limitation is † in vulgar or com­mon substitutions, for then it is sufficient like­wise that the condition bee effected by other meanes, then according to the stricte forme of the conditionPaul. de Castr. in L si magister. C. de Instit. & sub. n. 2. in fin.. For example, the testator ma­keth his sonne executor, and if he will not, hee doth substitute thee executor in his steed if the testators sonne can not be executor, in this case thou shalt be executor, as if he had refused to be executor, although respecting the forme of the cōdition thou art substitute onely in case the o­ther will not, and not in case he cannot: the rea­son is, because in substitutions the lawe presu­meth that the testator dooth more regarde the effect, then the forme of the conditionPaul. de Castr. vbi supr. Alciat. de verb. sig­nif. lib. 3. reg. 4. q. 3..

9 The sixt limitation is † in fauour of libertie, that is to saie, when the lord or soueraigne by his testamente graunteth vnto his villeine or bond-man freedome vpon some conditionBar. in L. Maenius de cond. & demon. ff..

The seuenth limitation is when that which is left conditionallie is to be distributed in pios vsus: for in these two limitations it is sufficient, that the condition be effected by other equi­valent [Page] meanes, though not according to the precise literall forme of the conditionBar. in d. L. Maenius. cum addic. ibid..

The eight limitation is, when † the conditi­on 10 which consisteth in giuing, is performed by another person, then by him (yet for him) who is named executor, or to whom anie thing is giuen vpon condition, if hee giue to an o­ther: In which case it is all one, as if he himselfe had giuen the sameBar. in L. Arethusa. de stat. hom. ff. & in L. fin. de cond. instit ff. at­que hoc est magis cō ­mune, teste Mantic. de coniect. vlt. vol. lib. 11. tit. 17. n. 10..

The ninth limitation is, when the conditi­on can not be performed in such manner as is prescribed in the condition: as for example, the testator giueth a summe of money if so manie sermons be made in such a church within such a time, during which time the church is inter­dicted, by occasion whereof the condition can not be accomplished: In this case the disposi­tion is not absolutly voidL. legatum. de ad­mistr. rerum. ad ciuit. pertin. ff., but the monie maie be conuerted to some godlie vseSimo de Praetis. de interp. vlt. vol. lib. 1. in fin..

The tenth limitation is, † when the law doth 11 interprete it, as if it were precisely obserued, as maie appeare in the next questionInfr. §. proxim..

Whether the condition bee accompted for accomplished in lawe, when it dooth not stand by the executor or legatarie wherefore the same is not ac­complished.
§. viij.

1 No man to be punished but such as be faultie.

2 He is not reputed faultie in lawe who dooth what he can.

[Page 131] 3 Whether the condition be reputed for accomplished if it stand not by the partie.

4 Certaine distinctions about the former question.

5 Arbitrarie conditions are accompted for accom­plished if it doo not stand by the partie.

6 The reason of the former conclusion.

7 Arbitrarie conditions are not accompted for accom­plished where the partie is in fault.

8 Casuall conditions are not reputed to bee accompli­shed before the euent.

9 The reason of the different effect, betwixt casuall & arbitrarie conditions.

10 Certaine cases wherein casuall conditions be repu­ted as accomplished, albeit the same bee not so in deede.

11 In mixt conditions this consideration is first to be had, how the impediment commeth.

12 The impediment in mixt conditions maie hap­pen diuers waies.

13 When it standeth by him by whom the condition is to be preformed, the same is not reputed for com­plete.

14 What if after first refusall hee consent, and then the other partie is willing.

15 A restraint of the last position.

16 When it standeth by the party in whom the condi­tion is to bee performed, the same is not reputed for complete.

17 A limitation of the former conclusion.

18 When the testator dooth hinder the performance of the condition, it hurteth not the executor or le­gatarie.

19 When a third person dooth hinder the perfor­mance [Page] of the condition, whether it hurt the exe­cutor or legatarie.

20 The accomplishment of the condition beeing hin­dred by casuall meanes, whether it hurt the execu­tor or legatarie.

IT agreeth † with equitie and hu­manitie 1 that no man be punished, or depriued of his righte without his faultc. sine culpa. de reg. iur. 6., and it seemeth that † hee 2 is not in faulte, but worthie to bee excused, who dooth whatsoeuer lieth in him for the accomplishing of that which is imposed vpon himPeckius. in c. imputa­ri. de reg. iur. 6., wherefore no meruaile if at the first viewe it seeme true, that when it doth not stand by the executor or legatarie, wherefore the condition is not performed (they dooing whatsoeuer in them lieth for to accomplish the same;) that then the same should be accompted as it had beene fullie performedc. cùm non stat. c. im­putari. de reg. iur. lib. 6.. And in deed so it is † regularlie for the most parte verie true 3 that when it dooth not stand by him to whom it appertaineth, wherefore the condition is not accomplished, it ought to be accompted as if it were performed:d. c. cùm non stat. d. c. imputari. de reg. iur. lib. 6. but this rule dooth not take place perpetuallie.

Wherefore † if wee will vnderstande when 4 this rule dooth hold or faile, wee are to call to minde some of the former distinctions or diui­sions of cōditionsSupr. ead. part. §. 5., especially this: That of con­ditions some be arbitrary, such as the law presu­meth [Page 132] to be in the will and power of the man to whom they are imposedL. vnic. §. sin autem. C. de cad. tollend. Vigli. & Minsing. in §. Pen. Instit. de haered. instit.: Some be casuall, such as are not in the power of that man to whome they are imposed, but either in the power of some other thing, or person, so that the euent thereof is to vs vncertained. §. sin autem.: and some be mixte conditions such as doo consist partlie in our owne power, and partlie in the power of some other thing or persond. §. sin autem. Vigl. & Minsing. vbi supr., for example of which seuerall conditions I referre the reader to those former which I haue there set downeSupr. ead. part. §. 5..

5 When † the cōdition is meere arbitrarie, then if it stand not by him, by whom the condition is to be performed, the lawe reputeth the same as if it were fully accomplished, though in deed it remaine vnperformed:L. quae sub conditio­ne. §. 1. ff. de cond. Instit. Bar. in L. 1. C. de Instit. & sub. for example, the te­stator dooth make thee his executor, or gi­ueth thee a hundred pounde if thou [...]oe to church on Easter daieHoc esse exemplum pōtatiuae conditionis, patet ex Sichardo in Rub. de Instit. & sub. C. n. 9. & Minsingero, in §. Pen. Inst. de haered. inst. n. 2. quorum alter pro­fert exemplum eundi Francfordium, alter e­undi Biscanum: reli­qui ferè omnes instant in hoc exemplo, si as­cenderis capitolium. DD. in d. §. sin autem. C. de cad. tol. & in d. §. Pen. Instit. de haered. instituend., that daie beeing [...]ome; by reason of ouerflowing of waters or some o­ther necessarie impediment, thou arte not then able to goe to the church being otherwise wil­ling to goe, if thou haddest not been hindered. In this case thou art to bee admitted executor, and maiest recouer thy legacie, as if thou had­dest 6 gone to the church that daied. L. quae sub. condi­tione. §. 1. ff. de condic. Instit. &. c. imputari de reg iur. 6.; the † reason wherefore the condition is accompted for ac­complished in lawe, albeit respecting the facte it is not accomplished, I suppose to be this, be­cause the testator is presumed to haue more regard to thy good will and indeuour, in these conditions which be within thy power, then to the euent of the conditiō Sichard. post Bar. & Bald. in d. L. 1. C. de Inst. & sub., so that by satisfy­ing [Page] the expectation of the testator, thou haste also satisfied the exaction of laweDD. in d. L. 1..

Howbeit † euen there also where the con­dition 7 is arbitrarie, and where the testator doth as it were accepte good will for a full perfor­mance, if he by whom the condition is to bee performed, were in fault, by occasion of which fault the condition can not in deede be accom­plished, though perhappes the partie wold wil­linglie performe the same if hee then coulde, there the same condition is not reputed to bee performed in fiction of laweMantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 24. post Bar. & Bald. in d. L. 1. C. de Instit. & sub.: for example, the testator maketh A.B. his executor or giueth him a hundred pound, if hee goe to the church on such a daie: vpon the which daie A.B. inten­ding to accomplish the condition, proceedeth towards the church, and as he is going com­mitteth some crime or offence, whereupon he is arested and staied, so that hee can not goe to the church according to his purpose: In this case the condition is not accompted for ac­complished, for that he, by whom the cōdition was to be accomplishedBar. & Bald. vbi supr. gloss in c. imputari de reg. iur. 6. Aymo Cra­uetta. consil. 202. n. 8., was himselfe in the faulte, and the cause wherefore the same was not accomplished. So it is if the condition can not bee performed, by the negligence or delaie of the person, by whom the same ought to haue been performedBar. in d. L. 1. Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 14.: and although an impediment is said to excuse a man from de­laieDD. omnes in L. quod te ff. si cer. Pe., yet when the impediment maie bee fore­seene and preuented, such impediment shal not excuse him which dooth not auoid the sameGloss. & DD. in d. L. quod te. Zas. post alios in L. continuus. §. illud. ff. de verb. ob.. If thou craue an exāple, let this be the same, the [Page 133] testator maketh thee his executor, or giueth thee a hundred pound if thou go to the church within two monthes, during the first moneth thou doost not goe, duringe the seconde thou knowest thou shalt not be able to goe by rea­son of some impediment, be it by occasion of warres, or of the weather, or of the waie, or of some infirmitie in thy owne bodie and then being letted, thou makest an offer to goe, and doost protest that it doth not stand by thee, and that thou wouldest goe if it were possible: Nei­ther this protestation nor this impediment wil relieue thee because thou diddest wittinglie fal into these difficulties, and wouldest not goe when thou mightest safelie haue gonec. Mona. de reg. iur. 6. Zas. in d. §. illud. n. 6. fall. 4. & Peckius in L. fin. ad L. Rhodiam. de iactu.. When 8 † the condition is meere casuall, the same is nei­ther accōpted for accōplished or extant in pre­sumption or fiction of law, neither yet for vnac­complished or deficient, vntill the actuall euent of the same condition doo first come to passeL. vnic. §. sin autem. C. de cad. tol. & ibi Bar: And therefore if the testator make thee his ex­ecutor or giue thee a hundred pounde, if the king of Spaine die this yeereVigli. & Minsing. in § pen. Instit. de haered. instituend.: In this case vntill the euent do indeede declare whether k the K. die this yeare or no, the cōdition is neither ac­compted for extant or deficient, but is suspen­dedSichard. in Rub. de instit. & sub. C.. And if he die, then is the condition said to be purified or extant, and so thou art to bee admitted, otherwise notL. vnic. §. sin autem. C. de cad. tol.. So there is a great difference, whether the condition be arbitrarie or casuall, for the one is diuers times accomp­ted for accomplished in law though not in fact: but the other is not accōpted for accomplished [Page] or extant in law, vnlesse the same be accompli­shed in fact alsoEod §. sin autem.. The † reason of the difference 9 is partlie shewed before; for in arbitrarie condi­tions the testator is presumed not to exacte more then he maie easilie performe, on whom such condition is imposedSichard. Bar. Bald. & ferè omnes interp. in L. 1. de instit. & sub. C., and so it is suffici­ent that it stand not by him, that the same con­dition is not performed: But herein casuall conditions, for as much as the testator dooth not referre it to that which is in his power on whom the condition is laide, therefore the testator is thought to referre the force or effect of this disposition, to the determina­tion of fortunePaul. de Castr. in L. quae sub. conditione. ff. de condic. institu., (or rather to speak more chri­stianlie, to the will of God,) and therfore this e­uent of gods wil must decide the doubt, I mean whether hee that is appointed vnder such con­dition shall bee executor or not, or obtaine his legacie or not. Notwithstanding † somtimes e­uen 10 in casuall conditions, it is sufficient that it dooth not stand by the executor or legatarie, wherefore the same condition is not accompli­shed, like as in arbitrarie conditionsMantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 15.. The first case is, where the testator would haue so dispo­sed howsoeuer the condition should fall outGloss. in L. 1. C. de instit. & sub.. The second is when by his facte, the accōplish­ment of the condition is hindred, to whom it is beneficiall that the same shoulde neuer bee performedL. iure ciuili. ff. de cond. & demon.. The third case is in fauour of free­dome or libertie from seruitudeL. fin. C. de necessar. instituend..

If we † will knowe when a mixt condition 11 is reputed in lawe to be accomplished, albeit in [Page 134] fact the same be not performed, we must consi­der by what meanes the impediment is mini­stred, 12 namelie † whether it proceede from the person by whom the condition is to bee perfor­med, or from that person to whom the conditi­on is to be performed, or from the testator him­selfe who deuised the condition, or from some other third person, or whether it happen by some other meanes according to the secrete purpose and will of God, which wee no lesse foolishlie then commonlie, call Chaunce or fortune.

13 When † he that is made executor, or to whom a legacy is giuen vpon a mixt condition, is him selfe the onelie cause wherefore the condition is not performed; then worthilie is the same condition not to be accompted for accompli­shedL. in testō. el. 2. ff. de cond. & demon. Man­tic. de coniect. vlt. vol. lib. 11. tit. 18. n. 37.: for example, the testator maketh thee his executor or giueth thee a hundred pounde if thou marie his daughter; thou refusest so to do; with great reason is the condition not reputed for performed, and so thou canst not be execu­tor 14 nor obtaine the legacieBar. in d. L. in testa. Sichard. in L. 1. C. de instit. & sub.: In so much † that albeit afterwards thou become willinge, and doest offer to marie her, and she then refuse this thy offer, and so it dooth nowe stande by her and not by thee, that the condition is not per­formed: Neuerthelesse thou canst not reape anie benefit by her refusall, because thou had­dest broken the condition before, whereby thy right passed awaie and was extinguished, and so thy repentaunce is nowe too lateIas. in d. L. 1. de Instit. & sub. C. n. 7. & Sichar. in eand. L. n. 9. & est cō. op. teste Grass. Thesaur. com. op. §. legatum. q. 46. n. 16. post Dec. in d. L. 1. n. 13. quam senten­tiam intellige vt ꝑ Mo­lin. in addic. ibid.: Vnlesse † at such time as thou diddest refuse, thou then couldest not marie, for that perhappes at that [Page] time thou were not of sufficient age to marrie, for thy dissent at that time when thou couldest not consent, dooth not hinder theeL. eius est nolle. de reg. iur. ff..

When † the condition is not performed 16 by his meanes onelie, vnto whom or in whose person the same is to be accomplished, then it is reputed in law as if it were fulfilled in deedL. Titio centum. §. Titio. ff. de cond. & de­mon.: for example, the testator maketh thee his exe­cutor, or giueth thee a hundred pounde if thou marie his daughter, thou arte willing and doost offer her mariage, which shee refuseth: In this case the condition is reputed for complete, and so thou maiest recouer the executorship or le­gacied. L. Titio. §. Titio.. Notwithstanding if † the wordes of the 17 condition be directed vnto her, not vnto thy selfe: as for example, the testator maketh thee his executor or giueth thee a hundred pound, if his daughter marie thee. In this case if she do refuse, and it dooth not stand by thee, the con­dition is not reputed for accomplishedMantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 37., vn­lesse it were the meaninge of the testator, that thou shouldest haue the benefit of the disposi­tion, in case of this her refusallL. iure ciuili ff. de cond. & demon.. And yet there is no great difference betwixte the one Phrase and the other, for the testator in saying, if thou marrie her, dooth necessarilie vnderstand ther­by, if she also bee content to marie thee, for thou canst not doo the one, vnlesse she also do the otherSocin. in. d. L. in testō. Mantic. de coniect. vlt. vol. lib. 11. tit. 8. n. 37., and therefore this limitation is su­spected of some not to bee soundeMichael Grass. The­saur. com. op. §. legatū. q. 46. n. 17., notwith­standinge it is more generallie approoued and rather admitted then the contrarie opnionAlex. in L. 1. C. de Instit. & sub.: what if the testator make A.B. his executor, or [Page 135] giue him a hundred pounde if hee marie his daughter, and at the firste A.B. is willinge and offereth to marrie her, but shee refuseth; after­warde she is willinge, but he refuseth: whether in this case is the cōdition said to be complete: this question is satisfied afterwardesInfr. ead. part: §. 10. in sin..

18 When † the impediment dooth proceede from the testator himselfe, then the condition is reputed for complete: as for example, the te­stator dooth make thee his executor, or giueth thee a hundred pounde vpō condition, if thou bury his bodie within the Cathedral church of Saint Peter at Yorke: the testator dieth excō ­municate (because he refuseth to come to the church, or because he is an Heretike or Scisma­tike, a manifest vsurer, or for some other like cause) for the which his sepulture in that case is denied: Seeing in this case it doth not stand by thee, but by him, wherefore the condition is not complete, it shall not preiudice thee, but that thou maiest be admitted to the executor­ship or obtaine the legacie, as if thou haddest in deede performed the conditionDD. in L. milites. §. vlt. Ad L. Iul. de adul. ff. Sichard. in L. 1. de In­stit. & sub. C. n. 1..

19 When † the impedimente dooth proceede from a thirde person, then I suppose the condi­tion to bee accompted in lawe for accompli­shedBar. in L. in testō. el. ff. de co. d. & d. mon.: For example, the testator maketh thee his executor, or giueth thee a hundred pounde if thou mary his daughter within a moneth, du­ring which moneth, a thirde person dooth purposelie holde her from thee, so that thou canst not marie her within the time prescribed: In this case the condition is reputed to bee ac­complished, [Page] and so thou maiest obtaine the ex­ecutorship or legacy, as if thou hadst maried her within the said timeBar. in d. L. in testō. Bald. & Alex. in L. 1. de Instit. & sub. C. & hoc ego quidem procedere puto in hoc regno, eti­am si ille tertius iniustè detineat mulierem: cùm apud nos Hono­ratus non habeat ali­quam actionem contra iniustum illum deten­torem, pro damno, seu interesse. Videant autē Iustinianistae Manticā. de coniect. vlt. vol. lib. 11. tit. 16. n. 22.. But if the thirde per­son doo not purposelie detaine her, beeing ig­noraunt peraduenture of the testators will, then it seemeth that the condition is not repu­ted for completeBald. Alex. & DD. in L 1. C. de Instit. & sub. Mantic. de coniect. vlt. vol. lib. 11. tit 16. n. 22..

When † the impediment dooth not arise by 20 anie of the meanes aforesaide, but by casuall meanes (as we tearme it) when it proceedeth from the wil and prouidence of almighty God, the law dooth not accompt that condition for completeHen. B [...]ic. in c. sicut ex literis. de spons. extr. Bar. in L. 1. C. de Instit. & sub.. And therefore if the testator make thee his executor, or giue thee a hundred poūd if thou mary his daughter, and she dieth before thou hast married her: in this case the conditi­on shall not be accomted for accomplished or extant, but contrariwise (as it is indeede,) vn­performed and deficient, so that thou canst not receiue anie benefit by that conditionall dispositionGloss. & Dyn. in c. im­putari de reg. iur. 6. Si­chard. & alij DD. in d. L. 1. C. de Instit. & sub.: for where the performaunce of the condition is hindred by the will and proui­dence of God, whereunto the testator made re­lation, there the law dooth not allowe anie fei­ned performaunceMantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 23, except it bee in fauour of libertie from bondageL. libertatem. ff. de manumiss. testō. Couar. in c. 3. de testa extr., or of alimentation or in a dispositionSichard. in L. 1. C. de Instit. & sub. n. 6. in fin. ad pias causas Tiraquel. de priui­leg. piae causae. c. 57., or excepte the condition be not conditionall but modallGrass. Thesaur. com. op. §. legatum. q. 58. n. 4. & haec opinio commu­niter approbatur. Alex. [...] L. 1. de Instit. & sub. C., for (conditio) and (modus) doo greatlie differ, as in the next paragraphe is declared.

Whether hee that is made executor, or to whom anie legacie is giuen conditionally, may in the meane time, whiles the condition de­pendeth, be admitted to the executorship, or obtaine the legacie, by entring in­to bondes to performe the con­dition, or else to make re­stitution.
§. ix.

1 Diuers kindes of conditions to bee remembred in this question.

2 When the condition is affirmatiue it sufficeth not to put in bondes.

3 What if the affirmatiue doo also implie a nega­tiue.

4 What if the disposition be made sub modo, and not sub conditione.

5 How Modus and Conditio doo differ.

6 When the testators will is not repugnaunt, then it sufficeth to put in bonde.

7 If the condition be negatiue, then what thinges are to be regarded?

8 If the condition consist in not doing, then it is ma­teriall whether the same maie be accomplished du­ring life.

9 If the condition can not bee accomplished duringe life, then it sufficeth to put in bonde, to the effect a­foresaid.

10 Example of such condition as can not be accom­plished during life.

11 The reason of deuising this bond, and who was the [Page] inuentor thereof.

12 Certaine cases wherein the legacie maie be obtai­ned without bonde, beeing giuen vpon condition, which maie seeme not to be accomplished duringe life.

13 If the condition negatiue maie bee accomplished during his life, to whom it is imposed, this caution hath no place.

14 A condition negatiue is saide to bee accomplished when it cannot be infringed.

15 Great oddes whether the condition maie bee ac­complished during his life, to whom it is imposed or not.

16 What if the negatiue condition can not be infrin­ged without sorrowe.

17 If the condition consist in not giuing, then we must inquire and resolue as in the condition of not doo­ing.

18 When the condition dooth consiste in not happe­ning, then this bond hath no place.

19 The forme of the bonde, to whom it is to be made, and whether sureties be necessarie.

IF anie † be desirous to know whe­ther 1 he that is made executor, or to whom anie legacie is left by the testator, vndersome possible con­ditiō, may in the mean time whiles the condition dependeth vnperformed, bee admitted to the executorship, or obtaine his le­gacie so lefte by entring bond or putting in suf­ficient [Page 137] caution either to performe such condi­tion, or else to make full restitution of al things by him receiued: It shall be behoofull to call to his remembraunce howe manie kindes of pos­sible conditions there beDe quibus. supra. ead. part. §. 5., especiallie he must not forget, that of these conditions some bee affirmatiue, and some bee negatiue L in facto. ff. de cond. & demon.: and againe, that as wel of the affirmatiue as of the negatiue, there be three sortes, that is to saie, som cōsist in chancing, some in giuing, & some in dooing, & on the contrarie, some consist in not chauncinge, some in not giuing, and some in not dooingd. L. in facto.. Nowe to applie these distinctions to the que­stion.

2 When † the condition is affirmatiue (whe­ther it doo consist in chauncing, giuing, or do­ing:) he that is made executor, or to whom a­nie legacie is giuen, vnder such condition, can­not be admitted to the executorship, nor de­maund the legacie by vertue of the last will or testament of the deceased, so longe as the same condition dependeth vnfulfilled, or is not ex­tantL. Mutian. in ff. de cond. & demon. & gloss. ac DD. ibid., albeit the executor or legatarie shoulde put in sufficient bond to make restitution, in case the condition should be deficient: For the euent of such affirmatiue condition is to be ex­pected and must be extant, before the dispositi­on of the testator can take effecteL. qui haeredi. ff. de cond. & demon [...] D. in d. L. Mu [...]an., excepte in 3 these cases following. One is † when the affir­matiue condition which dooth consist in doo­ing or giuing, dooth with all secretlie implie or containe a negatiueL. par [...] §. socrus ff. de cond. & demon. Bar. & Paul. [...] Castr. in d. L. Mut [...]a [...]. Ripa. in L. ita scipula [...]s. ff. de verb. ob. ff. n. 46.: as for example, the testator maketh his wife executrix, or giueth [Page] her a hundred pound, if she abide with his chil­dren; which affirmatiue condition, (if she abide with his children) consisteth in dooinge, and dooth withal secretlie implie a negatiue, that is to saie, (If she doo not depart from his chil­drenBar. & Paul. de Cast. in d. L. Mutianae. per. d. §. soc [...].:) and therefore in this case, the execu­tor or legatarie, by entring into sufficient bond to performe the condition, or else to make re­stitution, is to be admitted to the executorship or maie obtaine the legacie, as if the negatiue had beene expressedBar. & Paul. Castr. vbi supra. Simo de Pre­tis. de interp. vlt. vol. lib. 5. interp 2. dub. 1. n. 24. 25. fol. 42.. An other case is, when † 4 the disposition is not made sub conditione, sed sub modo L 1. C. de his quae sub modo. L. quibus diebus §. Termilius. ff de cond. & demon. verum pro­p [...]è loquendo Cautio de modo implendo, nō est cautio mutiana, sed al [...]a ei similis. Bald. in Auth. cui C. de in­dict. vid. n. 22. in sin.. For † thou shalt vnderstand, that condi­tio 5 and modus doo differ, Conditio is a qualitie which so long as it dependeth vnperformed or is not extant, dooth hinder the effect of the dis­position, so that, that thinge which is disposed conditionallie, can neither be demaunded, nei­ther is due in the meane timeBald. & Sichard. in Rub. de Instit. & sub. C.: Modus is a mo­deration, whereby a charge or burthen is im­posed, in respecte of a commoditie, which mo­deration dooth not so farre hinder the effect of the disposition, but that the thinge disposed is due, and maie bee demaunded in the meane timeBar. in d. L. quibus diebus. §. Termilius. de cond. & demon ff. Si­chard. in d. Rub. de In­stit. & sub. C. Grass. The­sau. com. op. §. legatum. q. 58. Modus (inquit Cuiacius) est finis, propter quem legatur, vel causa legandi col­lata in futurum. Cuiac. in tit. de his quae sub mod. C.: and it is called modus a moderando. The one of them is thus knowen from the other, that is to saie, the condition is commonlie kno­wen by this word (if) or by wordes of like va­lueBald. & Sichard. in Rub. de Inst. & sub. C., whereof I haue giuen examples beforeSupra. ead. part §. 5.: the meane or moderation is knowen by this worde (that) as I make A. B. my executor or giue him a hundred pound, that he maie erect a monument.Bar. in d. §. Term [...]liꝰ. & Sichard. in d. Rub. de Instit. & sub. C. Nowe in this case when anie [Page 138] thing is lefte vnder a moderation or with the exaction of a remuneration, that thing which is so bequeathed, is presentlie due and maie now also be demaunded, so that he which ma­keth demaunde doo enter into bonde in man­ner as hereafter is described, to performe that which is exacted by the testator, or else to make 6 full restitutionL. quibus diebus. §. Termilius. ff. de cond. & demon. L. 1. 2. C. de his quae sub modo.. An other case is, when † the testators will is not repugnant thereunto: for then this bonde (as it is affirmed) hath place euen in affirmatiue conditionsBar. in d. L. Mutia­nae. de cond. & demon, ff. n. 3..

7 When the † condition is negatiue, then wee are to regarde what kinde of negatiue conditi­on it is, that is to saie, whether the same consist in not dooing or not giuing or not chauncing.

8 If † the condition consiste in not dooing, then it is material, whether the same maie be accom­plished so long as he liueth on whom the same is imposed, yea, or no.

9 If † the condition consistinge in not dooing can not be performed so longe as the person, on whome it was imposed liueth, then maie hee obtaine the bequest, by puttinge in bondes to accomplishe the condition, or else in defect thereof to make 01 full restitutiond. L. Mutianae & ibi Bar Bal [...]. & Paul d [...] Ca [...]r. Zas. in L. dedi ti­bi. ff. de cond. caus. dor.: as for † example, the testator maketh one his executor or giueth him a hun­dred pounde, if he neuer plaie at the Cardes or Dice: This condition we see is negatiue, it cō ­sisteth in not dooing, and it is such a condition withall, as can not be fullie performed, so long as hee liueth on whom it is imposed, because at anie time during his life, hee maie infringe the same, by playing at the Cardes or DiceS [...]m [...] de Praetis. de interp. vlt. vol. lib. 5. in­ter. 2. Iub. 1. n. 23., for [Page] albeit he did abstaine this daie, yet might hee plaie the next daie, or if not the next daie, yet some one daie, or other so longe as hee had a­nie daies to liueSimo de Praetis. vbi supr. Paul. de Castr. in d. L. Mutianae., and so in the meane time, that is to saie, all his life longe hee shoulde not reape anie commoditie by the testament, if the full performaunce of the condition were first exacted. Wherefore † leaste the testators 11 will should be vneffectuall, and leaste the exe­cutor or legatarie should reape no benefit ther­by, if the full performaunce of the condition should bee expected, ere the bequest coulde bee obtained: one Mutius Sceuola did deuise this remedie, that hee who is made execu­tor, or to whom anie legacie is bequeathed, vpon a condition negatiue, which coulde not bee fullie performed duringe his life, shoulde enter into bonde to performe the condition, (that is to saie, neuer to doo that which is pro­hibited, or else to make a full restitution) and by that meanes obtaine the executorshippe, or legacied. L. Mutianae. cum gloss. ibid. Simo de Prae­tis. vbi supr. Zas. in L. ded [...] tibi. de cond. caus. dot. ff. n. 7. 9., which bonde or caution is of Muti­us the author thereof, called Mutiana cautio Gloss. in d. L. Mutia­nae., and after a sorte hath the effecte of the full ac­complishment of the condition [...]ar. & Castr. in d. L. Mutianae.. Yea in some cases † the legacie which is giuen vnder a con­dition 12 negatiue consisting in not dooing, maie be obtained without anie such bond, albeit the same condition maie be infringed duringe the life of the legatarie, namely, in a legacie of liber­tie or free-dome from bondageL. libertatem. L. li­bertas. §. 1. de manu­miss. testa. ff., & in a legacie ad pias causas Tiraquel. de priui­leg. piae causae. c. 48.: The reason of the difference is, because in these fauorable legacies the testator [Page 139] is presumed to haue meante onelie of the firste acte when the legatarie had oportunitie of do­inge the thinge prohibitedTiraquel. vbi supra.: So that if at that season or firste oportunitie, the legatarie doo not infringe the condition by dooing contra­rie to the disposition of the testator, it is not hurtefull though after that first oportunitie past the legatarie goe against the conditionGloss. in L. Titio. §. fundus. ff. de cond. & demon. Tiraquel. d. c. 48., vnlesse the meaning of the testator doo appeare to bee contrarie, viz. that the condition should be ex­tended to euery act during the life of the lega­tarieL. vlt. de manumiss. testa. ff. Tiraquel. vbi supra..

13 But † if the negatiue condition bee suche as maie be performed during his life on whom it is im­posed, this aforesaide bonde or caution hath no placeL. cum tale. §. 1. ff. de cond. & demon. L. pa­ter. §. socrus. eod., and consequentlie the executorship or legacie disposed vnder such condition, so long as the same dependeth not fullie perfor­med, can not be obtainedL. cū tale. §. 1. & gloss. in d. L. Mutianae.; For example, the te­stator maketh thee his executor, or giueth thee a C. pound if thou neuer plaie at dice or cardes with A.B. or if thou do not at any time giue a­way thy lands to A.B. this cōdition howsoeuer it be negatiue, & also cōsisteth in not giuing, or not doing: Yet it may be fullie & perfectly cō ­plete and performed in thy life time: For A. B. with whō thou art forbidden to play, or to whō thou art forbiddē to giue thy lands, may die be­fore thee, & then thou canst not play with him nor giue him thy lands when he is dead, and so it is euident, that this condition may be fullie performed, & accomplished in thy life time, for 14 a † negatiue condition is then said to bee fullie [Page] accomplished, when it is brought to an impos­sibilitieGloss. &. DD. in d. L. Mutianae. ff. de cond. & demon., and therefore in this case thou canst not be admitted executor nor obtaine the lega­cie, vntill the condition bee brought into that state, that it can not be infringedDD. in d. L. Mutianae. & d. L. cum tale. §. 1. Si­mo de Praetis. de inter. vlt. vol. lib. 5. interp. 2. dub. 1. n. 23.. Great † ods 15 therefore there is, betwixte those negatiue con­ditions which can not be performed in the life time of that persō, on whom they are imposed, & those negatiue cōditions which maie be per­formed during his life: For there the executor or legatarie maie obtaine the executorship or legacie by putting in bondes, but here he can not, vnlesse it be † such a case as the euent there­of 16 dooth bring greefe and sorrow, to the partie on whom the condition is imposed, for in such cases where the condition can not be infringed or become deficient, without sorrowe or heaui­nes, it is lawfull for the executor or legatarie to enter into bondes for making restitution, (if the condition be not performed,) and so to be admitted to the executorship, and to obtaine the legacie in the meane timed. L. cum tale. L. pa­ter. §. socrus. ff. de cond. & demon.: as for example, the testator maketh his wife executrix or giueth her a hundred poūd if she depart not from her children: This condition maie be extant in the life time of the mother, for it maie happen the children to die, & the mother to ouerliue, and then the condition must needes be extant, for after their death she cannot infring the condi­tion by departing from them that are not: ne­uerthelesse, because the death of the childe is a harde and heauie thing to the mother, therfore the lawe is not so hard, but that in this case the [Page 140] condition depending, the mother is to bee ad­mitted to the executorship, and maie recouer the legacie vpon bondes, to accomplishe the condition, or else to make restitutiond. L. cum tale. & gloss. in d. L. Mutianae..

17 When † the condition dooth consist in not giuing, then as before, we are to enquire whe­ther the condition be such as the same can not be accomplished during his life, on whom it is imposed: for if it bee suche a condition, that which is disposed vnder such a condition maie be obtained by entring bonde as befored. L. Mutianae. ff. de condic. & demon.: for example, the testator dooth make thee his exe­cutor, or dooth bequeath vnto thee a hundred pounde if thou doo not giue awaie thy landsL. 4. §. idem Iulianꝰ. ff. de condic. instit., this condition can not bee fullie performed, but by thy death, because so longe as thou li­uest thou maiest giue awaie thy landes, and so infringe the conditionDD. in d. §. idem Iulianus., wherefore least the te­stators will shoulde be deluded, or thy selfe de­frauded, thou maiest be admitted to the execu­torship or obteine the legacie in the mean time so that thou becom bounden as before, to per­forme the condition or els to make full resti­tution.d. L. Mutianae. Simo de Praetis. de interp. vlt. vol. lib. 5. Interp. 2. dub. 1. n. 23.

18 When † the condition dooth consist in not chauncing, then this bond or condition can not be admitted, neither can the thing disposed vn­der such condition be obtained before the condition be performedd. L. Mutianae. & ibi Bar. & alij.: And therefore (for example) if the testator make thee his executor or giue thee a hundred pounde if thy ship doo not returne from Spaine, in this case the euent of the condition is to be expected. And if it so [Page] come to passe that thy ship dooth returne, then is the condition deficient, and so thou canst not be admitted to the executorshippe, nor ob­taine the legacie by vertue of the saide disposi­tionBar. & Paul. Castr. in d. L. Mutianae. L. v­nic. §. sin autem. C. de cad. tol.: But if the Shippe can not returne (which thinge maie happen by ship-wracke, or by some other accident) and so all hope or possibilitie taken awaie, then the condition is said to be ac­complished or extant, and so thou art to be ad­mitted to the executorship, or maiest recouer the legacie, as if the dispositiō had been simpleIdem Paul. de Castr. in d. L. Mutianae. d. §. sin autem..

Nowe † that wee haue seene in what cases 19 the aforesaide bonde, hath place, and in what case it hath no place, it shall not be amisse in worde to shewe the manner and forme of the bonde and to whom it must be made, and whether sureties be required. The forme ther­of is this (not to doo that thing which is contained in the condition, or else to restore the thinges disposed together with all the meane fruites and profites ther­of L. cùm filius. §. qui Mutianam. ff. de leg. 2.,) the bonde is to bee made by the execu­tor, vnto the substituteBald. in Auth. cui re­lictum. C. de Indict. vi­duitat. n. 20., or him that is appoin­ted executor in place of him that is bounde if the condition be not obseruedBald. in d. Auth., and if there be no such substitute, then to the executorIdem Bald. ibid.; and if there be no executor, then to the ordinarie, because he dooth as it were succeede where a­nie dieth intestateStat. Ed. 3. an. 18. c. 19 vel forte praestanda est huiusmodi cautio Mu­tiana administratori­bus casu, quo admini­stratio sit concessa.: likewise the legatarie must enter bonde to him that is substituted vnto him, if there be no substitute, then to the colle­gatarie, if there be none such, then to the exe­cutor, if there be no executor, then to the ordi­narieBald. in d. Auth. cui relictum. C. de In­dict. vid., there neede no suretie neither for anie [Page 141] thing immoueable, nor for a thing mooueable, vnlesse the party be not fit or sufficientd. Auth. cui reli­ctum..

Whether it be sufficient, that the conditi­on was once accomplished, though the same doo not continue.
§. x.

1 Manie cases wherein it is sufficient that the condi­tion was once accomplished, though it doo not so continue: and contrariwise manie cases wherein it is not sufficient, that the conditiō was once accom­plished vnlesse it doo continue.

2 The order to be obserued in this diuersitie of cases.

3 If the condition be casuall, then it is sufficient that the condition was once accomplished.

4 Diuers examples of this conclusion.

5 If the condition be arbitrarie, then it is not suffici­ent that the condition was once accomplished.

6 Diuers examples of this conclusion.

7 If the condition be mixt, then it is sufficient that the same was once accomplished.

8 Example of this conclusion.

9 What if the condition endure not by the faulte of the partie by whom it is to be accomplished.

10 What if the partie be alreadie maried, to whom a­nie thinge is bequeathed conditionallie, (If hee shall marrie.)

11 What if the executor or legatarie were once wil­ling and afterwardes vnwilling; whether shall the condition be reputed for accomplished?

12 In this last Q. either hath diuers authors.

13 The opinion of the author of this booke.

[Page] 14 An answer to an obiection.

15 Diuers limitations of the former cōclusion, where­unto the author of this booke did subscribe.

MAnie † cases there be wherein it is 1 sufficient for the performaunce of the condition, that the same was ōce accōplished, albeit the same do not still endure in the same estateIas. in L. si quis hae­redem. C. de Instit. & sub. vbi tradita est regu­la non paucis amplia­tionibus & limitatio­nibus illustrata.: other cases there be, wherein it is not sufficient once to haue performed the condition, vnlesse there be a continuance of the performanceIas. in L. in substitu­tione. ff. de vulg. & pu­pil. sub. vbi regulā tra­didit sex fallentijs exornatam..

But because it woulde growe to an infinite matter to recite euerie particular caseQua in re nimium desudasse videtur Iason. vt refert Ber. Diaz. Tract. reg. & fal. verb. conditio reg. 110., it is meete to set downe some generall conclusi­ons or distinctions, whereunto and whereby al those particular cases maie be reduced and de­cided.

First † of all therefore we are to enquire the 2 nature of the condition, whether it be casuall, ar­bitrarie, or mixt De quibus supr. ead. part. §. 5. & Bar. in L. 1. de Instit. & sub. C. Min­sing. & Vigl. in §. pen. Instit. de haered. instit..

If † the condition be meere casuall, that is to 3 saie, such a condition whereof the euente is to vs vncertaineSupr. ead. part. §. 5. n. 14. Spiegel. Lexic. verb. fortuitum., then it is sufficient that the same was once accomplished, though it do not con­tinue still in the same stateL. si quis haeredem. C. de Instit. & sub.: as † for example, the 4 testator maketh thee his executor or giueth thee a hundred pounde, if A.B. shall bee proc­tor of the vniuersitie of Oxforded. L. si quis haeredem. cuius exemplum est. Si Titiꝰ fuerit Consul vel Praetor, &c. cui nostrū exemplum non est dissimile.: nowe if at anie time after the makinge of this will A.B. be proctor, whether after the testators death or be­fore, [Page 142] or whether hee continue still Proctor or not, it is not materialld. L. si quis haeredem.: yea though hee were deposed from his office, it skilleth not, it is suf­ficient that once he was Proctor, the condition beeing casuall, and so thou art to bee admitted to the executorship, and maiest obtaine the le­gacie, as though A.B. were Proctor stillSichard & alij in d. L. si quis haeredem.. So it is if the testator make thee his executor, or giue thee a hundred pound if A.B. shall bee Doctor of the ciuill lawe, though afterwardes he be de­gradedZas. in L. in substitu­tione. ff. de vulg. sub. n. 11.. Likewise if the testator dooth make thee his executor or giue thee a hundred poūd if his daughter shall bee widdowe: In this case if his daughter happen at anie time to be wid­dow, thou maiest be admitted to the executor­ship or obtaine the legacy, albeit shee doe after­ward take a new husbandBald. in L. fin. de in­dict. vid. C. Grass. The­saur. com. op. §. legatū. q. 53. referens ibi hanc op. esse veram. cui con­cinnit Mantic. de con­iect. vlt. vol. lib. 12. tit. 19..

5 If † the cōdition be arbitrary, that is to say, such a condition as the lawe esteemeth to be in our powerSichard. in Rub. de Inst. & sub. C. Viglius et Minsing. in §. pen. In­stit. de haered. institu­end.; then it is not sufficient that it be once 6 accomplished, vnlesse it doo continueBar. in L. 2. de cond. et demon. ff. Sichard. in L. si quis haeredem. de Instit. et sub. C. quorum opinio communis est. ex relatione Grassi Thesaur. com. op. §. le­gatum. q. 57. n. 3.: As † for example, the testator maketh thee his execu­tor, or giueth thee a hundred pounde if thou paie to A.B. tenne pound, thou paiest ten poūd to A.B. and when thou hast so doone, thou ta­kest it from him againe, this paiment is no pai­ment, because thou diddest not suffer the mo­nie to continue with him, and therefore in this case thou art worthilie repelled from being ex­ecutor, or obtaininge the legacieL. si soluturus. ff de soluc. et Angel. ibid. Si­chard. in d. L. quis haeredem. n. 6.. So it is if the condition doo include a continuaunce of time: as for example, the testator maketh thee his executor or giueth thee a hundred pounde, [Page] if thou permit A.B. to haue a waie through thy ground: in this case it is not sufficient, that thou permit him to haue a waie or to passe through thy groūd for a day or two, but thou must suffer him so longe time as the testator hath assigned, otherwise the condition is not said to be com­pleteDec. et Sichard. in d. L. si quis haeredem. de Instit. et sub. C.. But what if the testator make thee his executor or giue thee a hundred pound, if thou giue ten pound to A.B. thou of pitie & cōpas­siō giuest him tenne pound, being ignorant of this conditiō: whether is it sufficient that thou didst once giue him ten pound? In this case the condition is not reputed for accomplished, and therefore if thou wilt bee executor or obtaine the legacie, thou must once againe giue him tenne pound, as else where I haue declaredSupr. ead. part. §. 7. in prin. per gloss. et DD. in d. L. si quis hae­redem. et Grass. The­saur. com. op. §. lega­tum. q. 52.: for where the condition is arbitrary, it must be obserued preciselieSupra ead. part. §. 7., vnlesse it be in such a case as it can not be iteratedd. L. si quis haeredē. et p. Sichar. ibid. n. 3.: For example, thou art made executor or hast a hundred pound be­queathed vnto thee, if thou manumit thy bōd­man, or if thou remit to A.B. ten pound which he oweth thee: in which case if thou shalte graunt libertie to thy seruaunt, or release the saide debte of tenne pound, before thou know of the conditionall disposition, this acte shal be accōpted for an accomplishment of the condi­tion, because now thou canst not do it againeSichard. & alij in d. L. si quis haeredem. de In­stit. & sub. C..

When † the condition is a mixte condition, 7 then it is sufficient that the same was once ac­complished, though it doo not so continued. L. Squis haeredem.: for † example, the testator maketh his daughter 8 executrix, or giueth her an hundred pound if [Page 143] she marie; she marieth; afterwardes her hus­band dieth, or they are diuorced by occasion of his faulte: In this case she is to bee admitted to the executorship, or maie obtaine the lega­cie, as if the mariage had not beene dissolued, 9 by death or diuorceDD. in d. L. si quis haeredem.. But if † the faulte were the occasion of the diuorce, it is more doubt­full whether the condition shall be accompted for complete to her benefitDD. in d. L. si quis haered. quorum Bald. Sal. & Alex. in ea opi­nione sunt, vt conditio non sit completa: sed Ang. Ias. Dec. & moder ni ferè omnes contra­rium defendunt.: In which case ne­uerthelesse, their opinion seemeth the truer & sounder, who holde that the lawe dooth exact no more at her hands by reason of this former condition, but that she marie, not that she shold commit no faulte whereby the mariage must be dissoluedHoc tutius esse refert Iason, verius esse refert Dec. in d. L. si quis hae­redem. quia viz. Lex il­la loquatur indistinctè.: and therefore hauinge perfor­med the condition by mariage, the diuorce dooth not repel her, the rather because she did not offend of purpose, to infringe the conditi­onDec. in d. L. si quis haeredem. cuius opinio faciliùs admitti debet, quandoquidem apud nos pro crimine solum ipsum matrimonij ali­às debitè ritéque con­tracti, vinculum non dissoluatur; sed sepa­ratio tantum sit à mensa & à thoro.. In deede if shee did marrie onelie to ob­taine the executorship or legacie, not with pur­pose to continue a duetifull wife, & afterwards committe adulterie, wherby she is separated; the condition is not satisfied by that mariage, and consequently she can neither be executrix nor obtaine the legacieDec. Sichard. & alij in d. L. si quis haeredem. But how maie it bee knowen, whether she did marie with purpose onelie to obtaine the benefit of the dispositi­on, or with purpose to continue a duetifull wife? the shortnesse of time betwixt the mari­age and the committing of the fault dooth de­clare, for if she marie on the one daie, and com­mit the crime on the next, this is a testimonie that she had not a meaning to endure the yoke [Page] of mariageSichard. vbi supr. Arg. L. ventri §. [...]in. ff. de priuileg. cred.: furthermore if the mariage were not lawfull from the beginning, either by rea­son of the minoritie of the person, or by reasō of consanguinitie or affinitie, the condition is not reputed accomplishedL. pen quādo dies leg. ced. L. haec condi­tio. de cond. & demon. ff. Mantic. de coniect, vlt. vol. lib. 11. tit. 18. n. 22..

What † if the partie whom the testator ma­keth 10 executor, or doth bequeath any legacy vn­to conditionallie (If shee shall marie) be alrea­die maried at the time of the will making, whe­ther by this mariage is the condition said to be complete? If the testator were ignoraunt of the mariage, the condition is said to be accompli­shed, otherwise not;L. si ita scriptum. §. si pater. ff. de leg. 2. Man­tic. de coniect. vlt. vol. lib. 11. tit. 18. n. 16. as hereafter is more fullie declared.

What † shall we saie to this question, the te­stator 11 maketh A.B. his executor, or giueth him a hundred poūd if he marie his daughter. A.B. offereth to marie her, she refuseth: afterwardes shee beeing willing consenteth, and then hee refuseth: whether in this case ought A.B. to be admitted executor and maie recouer the le­gacie, as if he had maried her, yea or no? In deede if she had neuer beene willinge or con­senting to be maried, it were a cleere case, that seeing it stoode not by him, wherfore the con­dition was not accomplished, but by her, then the condition shoulde haue beene reputed in lawe to haue beene accomplishedc. cùm non stat. c. imputari. de reg. iur. 6., as hath beene heretofore declaredSupr. ead part. §. 8.. But the case being altered, and shee which was vnwillinge before, being now at length become willing and con­senting, the question is more doubtfullvt per DD. in L. 1. de Instit. & sub. C. & per Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 38.: wher­in verie † manie doo holde the affirmatiue, e­steeming 12 [Page 144] that the cōdition being once accōpli­shed by her refusall it is sufficient, though it do not so endure, and that in this case, we are to re­spect the beginninge and not the successeBald. Sal. Alex. Si­chard. in d. L. 1. G. de In­stit. & sub. & Molin. in Apostil. ad Dec. in eand. L.. O­thers doo holde the negatiue, supposinge that the condition ought not to be accompted for accomplished, vnlesse hee that is to reape the benefit by the performaunce thereof, doo con­tinue and perseuer in readinesse and willing­nesse to performe the same, and that the laste delaie is euer hurtfullPetr. Cyn. Fulgos. & alij in d L. 1..

Either opinion hath manie authors of great authoritie, and albeit it maie seeme, that this condition being a mixte condition, not consi­sting in his owne power alone on whō it is im­posed, but in hers also, that therefore beeinge once accomplished it is sufficient, though it do not so continue: as in the former examples of being Proctor, Doctor, wife, or widow, where the conditions bee reputed for fullie perfor­med, howsoeuer afterwardes the Proctor bee deposed, the Doctor degraded, the wife diuor­ced, or the widdowe maried.

13 Yet notwithstanding for mine † owne part, I doo rather cleaue to them which doo holde the negatiue opinionnon tamē indistinctè vt infra hoc ipso §. in fin., and so that howsoeuer in this case, A.B. were at the first willinge and ready to haue accomplished the condition, and that it did not then stand by him wherefore the same was not performed, yet afterwardes shee consenting and he dissenting, it is in effecte, as if he had beene vnwillinge at the beginninge, and consequentlie, that he is not to bee admit­ted [Page] executor, nor to recouer his hundred poūd by vertue of this disposition.

To † the former obiection, that is sufficient 14 that a mixte condition be once accomplished, though it doo not so endure: as appeareth by those late recited examples. It maie bee answered, that there the condition was once actuallie complete, which was all that the testa­tor seemed to requireIas. Dec. Sichard. & alij in d. L. 1. d [...] Instit. & sub. C. in those cases: but here the condition was neuer in acte, and so the per­formaunce thereof came shorte of the testators desireId quod clarè mihi constare videtur ex verbis testatoris dicen­tis (si duxerit filiam meam,) nec obijcias per eum non stetisse, ex quo nunc stat. Sin ad­huc vrgeas conditio­nem, tunc primùm pro impleta haberi, quādo per eum non stetit. Re­spondeo illud plus ha­bere subtilitatis quàm aequitatis, quippe qui non credam satisfactū esse voluntati testantis vnica nuptiarum obla­tione, muliere postea consentiente, ita vt non subsecutis nuptijs legatum iure posci nō possit.. Wherefore as I said before, I doo ra­ther subscribe to their opinion, who doo holde that in this case the condition is no more repu­ted for complete in lawe, then it is in fact: and consequentlie that hee can reape no benefite thereby, by whom it ought to haue beene per­formedFateor tamé contra­riam opinionem dici communem, teste Si­chardo in d. L. 1. de In­stit. & sub. & quidem attenta iuris subtilita­te, eandem opinionem magis ferendam esse non prorsus nego, sed inspecta testatoris voluntate, non ita..

And this opinion I suppose to bee more a­greeable to the meaninge of the testator, and therefore to be preferredMens autem testa­toris quàm diligentis­simè inuestiganda, & tanquàm regina co­lenda est, vt ait Sichar. in Rub. de testa. C., certaine cases ex­cepted. † One case is where the executor or le­gatarie 15 vpon the refusall of hir offer, dooth ma­rie an other woman, for then it is too late to re­pent, seeing from that time he hath iuste cause to refuse her offer after hee hath maried an o­ther womanSocin. in L. in testō. el. 2. ff. de cond. & de­mon. Mantic. de con­iect. vlt. vol. lib. 11. tit. 18. n. 38.. An other case is, when the te­stator remitteth a debt which is due vnto him: as for example, the testator remitteth to A.B. a hundred pound which he oweth him if hee marie his daughter: A.B. is willing and offereth to marie her; she refuseth, afterwardes shee is willing: this newe willingnes dooth not hin­der [Page 145] the legatarie, being before deliuered, and the action extinguished by her refusallMantic. vbi supr [...].. An o­ther case is like vnto this, when after the refu­sall made by the woman, and before her repen­taunce, hee whose offer was before refused is admitted to the executorship, and dooth ob­taine his legacie, and is possessed thereof, for notwithstandinge her repentaunce and newe willingnesse, he maie retaine that whereof hee was possessedMantic. vbi supra. post Socin. in d. l. in testo. el. 2. de cond. & demon. ff.. An other case seemeth to bee this, namelie, when some speciall thinge is be­queathed: as for example, the testator doth be­queath vnto thee his white horse, or a hundred pounde lyinge in his cheste, if thou marie his daughter, for straight waie by her refusall thou hast gotten a certaine right in the thing beque­thedSocin. vbi supr. huc pertinent quae superiùs dicta sunt. ead. part. §. 4. in fin. Brook Abridg. tit. deuise. n. 6. 30. Bald. Sal. & Alex. in L. 1. de Instit. & sub. C.. If there be anie other cases wherein the affirmatiue hath place, they are more straung, nor easilie like to happen, and therefore not so necessarie to be knowen.

Of diuers conditions vvhich maie seeme doubtfull, whether they be lawful or vnlawful, and first of those conditions, wherby the libertie of makinge testamentes is hindred, how far the same are lawfull, or vnlawful.
§. xj.

1 Certaine conditions whereof it maie be doubted of some, whether they be lawfull or vnlawfull.

2 Captious conditions destroy the testament.

[Page] 3 Captious conditions wherefore they bee so tear­med.

4 Testamentes are to be made with all freedome, not onelie without feare of losse, but also without hope of gaine.

5 This proposition that captious dispositions are void, diuerslie extended.

6 The same proposition diuerslie limited.

7 An other kinde of condition against the libertie of making a testament.

8 The testament improperly tearmed captious, which is referred to the will of an other.

9 The testators will may not depend of an other mans will, and what is the reason thereof.

10 What if he to whose will the testator did referre his owne will, should make a will in the name of the testator.

11 As an other mans soule is not my soule, so his will and testament is not my will and testament.

12 It is lawfull for the testator to referre his will to the will of an other being ioyned with a fact.

13 So is it when the testator dooth referre his will to the limited will of an other.

14 When is the testator said to referre his owne will to an others absolute will, and when to his limited will.

15 The declaration of the testators will maie be refer­red to an other.

16 What if relation be made to the will of the execu­tor or cegatarie.

17 In fauour of libertie the disposition maie be refer­red to an others will.

18 So maie the disposition which is made ad pias [Page 146] causas.

19 He that dooth commit all his goodes to the dispo­sition of an other, doth not die intestate.

1 FOr as much † as there bee diuers conditions which be neither sim­plie lawfull, nor simplie vnlawfull, but in diuers respectes lawfull and vnlawfull, especiallie those condi­tions whereby the libertie of makinge a testa­ment de qua conditione statim subijcitur hoc ipso §., or the libertie of mariage De qua infr. §. prox., or the liber­tie of alienating the thing disposed De qua infr. ead. part. §. 13., maie seeme to be hindred or restrained: I thought it con­uenient in this place to shewe howe farre, and in what cases these conditions be lawful or vn­lawfull, and what effect they haue.

2 And first of all † concerning those conditi­ons which do impugne and hinder that liber­tie, which ought to bee had in makinge of te­stamentes, and whereby the disposition of the testator is said to be captious, or to depende of the will of some other person: such conditi­ons are vnlawfull, and doo destroie the force of the dispositionL. Captatorias. de haered. instituend. L. captatoriae. de leg. 1. ff. L captatorias. de mil. testō. C Couar. in c. cùm tibi de testa. ext.; and † therefore if the testa­tor 3 make thee his executor vpon condition, if thou shalt make him thy executor, or giue thee a hundred poūd by his testamēt cōditionally, if thou shalt giue him a hundred pound in thy testament: this kinde of disposition is saide to be captiousIlla enim voluntas propriè dicitur capta­toria, quae fit sub spe reciprocae voluntatis. Couar. in c. cùm tibi. de testa. ext. Sichard. in I. captatorias. de mil. testō. C., because hereby the testator goeth about to catche or intrappe thee to make him [Page] thy executor, or to giue him a hundred poūd, in case thou die firstAlciat. Perergon. lib. 2. c. 31. August. lib. 4. Emendac. c. 15., and to hinder that liber­tie which thou shouldest enioie in makinge of thy testament. For when thou hast made him thy executor and diest, then hath he that which he looked for, he is now thy executor, and thou on the contrarie, arte frustrated of that which thou perhappes diddest looke for, for beeinge dead thou canst not be his executorVide Minsing. lib. 1. obseru. c. 8.: and ther­fore † as in mariages the same ought to be free, 4 not onelie from feare of suffering losse, but also from feare of not obtaining gainec. Gemmae. de spons. extra.: so in te­stamentes, the same ought to be made withall freedome, not onelie without feare of punish­ment of losse, but also without hope of gaine or rewardSichard in L. capta­torias. C. de mil testo. n. 6..

And in this consideration, † these captious 5 willes, whereby manie vnder pretence of ma­king others their executors, or gratifiing them with legacies doo subtillie procure them­selues to be made executors, or otherwise to be benefited by the dispositions of others, are so odious, that they are vtterlie voideL. illa. L captatori­as. de haered. instituen. L. captatorias. de leg. 1. ff., albeit they be militarie testamentesL. captatorias. de mil testō. C., or of the father a­mongest his childrenVasq. de succes. crea. lib. 2. §. 17. n. 28., or of a straungerVasq. ibidem., or testamentes ad pias causas Nam quod dicitur captatoriam dispositio­nem valere quoad piā causam, (vt in c. cū tibi de testa. extr.) Id verum est in captatoria dispo­sitione impropriè sic dicta, quae viz. pendet ex alieno arbitrio, ꝓut in d. c. cùm tibi. & Co­uar. ibid. n. 2. & statim subijcitur, non autem quādo dispositio fit sub spe remunerationis. Sarmiētus. lib. 2. select. op. c. 4. n. 8. c. 6. n. 33. Sichar. in d. L. captato­rias., or testaments made in time of warresVasq. de succes. crea. lib. 2. §. 17. n. 83., or testamentes made in the time of pestilenceVasq. vbi supr., or testaments made in the person of a tirantIbidem., or in place wherein is wante of witnessesIbidem., or before the princeIbidem., or whether it be testament or codicillIbidem., for in all these cases and diuers others such captious wils be voideIbidem..

6 Notwithstanding † if the condition bee not referred to the time to come, but to the time paste, or present, the condition is not vn­lawfull nor the disposition voide: and there­fore if the testator make thee executor of his testament, if thou hast named him executor in thy testament, or giueth thee an hundred pounde in his will, if thou hast giuen him a hundred pounde in thy will, this conditi­on is not vnlawfullSichard. in L. capta­torias. de mil testō. C., for two persons maie make either other executors, or otherwise be­nefit one an other by their testaments, so it bee doon in regard of good will, and affection, and not in hope of gaine or remunerationAlciat. Perergon. lib. 3. c. 31. Couar. in d. c. cùm tibi de testa. ext. n. 1..

Besides this former kinde of disposition which by reason of the cunning condition ap­peareth to be made in hope of gaine, and is 7 therefore properlie tearmed captious: there † be other like dispositions which be repugnant to the libertie of making testaments, which al­so are said to be captious: that is to saie, when the testators will dooth depend of the will of an otherCouar. in d. c. cùm. tibi. de testa. ext.: as for example, the testator maketh thee his executor or giueth thee a hundred pound if A.B. will, or thus. The testator maketh that person his executor, or giueth him a hun­dred pound whom thou wilt appointCanonistae. in d. c. cùm tibi. de testa. ext. Legistae. in d. L. capta­torias. de mil. testō. C.: In both 8 these cases † the disposition is said to bee capti­ousDD. in d. L. captato­rias. & in d. c. cū tibi. Grass. Thesaur. com. op. §. Institut. q. 18., though not so fitlie as commonlieAlciat. Perergon. c. 31. Couar. in d. c. cùm tibi. Soarez. lib. rec. senten. verb. captato­rias. An autem valeat huiusmodi dispositio, quaere vt infr. d. §.. Ne­uerthelesse the condition is vnlawful, because it is against the libertie of making testamentes, 9 wherein † the testators will ought not to depēd on the wil of anotherL. illa institutio. ff. de haered. instituend.: For the ancient lawma­kers [Page] considering, that if it should be lawfull for testators to referre their willes to the willes of others, and to depend vpon them, then hee on whom the testator did depend, either not dooing anie thing at all, or else dooing other­wise then the testator woulde, by that meanes the testator shoulde remaine deceiued, & they to whome the testator did wish well, should be disappointed.Sichard. in L. capta­torias. C. de mil. testo. n. 4. For the auoyding of which in­conueniences they did ordaine, that euery te­stament should personally depend of the testa­tors owne will, and not of the will of another, by whom the testator might be deceiued.Sichard. vbi supra. Peckius. in Tract. de testa. coniug. lib. 1. c. 27. And † 10 thence it is that a testament is defined to bee a sentence of our will, not of another mans willSupr. 1. part. §. 2. & 3.. Therefore when thou art made executor, or some legacie is bequeathed vnto thee (if A.B. will) as is set downe in the former instance, al­though A.B. should wil that thou shouldest be executor, or haue the legacie: notwithstan­ding thou couldest neither bee executorL. illa institutio. ff. de haer. instit. Paris. cons. 38. lib. 3. n. 60. 73., nor obteine the legacieL. non nunquam. de cond. & demon. L. cap­tatoriae. de leg. 1. ff. & est communis opinio, quam etiam defendit Couar. in d. c. cùm tibi. de testa. extr.. And euen so where the te­stator maketh that person his executor, or gi­ueth him an hundred pound, whom thou wilt appoint (as in the seconde instaunce) though thou shouldest appoint one, yet this appoint­ment should not benefit himBar. in L. quidam. de Reb. dub. ff. n. 7. 8. Bald. in L. executorem, C. de execu. rei iud. n. 5. Paris. cons. 38. vol. 3. n. 6. Grass. §. Institutio. q. 18. n. 4.: For † as thy soule 11 is not the soule of the testator, no more is thy will his will, nor thy testament his testamentBald. & Angel. in L. captatorias. C. de mil. test. Vasq. de succes. creat. lib. 2. §. 17. n. 81. Peckius. Tract. de testa. coniug. c. 27. n. 3. Paris. d. consil. 38., neither is it in the power of the testator to referre the substance of his will to the will of an other,d. L. illa institutio. ff. de haered. instit. Bar. in L. quidam de reb. dub. ff. Peckius. Tract. de te­sta. coniug. lib. 1. c. 27. n. 3. being such a qualitie as cleaueth to his owne person, and cannot bee committed to [Page 148] anotherSarmientus. lib. 2. se­lect. interp. c. 6. n. 2., except in certaine cases.

12 The first is when † the testator doth not re­ferre his disposition to the sole onelye will of another person, as in the former example, viz. if A.B. will; but to the concreate will, or will ioyned with factL. nonnunquam. ff. de cond. & demon.: as for example, the testator maketh thee his executor, or giueth thee an hundred pounde, if his sonne shall goe to the Church, this is a lawfull condition, and there­fore the condition being complete, thou art to be admitted executor, or maiest obteine the le­gacied. L. nonnunquam. Sarmient. lib. 2. select. interp. c. 6. n. 28.: And yet there seemeth but a little dif­ference betwixt these conditions (if A. B. will) or (if A.B. shall goe to the Church) for that it is in his will, whether he will go to the Church or not. But many things doe greatly hurt being expressede, which not expressede doe no harmed. L. nonnunquam..

13 An other case is this, when † the testator doth not referre his will to the meere abso­lute will of another (as if A. B. will) but to his limited willSichard. in d. L. cap­tatorias. C. de mil. testo. As for example, the testator doth make thee executor, or giueth thee a hundred poūd (if A.B. shall esteeme it couenient.) In which case, if A.B. shall esteeme it meete or conueni­ent that thou bee executor or haue the legacie of an hundred pound, then thou art to be ad­mitted to the oneSichard. vbi supr. quamuis quoad hae­redis institutionē istud non procedit sine diffi­cultate maiori iure ciuili. Sarmient. lib. 2. select. interp. c. 6. n. 4., or maist obteine the otherL. si sic. de leg. 1. L. 1. de leg. 2. L. fidei cōmissa de leg. 3. ff.. 14 The † testator is saide to referre his dis­position, to the meere absolute will of another, when he committeth the same to his will, to his lust, to his appetiteMenoch. de Arb. Iud. sentent. lib. 1. q. 7.: to his limited will, when he referreth the same to his discretion, iudge­ment, [Page] wisedome, good pleasure, disposition, and conscienceIas. in L. si sic. de leg. 1. ff. Menoch. d. lib. 1. q. 8.

Thirdly, when † the substance of the testa­tors 15 will is not referred, but only a declaration or electionL. vtrum. §. cùm qui­dam. ff. de reb. dub. Bar. in L. quidam. eod. tit. n. 8. Peckius. de testa. coniug. lib. 1. c. 27.: as for example, the testator ma­keth one of his seruants his executor, or giueth him an hundred pounde, whome thou shalt choose. In this case he whom thou shalt choose of the testators seruants shall be executor, or recouer the legacie.L. fidei commiss. de fidei com. lib. in fin. ff. Paris. cons. 38. lib. 3. Grass §. Institutio. q. 18. n. 6. vbi. ait hanc opini­onem esse. com. Another † case is when 16 the disposition is referred to the will of the ex­ecutor touching the executorship, or of the le­gatarie, touching the legacie: as for example, the testator maketh thee his executor, if thou wilt, or doth giue thee a hūdred pound, if thou wilt, for this condition is not onely permitted, but is necessarily requiredSupr. ead. part. §. 6..

Another case † is in fauour of libertie or free­dome 17 from bondage, and therefore if the testa­tor doe manumit his villeine, if his executor will, it is as effectuall, as if he had referred the same to the discretion, or wisedome, or consci­ence of his executorL. fidei commissa. de fidei commiss. lib. ff. Sichard. in L. capta­torias. C. de mil. testō..

And further, † when the disposition is made 18 ad pias causas, then it is also lawfull for the testa­tor to commit the verie substance of his will, to the free and absolute wil of another,Paul. de Castr. & A­lex. in d. L. captatorias. Abb. cons. 32. lib. 2. Bo­ic. & Couar. in d. c. cùm tibi. Bald. in c. in causis de elect. extr. quorum opinio est com. Grass. §. Institutio. q. 18. and ther­fore if the testator make the poore of the parish his executor, or giue them an hūdred pound, if A. B. will, this is a good dispositionEt hoc procedit iure Can. non solùm quo ad legata, sed etiā quoad institutionem. Couar. in d c. cùm tibi. n. 12. re­ferens hanc op. esse ve­riorem. Tu adde Gabr. lib. 6. com. conclus. Tit. pia causa. concl. 3. vbi pulcherrimè hanc con­clusionem ornat varijs ampl. & limitac..

Finally † if the testator commit the disposi­tion 19 of all his goods to another, this is lawful, and he to whom the disposition is committed, [Page 149] is vnderstoode to bee made executor, to distri­bute all the said goodes in pios vsus c. cùm tibi. de testa. extr. & ibi Couar. n. 10. Grass. d. §. Institutio. q. 18. Peckius. de testa. coniug. lib. 1. c. 27. quo­rum testimonio haec o­pinio est communis.: so it is, if the testator commit his soule and all his goods to the hands of another, as hath beene hereto­fore delcaredSupr. ead part. §. 4..

Of those conditions vvhereby the liber­tie of mariage is restrained, viz. howe far the same be lawfull or vn­lawfull.
§. xij.

1 Of conditions against the libertie of mariage, some are lawfull, some vnlawfull.

2 Conditions against the libertie of mariage, are all vnlawfull, except in certaine cases.

3 The reasons wherefore the conditions against the libertie of mariage, are vnlawfull.

4 The prohibition of the first mariage more odious then of the second.

5 The condition of mariyng with the arbitrament, will, or consent of another is vnlawfull.

6 The reason wherefore the former condition is vn­lawfull.

7 The condition prohibiting mariage for a short time is not vnlawfull.

8 The condition prohibiting mariage with some per­sons, is not vnlawfull.

9 Whether the condition prohibiting mariage haue respect onely to the first mariage.

10 An occasion of doubt, whether the former conclu­sion be true.

11 An answer to the same doubt, distinguishing whe­ther the conditions be affirmatiue, or negatiue.

[Page] 12 The condition prohibiting mariage in some place, is not vnlawfull.

13 The condition hauing relation to the mariage of a third person, is not lawfull, sauing where that third person is of kinne.

14 The condition prohibiting mariage, is not re­iected where pia causa is substituted.

15 Affirmatiue conditions about mariage are not re­iected but in some cases.

16 Some affirmatiue conditions of marying, harder then the negatiue of not marying.

17 The condition of marying with the aduise or counsell of another, is not vnlawfull.

18 The condition of marying with the consent of an other, is to be obserued in part.

19 Difference betwixt these phrases, If he doo not marrie, and, so long as he doth not marrie.

20 The condition of not marying doth not hinder re­stitution simplie imposed.

ALbeit † all those conditions wher­by 1 the libertie of marying is who­ly taken away, are generally disli­kedL. quoties. de cond. & demon. L. seruo. §. si testator. Ad. Trebell. ff.: neuerthelesse, where the conditions be such whereby mar­riage is not altogether prohibited, but in parte restrained, as in respect of time, place, or person, they are not to be vtterly reiectedL. cùm ita. L. hoc mo­do. L. sed si. §. cùm vir. de cond. & demon. ff. & infr. hoc §..

Wherefore, that wee may the better knowe when these kinde of conditions be admitted or not, I thought it best, and the moste easie way [Page 150] to set downe a rule, with ampliations and li­mitations of the same, according to the diuer­sitie of cases, incident to that purpose.

2 The † rule shall bee this, that all conditions agaynst the libertie of marriage are vnlawfull Eand. reg. tradit Vi­gelius in sua methodo exactissima iu [...]is ciui­lis. part. 4. lib. 14. c. 3. cū decem exceptionibus. Et licèt idem Vigelius postea existimet con­trarium iure nouo cō ­stitui, & ita superuaca­neas esse illius regulae exceptiones, pace ta­men tanti viri, nihil noui statuitur in primis nuptijs, in quibus vel hodie ius antiquum obtinet, vt verè atte­statur Mantica de con­iect. vlt. vol. lib. 11. tit. 19. in prin. Cui concin­nit Grass. Thesaur. cō. op. asserens conditionē qua in totum prohibe­tur matrimonium in virgine turpem, contra bonos mores, at (que) adeo de iure impossibilem esse, denique communi Doctorum calculo re­iectam. §. legatum. q. 50; and that whensoeuer the testator dooth ap­point his executor, or make any bequest vpon such condition, that then the condition is voyde, as if it were not written; and that hee who is made executor, or to whom any lega­cie is giuen vpon such condition, may bee ad­mitted to the executorship, or may obtaine the legacie, as if the disposition had beene simpleL. quoties. L. sed si. §. fin. L. cum tale. §. Me­uiae. de cond. & demō. ff. L. 2. C. de indict. vid..

3 The † reason which the lawyers do yeeld, (I meane) of the vnlawfulnesse of this condition, is, because it is contrarie to the procreation of children, and repugnant to the lawe of nature, and hurtfull to the common wealthMantic. de coniect. vl. vo. li. 11. tit. 19. in prin.: where­vnto it may bee added, that howsoeuer virgi­nitie is commended, yet mariage is not there­by condemned, and therefore (as I sayde before) if the testator make one his executor, or giue him an hundred pounde, if he doe not marrie, this condition is vnlawfull, and as if 4 it were not writtenL. quoties. L. hoc mo­do. L. cùm ita legatum. de cond. & demon. ff.: which † thing is rather true, if the executor or legatarie were neuer married before, for the prohibition of the first mariage is much more odious in law then the secondIstiusmodi siquidem conditio, si permanse­rit vidua, vel castè vix­erit, in ijs nō reijcitur, in alijs secus. Auth. cui relictum. C. de in­dict. vid. Couar. Epitō. de sponsal. c. 2. §. 9. n. 11. Grass. Thesau. com. op. §. legatum. q. 50. quāuis eam non modo durā, sed & iniquam existimauit Peckius. Tract. de testam. coniug. lib. 1. c. 24.: for albeit it be commonly and truely sayde, that the common wealth hath an inte­rest that testaments shoulde bee executedL. Gallus. §. quid si is. de lib. & posthu. L. vel negare. quemad. testa. app. ff., yet the common wealth hath a greater interest, [Page] that it should bee throughly peopled, and ther­fore mariage not to be prohibitedL. 1. sol. matr. L. cùm ratio. §. si plures. de bō. dam. ff. Mantic. de con­iect. vlt. vol. lib. 11. tit. 19. in prin..

And in consideration hereof, this rule is ex­tended, that if † the testator make some person 5 his executor, or giue him any legacie, if he mar­rie according to the appointment, arbitrement or consent of some other; this condition is re­iected as vnlawfullL. cùm tale. §. si arbi­tratu. d. §. si Meuiae. Grauetta. consil. 1. n. 3. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 8.. And therefore in this case if he that is made executor, or to whome anie legacie in such sort is giuen, doo marrie contra­rie to the sayde restraint, mentioned in the testament, he is to bee admitted to the execu­torship, and may obtaine the legacie, as if no such condition had bene expressedd. §. si arbitratu. L. tur­pia. §. si Titiae. de leg. 1. ff. Grauetta. & Mantic. vbi supr. Peckius de te­sta. coniug. lib. 1. c. 24. n. 6. vbi dicit hoc pro­cedere in virginibus, non in viduis, ob no­uellam Iustiniani con­stitutionem, qua ꝑmit­titur conditio viduita­tis: quod etiam alijs placet. vt Grass. d. §. legatum q. 50. n. 10..

The † reason of the vnlawfulnesse of this 6 condition is, least hee whose arbitrement were to bee followed, or whose good will were to bee procured, might make an hard choise for the executor or legatarie, either by reason of the dislike of the partiesQuam rationem communiter esse re­ceptam refert Grass. Thesaur. com. op. §. le­gatum. q. 50. n. 9. post DD. in d. L. turpia. §. si Titiae., inequality of age, dis­paritie of kinred, disagreeing in maners or such like, which, if it were suffered, woulde breed greater mischiefe, then may be in a case of that qualitie tolerated or indured.

Moreouer, if the testator doo bequeath a­ny legacie to a woman condicionally, if shee doo not marrie, willing her to restore the same to some other, if she doo marrie: Albeit in this case the woman doo marrie, shee may obteyne the legacie, neither is she bound to restore the sameL. quoties. de cond. & demon. ff. Mantic. de coniect. vlt. vol. lib. 11. tit. 19. n. 4. Grass. The­saur com. op. §. legatū. q. 50. n. 7. 8. vnlesse it were the meaning of the te­stator not to forbid marriage, but to graunt the vse of the thing bequeathed vntill the legata­rie [Page 151] did marriePeckius de testa. cō ­iug. lib. 1. c. 24. L. sed si §. cum vir. de cond. & demon. ff.. Other extensions there bee also of this rule, but let vs returne to the limi­tations.

7 The first limitation therefore is, when † the condition is not perpetuall, but temporallL. sed si §. cùm vir. ff. de cond. & demon., as if the testator make his daughter executrix, or bequeath her a hundred pound, if shee doo not marie before the age of 20. yeares: this condi­tion is to be performedIas. in Auth. cui reli­ctum. de indict. vid. C. Mantic. de coniect. vlt. vol lib. 11. tit. 18. n. 8.: Howbeit if the time of the prohibition be such, that it is verie like, if she should cōtinue a maide during that space, that her mariage should bee greatly hindered, the condition is reiected, as being made in fraude of mariageIas. in d. Auth. cui. n. 3 per L. cùm tale. ff. de cond. & demon. Fran. de Are. consil. 67. Man­tic. de coniect. vlt. vol. lib. 11. tit. 19. n. 8..

8 The second limitation is when † the prohi­bition doth onely exclude some persons: as for example, the testator dooth make thee his exe­cutor, or giueth thee an hundred pounde, if thou do not marrie a widdow; this condition is not vnlawfullL. cùm ita legatum. ff. de cond. & demon. Peckius de testa con­iug. lib. 1. c. 24. n. 4.: And therefore if at any time after thou doo marrie a widdowe, thou canst not be executor, nor obtaine thy legacie: In so 9 much that † if thou shouldest mary a mayde, & after her death shouldest marrie a widdowe, all thy hope of beeing executor, or obteining thy legacie is extinguished, by this thy seconde mariageOldrad. consil. 16. Al­ciat. in L. boues. § hoc sermone. de verb. sig. ff. & Tiraquel. in d. §. limitac. 7., much more is the condition lawfull, if the testator make thee his executor, or giue thee any legacie, if thou doo not marie this, or that particular womand. L. cum ita legatū. Mantic de coniect. vlt. vol. lib. 11. tit. 19. n. 9. Pecki [...] de testam. con­iug. lib. 1. c. 24., for here thou hast greater libertie, and more choise, then in the former. Where † I said that the hope & interest of the executor or legatarie is extinguished, if at [Page] any time he mary contrarie to the prohibition of the testator, whether it bee the first or the se­cond mariage, this may seeme doubtfull: for that when mention is made of mariage, it is to be vnderstood of the first mariage onelyd. L. boues. §. hoc ser­mone.. And therefore if the testator make thee his execu­tor, or giueth thee an hundred pounde if thou marie his daughter; if thou after the making of this will, shouldest firste marie some other wo­man, and after her death shouldest marrie the testators daughterPaul. de Castr. in L. hoc genus. ff. de cond. & demon.: yet couldest thou not bee executor, nor obteine the legacie: for in this case, the testator is presumed to meane of the first mariage, not of the second mariageTiraquel. in d. §. hoc sermone. n. 3. 4. facit L. matrimonij. ff. qui & à quibus. ma.. How then commeth it to passe, that thou beeing made executor, or hauing any thing bequea­thed vnto thee, if thou doo not marrie the te­stators daughter, losest all thy hope and inter­est, whensoeuer thou doost marrie her, suppo­sing thou haddest married one, two or three before. The † answere is this, when the con­dition 11 is affirmatiue, then it is to bee vnder­stoode of the first act onely: but when the con­dition is negatiue, then not onely the firste act, but the seconde, thirde, and euery other act is perpetually forbiddenOldrad. d. consil. 16. Alciat. & Tiraquel in d. §. hoc sermone. Bar. & Paul. de Castr. in d. L. hoc genus. ff. de cond. & demon., the reason of the diffe­rence is, because there is greater force in the ne­gatiue then in the affirmatiuePiꝰ negat negatio (quam) affirmat affirmatio, in­quit Paul. de Castr. in d L. hoc. genus..

The thirde limitation is, † when the 12 condition is limited, onely in respect of some place, as if thou doost not marrie in the Citie of YorkeL. hoc modo. ff. de cond. & demon. Grass. Thesaur. com. op. §. le­gatū. q. 50. Peckius. de testa. coniug. lib. 1. c. 24. n. 10..

The fourth limitation is, when † the condi­tion 13 [Page 152] of not marrying, is not referred to the exe­cutor or legatarie, but to some other person: as for example, the testator maketh thee his exe­cutor, or giueth thee an hundred pound, if his daughter doo not marrie: in this case the con­dition is not reiected, wherefore thou art to ex­pect the euent thereofL. 1. C. de indict. vid. Mantic. de coniect. vlt. vol. lib. 11. tit. 19. n 5., for if shee marrie thou art excluded, if shee die vnmarried thou art to bee admittedDD. in d. L. 1. C. de indict. vid.. But if the testator make thee his executor, or giue thee an hundred pounde, if thy daughter doo not marrie: this condition is vnlawfullL. haeres meus. §. vlt. de cond. & demon. ff., for where the person whose ma­riage is prohibited, is of thy neer kinred which art made executor or legatarie, it is likely that such person will by thy perswasions abstaine from marriage, to inrich thee by the testamentd. §. vlt. & ib. Bar. & Paul. de Castr., and therefore the lawe to preuent such fraude, hath reiected that conditionMantic. de coniect. vlt. vol. lib. 11. tit. 19. vbi tradit alias limitatio­nes..

14 The fift limitation is, when † that which is giuen with condition of not marying, is to bee distributed in pios vsus, in case the condition be not obserued: as for example, the testator doth bequeath vnto thee an hundred pound, if thou doo not marrie; and if thou doost marrie, then he dooth will that the same bee distributed a­mongst the poore schollers of Oxford. In this case the condition is not reiected as vnlawfull, and so if thou shalt marrie, thou losest thy hun­dred pound, and the same is to bee distributed amongst the saide poore schollersPaul. de Castr. in I. Titio. §. vlt. de cond. & demon. ff. Mantic de coniect vlt. vol. lib. 11. tit. 18. n. 9., the reason is, for that the law doth more fauour pietie thē the libertie to marrieMantic vbi supr I­mol. in d. L. Titio. §. vl. Tiraquel. de priuileg, piae causae. priu. 18..

15 The sixt limitation is, when † the condition [Page] is conceiued affirmatiuely, not negatiuely: for example, the testator maketh thee his execu­tor, or giueth thee an hundred pounde if thou marrie his daughterL. vter. de cond. & de­mon. ff. Mantic. de con­iect. vlt. vol. lib. 11. tit. 18. n. 2., or if thou marrie a maidPeckius. Tract. de testa. coniug. lib. 1. c. 24., or if thou marrie within a monethMantic. d. tit. 18., or if thou marrie at LondonPeckius. d. c. 24. n. 5. in fin., for albeit in these affirma­tiue conditions, is also included a negatiue, that is to say; if thou doo not marrie another wo­man, nor at anie other time, nor in any other place: neuerthelesse, these conditions are not vnlawfull, seeing the included negatiue is not vniuersall but particularL. cùm ita. L. hoc modo. ff. de cond. & de­mon..

But if † the woman appointed by the testa­tor 16 be such as thou canst not with honestie ma­rie herd. L. cùm ita legatū., then howsoeuer the condition bee af­firmatiue, yet in verie truth it is a harder condi­tion, and more against the libertie of mariage, then this negatiue (if thou doo not marrie;) for by this affirmatiue, thou art not onely excluded from marrying any other, but thou art, as farre as is in his power, inforced to accept her, whom thou canst not with thy credite married. L. cùm ita in fin. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 5 & Bar. in d. L. cùm ita, vbi respondit, quae perso­na sit indigna tuis nup­tijs, nempè illa, cui non potes sine dedecore nubere, inspecta nata­lium qualitate: Ne dū si iure vel ciuitatis mori­bus prohibeantur hu­iusmodi nuptiae, indig­na erit persona, & inu­tilis conditio.. And the like may bee saide, if the time or place be not conuenient, for then also the condition is reiectedMantic. & Peckius. vbi supra..

The seuenth limitation is, when † by the 17 condition the executor or legatarie is not to marrie without the counsell or aduise of ano­ther personCastrens. & Alex. in L. Turpia. §. si Titiae. de leg. 1. ff. Bar. in L. 1. §. si plures. de exercit. ac­tion. ff. Mantic. de con­iect. vlt. vol. lib. 11. tit. 18. [...] ▪ 10.: as for example, the testator dooth make thee his executor, or giue thee an hun­dred pound, if thou doo marrie with the coun­sell or aduise of his brother; for if thou do ma­rie without his counsell or aduise, thou art ex­cludedMātic. vbi supr. Ay [...]. Grauet. cōsil. 1. Couar. de sponsal. 2. part. c. 3. §. 8. n 3.: [Page 153] Neuerthelesse, in this case thou art not bound to follow his counsell or aduise, but to request the samePaul. de Castr. consil. 300. vol. 1. Felin. in c. ex part. de constit. extr. col. 2. Grass. Thesaur. com. op. §. legatū. q. 50. n. 11. licèt impressio in illo loco sit corrupta..

18 The eight limitation is this, where † it is said before, that the condition of marying with the consent, good will, and arbitrament of an other is voide, (so that the executor or legata­rie, to whom the condition is imposed, is nei­ther bound to obteine, nor yet to craue the cō ­sent, good will, or arbitrament of that other) yet the person on whom the condition is im­posed, cannot be executor, nor get the legacie, vnlesse he doo marrieAlex. & Paul. Ca­strens in d. L. turpia. §. 1. ff. de leg. 1., for though he need not so much as to craue the consent, or good will of any third person in this case, seeing that part of the condition is vnlawfull; yet must he ma­rie ere he can pretende anie title to the execu­torship or legacie, seeing that part of the con­dition is not vnlawfullMantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 8. post Alex. & Castrens. in d §. 1..

19 The ninth limitation is, when † the prohi­bition of mariage is not made conditionallie by this worde If, (as I make thee my executor if thou doost not marrie) but by other wordes or aduerbes of time, as when the testator wil­leth, that his daughter or wife shall bee execu­trix, or haue the vse of his goods, so long as she shall remaine vnmariedL. legatum ita est. de an. leg. ff. Peckius. de testa. coniug. lib. 1. c. 24.

20 The tenth limitation is, when † the person on whom the condition is imposed, is simplie charged to restore the thing bequeathedL. non dubium. ff. de leg. 3.: As for example, the testator doth bequeath to thee an hundred pound, if thou doo not marry, and hee dooth will thee to restore the same to his [Page] sonne when he shall come to lawfull yeares: In which case thou art by lawe to restore the same accordinglyd. L. non dubium. Mantic. de coniect. vlt. vol. lib. 11. tit. 19. n. 4. Grass. Thesaur. com. op. §. legatum. q. 50., neither is this limitation con­trarie to the former ampliation of the rule, for here thou art charged with restitution simplie, there conditionallyMantic. d. tit. 19. n. 4..

Whether the condition forbidding alie­nation of goodes bequeathed, be law­full or vnlawfull.
[Page 154]§. xiij.

1 Prohibition of alienation is sometimes to be obser­ued as lawfull, sometimes not.

2 Prohibition apparelled with a cause is lawfull.

3 Naked prohibition dooth not binde the executor, or legatarie.

4 Whether the feoffee may be prohibited to alienate.

5 Whether the dower of landes in taile may prohibite alienation.

6 As it is lawfull to prohibite alienation in fa­uoure of some persones, so in disfauoure of o­thers.

7 Of those causes wherewith the prohibition is saide to be apparelled.

8 In what cases the executor or legatarie may alie­nate the thing deuised, notwithstanding the appa­relled prohibition.

9 Bond ought to be put in where there is a condition prohibiting alienation.

1 THe † prohibition of the testator, forbidding the executor or legata­rie to alienate the goods bequea­thed, is somtimes to bee obserued as lawfull, sometimes not.

2 The prohibition is then † lawfull and to be obserued, when it is made in fauour of some o­ther person, who is to enioy the thing dispo­sed, after the executor or legatarie, or when there is some speciallL. filiussamilias. §. diui. de leg. 1. ff. cause whereuppon this restraint is grounded.

3 The † condition is not of any force, when it is without cause, or not made in fauor of any other person, saue onely of the executor or le­gataried. §. diui.. In which case they may renounce this fauour, and alienate the thinge deuised, notwithstāding such single prohibition, which is rather said to be a counsell, then a commaun­dementIas. in d. §. diui. n. 1.: For the lawe dooth deeme it an ab­surde matter, that a man should bee lorde and owner of a thing, and yet shoulde not at plea­sure alienate the sameIas. in d. §. diui. n. 9. Doct. & Stud. lib. 1. c. 24. In which point also I 4 suppose that † the temporall lawes of this realme haue the same effect in landes, which the lawes ecclesiasticall & ciuill haue in goods. And therefore if a feofment be made of lands in fee simple, vpon the condition that the feof­fee shall not alienate or put away the same: this condition is voide, because the feoffee is with­out any cause wholye restrained of that power [Page] which the lawe yeeldeth vnto him in such a caseBrook Abridg. tit. cō ­dition. n. 135. Fitzherb. tit condition. n 4. Prin­cipall grounds. fol. 28. Doct. & Stud. lib. 1. c. 24. Litleton. tit. estates vpō conditions.

But when the prohibition hath a cause an­nexed, or the same is made in fauour of some o­ther person, who is afterwardes to enioy the landes; then this condition of not alienating the same, is good and effectuall in the lawe, as may appeare by the gifts of lande in taile. For if † landes be giuen to a man, and to the heires 5 of his bodie lawfully begotten, vppon condi­tion, that neither he nor his heires shall alienate the landes to any other person: this condition is good and effectuall. In which case, if hee or his heires to whome the land is giuen, alienate the same, then the giuer or his heires may law­fully enter and retain the lands for euerFitzherb. Abridg. tit. condition. n. 4. Litletō. tit. estates vpon condi­tions. fol. 77.. And † 6 as it is not lawfull to alienate from particular persons, in whose fauour the prohibition is made: no more is it lawfull to alienate to those particular persons, in whose disfauour the pro­hibition is madeAlex. in d. L. filius­samilias. §. diui. ff. de leg. 1. n. 1.. In which case also concer­ning landes, the lawes of this realme, doo not differ from the ciuill and ecclesiasticall lawes concerning goodes: for howsoeuer it is not lawfull for the feoffer to cutte off the whole power of the feoffee, yet hee may abridge or restraine some part therof, by condition that he shall not alienate his landes to such or such personsBrook Abridg. tit. cond. n. 135. Litleton. tit. estates vpon condi­tion. fol. libri mei. 77..

The † cause wherewith the prohibition is 7 saide to bee apparelled, besides these former re­spects of the fauour and disfauour of persons, [Page 155] ariseth for the most part of the testators affecti­on, towards the thing bequeathed: as when the testator dooth bequeath some cuppe of golde which was his ancestours, forbidding the exe­cutor or legatarie to alienate the same, but to keepe it for a memoriallL. si in emptione. de Minor. ff. Paul. de Ca­strens. in d. §. diui.: or when he doth be­queath some iewell, or other ornament being the gift of the princeAlex. & Ripa. in d. §. diui., and for that cause dooth prohibite the alienation thereof; or when hee dooth bequeath some prize by him gotten in the warres, as a sworde or an helmet, and there­fore dooth forbid the alienation thereofAlex. & Rip. vbi supr..

Which prohibition in this sort is to bee ob­serued, as well as if it were in regard of some o­ther persond. L. filiusfa. §. diui., except it be in certaine cases, for it is not perpetually true, that the prohibition vpon a cause, or made in respect of some person is to be obserued.

The first exception therefore of this rule is, when the alienatiō is necessarie, not voluntary, that is to say, whē the rest of the testators goods will not suffice to pay his debtes: for then it is lawfull for the executor to sell the same goods prohibited to be solded. §. diui. in fin. L. pe­to. §. praedium. ff. de leg. 2. Ias. & Ripa. in d. §. diui.

The seconde, when the alienation is mo­mentanie, or of a short time, not perpetuall, with a couenant to restore the thing alienated againeAngel. in L. volun­tas. C. de fideicommiss. Ripa. in d. §. diui. n. 10. vbi limitat hanc exceptionem duobꝰ modis..

The third exception is, when the thing be­queathed is in place farre distant from him to whom it is bequeathed, and who by reason thereof, cannot haue any benefite thereby, if he should not alienate the same: for then the pro­hibition [Page] of alienation, beeing made in his fa­uour, it seemeth that he may alienate the sameBald. in L. voluntas. C. de fideicommiss..

The fourth is, when the alienation is made by him who is the last of the familie, in whose fauour the testator did prohibite the thing be­queathed to be alienatedIas. & Ripa. in d. §. diui..

The fift is, when the executor being prohibi­ted to alienate the thing bequeathed, except to certaine persons, and the offering to sell the same vnto them, they refuse to buie it. In which case hee maye sell the same to others, notwith­standing the prohibitionIas. in rep. d. §. diui. n. 8. per L. qui Romae. §. cohaeredes. ff. de verb. ob..

The sixt is, when the thing bequeathed was first sold to the person permitted by the te­stator, for afterwardes it may be simplie sold to any otherIas. in rep. d. §. diui. n. 76. per. L. pater. §. quin­decim. ff. de leg. 3..

The seuenth is, when the executor or lega­tarie doth sell the fruites and commodities of the things bequeathed, during his his lifeIas. in rep. d. § diui. n. 84. post. Bar. in L. codi­cillis. §. Institutio. ff. de leg. 2..

Diuers other exceptions there beeDe quibus Ias & Ri­pa. in d. §. diui. & Vig. in sua methodo iur. ciuil. part. 4 lib. 14. c. 11. in prin. con­cerning this presente purpose, because I doo not see howe there can bee any great vse there­of in the ecclesiasticall Court, I haue omitted the same, ayming especially at these cases wher­of there is like to be most vse, and most benefite to the reader: Onely this thing I thought good to adde in this place, that where † the testator 9 dooth make an executor, and giue him the residue of his goods conditionally, if he do not alienate the saide residue of goodes, the execu­tor cannot be admitted to the executorship, vn­lesse hee first enter into bondes not to alienate the sameL. 4. §. idem Iulianꝰ. ff. de cond. Instit. & ibi Bald. Ias & Ripa. in d. §. diui. quae sententia firmior erit existente cohaerede, seu coexe­cutore. Cui Mutiana praestari possit cautio.

Within vvhat time the condition maie or ought to be performed, no certaine time being limited by the testator.
§. xiiij.

1 In this question, three times, and three conditions, are to be considered.

2 Whether the condition may bee perfourmed before the making of the will.

3 When the condition is arbitrarie, the same must be performed after the death of the testator.

4 What if the arbitrary condition be such as the same cannot be iterated.

5 What if the arbitrarie condition haue relation to the time past.

6 Casuall and mixt conditions may bee performed before the making of the testament, if the testator were ignorant of the performance.

7 If the testator did know of the former performance, it must be performed againe if it be possible.

8 Whether the condition may bee performed during the time betwixt the making of the testament, and the death of the testator?

9 Within what compasse of time, may or ought the condition to bee performed after the death of the testator.

10 The condition being arbitrarie, it is materiall whether the condition bee imposed on the executor or legatarie.

11 The executor may at any time accomplish the ar­bitrarie condition after the testators death.

12 Whether the ordinarie may limit a certaine time [Page] for performance of the condition.

13 The legatarie muste performe the arbitrarie con­dition, so soone as he can.

14 The reason wherefore the executor hath longer time of performing an arbitrarie condition, then the legatarie.

15 No time dooth preiudice the legatarie, whiles hee is ignorant of the condition.

16 If the condition be casuall, it may be accomplished at any time.

17 What if the condition bee extant after the death of the legatarie.

18 If the condition bee mixt, it may bee performed at any time.

19 What if the condition do concerne mariage, whe­ther ought it to be performed within three yeares?

IF † wee will vnderstande within 1 what compasse of time the condi­tion whereuppon the executor is made, or any legacie bequethed, may be or ought to be performed, where there is not anie certaine time limited by the testator, we are to consider three seuerall times, and three seuerall sorts of conditions.

Of the three times, the first is the time before the making of the testament: the seconde is the time betwixt the making of the testament, and the death of the testator: the third is the time after the death of the testaior L. [...]i iam facta. ff. de cond. & demon..

Touching the conditions wee are to con­sider, [Page 157] whether the same bee arbitrarie, casuall, 2 or mixt L. vnic. §. sin autem. C. de cad. toll. & supra ead. part. §. 5.. For the † time before the making of the testament, if any do inquire whether within that time, the condition may bee performed: It 3 is to bee answered, that † if the condition bee arbitrarie, that is to say, such as dooth consist in his power on whome it is imposed, the same cannot bee perfourmed but after the death of the testatorL. 2. de condic. & de­mon. ff. L. si quis haere­dem. de instit. & sub. C.. For example, the testator maketh thee executor, or giueth thee a hūdred pound, if thou wilte goe to the Church, or if thou wilt giue ten pounde to the poore: In this case it is not sufficient that thou didst go to the Church, or that thou diddest giue tenne pounde to the poore at anie time before the making of the te­stament, or yet after the making of the te­stament, before the death of the testator: for an arbitrarie condition must bee performed after 4 the testators deathGloss. & DD. in d. L. si quis haeredem. & hoc etiam fieri debet, non fato aut casu, sed ani­mo & studio implendi conditionem, vt habet communis omnium Interpretum sententia. teste Grasso. Thesaur. com. op. §. legatum. q. 57. & huc faciunt quae superiùs dicta sunt ead part. §. 7. in princ., sauing in some cases. One † is when the condition cannot bee iterated: for then it is sufficient that the same was perfor­med in the life time of the testator, euen be­fore the making of the testamentL. si iam facta. L. haec conditio. ff. de cond. & demon. Paul. de Castr. in d. L. si quis haeredem. n. 4.: for example, the testator maketh thee executor, or giueth thee an hundred pound, if thou shalt remit vnto A.B. the debt which he oweth thee, and burne the obligation; which thing is by thee alreadie done: In this case it is sufficient that thou hast done it, seeing it cannot be iteratedL. haec conditio. el. 1. ff. de cond. & demon. Bar. in L. 2. de cond. & demon. Paul. de Castr. & Si­chard. in L. si quis hae­redem. de instit. & sub. C.. And this I suppose to bee true, not onely if the testator be ignoraunt of the performance of the condi­tiond. L. si iam & facta. & L. haec conditio. el. 1. ff. de cond. & demon. & eo loci Interpretes. (for it is not likely that he woulde haue imposed anie condition to haue beene perfor­med, [Page] if he had knowen the same to haue beene performed before, and that it could not be per­formed againe) but also, if hee did knowe the condition to haue beene performed before, in which case the condition not being iterable, is impossible, and so reiected, the disposition re­maining pure and simpleGrass. Thesaur. com. op. §. legatum. q. 57. in fin. per L. quae sub con­ditione. §. quoties. ff. de cond. instit.. Another exception is, when † the condition is referred to the time 5 past: For example, the testator maketh thee his executor, or giueth thee some legacie, if thou hast done this or that thingL. talis institutio. de cond. instit. L. cum ad praesens. si cer. pe. ff.. In which case it is not only sufficient, that the condition was per­formed before the making of the testament, but it is necessarie that it should so bee, for ob­teining the executorship or legacied. L. Institutio talis..

But if † the condition be not arbitrarie, but 6 either casuall or mixt, that is to say, either who­ly without the power of the person on whome it is imposed, or partly in his power, & partly in the power of som otherBar. in L. 1. C. de Inst. & sub. supr. cad. part. §. 5. in fin.; thē it is material whe­ther the testator were ignorāt of the accōplish­ment of the condition when he made his testa­ment, or not: for if the testator, when he made his testament, were ignorant that the condition was performed before, the same is deemed to be sufficiently completed. L. si iam facta. ff. de cond. et demon. d. L. siquis haeredem. C. de instit. et sub.. Example of the ca­suall conditiō, the testator maketh thee his exe­cutor, or giueth thee an hundred pound, if his ship shall returne from Venice: this ship is re­turned alreadie, but the testator is ignoraunt thereof, at the time of making his testament. In this case the condition is sufficiently extant, as if the same had returned after his deathL. haec conditio. §. si sic. ff. de cond. et demō. et d. L. si quis haeredē.. Ex­ample [Page 158] of the next condition: the testator doth make thee his executor, or giueth thee an hun­dred pound, i [...] thou take a wife; thou hast a wife alreadie, but the testator did not then knowe so much, when he made this condition. In this case also thou art reputed to haue sufficientlie accomplished the conditionMantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 16. per d. L. si quis hae­redem. et d. L. si iam facta..

7 But if † the testator were not ignorant ther­of, but did knowe of the returne of his shippe, and of thy mariage, at the time when hee did impose the condition, then the condition is not reputed to be extant or accomplished: but it is to be vnderstoode of the next returne, and of thy next mariageL. si ita scriptum. ff. de leg. 2. Mantic. de coniect. vlt. vol. tit. 18. lib. 11. n. 16.. Howbeit, if the condition were such, that the same could not be iterated, then it should bee reputed for extant and ac­complished: albeit the testator at that time when hee did impose the condition, were not ignorant of the accomplishment thereof: For example, the testator maketh thee his executor, or giueth thee an hundred pound, if thou shalt bee baptized, or if thou shalt take his daughter to wife: for it is sufficient, albeit the testa­tor did knowe thee to bee baptized before, or that thou hast taken his daughter to thy wife before, seeing the condition cannot bee iteratedL. quae sub conditio­ne §. quoties. de cond. inst. L. haec conditio. el. 1. et L. si iam facta. de cond. et demon. ff. L. si quis haeredem. de inst. et sub. C. et DD. in dictas LL..

8 Concerning † the second time, that is to say, the time betwixt the making of the testament, and the death of the testator; if any be desirous to knowe, whether the condition may be per­formed during this time, I referre him to that which hath beene saide immediatly before: [Page] that is to say, either is the condition arbitrarie; and then it is not sufficient to performe the same, so long as the testator liueth, vnlesse it bee such a case as cannot be iterated; or that the cō ­dition dooth respecte the time past; or else the condition is casuall, or mixt; and then it is suf­ficient that it is compleated whiles the testator liueth, for seeing it is sufficient, if it bee perfor­med before the making of the testament, much more if it be performed after the making of the testament.

Concerning † the thirde time, which is the 9 time after the testators death, if we would now also knowe within what space or compasse of time immediately from his death, the condi­tion maie or must bee performed, no certaine time being prescribed by the testator, wee must first inquire the nature of the condition, ob­seruing diligently as before, whether the same bee arbitrarie, casuall, or mixt, for according to the diuersitie of the conditions, Lawe hath de­termined diuerslie.

In the first case, viz. when † the condition is 10 arbitrarie, we are to consider whether the same be imposed on the executor or on the legata­rie. If the † condition bee imposed on the exe­cutor, 11 the same may be performed at anie time, so long as the executor liuethL. si quis instituatur. §. 1. de haered. instit. ff.: For example, the testator maketh thee his executor, if thou shalt giue to the poore tenne pound. In this case thou maiest at anie time during thy life accom­plish the condition, and it is of the same effect, as if thou haddest performed the same immedi­ately [Page 159] 12 after the testators deathGloss. Bar. et Bald. in d. §. 1. Grass. The­saur. com. op. §. lega­tum. q. 57. n. 2., vnlesse the † or­dinarie doo appoint a certaine competent time for the performance thereof, for so he may doo in this case (as hereafter is more fully declaredInfr. ead. part. §. 16.) within which time if thou doo not accomplish the condition, he then may commit the admi­nistration of the goodes of the deceassed, as of 13 one dying intestateBar. Bald Paul. de Castr. in d. L. si quis. §. 1. et infr. ead. part. §. 16.. If the † condition do ap­pertaine to the legatarie, then the same must bee performed so soone as the legatarie conueni­ently may performe the same, or else the lega­cie is lostL. haec conditio. ff. de cond. et demō. Dec. in L. 1. de instit. et sub. C.. For example, the testator dooth be­queath vnto thee an hundred pounde, if thou wilt goe vnto the Church, or giue ten pound to the poore. In this case so soone as thou arte well able to goe to the Church, or to giue the ten pounde after the death of the testator, thou must performe the condition, otherwise thou 14 hast lost thy legacieBar. in d. L. haec con­ditio. Alex. in L. si insu­lam. n. 24. Ripa. n. 103. de verb. ob. ff. quae opi­nio communiter est re­cepta, ait Grass. The­saur. com. op. §. lega­tum. q. 57. n. 2.. The † reason of the diffe­rence betwixt the executor and the legatarie in this respect, is, because greater preiudice maie growe to the executor, by vndertaking the ex­ecutorship, then to the legatarie by accepting the legacie. And therefore in equitie the exe­cutor ought to haue longer time, to deliberate of the performance of the condition, and vn­dertaking of the burthen of the executorship, then the legatarie, to whom no preiudice at all may happen, or not so much, as to the execu­torGrass. vbi supr. Bar. Bald. Castr. & alij in L. si quis. §. 1. ff. de hae­red. instit.. 15 Notwithstanding † if the legatarie were ignorant of the testament or condition, so long as he is ignorant, no negligence is to bee impu­ted vnto him, nor any preiudice dooth growe [Page] vnto him, by not perfourming the condition, as otherwise it might, if he had knowne thereofBald. in L. 1. C. de In­stit. & sub. n. 20..

In the second case, that is to say, when the condition † is casuall, then the euent therof is 16 to be expected, and whensoeuer the same shall be extant, then maie he that is made executor, or to whom anie legacie is left vpon such casu­all condition, be admitted to the executorship, or obtaine the legacie, and not beforeL. intercidit. de cōd. & demon. L. fideicom­missa. §. sic. fideicōmiss. in sin. de leg. 3. ff.: As for example, the testator maketh thee his executor, or giueth thee an hundred pounde, if his shippe returne from Venice. In this case whensoeuer the shippe shall returne from Venice, during the life of the executor or legatarie, then is he to be admitted to the executorship, and may obtaine the legacie, but not befored. L. intercidit. L. v. ric. §. sin autem. C. de cad. tol. Tiraquel. de re­tract. §. 1. gloss. 2. n. 25.. So that † if hee die 17 in the meane time, the executorship or legacie shall not be transmitted to his executors or ad­ministrators, although the condition be extant afterwardesL. liber. §. si ita de hae­red. instituend. L. in te­stō. de cond. & demon. ff. L. vnic. §. sin autem. C. de cad. tol. Zas. in L. si decem. ff. de verb. ob­lig.; vnlesse some legacie be left vnto the Prince, who if he die before the condition bee extant, yet is the same due to his successors, in whose time the condition is extantL. quod principi. ff. de leg. 2., or vn­lesse it bee the will and meaning of the testator, that the same be transmitted: for the testator, if he will may make the same transmissible, which otherwise is not transmissibleL. in conditionibus. §. 1. ff. de cond. & demō. Mantic. de coniect. vlt. vol. lib. 11. tit. 10..

In the third case, that is to say, when the † 18 condition is mixt, then the same maie bee ac­complished at any time, as in casual conditions, except the condition be of mariageIas. in L. 2. de Instit. & sub. C.. But if the testator † make thee his executor, or giue thee 19 an hundred pound, if thou marrie: In this case [Page 160] verie manie be of this opinion, that thou ough­test to marrie within three yeeresBar. in L. 2. §. ad filio­rum. C. quādo & qui­bus quarta pars. Ias. Sichard. & alij in L. 2. C. de Instit. & sub.. Others are of a contrarie opinion, and that it is sufficient to marrie at anie time, either within three yeeres or afterPaul. de Castr. in d. L. 2. Mantic. de coniect vlt. vol. lib. 11. tit. 18. n. 23.. In which contrarietie of opinions, I suppose that if the executor be appointed vpon condition, if he marrie, that then he maie at any time accomplish the same, not onelie within three yeeres, but afterPaul. de Castr. ind. L. 2. Grass. Thesaur. com. op §. legatum. q. 46. 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 lostBar. 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 yeeresMantic. 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 receiuedCorasius. 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 legatarieVt supra in pluribus..

Of the vnderstanding of this condition, viz. If he die without issue.
§. xv.

1 Manifolde questions by occasion of this condition, if he die without issue.

2 Whether he be said to die without issue, whose issue [Page] 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.

[Page 161] 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.

1 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 2 the will and meaning of the testator do not ap­peare, the testator is deemed to haue died with­out issueL. 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 childrenRipa. 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 3 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 thirdeMerton. 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 in­heritePer 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 obseruedMerton. c. 9. an. 20. H. 3..

When † the issue is lawfull, not naturall: By 4 lawfull issue in this place, I vnderstande that childe which is begotten of a married woman, by another then her husbandBracton. de consuet. Angl lib. 2. c. 29. n. 4. verb. & licet., (for of adoptiō, arrogation, or any other meanes to make chil­dren [Page 162] lawfull, except marriage, wee haue no vse here in EnglandTract. de repub. Ang. lib. 3. c. 7.,) In this case, first of all, the meaning of the testator is to bee regardedd. §. si quis rogatus. L. vlt. C. de his qui vaen. aetat. imp. L. Sancimus. de nuptijs. C. Mantic. de coniect. 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 lawesBract. 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, 5 † 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 solēnizedIuxta illud, pater est quem nuptiae demonstrant.: for whose the cow is, as it is cōmonly said, his is the calfe alsoQuod tamen non est simpliciter verumin viduis, vt per Termes of lawe. verb. bastardy. etinfr. d. §..

6 Much more † if after the mariage an other man haue carnal coniunction with his wife shal the husbād 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 adultererL. 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 7 had to do with her besides her husbād. 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 adultererBald 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 [Page] did beget it: Honest possibilitie is preferred before that other possibilitie, which is linked with dishonestieBald. 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 fatherCyn. post Iac. de Butr. in L. si minus. C. de nup. Gab. lib r. tit. de praesump. concl. 14. n. 9. Mascar. de ꝓbac. 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 adultererAb. in c. per tuas. de ꝓbac. ext. Alcia. de prae­sump. reg. 3. praesump. 37. Gabr. d. cōcl. 14. n. 8. Fourthly, albeit the mother doo confesse that the adulterer did beget the childe, yet her sole confession dooth not hurt the childeAbb. 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 adul­tererCouar. 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 adulterieBarba. 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. Quibꝰ si placeat, adde Ed. Fē ­tō. Anglū. 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 blindeCouar. 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 blindEuangel. 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 ma­nifesteod. c. 9. vers. 3..

Sixtly, albeit † the childe bee verie like the 8 adulterer, yet shall the husbande bee deemed [Page 163] the fatherBald. 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 adulte­rersAlberic. 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 selfeParis. Coras. & alij, vbi supr. Tiraquel. de leg. Conub. leg. 7. Masc. de ꝓbac. concl. 79 [...]. 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 himselfeBar. Ias. & communi­ter DD. in L. Gallus. ff. de lib. & posth. quā 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 9 because † this forme or similitude maie happen to the infant by the mothers serious co­gitation or firme imagination at the time of the conceptionAlciat. 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 spottedGenes. c. 30.. Famous also is that accident (registred in the bookes of sundrie writersIas. 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 cōceptiō. Like vnto this is that credible historie of another woman in the time [Page] 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 BeareCoras. in annotac su­per quodam Arresto Tholoss. fol. 31. Fenton. vbi supra.. The histories are full of these kinde of accidents, I shal cōtent my selfe with one more, which did befall in the time of the Emperour Maximilian, in a towne in BrabantCoras. 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 delightedPlutarch. 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 childeGloss. in L. quaeret a­liquis. de verb. sig. & in L. non sunt. de stat. hom. ff.: What maruel thē if the child which is begotten by the [Page 164] 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 pastAlciat. de praesump. reg. 3. praesump. 37. Ias. & alij in d. L. Gallus. ff. de lib. & posthu.? And wherfore thē also shoulde we wonder, that the childe which is begotten by the husband, shoulde bee like to the adultererBald. 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 sweeterProuerb. 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 rulede quibus Mascard. de probac. d. concl. 788. Petr. Duen. Tract. reg. & fal. reg. 344. Alciat. de praesūp. 37. Menoch. de Arb. Iud. sent. 89. Gabriel. de praesump. concl. 14., but let vs returne to the limitations.

10 The first limitation is this†, when the husband was not within the foure seas at such time as the childe was conceiuedBract. 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 childec. 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 monthL. 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 lawL. 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 [Page] more at the verie fardestAccurs. in d. §. vlt. Auth. de restit. & eaquae parit, &c. Salmo in L. Gallus. de lib. & posthu ff. Menoch. de A [...]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 childeL. 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 goodL. 1. ff. de Instit. & iur., by imitation of nature§. minorem. Inst. de adop. Paris. cōsil. 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 na­tureParis. d. consil. 10. & consil. 29. vol. 2. Bar. in L. si is qui ff. de vsucap. n. 22.: whether he were disabled by grieuous sickenesseL filium. ff. de his qui sunt sui, vel alien. iur. Mascard. de probac. concl. 788. n. 40. 41. 42. Abb, & Felin. in c. per tuas. de probac. extr. Bracton. de leg. & con­suetud. Angl. lib. 2. c. 29. n. 5. & lib. 1. c. 9. in sin., (especially such whereby those parts of the generation are affectedMenoch. de Arb. iud. quaest. cas. 89. n. 53. Pa­ris. d. cons. 29. n. 80.) or it were by reason of olde ageMascard. de probac. concl. 788. n. 43. 44. Pa­laeot. de Noth. & Spur. c. 24. n. 3. & ante eos scripserūt Bald. & Cyn. in d. L. filium.. For howsoeuer it maie seeme a paradoxe to some, yet is it commonlie 1 receiued for a true conclusion amongst the lear­ned, that as a womā in processe of time becom­meth barren, namely after fiftie yeares: so a man also is at the length depriued of the abili­tie of begettinge a childeDe hac re, vt de re qualibet praeclare Ti­raquel. de leg. conub. Lege 5. sub finem. verb. Nec erit intempestiuum., that is too say, at fourescore yeers, if not before:Socin. consil. 65. vol. 3. Paris. consil. 29. vol. 2. Menoch. d. cas. 89. n. 57. Attamen in hoc regno Angliae vul­gò creditur, senes etiam plus quàm octogenarios, hac potestate non esse penitùs orba­tos, eorúmque liberi communiter reputantur legitimi, & proinde succedunt ijs ac reliqui, hoc impedimento non obstante. neither is that contrarie where I said before, that by the lawes of this realme, if a man take to wife a single wo­man [Page 165] great with childe by an other man, then he which married her shall bee the father of the childe, albeit she were deliuered the next day after the marriage solemnized: For there it is possible for the husbande to haue begotten the childe: here impossibled. L. filium. quo etiā tendit quod Bractonus Iurisconsultus Anglus, non minùs peritus, quā antiquus scriptum re­liquit. Legitimus (in­quit) & haeres iudicabi­tur, qui nascitur ab vx­ore, dum tamen prae­sumi possit, quòd mari­tus potuit ipsum genu­isse.. Now the lawe doth often presuppose or allowe that for true which is false, because it may bee trueBar. Angl. & alij, in L. si is qui pro emptore ff. de vsucap. Menoch. de praesump. lib. 1. q. 8.: but the lawe dooth neuer presuppose or feigne that thing to be which is impossible so to bee, for that were vnreasonable, and against nature which direc­teth arteBar. in d. L. si is qui. n. 22. Alciat. de praesump. in princ.. Againe, in that case he is worthilie the father of anothers bastard, because he when he is free, yet willinglie taketh her with all her faultes, whome hee knoweth to bee anothers whore: But here an honest man is greatly be­guiled by her to whome he is alreadie tied, and therfore lesse worthie to bee further afflictedAfflictio afflicto non est infligenda. Bar. in L. 2. ff. de no. op. nun. Bald. in L. praecibus. C. de impub. & al. sub.. But is it not manifest that many haue succeeded in the inheritance as lawfull & natural children of those persons, who neither were principall, neither accessarie, nor any way priuie to the be­getting either of a leg or an arm, no not so much as of the litle finger of that issue? Indeed no mar­uaile, when there is not due proof of impossibi­litieNam cùm par militet in vtro (que) casu ratio, cur nō idem ius? cur quaeso magis fauendum est absenti, ne habeatur pro patre illius quem genuit alter, (quam) qui mor bo, vel senio confectus generare nequeat? Quod si dixeris diffici­liùs probari generandi impotentiam, quàm absentiam: Attamen probatâ hac impoten­tia, eadem tunc pror­sus manet hinc, ac indè ratio., the defect is not in lawe, but in proofeL. duo sunt Titij. ff. de testa. tutel., which proofe is saide to be the chariot wherein the Iudge doth ride towards his sentenceMantic. de coniect. vlt. vol. lib 4. tit. 11. n. 43.: Or howsoeuer such issue is admitted to the succes­sion by interpretation of the lawes of this realmeImmo non admittitur probatâ gignendi impotentia, si Bra­ctono fidem adhibeamus. lib. 2. c. 29. n. 4. in fin. vbi non aliter ab alio genitum, pro marit [...] filio iudicandum fore censet, quam si praesumi possit, eum à marito gigni potuisse.: Yet when the testator speaketh of is­sue, [Page] it is not likelie that hee did meane of such issue, which is not aswell naturall as lawfullMantic. de coniect. vlt. vol. lib. 11. tit. 8. n. 2. per L. vlt. de his qui vaen. aetatis., which meaning of the testator as in other cases, so in this also ought to be obseruedL. in conditionibus. ff. de cond. & demon. L. cùm quaestio. C. de lega. §. disponat in Auth. de nup. Dec. cons. 399..

Diuerse other limitations there bee of this former rule, shewing that the childe is not to be ascribed to the husbād, but to the adultererQuas videre est apud Gabr. lib. 1. com. concl. 14. Mascard. de probac. con. 788.: namely, when the wife doth make an elopemēt from her hushandBrook. tit. bastardie. n. 4 Alcia. de praesump. reg. 3. praesump. 37. n. 11. Paris. consil. 10. n. 34. vol. 2. Mascard. de probac. concl. 788. n. 11., and doth altogether coha­bit with the adulterer, and especially if then also the childe bee borne blinde, or lame, or be like vnto the adulterer, for then it seemeth that the adulterer shall be iudged to bee the childes fa­ther, vnlesse it be prooued that the husband had free & oftē accesse vnto the mother: but because I doubt of the truth of these limitations, I dare not deliuer them for currant: neuerthelesse in testamentes, the will and meaning of the testa­tor is to be regarded, and so the husbande is to be iudged to haue had issue, or not to haue had issue accordinglyMantic. vbi supra. Paul. de Castr. consil. 30. vol. 1.. What if the wife be maried to another husband very shortly after the death of her former husbande, and after her seconde mariage bee deliuered of a childe, whose issue shall this be, the former or the second husbāds? If the wife were great, or apparantly with child at the death of her former husband, then there is no question, but that the issue is to be ascri­bed to the former husbandeDD. in L. Gallus. ff. de lib. & posthu. Terms of law. verb. bastardy. Kitchin. in tit. descent. fol. 108.. But if shee were not apparantly with childe, so that by possibili­tie of nature, it might be the child, either of the former or the second husbād, for that perhapps she is deliuered within eight or nine monethes [Page 166] after the death of her former husbande; yet not before the seuenth moneth next after her se­cond mariage, then the question is much more doubtfulDe qua. Bar. Bald. Alex. Ias. & alij. in L. Gallus. ff. de lib. & posth. Alciat. de prae­sump. reg. 3. praesump. 37. in fin.: wherein how manie heads, so many wittes; howe many men, so many mindes; and no man which hath not somewhat to say, as wel for the defence of his owne opinion, as for the confutation of the contrarie. But I will not trouble you with their tedious disputationsSi quis horum alter­cationes & pugnas vi­dere cupiat, legat Ias. in d. L. Gallus. & Iacob. de Beluis. in quadam disputatione, quam habet in L. 1. de bon. poss. secundum Tabul., I will briefly repeate their opinions touching this question: Some therefore doo holde that the former husbande ought to bee iudged the fatherMultos in hac sen­tentia stetisse refert Coras. in annotac. ad Arrestum quoddam Tholoss. fol. 33.: some that the seconde husbandeAnto. Vacca. in L. 7 ff. de stat. hom. post I­mol. in d. L. Gallus.: O­thers that bothAngel. in L. duo. de haered. instituend. ff.: and others againe that nei­therIac. de Beluis. in d. disputac. is to bee deemed the father of the issue. Some say that the mother is to bee creditedAlciat. d. praesump. 37. n. 15. per L. etiam. ff. de probac., which of them is the father: and some say that it is in the childe to elect and chooseAlex. in d. L. Gallus. n. 14. vers. hoc tamē di­ctum. & cum eo con­sentit Berry Iusticia­rius Angliae, de quo Brook. tit. bastardie. n. 18. in fin. whether of them hee will for his father: Others are of this minde, that he shall bee deemed the father by whom the child may receiue the greater be­nefiteDec. in c. per tuas. de probac. extra. n. 2. vers. 4.: And others, that he shal be the father, vn­to whom the childe is more like in fauour, com­plexion and proportion of bodieCoras. lib. 2. Miscel. c. 22.: Manie do leaue it to the discretion of the circumspect Iudge, who is not tied to anie one opinion a­lone, but according to the varietie and proba­bilitie of circumstances (together with the ad­uise of Phisitians, Midwiues, & especially such as bee skilfull in astrologieApostil. ad Alex. in d. L. Gallus. vbi Astrolo­gi longè praepo­nūtur medicis. is to decide the controuersieBar. in d. L. Gallus. cuius opinio & verior, & crebrior, & tutior esse di­citur, attento iure ciuili. Ias. in d. L. Gallus. n. 72. & Alex. in fin.. Finally, by the lawes of this [Page] realme, at least in cases of succession of lande, it seemeth that the second husband shal be the fa­ther of this childTract. de repub. Ang. lib. 3. c. 6. Termes of law. verb. bastardy. Kit­chin. tit. discent. fol. 108, because it being certaine that the childe is borne during the marying and co­habitation betwixt the second husband and the mother, and vncertaine whether hee were begotten before, it were verie harde and daun­gerous to adiudge him to bee another mans child, rather then the second husbands, who by possibilitie of nature may be his fatherApostil. ad Bar. in d. L. Gallus., and to whom it is to be imputed, that hee aduentured so soone vpon an other mans widowAnto. Vac. in L. 7. de stat. hom. ff..

When the issue is both naturall and law­full, but † dieth before the father: In this case the 12 father is saide to die without issueL. ex facto. §. si quis autem. ff. ad Trebel. Bar. in L. haered. eod. tit. Zas. in L. in substitu­tione. de vulg. & pupil. sub. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 3.. And there­fore he that is made executor, or to whom anie thing is bequeathed vppon condition, if the te­stator die without issue, may in this case bee ad­mitted to the executorship, or obtaine the le­gacyd. §. si quis autem.: for albeit the testator may be said to haue had issue, yet can it not be denied, but that he di­ed without issu, because at the time of his death he had no issueBar. in d. L. haeredibꝰ. Zas. in d. L. in substitu­tione. Mantic. in d. tit. 6 Grass. Thesau. com. op. §. fideicommiss. q 35.. Indeede † if the testator make 13 thee his executor, or bequeath vnto thee a hun­dred pound vpon condition, if he shall haue no issue: then if the testator after the making of the will had issue, although the same were not ex­tant, nor liuing at the time of the testators death, it is sufficient to exclude thee from the executorship and legacieIac. de Arc. Alberic. de Rosa. in d. L. ex fa­cto. §. pen. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 5., vnlesse it do appeare that the testator did meane of hauing children at the time of the deathMantic. vbi supr. Zas. in d. L. in substitutione. n. 15.: which meaning is said to appeare sometimes by this word (then L. si his. §. si ita. de cond. & demon. ff. Zas. in d. L. in substitutione. n 15. fol. 3. 0.,) [Page 167] as when the testator saith, If I haue no issue, then I will that A.B. bee my executor, for this worde (then) is saide to signifie extremitie of time, so that it is not sufficient that the testator had is­sue in the meane timed. §. si ita., vnlesse euen then hee had issue when his testament shoulde tak effect, which it can not doo so long as the testator liuethMantic. post. Bar. & Alex. d. lib. 11. de cōiec. vlt. vol tit. 6. n. 5..

14 When † the childe is in the mothers wombe at such time as the father dieth; If we would in this case knowe, whether that man is to bee iudged to haue died without issue, wee muste consider whether it bee for the benefite of the childe that the father shoulde bee accounted to haue died without issue, or not: For howsoeuer the rule be, that he is not saide to die without issue, whose wife is with childe at his deathL. si quis praegnantē. de reg. iur. ff. L. iubemꝰ. §. si quis autem. C. ad Trebel.; yet that rule ought to take place when it tendeth to the benefite of the childeL. qui in vtero. ff. de stat. hom., not when it tendeth to the preiudice of the childe, or onely benefite of anotherd. L. qui in vtero. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 9. Wherefore, if the testator make thee his executor, or giue thee an hundred pounde, if he die without issue, after which will made, he dieth, leauing his wife with child: In this case he is reputed to die without issue; and so thou art to be admitted to the executorship, & maist recouer thy legacieMantic. d. tit. 6. n. 9. post. Bald. in d. L. qui. in vtero. el. 2., vnlesse it be more benefi­ciall to the childe, that his father shoulde haue beene reputed to haue died without issue: for then thou art excludedL. iubemus. §. pen. C. ad Trebel. & ibi Paul. de Castr..

15 When † the childe dieth so soone as it is borne, we must consider whether it were borne in due time or not: if it were borne in due time, so that [Page] by possibilitie of nature it might haue liued lon­ger (as in the vii. ix. or x. monethL. septimo mense. de stat. hom. L. Gallus. in princ. de lib. & posthu. L. intestat. §. vlt. de suis & legit. ff.) the father is iudged to haue issue, especially † if the childe 16 were once heard to crieMantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 10. Mascard. Tract. de probac. verb. Natus. concl. 1088. n. 9. & 10. per L. quod certatum. C. de posthu. haered. in­stituend. & Sichard. in d. L. n. 4.: for then also by the lawes of this realme, that man whose wife was seased in fee simple, or in fee taile generall, or as heire in fee taile speciall, shal be said to haue had issue, and by reason thereof after the decease of his wife, shall holde the same land during his life, and shall be called tenant by the curtesie of England, for that it is thought, that the same law is not vsed in any other Countrey, sauing one­ly in EnglandLitleton. tit. curtesie d'engleterr.. But † if the childe which he had 17 by his wife were not heard to crie, it is thought that he cannot be tenāt by the curtesieBract. de leg. & con­suet. Angl. lib. 5. tit. de excep. c. 30. n. 7. & 8.. Which opinion, though auncient, hath beene strongly encountered of late, and shrewdly shaken by men of deepe iudgement, and reuerent auctho­ritieDyer. fol. 25. n. 159. post Fitzh.; and so the same not being free from con­tradiction, cannot bee vtterly voide of doubt: and therefore, (as it becommeth me) I doo ve­rie willingly referre the determination thereof, to the lerned and expert in the studie and prac­tise of the lawes temporall of this land. Neuer­thelesse, to other purposes and testamentarie ef­fectes determinable in the ecclesiasticall courts, I suppose he shall not bee reputed to haue died without issue, although his childe did neuer crie, so that it did sensible breath or moueL. quod dicitur. ff. de lib. & posthu. L. 2. & 3. C. de posthu. Felin. in c sicut. de homicid. ex [...]r. Mascard. Tract. de probac. verb. natus. conclus. 1088. sub finē.; for what if the childe were borne dumbed. L. quod dicitur. & d. L. 2. & 3. & DD. ibid.. There­fore I say by the ciuill and ecclesiasticall lawes, concerning testamentarie effectes, the father shall not bee accounted to haue died without [Page 168] issue, if the childe did but breath, and though it did not, nor coulde not crie, but died in the handes of the midwifed. L. 3. C. de posthu., for crying is not an onely proofe of lifeL. quod certatum. C. de posthu. & ibi Sichar. n. 4. Mascard. de ꝓbac. conclus. 1088 n. 10., since it may be prooued by other meanes, as by motiō, breathing, and such 18 likeL. si magister. C. de Instit. & sub. Mascard. d. concl. 1088. sub finē. Sichard. in d. L. quod certatum.. In deede † if the childe be borne deadeL. qui mortui. ff. de verb. signif., or being halfe borne aliue, yet dieth before it be wholy borneAlciat. in d. L. qui mortui. Cui adde Ti­raquel. in rep L. si vn­quam. C. de reuoc do­nac. verb. susceperit. n. 132. vbi etiam dispu­tat an talis baptizari possit, cuius tantum caput in partu appa­ret., hee shall not bee reputed to haue issued. L. 3. in sin. d. L. qui mortui. & DD. in LL.. Likewise in the other case, that is to say, when the child is not brought forth in due time, as (perhappes before the seuenth moneth, or in the eight moneth) so that it is impossible for the same to liue: the parents for and concer­ning testamentarie effectes, shal not be accomp­ted thereby to haue had issue, howsoeuer the childe for a while after the birth did sensiblie breathe and moueL. 2. C. de posthu. So­cin. sen. cons. 275. n. 20. vol. 2. Mantic. de con­iect. vlt. vol. lib. 11. tit. 6. n. 10. Grass. Thesaur. com. op. §. fideicom­missum. q. 33. in fin..

19 If † the testator make thee his executor, or do bequeath vnto thee any legacie conditionally, if he shall haue no issue, and afterwards his wife doe bring foorth a monster, or misshapen crea­ture, hauing peraduenture a heade like vnto a dogges heade, or to the head of an asse, or of a Rauen, or Ducke, or of some other beast, or birde: such monstrous creature, though it should liue (as commonly none doo) yet is it not accounted amongst the testators childrenL. non sunt. ff. de stat. hom. Olden. in eand. L. & Sichard. in d. L. 3. C. de posthu., for the lawe doth not presume that creature to haue the soule of a man, which hath a forme and shape so straunge and different from the shape of a manBald. in d L. nō sunt. Sichard. in d L. 3. n. 5.. But if the creature brought forth, do not varie in shape from a man or wo­man, but haue somewhat more then God by [Page] the ordinarie course of nature alloweth, as ha­uing sixe fingers on either handDD. in d. L. 3. C. de posthu. & in d. L. non sunt. & in L. ostentum. & in L. quaeret. ff. de verb. sig. Idem quoque iuris est si quis habeat tres testes. Alciat. in d L. quaeret. n. 9.; or on the con­trarie, wanting some of the ordinarie members, as hauing but one hande, or one footeBald. & Aug. in L. quod dicitur. ff. de lib. & posthu.: such creature is not excluded, but is to be accoun­ted for the testators childe. What if there be du­plication of notable members, as to haue foure armes, or two heades, or disorder in the princi­pall members, as the face standing backwardes, or in the breast? In this case I suppose much to bee attributed to the discretion of the IudgeSichard. in d. L. 3. C. de postu. n. 5. verb. cum autem.. And albeit the writers seeme rather to encline to this opinion, that they be monsters, & so not to be accounted as childrē 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 cōdi­tiō, 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 monstrousd. L. quaeret. de verl signif. & Alciat. ac Re­buff [...]bid..

If † the testator make the childe in the mo­thers 20 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 21 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 ab­soluedInf. 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.
§. xvj.

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.

1 FOrasmuch † as the nature of eue­rie honest and possible condition is such, as it dooth suspende the execution and effect of the dispo­sitionL. 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. §. legatū. 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 cōsequent­ly he that is made executor, is neither to be re­ceiued nor repelled in the meane time to or from the executorshippeL. 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 [Page] of their debts and legacies, which are due presently after the death of the testator, whiles the condition of the executorship dependethQuod autem iure ciuili non possunt le­gata peti pendente cō ­ditione institutionis, vt in qua tota vis testamē ­ti collocata sit, non ob­seruatur in Anglia, ꝓut aliàs pleniùs diximus, infra part. 6.: For it seemeth not onely inconuenient, but vn­iust also, that they, especially the creditorsCreditores 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 2 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 effectd. L. quā 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 testamentStat. 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 deficientL. si quis instituatur. §. 1. & §. 2. ff. de haered. instituend.: By † vertue of which administration, or decree 3 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 aforesaided. L. si quis. Quae lex etsi creditoribus tantū 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 [Page 170] if afterwards the condition bee performed or extant, then may hee still retaine the goodes of the deceased, as executor to the willDum tamen probatū sit testamentum. & ab Ordinario approbatū.: But if the cōdition 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 goodesL. 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 executorL. haeres. de acquir. haered. L. quod dicitur. de mil. test. ff., and the former administration is fi­nished, and a new may be committedd. L. si quis institua­tur. ff. de haered. instit..

4 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 notd. 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 thereofFortasse 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 deficientBar. & Paul. de Ca­str. in d. §. 1.; and so the administra­tion may bee committed according to the sta­tute, in this case, as of one dying intestateStat. H. 8. an. 21. c. 5.: And the executor shall bee excluded, if he doo not purge his delay, before the administrators doo meddle with the goodsBald. & alij. in d. §. 1.. If the condition consist not in the power of the executor,d. §. 1. & DD. ibid. then may the ordinarie at the petition of the credi­tors, appoint a time to the executor to vnder­take the administratiō & possessiō of the goods, [Page] during which time, if he refuse or neglect to vn­dertake the same administration; then may the ordinarie commit the same to such as haue in­terest, vntill such time as the condition bee either extant or deficientd. §. 1. & DD. ibid..

Of the making of an executor, to or from a certaine time.
§. xvij.

1 An executor may be ordeined, either for a time, or from a time.

2 The Ordinarie may commit administration vntill there be an executor, or after the executorshippe is ended.

3 Whether a man may die partlie testate, and partly intestate.

4 Whether he is saide to die partly testate, and partly intestate, which appointeth an executor, to or from an vncertaine time.

5 A legacie may be giuen to or from a certaine time, or to or from an vncertaine time.

6 That legacie is not transmissible, which is giuen from an vncertaine time.

7 What if the vncertaintie be not about the question whether, but about the question when?

8 What if the vncertaintie be not ioined to the sub­stance of the legacie, but to the execution.

9 The legacie is not transmissible, when the question is onelie when, not whether.

10 The testator may make that transmissible, which otherwise is not transmissible.

11 Whether that legacie be transmissible, which is gi­uen after a certaine age.

[Page 171] 12 Difference whether the legacie bee ioined to the substance, or to the execution of the disposition.

13 Certaine cases wherein a legacie is transmissible, albeit the age bee ioined to the substaunce of the le­gacie.

1 ALbeit † by the ciuill lawe Haeres the heire cannot bee instituted, either from a certaine time, or vntill a cer­tain timeL. haereditas. ff. de haered. instituend. §. haeres instit. eod. tit., least the deceased might seeme to die, partly testate, & part­ly intestateLlus nostrum. de reg. iur. ff. cuius regulae ra­tionem assignat Porci­us. in §. & vnū Inst. de haer. instituend.: yet where an executor is ordei­ned, howsoeuer the executor bee, quasi haeres Supr. 1. part. §. 3. n. 19. Haddon. de reform. leg. ecclesiast. Ang. Doct. & Stud. lib. 2. c. 11. Tract. de repub. Ang. li. 3. c. 19; at least by the lawes of this realme, hee may bee appointed either from a certaine time, or vntill a certaine timeBrook Abridg. tit. exec. n. 155. tit. admistr. n. 45. Plowd. in cas. in­ter▪ Greisbr. & Fox.: For example, the testator maketh thee his executor after the expiration of fiue yeares next after his death, or he dooth make thee his executor, for and during fiue yeares next after his death: This assignation is 2 lawfull by the lawes of this realmeBrook vbi supra.. And the † Ordinary may commit the administratiō of the goodes of the deceased to the next of kinne in the meane time, during which time, the act of the administrator is good, and cannot bee auoi­ded by the executor afterwardsPlowd. in casu inter Greysb. & Fox.; for in the mean time he dieth intestate: And likewise he maie commit the administration of the goods of the deceased vnadministred by thee, after the expi­ration of the time of thy executorship, where thou art appointed executor but for a time. [Page] For after the tearme be expired, he is said to be intestateBrook. Abrid. tit. ad­minist. n. 1. & n. 45..

Where † it is saide that a man cannot die 3 partly testate, and partly intestate, that is true where the strictnesse of the ciuill lawe is obser­uedDec. Cagnol. & Hye ro. Franc. in d. L. ius nostrum. de reg. iur. ff.: But where the testator is not tied to such strict obseruance, whether it be by reason of le­gall priuiledge, as in militarie testaments L. miles. ff. de mil. te­stō. Cagnol. & Dec. in d. L. ius nostrum., and in testaments ad pias causas Bar. in L. 1. C. de sa­crosan. eccle. Hyero. Franc. in d. L. ius no­strum. in fin., or whether it be by custome of the place, where the testator abi­dethHyero. Franc. in d. L. ius nostrum., as in England, where we inioy all immu­nitie, nor bee tied to any other obseruance in makinge of testaments, then that which is iuris gentium Supr. 1. part. §. 10, in prin. Tract. de repub. Angl. lib. 3. c. 7., in these cases and places, a man may die partly testate, and partly intestateBrook & Plowd. vbi supr. adde Socin. Tract. reg. & fal. reg. 400. vbi tradidit 20. casus, in quibus potest quis de­cedere pro parte testa­tus, pro parte intestatꝰ..

If the † testator doo ordeine, or make an 4 executor, from or vntill an vncertaine time, as from or vntill the death or marriage of his sonne: this assignation is good and sufficient, euen by the ciuill lawL. in tempus. ff. de haered. instit. L. extra­neum eod. tit. C. gloss. in §. haeres. Instit. de haered. instituēd. Grass. Thesaur. com. op. §. In­stitutio. q. 24. n. 4., neither is the testator in this case saide to die partly testate, and partly in­testateHyero. Franc. in d. L. ius nostrum.: for an vncertaine time is compared to a conditionL. dies incertus. ff. de cond. & demon. Ias. in L. si cui legetur. de leg. 1. n. 6. Cuiac. obseruac. lib. 18. c. 1., which if it come to passe, and be extāt, the testator is reputed to haue died wholy testateL. haeres quandocū (que). de acquir. haered. Hyer. Franc. in d. L. ius no­strum. de reg. iur. ff.: for a condition purified hath reference back ward, & is vnderstood, as if it had bene ac­complished immediately vpon the death of the testatorL. quod dicitur. de mil. testō. L. haeres quā ­docunque de acquir. haered. ff. Minsing. in §. haeres. Instit. de haered. instituend. Tiraquel. de retract. §. 1. gloss. 2. n. 27., neither can the testator be saide to die intestate in the meane time before the euent, or whiles the condition dependeth in expecta­tionMinsing. in d. §. haeres. n. 4.: But if the condition be infringed, or be­come deficient, then is the testator to be adiud­ged to haue died alwaies intestate, and not from [Page 172] the time of the breach, or defect of the condi­tiō Hyero. Franc. in d. L. ius nostrum. de reg. iur. ff., which is the cause wherefore in condicio­nall assignations, the administration cannot be cōmitted to the next of kinne, as in case of one dying intestate, so long as the condition is in su­spence, as hath bene before declared.

5 And here † note, that as an executor may be appointed from a certaine time, or vntill a certaine time: so a legacie may bee bequeathed either from a certaine time, or vntill a certaine 6 timeGrass. Thesaur. com. op. §. [...]egatum. q. 43.. And albeit where † a legacie is giuen from or after a certaine time, the legatarie dying in the meane while, before the time bee come, the executors or administrators of that legata­rie may demaund and recouer the legacie, after the day be past, as might the legatarie himselfe if he had liuedL. 5. ff. quando dies. leg. c [...]d. Grass. d. q. 43. Vasq. de success. pro­gress. lib. 3. §. 29. n. 2.: vnlesse the meaning of the te­stator be contrarieL. in conditionibus. de cond. & demon. ff. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8, or vnlesse it be such a thing as cannot be trāsmitted to the executor, as per­sonall 7 seruiceL. si post. in princ. ff. Quando dies. leg. ced. & ibi Bar.: Yet † if the legacie be giuen af­ter an vncertaine time (for so also it is lawful for the testator to doeGrass. d. q. 43.) the legatarie dying in the mean while, the executors or administrators of the legatarie deceased cannot demaunde the 8 same, but are vtterly excludedd. L. si post diem. L. si Titio. ff. Quando dies. leg. ced. Grass. d. q. 43.: and that † not onely when it is vncertaine, whether it shall happenL. cum testator. C. de manumiss. test., but also when it is vncertaine when it shall happenL. si Titio. ff. quando dies. leg. ced L. si cui. §. 1. de leg. Grass. d. q. 43.: for example, the testator gi­ueth thee an hundred pound when his daugh­ter shall be maried. This is vncertaine whetherAlex. consil. 55. vol. 2. it shall happen at all or no: or the testator gi­ueth thee an hundred pounde when his sonne shall die. This is vncertaine whenCuiac. obseruac. lib. 18. c. 1. Vasq. de. success. ꝓgress. lib. 3. §. 27. n. 11. &. §. 29. n. 3. in fin. it shall hap­pen, [Page] not whether it shall happen, for it is cer­taine we must all die. In both which cases, if thou die before the day be come, that is to say, before the marriage of the testators daughter, or death of his sonne, the legacie is vtterly ex­tinguished, or as if it had beene conditionallL. si Titio. quādo di es. leg. ced. L. quibꝰ die­bus. §. 2. de cond. & de­mon. ff. Bar. in L. si cui legetur. §. 1. de leg. 1. Vasq. vbi supra.. Neither † is it material whether the vncertainty 8 be ioined to the substance of the disposition, or to the execution thereof: for in both cases the le­gacie or disposition is reputed conditionallAlex. in L. senis. ad Trebel. ff. Ias. post Bald. & Paul. de Castr. in d. L si cui. §. 1. de leg. 1. Grass. Thesaur. com. op. §. legatum. q. 43. Vasq de success. ꝓgress. lib. 3. §. 29. n. 4. quae opi­nio scilicet quod legatum huiusmodi nō fit in diem, sed conditi­onale, vbi dies est in­certus. quando (veluti post mortem alterius) vt communior, ita & est verior, ex relatione Grass. §. legatum. q. 43. n. 8. cui subscribit Man­tic. de coniect. vlt. vol. lib. 11. tit. 20. n. 3.: and so it is not materiall, whether the testator say, I giue to A.B. an hundred pounde when my daughter shall marrie, or when my sonne shall die: In which case the vncertaintie is saide to be ioined to the verie substance of the dispo­sition: or whether the testator say, I giue to A. B. an hundred pounde, and I will that the same shall be paied when my daughter is maried, or my sonne diethDD. in L. si cui. §. 1. de leg. 1. ff.: In which case it is saide to be ioined to the execution of the dispositionBar. Paul. de Castr. Lancel. Dec. in d. §. 1.. For as well in the one case as in the other, if the le­gatarie die before the mariage of the testators daughter, or death of the testators sonne his executors or administrators cannot demaunde the legacieVasq. de success. progress. lib. 3. §. 29. n. 4. Mantic. de coniect. vlt. vol. lib. 11. tit, 20. n. 3..

But in verie truth (if we looke a litle nee­rer vnto the cause) the time of anothers death is not onely vncertaine, in respect of the que­stion when, but also in some respect of the que­stion whether L. haeres meus. ff. de cond. & demon. & Bald. in d. L.: for who is certaine whether that the other shal die before the legatarie? and this I suppose to be the principall cause, wherfore the legacie which is giuen, or is to bee performed [Page 173] after the death of another, is reputed to be con­ditionall: namely, because it is vncertaine whe­ther that time shal happen during the life of the 9 legatarieBald. in d. L. haeres. Cuiac. lib. 18. obseruac. cap. 1. Mantic. de cōiec. vlt. vol. lib. 11. tit. 20. n. 4. For † if the question be onely when the time shall happen, and not whether it maie happen during the life of the legatarie, then the legacie in respect of transmission, is said to bee pure and not conditionalld. L. haeres meus. & i­bi Bald. cum Paul. de Castr.: As for example, the testator giueth thee an hundred pounde to be paied the day before thy death: heere the vn­certaintie is onely when the time shall happen, not whether it shall happen during thy life: wherefore in this case, after thy death, thy exe­cutors or administrators may recouer the lega­cied. L. haeres meus. L. 4. ff. quando dies. leg. ced., and that without distinction, whether the vncertaintie be ioined to the substaunce of the legacie; as I giue thee an hundred pounde the day before thy death; or whether it bee ioined to the execution of the legacie; as I giue thee an hundred pounde to be paied the day before thy deathd. L. haeres. Et licet in illius legis exemplo in­certitudo videri possit adiungi praestationi le­gati, & non substantiae tamen cùm ratio illius legis sit generalis, & in vtroque casu militet, nempe quia dies non potest non cedere vi­uente legatario, vis le­gis non est per vnicum exemplum angustanda.

Wherefore where it is saide, that when a legacie is giuen after an vncertaine time, if the legatarie die in the meane while, his executors or administrators are excluded from demaun­ding the same legacie, albeit the vncertaintie be about this question when; that conclusion hath diuerse limitations. The first limitation or re­straint is, in case also it bee vncertaine whether the same shall happen duringBald. in d. L. haeres. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 4. Cuiac. lib. 18. obseruac. c. 1. Ias. in L. si cui. §. hoc autem. de leg. 1. n. 7. the life time of the legatarie: otherwise, if it must needs happen during the life of the legatarie, then the execu­tors or administrators of the legatarie are not [Page] excluded, although it bee vncertaine when it shall happend. L. haeres meus. ff. de cond. & demon.. Another limitation is, when † 10 it is the meaning of the testator, that the execu­tors or administrators of the legatatie shal haue the legacie, notwithstanding the death of the legatarie in the meane time, for then the vncer­taintie of the time dooth not make the disposi­tion conditional, because the testator maie if he will, make that transmissible, which otherwise is vntransmissibleL. in conditionibus. ff. de cond. & demon. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8. Vasq. de success. pro­gress. lib. 3. c. 29. n. 15. 16.

What † if the testator dooth bequeath some 11 legacie, when the legatarie or some other per­son hath accomplished a certaine age, whether (if the legatarie, or that other person die before that age) may the executors, or administrators of the legatarie obteine the legacieDe hac q. vberrimè scripsit Vasq. de succes. progress. lib. 3. c. 29. & generaliter DD. in L. si cui. §. hoc autem. ff. de leg. 1.? This que­stion I suppose is thus to be answered.

If † the time be ioined to the substaunce of 12 the legacie, thē the executors or administrators of the legatary deceased before the accomplish­ment of that age, are without hope of obtei­ning the legacieL. si Titio ff. Quando dies. leg. ced. d. L. si cui. §. hoc autem. de leg. 1.: For example, the testator doth giue thee an hundred pounde, when thou shalt bee of the age of 21. yeares, thou diest be­fore that time, thy executors or administrators cānot obteine the hundred poundeDD. in d. §. hoc autem.: except in certaine cases, whereof the first † case is, when 13 relation is made to the age of the executor, who is charged with the paimēt of the legacie, and not to the age of the legatarie, or of anie thirde personBar. in d. §. hoc autem.: For example, the testator doth will or charge his executor to pay vnto thee an hundred pounde, when hee shall be of the age [Page 174] of xxi. yeares, before which time the executor dieth. In this case (by the opinion of diuersePar. Angel. Paul. de Castr. & Lancel. Dec. in d. §. hoc autem. per L. libertis quos. §. ab hae­redibus. ff. de Alimen. & cibar. leg.) thou maist recouer thy legacie against the exe­cutor of that executor dying at such time, as the former executor, if he had liued, should haue ac­complished the age prescribed in the testament: Their reason is, because the testator is presumed to beare greater loue to his owne executor, on whome hee hath bestowed the residue of his goodes, then to the executors executor, whom peraduenture he did not knoweBar. & Lancel. Dec. in d. §. hoc autem.: Wherefore seeing the testator charged his owne execu­tor whom he more loued, the rather then is he presumed to charge his executors executor whom he lesse louedArg. à maior. ad mi.. Howbeit if the testator charge his executor with the paiment of the le­gacie by this worde if, as if the testator com­maunde his executor to pay vnto thee an hun­dred pounde, if hee shall accomplish the age of xxi. yeares: Here the legacie is condicionall, and therefore if the executor die in the meane while, the legacie dieth together with the exe­cutorBar. in d. §. hoc autō. per L. si seruus. ff. de stat. lib.. And so it is if the executor bee charged with the paiment of the legacie after he bee of such ageL. fideicommissaria. el. 1. §. etiam. ff. de fide­commiss. Lib. & Bar. cum Paul. de Castr. & Lancel. Dec. in d. §. hoc autem. ff. de leg. 1.: Nay more (contrarie to that which is saide before) although the testator do charge his executor with the paiment of the legacie by this worde when, as in the first example; euen there also by the receiued opinion of the more parte, the legacie is concluded to be condicio­nallDyn. Sal. Imol. Raph. Cuma: Alex. Aret. & Ias. in d. §. hoc. autem. quorum opinio com­munis est contra Bar. & eius sequaces, ait Ias. vbi supra.: and therefore if the executor die before that age, the legacie cannot bee recouered a­gainst the executor of the executor deceasedL. intercidit. ff. de cō. & demon. ff. L. vnic. §. sin autem. C. de cad. [...]ol., [Page] no more then where it is giuen after his exe­cutor haue accomplished such an age, for albeit this worde (after) doth import a more full per­fection of time then dooth this worde when Ias. Alex. & alij. in d. §. hoc autem., yet they differ not in making the disposition conditionall: for that is done as well by the worde when, as by the worde after Ita contra Bar. senti­unt Salic. Imol. Alex. & Ias. ac Moder. in d. §. hoc autem.. What if the executor being charged with the paiment of the legacie, when, or after hee haue accompli­shed a certaine age, the legatarie himselfe doo die, the executor still liuing, whether may the executors or administrators of the legatarie de­ceased recouer the thing bequeathed of the ex­ecutor then liuing, after he haue accomplished the age limited in the testament? It seemeth that he mayPaul. de Castr. in d. §. hoc autem. in lect. pad. vers. & multo fortius., because the condition is heere ex­tant: notwithstanding because it is concluded, that the legacie in this case is condicional, ther­fore howsoeuer the condition doo afterwards come to passe, yet was the legacie extinguished by the death of the legatarie, the condition then dependingL. vnic. §. sin autem. C. de cad. tol. L. interci­dit. ff. de cond. & demō., and so cannot be recouered by his executors or administrators, vnlesse it be proued (for it is not presumedNam cùm praesu­mitur testator magis diligere ipsum legata­rium quàm eius execu­torem, licet velit dare primo, non sequitur quòd dabit secundo. Bar. in d. §. hoc autem.) that the testa­tor did meane the contrarieL. in conditionibus. ff. de cond. et demon. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8. Bar. in d. §. hoc autem. in fin..

The second case is in fauour of libertie or freedome from bondageL. si ita scriptum. ff. de manumiss. testa.: For example; the te­stator doth manumit his villeine, when his son shall attaine to the age of xxi. yeeres. In which case albeit his sonne do not attaine to that age, yet shall the villeine be free, at such time as hee should haue attained vnto that age, if he had li­uedd. L. si ita scriptum. et DD. in d. §. hoc autem..

The thirde case is, when anie legacie is left to some godlie vse, for then also the legacie may be recouered, notwithstāding the death of that person, to whose age the testator made rela­tionVasq. de success. pro­gress. lib. 3. §. 29. n. 5. in fin. vbi conclusionem hanc varijs confirmat medijs..

The fourth case is, when the time tendeth to the dissolution of the legacie: For example, the testator dooth giue thee tenne pound year­ly, vntill his sonne doo attaine to the age of xxi. yeares: In which case, if his sonne die in the meane time, thou maist obtaine the legacie of tenne pound yeerely, vntill such time as the te­stators sonne should haue attained to that age, if he had liuedL. ambiguitatem. C. de vsufruct. Bald. in d. L si cui. ff. de leg. 1. Vasq. de success. ꝓgress. lib. 3. § 29. n. 3..

The fift case is, when it is the will and mea­ning of the testator, that the legacie should be transmittedBar. in d. L. si cui. §. hoc autem. in fin. Bald. in eand. L. et in L. Scius. ad Trebel. ff. Paul. de Castr. in d. L. ambiguitatem. n. 2..

But if the time of the age bee not ioined to the substance of the legacie, but to the execution or performance of the same: then the legatarie dying in the meane time, his executors or ad­ministrators may recouer the same when the time is expired, wherein the legatarie if he had liued, should haue accomplished that ageBar. et alij, in d. §. hoc autem. ꝑ L. ex his C. quādo dies. leg. ced..

Of making an executor vniuersallie or particularlie.
§. xviij.

1 It is lawfull to appoint an executor either vniuer­sally or perticularly.

2 The vniuersall executor maie enter to all the testa­tors goodes and cattels, and therefore chargeable with paiment of all his debts.

[Page] 3 The particular executor maie meddle with no more then is allotted vnto him, and therefore not char­ged but according to his portion.

4 A man may die both testate and intestate, in respect of his goodes.

5 Of a particular and vniuersall legatarie.

THirdly †, an executor may bee or­deined 1 either vniuersally or parti­cularly§. haereditas. Instit. de haer. instit. Grass. Thesaur. com. op. §. In­stitutio. q. 21. n. 1. Fitzh. Abridg. tit. executor. n. 26. Brook. tit. execut. n. 2. & n. 155.: vniuersally, that is to say, when the testator maketh an exe­cutor of his whole will, or dooth commit vnto him the distribution of all his goodes: or when the testator dooth appoint an executor indifferently, that is to say, without any signe vniuersall of whole or all: as I make A. B. my executorL. 3. C. de mil. testō.: particularly, that is to say, when the testator dooth commit the execution of some part of his wil, or the disposing of some part of his goods onely; as if the testator should make thee his executor of his plate, or of his goodes within the Countie of Yorke, or of his debts onelyFitzherb. Abridg. tit. exec. n. 26. Brook. eod. tit. n. 2. & n. 155..

He † that is made executor vniuersally or 2 simplie may enter to all and singular the goods and cattels of the testatorL. haereditas. de reg. iur. ff. & ibi Cagnol. Plowd. in cas. inter Greysbrook & Fox. & infr. part. 6. §. 3., and in that re­spect is vniuersally and simplie chargeable, with the paiment of all and singular the debts and legacies of the testator, so far as the same goods and cattels do extendTermes of law. verb. executor..

He † that is made executor particularly, cānot 3 [Page 176] meddle with any other of the testators goods and cattels, then such whereof he is made exe­cutor, and is onely so farre chargeable with the paiment of the debts and legacies of the testa­tors, as the portion of the goodes to him allot­ted doth extend vntoFitzh. & Brook vbi supra L. si haeredes. de leg. 1. L. legatorum. de leg. 2. ff. Sichard. in L. 1. C. de impub. & al. sub. n. 4. Est enim eadē ratio partis ad partem, atque totius ad totum.: and if there be no other executor appointed, the particular executor cannot meddle with the residue as executor: for 4 touching † the other goods, the testator by the lawes of this realme, is saide to die intestateFitzherb. & Brook in locis suprascriptis., & so may die partly testate, and partly intestate, not onely in respect of time (as hath beene before declaredSupra ead. part. §. 17. in prin. Brook tit. admi­nistrator. n. 45. Plow. in cas. inter Greysb. & Fox.) but also in respect of place, and of goodesFitzh. tit. executor. n. 26. Brook eod. tit. n. 155., contrarie to the ciuill lawe.

5 And heere note † that as an executor maie be made vniuersallie or particularlie; euen so one may be made particular or vniuersall lega­tarie, in respect of some vniuersall or particular legacie left by the testatorVide supr. 3. part. §. 17. & hac parte §. 4..

Howbeit, where the testator doth leaue all his goodes, or the residue of his goods to some person, none else being appointed executor, he to whom such general legacie is made, seemeth to be appointed executorL. his verbis. ff. de hae­redibus instit. & gloss. ac DD. ibid. Grass. The­saur. com. op. §. Institu­tio. q. 14. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 8., at least he hath bene admitted to the administration of the goods of the deceasedEt ita sae piss. practi­cari, obseruaui in foro Archiepiscopi Ebor., as heretofore more largelySupra ead. part. §. 4.. But if the testator giue his goods to one person, and make another executor: this executor is called Nude executor, for that he reapeth no commoditie by the testamentIo. de Athō. in legat. libertatem. de execut. testament. Lindw. in c. statutum. de testa. lib. 3. prouinc. constit. Cant. & in c. religiosa. eod. tit. verb. de damnis..

Of making executors by degrees.
§. xix.

1 How executors are made by degrees.

2 He that is made executor in the first degree, is said to be instituted, the rest substituted.

3 Diuerse kinds of substitutions, wherof certaine haue but little vse in England.

4 Of the diuerse formes of a vulgar substitution.

5 Of the effects of substitutions.

6 So long as the executor instituted in the first de­gree maie bee executor, the substitute is not to bee admitted.

7 If any one executor in the first degree may be admit­ted, the substitute is excluded.

8 What if euerie executor haue a seuerall substitute.

9 The first substitute being repelled, whether the rest be repelled likewise.

10 What if the executor in the first degree die in­testate.

11 The admission of the executor instituted in the first degree, doth not alwaies exclude the substitute.

12 The substitute ought to succeede in that part and quantitie, which was assigned to the former exe­cutor.

13 Where diuerse be substituted to one, whether they shall succeed equally or vnequally.

14 Diuerse cases wherein the executors being vne­qually instituted, and the same also substituted, doo succeede equally.

15 Of the great difference betweene substituting by proper names, and substituting by names appel­latiue.

[Page 177] 16 What if the substitution be made by both names.

17 What if some be instituted by their proper names, others not.

18 What if it bee doubtfull by what names they bee substituted.

FOurthly, an executor may be made either in the first degree, or in the seconde degree, or in the thirde, fourth,L. potest quis. ff. de vulg. pup. sub. Instit. de vulg. sub. in princ. Fran. post gloss. in c. vlt. de te­sta. 6. Brook tit execut. n. 9. &c.

1 The † testator is saide to make de­grees of executors, whē he doth substitut one in place of another: For example, the testator ma­keth his wife executrix, & if she wil not, or can­not be executrix, he maketh his sonne executor; and if his sonne be not executor, he maketh his brother executord. L. potest. & ibi DD Grass. Thesaur. com. op. §. substitutio. q. 1.. In which example there be three degrees, whereof the wife is in the first degree, the sonne in the second degree, and the brother in the thirde degree: For looke how manie substitutions there bee succedinge one another: so many degrees there bee besides the principall institution, which maketh the 2 first degreeL. 1. L. potest. ff. de vulg. & pupil. sub.: and who † so is executor in the first degreeL. 1. L. potest. ff. de vulg. & pupil. sub., he is saide to be instituted, and they which are executors in the second, thirde, and fourth degrees, are said to be substitutedZas. Tract. de substit. in princ..

3 There † bee diuers kindes of substitutions or sortes of placing of executors one after ano­therVt substitutio vulga­ris, pupillaris, exem­plaris, breuiloqua, cō ­pendiosa, de quibus si­gillatim & copiosè Zas. in suo praeclaro Tracta­tu de substitu [...]ionibus.; whereof either because we haue no vse at [Page] allVt de pupillari subst. & de exemplari? quae pupillaris subst. idcirco corruit, nempe ob de­fectū patriae potestatis, fine qua consistere non potest (Instit. de pup. sub. in princ) & conse­quenter cadit exēpla­ris substitutio, quum haec ad pupillaris imi­tationem fieri dignos­catur. here in England, or verie littleVt de breuiloqua & compendiosa: quarum disceptatione mirum in modū inuoluunt se DD. à quibus nihil ferè aliud quàm quod ad fatigationem studioso­rum, & ad obscuritatē rei, quae vel vltro per­difficilis est, capere va­leas.; I shall one­ly speake of that vulgar or common kind of sub­stitution, whereof there is more vse. Concer­ning the which this is to bee noted, that it † is 4 lawfull for the testator to make so many degrees of executors as he listInstit. de vulg. sub. in princ. L. potest. cod. tit. ff., and he may substitute in­to the place of one executor, either one or more; and into the place of manie executors, he may substitute one alone§ plures. Instit. de vulg. sub.: likewise he may substitute or ordaine many executors, and ap­point to euery of them a seuerall substitute; or he may substitute one of the same executors to anotherd §. plures.: or the testator hauing instituted di­uers executos, may substitute executors to some of them, but not to othersd. L. potest. & DD. in eand. L..

It is also lawfull for the testator to insti­tute an executor simplie, and to substitute ano­ther in his place conditionallyL. qui liberis. de vulg. sub. ff.; or contrarie wise, to institute conditionally, and to substitute simplieL. sub conditione. ff. de haered. instituend.: Simplie, I say, not because I denie a­ny substitution to be conditionall; for in deede euerie substitution is in this respect conditio­nall, because euerie substitute is appointed with this condition, viz. If the person to whom he is substituted, wil not or cannot be executorIas. in L. quamdiu. ff. de acquir. haered. in princ. Sichard. in Rub. de impub. & al. sub. C.: But I saie simplie, when no other condition is ex­pressed or vnderstoode in the substitution, then is expressed or vnderstoode in the insti­tutionL. qui liberis. de vulg. sub. ff..

Very † many and infinite almost, are the di­uers 5 effects issuing from the diuers kindes of substitutionsDe quibꝰ Zasiꝰ, Poli­tus Fumeus, & alij, in suis Tract. de substituc., the discourse whereof woulde be much more laborious then commodious: [Page 178] wherefore least I should make long haruest a­bout little corne, I shall content my selfe with declaration of two conclusions, whereby wee may vnderstand, when and how the vulgar sub­stitute is to be receiued or repelled, to or from the executorship.

The first and principall conclusion is this, 6 so long † as he which is instituted executor in the first degree may be executor, the substitute or hee which is appointed executor in the se­cond degree, cannot be admitted to the execu­torshipL. quādiu. de acquir. haered. L. cum in testa­mento. de haered. Inst. ff. L. post aditam C. de impub. & al. sub Grass. Thesaur. com. op. §. sub. q. 9.: and likewise, so long as he may bee executor, which is assigned in the second de­gree, he that is appointed in the third degree is excluded: So by the first, the second is repel­led, by the second the third, by the thirde the fourth, &cd. L. quamdiu. Zas. in d. Tract. de sub. c. 1. n. 5..

7 And if the † testator doo institute diuers ex­ecutors, substituting one or moe, so long as any one of them which was first instituted may be executor, the substitute is not to be admittedL. quidam de impub. & al. sub. C. Zas. in d. Tract. de substit. c. 6. vers. quinta conclusio. sed consulas Ripā. in L. 1. ff. vulg. sub. n. 187. &c. qui de hac q. pluribus disputat.; 8 vnlesse † the testator doo appoint to euery exe­cutor first instituted, his seuerall substitute: for then any one of those first instituted executors, not being able or refusing to bee executor, his substitute is to be admitted with the other exe­cutors 9 first institutedZas. in d. Tract. de substit. c. 1. membro 5. conclu. 1. limitac. 3.: Whereas † otherwise a­ny one of the executors in the first degree law­fully vndertakinge the executorship, all the substitutes are excluded; not onely those which are placed in the second degree, but also those which be placed in the third and fourthBar. in L. 1. de vulg. & pup. sub. ff. n. 47. & Ri­pa. ibid n. 185. Dec. in L. post aditam. C. de impub. & al. sub. n. 2.. In so 10 much that † if the executor vndertaking the of­fice, [Page] doo afterwards die intestate, yet the exe­cutors instituted do stil remaine excludedL. post aditam. C. de impub. & ali. sub. & Si­chard. in eand. L. n. 1. vers. ita deinde., & so by the lawes of this realme, the administratiō is to be committed of the rest of the goods of the testator deceased not administred by the execu­torBrook Abridg. tit. admistr. n. 45. & tit. exe­cutor. n. 149.: the reason is, for that they which are sub­stituted are made executors conditionally; that is to say, if hee which is instituted executor in the first degree, will not, nor cannot be execu­torOdofred. & Fulgo. in d. L. post aditam.: wherefore he that was first instituted law­fully, vndertaking the executorship, can not be saide to be vnwilling or vnable; and so the con­dition expireth, and is become deficient, with­out the accomplishment whereof, that is to say, vnlesse the executor in the first degree will not or cānot be executor, the substitute cānot claim any thingConstat aliàs à Iaso­ne, Sichardo. & alijs, in d. L. post aditam, assig­nari rationes, quae ta­men non tanti sunt a­pud nos momenti; non tamen erit inutile illos in hac re consu­lere.. Howbeit, if † the executor institu­ted 11 in the first degree, be depriued of the execu­torship, by reason of his negligence in not per­forming the will, then is the substitute to be ad­mittedZas. in d. Tract. de substit. c. 1. membro 5. concl. 1. limit. 1.: likewise, if the executor first instituted, notwithstanding his intermedling, be admitted to renounce the executorship, then also the sub­stitute is to be receiuedBar. in d. L. 1. de vulg. sub. n. 49. cuius opinio communis est, testimo­nio Grass. Thesaur. cō. op. §. substitutio. q. 15.: likewise if hee that is first instituted, doo delay to take vppon him the executorship, by the space of thirtie yeares, hee is to be excluded, and the substitute to be recei­uedIas. in L. quamdiu. de acquir. haered. ff. quā opinionem dicit esse communem. n. 9.: but I suppose he is not to be excluded by lapse of lesser time, vnlesse the ordinarie doo as­signe a certaine time, to take or refuse the exe­cutorshipVide infr. 6. part. §. 13: likewise, if he that is first instituted cannot bee executor, the substitute being ap­pointed vpon this condition, if the former will not be executor, neuerthelesse the substitute is [Page 179] to be admitted, as if the former executor had refusedBar. in d. L. 1. ff. de vulg. sub. & post eum Zas. in d. Tract. de subst. c. 1. verb. primus effectꝰ.. And finally, wheresoeuer it is likelie that the testator would haue substituted in the case not expressed, if hee had remembred the same, as wel as in the case expressed; there the substitute is to bee admitted, as if the same case had beene expressedBar. & Ias. vbi supra..

12 The second conclusion is, that † the substi­tute shall succeed in such part and quantitie of the testators goods, as was assigned to him that was instituted executor in the former degree, be it more or lesseL. 1. C. de impub. & al. sub. §. & si. Instit. de vulg sub. L. si plures. ff. de vulg. & pup. sub.: so that if the instituted per­son were made executor of the one halfe of the testators goodes, the substitute shall be admit­ted executor of the one half; or if the instituted person were made executor of a third part, or of goodes in a certaine place, the substitute shall 13 succeed and be admitted accordinglyDD. in d. L. 1. Minsin. in d. §. & si plures. de vulg. sub.. And † if diuerse be substituted to one, they shall succeed equally: but if the same substitutes were also instituted executors, and that vnequally (for that perhaps to some more, to some lesse is al­lotted:) In this case, if any of the instituted exe­cutors, will not, or can not be executor, the por­tiō of that executor shal not be equally distribu­ted amōgst the substituted executors, but accor­ding to the portiō of the first assignation: that is to say; he that is an instituted executor of a grea­ter part, shal be substitute of a greater part; & he that was instituted of lesse, shal be substituted of lesseBald. Paul. de Castr. & Sichard. in d. L. 1. de impub. & alijs. sub. C. Mantic. de coniect. vlt. vol. lib. 5. tit. 1. n. 20. (a ratable & iust proportion obserued) the reason is, because the same affectiō is presumed in the substitutiō which was in the institutionMinsing. in d. §. & si Instit. de vulg. sub. per L. licet imperator. ff. de leg. 1. & L. publius. §. Titio. de cond. & de­mon. & Mantic. vbi sup..

14 Notwithstanding, if † the executors vne­qually [Page] instituted, bee substituted to a legatarie; then in case the legatarie will not, or cannot haue the legacie, the same shall be equallie di­uided amongst the substitutesL. vnic. §. sed vt ma­nifestetur. C. de cad. tol. & ibi Paul. de Cast. Sichard. in d. L. 1. de im­pub. & al. sub. col. 5. ver. nec mouet..

Or if the substitutes be equally charged by the testator, then also they shall succeede equal­lie, notwithstanding they were vnequallie in­stitutedL. quoties ad Trebel. L. vtrum. §. sin. de rebus dub. ff. Dec. in d. L. 1. n 10..

Or if the persons instituted executors in the first degree be assigned conditionallie, the sub­stitutes assigned simplie shall not bee charged with the performance of that conditionL. si sub conditione. de haered. instit. & ibi Bar. Bald. Imol. & alij. ff Et haec est communis sententia, vt ꝑ Mantic. de coniect. vlt. vol. lib. 10. tit. 6. n. 2., vn­lesse they be substituted to a conditionall lega­tarie: for then the condition expressed in the former disposition, is vnderstoode to bee repea­ted in the substitution; and therefore the sub­stitute cannot obtaine the legacie without the performance of the conditionDec. in d. L 1. de im­pub. & al. sub. C. in sin. L. 1. §. pro secundo. C. de cad. tol. quod tamen intellige, vt per Mātic. de coniect. vlt. vol. li. 10. tit. 6. n. 9. cum seq..

Or † if in the substitution, the persons sub­stituted 15 be not all named by one name appella­tiue, but euerie one seuerally by his owne pro­per name; then notwithstanding they were first instituted executors of vnequall partes, the di­stribution amongst them as substitutes ought to be equallL. 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 caseSichard. 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 [Page 180] 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 distributionPaul. 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 likewiseIidem Castrens. Ias. Sichard. in d. L. 1..

16 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 substitutionHas 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 [Page] vnequall institutionIas. & Sichard. in d. L. 1. quae quaestio commu­nis est, quam etiam ad­uersus Curtium defen­dit Viglius, in d. §. & si ex disparibꝰ. Instit. de vulg. & pupil. sub. n. 7..

When † some be substituted by their proper 17 names, others by names appellatiue; they which be substituted by their proper names do succeede equally: the others according to the proportion of their institutionsIas. 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 institutionBar. 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.
[Page]§. xx.

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.

[Page 181] 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?

FIftly, either one persō † may bee ap­pointed 1 executor alone, or diuerse persons together§. & vnum. Instit. de haered. instituend., euen as many as the testator list to appoint, so that † 2 the number be not infinite, as to say, I doo make all the men of the worlde my executorsPorcius. in d. §. & v. num. qui refert hanc pinionem esse commu­nem, licèt Grass. The­saur. com. op. §. Institu­tio. q. 13. existimet con­trariam esse magis cō ­munem, nempe huius­modi institutionem mero iure subsistere, sed re & effectu irritā, & inanem reddi.: for to appoint executors in that sort, were an argument that the testator were not of perfect minde, and memoriePorcius in d. §. & vnum.: Besides that it is impossibleIdem Porcius. ibid., for all to execute, and ther­fore a voide assignation, at least in effectGloss. in d. §. & vnū. Grass. d. q. 13.. But † 3 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 declaredInfra 7. part. §. 8. vide Dyer. fol. 160..

When † the testator dooth make diuerse 4 persons executors, they are all to be admitted to the executorship, and not one alone without the restc. religiosa. §. sanc. de testa. lib. 6., which conclusion is diuersly both ex­tended and limited.

The † first extension is, that albeit the te­stator 5 doo appoint his owne sonne, and a stran­ger his executors; the stranger if he can and wil, is to be admitted with the testators sonne: for howsoeuer in this case by the ciuill lawe, the testators sonne is vnderstoode to bee instituted in the first degree, and the stranger no more but substituted, or appointed in the second degree, [Page 182] and so to be admitted, in case the sonne cannot or will not be executorGloss. & Bar. in L. Gallus. §. quidā rectè. ff. de lib. & posthu. Grass. Thesaur. com. op §. Institutio. q. 20. n. 6., yet by the lawes and customes of this realme it is otherwise, & both are to be admitted alikeQuippe cessante causa. & ratione iuris ciuilis nimirùm insti­tuendi necessitate, ces­sat & ipsius legis effec­tus. c. cum cessante. de app. extra..

The second extension is, that although the executors bee appointed alternatiuely, or dis­iunctiuely: As for example, the testator ma­keth A.B. or C.D. his executors: In this case both the persons are to bee admitted execu­torsL. quidā. C. de verb. sig. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 19., and this worde, or, in fauour of testa­ments is taken for and d. L. quidam. & ibi Bar. & Ias., and so it is in effect, as if the testator had saide, I make A.B. and C.D. my executos, sauing in certaine cases else where expressedInfr. 7. part. §. 9. & ibi tres extant li­mitationes..

The thirde extension is, that where there be diuerse executors, the action commenced by them, or against them, ought to be commenced in all their names, and not in the name of some of them onelyIo. de Athon. in le­gat in. libertatem. de execu. testa. Brook A­bridg. tit. exec. n 117. Intellige in executori­bus haereditatē adeun­tibus, aliàs indistinctè in vtroque casu non est verum..

6 The † limitations of the former conclusion are many, but they may all almost be reduced to two, whereof the first is, when the other co­executor cannot be executorc. religiosa. §. sane. de testa. lib. 6.: the second is whē he will not vndertake the executorshipd. §. sane. & ibi Do­mi. & Phil. Franc.. For the better vnderstanding of the which two limita­tions, First, concerning the former of them, we are to note, whether the impediment be per­petuall or temporall.

If the impediment be perpetuall, because per­haps the coexecutor is dead, or perhaps such a person as is vtterly incapable of an executor­ship, then he that is liuing and able to execute, may be admitted to the executorship; notwith­standing [Page] the impediment of the coexecutord. §. sane. & ibidem Franc. et alij., vnlesse the testator did will expresly, that the one should not execute without the otherEod. §. sane. in sin.: otherwise if † two be appointed executors, and 7 the one maketh his testament, wherein hee na­meth his executor, and dieth, his executor sur­uiuing: In this case the executor of the execu­tor, is not to bee ioined with the executor sur­uiuing: neither in the execution of the willd. §. sane. et ibi gloss.; nor in suits or actionsBrook Abridg. tit. ex­ecutor. n. 92. 160.. And if the executor of the executor, haue any goods or cattels in his hād, which did belōg to the first testator, the ex­ecutor of the same testator suruiuing, may haue an actiō against the executor of the executor for the sameBrook, tit. executor. n. 99.: In so much that if the † executor sur­uiuing, 8 doo afterwardes die intestate, yet may not the executor of the executor meddle with the goods of the former testator: for the power of the executor who died first, was determined by his death, the other then suruiuingBrook. tit. executor. n. 149.: and the ordinarie in this case may commit the ad­ministration of the goodes of the suruiuing ex­ecutor, who died afterwardes intestate, to the widowe, or to the next of his kinne: and may also commit the administration of the goods of the former testator not before administred, to the widdowe, or next of kinne to the same testa­toreod. n. 149.. And † if the executor of the executor who 9 died first, meddle with the goods of the first te­stator, hee may be sued by the creditors of the first testator, as executor in his owne wrongBrook Abridg. tit. exec. n. 29. 99..

If the † impediment be not perpetuall, but 10 temporall; then we are to consider, whether the [Page 183] same be like to endure for a long time or but for a short time: If the impediment bee like to continue long, for that perhaps the coexecutor is beyond the seas, or in some by place farre di­stantIo. And. et Phil. Franc. in d. §. sane., or for that peraduenture the coexecutor is yet vnborne, or but a babe (for such persons may bee named executorsVt infr. part. 5. §. 1.:) then the other executor is to bee admitted in the meane timed. §. sane. et DD. ibid., for the lawe woulde not that mens te­staments or last willes should be deferred, but with al conuenient speed executed and per­fourmedFranc. in d. §. sane.: But if the impediment be but of a short time, then the one executor is to expect his fellowe, and is not in the meane time to be admitted alone to the executorshipIdem Francus post Io. And. in d. §. sane..

11 When † the executor may vndertake the executorship, but doth refuse so to doo, then is the other executor to be admitted alone, and may execute the will, or commence any suite, or be sued alone, as if none other had beene named executord. c. religiosa. §. sane. de testa. lib. 6. ▪ which conclusion is true, if the executor refusing do still perseuer in his vn­willingnesse: 1 but † if he alter his minde, and afterwards become willing, then so long as the executor who prooued the will is liuing, (his former refusall before the ordinarie notwith­standing) he may by the lawes and customes of this realme, ioine with the other executor, who prooued the willBrook Abridg. tit. exec. n. 38. & n. 117.. And if he release any debt due to the testator, the release is as sufficient, as if he had neuer refusedBrook. d. tit. n. 117. & n. 177.. To these two limita­tions may a thirde be added, whereby one exe­cutor may sue or be sued, without the other co­executor: [Page] namely, † when no exception is made 13 against the proceedings by the partieIo. de Athon. in lega­tin. libertatem. de exe­cut. testam.: heere­vnto also may be added a fourth limitation, that is to say, when any one of the executors, dooth sell some of the testators goodes for a summe of money, for then that executor which solde the goodes, may himselfe alone sue for the money due for the same goodsBrook Abridg. tit. exec. n. 66..

Furthermore it is to be noted, that when the testator doth make diuers executors, if † a­nie 14 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 thereofBrook. tit. exec. n 98.: for one executor can not sue ano­therInfr. part. 6. §. 3.. Howbeit † if the testator make diuerse 15 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 trespasseBrook. 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 anotherc. tua nos. de testam. extr. Brook Abridg. tit. accompt. n. 8..

But † what if the testator make many exe­cutors, 16 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 [Page 184] 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 childrenIas. 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 personIas. 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 themL. 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 testamentIas. in d. L. fin. per L. quidā. §. si tibi de reb. dub. ff.. The third, and that is generall, is when the testator meaneth that euery person shall haue a like por­tionIas. in eand. L. fin. quē velim videas, nam ibi tradidit regulam septē limitationibus dotatā.: for in those cases the rule [...]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.

17 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 executorsIas. 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 [Page] 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 themPaul. 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 samed. 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 themText. in d. §. 1..

What shall we say to this question, The † te­stator 18 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 testatorL. 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.

19 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 persō hauing the part both of a mā & 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 participateL. quaeritur. ff. de stat. hom.: and if that also be doubtfull, it is to be presumed according to the more worthie kindeAddic. ad Bar. in d. L. quaeritur..

Of those things vvhich doo apper­taine to the apparance of the testament.
§. xxj.

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.

[Page] 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.

HAuing spoken of the general inter­nall forme, common to euery te­stament, that is to say, of the ma­king of an executor: nowe let vs returne to the generall externall forme, that is to say, the forme whereby euery testament may lawfully appeare.

Wherefore † that willes and testamentes 1 may lawfully appeare, it is requisite that there bee sufficient proofe, either by witnesse, or by writing Mascard. Tract. de probac. verb. testamen­tum. alioquin prae­sumi quemlibet ab in­testato decessisse cōfir­mat, Mantic. de con. iect. vlt. vol. lib. 2 tit. 1..

Of proofe by writing, it followeth after­wards, in the handling of the particular forme of written testamentsInfr. ead. part. §. 25..

Concerning proofe to be made by witnes­ses, two things are especially to be examined: First, howe many witnesses are required for the full proofe of a testament or last will: Secondly, what maner persons maie bee receiued for wit­nesses.

For the number, By † the lawes and customes 2 of this realme, two witnesses are needfullIus autem ciuile exi­git septem. §. sed cum paulatim. & §. fin. In­stit. de testa. ordin., and againe two are sufficientLindw. in c. statutū. verb. probatis. de testa lib. 3. prouinc. constitu. Cant. Peckius. in c. pri­uilegium. de reg. iur. 6. n. 7.: So that as it is not ne­cessarie to haue any more then two; so it is vaine to haue no more but oneIas. in L. cunctos. C. de summa Trinitate. Hyppol. Singul. 102.: For the better vn­derstanding of the which twofold conclusion:

First, where it is affirmed that two witnesses be sufficient: that is to be vnderstood, in case the same two witnesses be without cause of excep­tionc. relatum. el. 1. de te­sta. extr. Lindw. in d. c. statutum. verb. ꝓbatis. Mantic. de coniect. vlt. vol. lib. 6 tit. 3. n 5. 6.: but if they be not lawfull witnesses, two alone are not sufficient for the proofe of a last willd. c. [...]elatum. &c. cū esses. de t [...]sta. ext. & ibi DD., at the least where the same is to be proo­ued in forme of law.

3 But what if † the witnesses be not free from al exception, but yet are more in number then two, suppose three or foure: whether be they sufficient for the proofe of the will? It may be answered; that if the exceptions whereunto the witnesses are subiect, be light or slender, such as do in part diminish the credite of their testimo­nie, as the exception of friendship, domesticitie, or of suspition of some small fault; there the number dooth supplie the defect, and so the te­stimonie of three witnesses, not altogether cleare from those exceptions, is as the testimo­nie of two witnesses without all exceptionMantic. de coniect. vlt. vol. lib. 6. tit. 3. n 8.: But when the exceptions whereunto the wit­nesses be subiect, are great and heinous; as the exception of periurie, which dooth vtterly ex­tinguishe all the credite of the depositionMascard. de probac. verb. periurus. Ampl. 1. Alciat. de praesump. reg. 2. praesump. 10.; or when the witnesses are subiect to double excep­tionSoarez. lib. recep. sen. verb. testis n. 215. Gabr. lib. 1. com. concl. tit. de testib. conclus. 7. n. 13. Hyp. de Marsil. Sing, 385. Menoch. de arbr. iud. lib. 2. cas. 99. Grauetta. cons. 249.; or when the lawe dooth resist the exami­nationFelin. in c. dilecti. de accus. extr. Paris. consil. 58. n. 52. vol. 4. of the witnesses, as of those that be per­petually mad, or haue no vnderstāding; or whē the defect is not in the person, but in the depo­sitionRuin. cons. 149. 150. vol. 5. Gabr. lib. 1. com. conclus. tit. de testib. concl. 6. n. 9.; in these and like cases the number doth not supplie the defect, but the testimonie of them all is as the testimonie of noneVide eund. Gabr. d. concl. 6..

4 Secondly, where † it is affirmed that one wit­nesse [Page] is as none; yet such is the power and auc­thoritie of the testator, that he may ordaine that that one witnesse shall make a full proofe, as if the testator commit somewhat in secrete vnto him (being loth perhaps that anie other should knowe thereof) and willeth in his life, that that person alone shall bee credited for the declara­tion of his will: In this case that one person alone is sufficient to prooue the contents of the last will and testamente of the person de­ceasedL. Theopom. ff. de dote praeleg. Olden. de probac. fol. 286. b..

For the second question; that is to say, what maner of persons are to be receiued for witnesses: This maie be deliuered for a rule, that † whatso­euer 5 person is not by lawe forbidden to bee a witnesse, the same person is to bee admittedL. 1. §. 1. ff. de testib.. This rule is short; but if we should descende to the exceptions, and shewe in particular, what persons are in this case forbidden to beare te­stimonie by the ciuill and ecclesiasticall lawes, we should finde it a matter of such discourse, as the same should farre exceede the quantitie of this small volume: for there be manie volumes of this argument onelyId quod plusquam manifestum est per illum lib. qui inscribitur Tractatus de testibus probandis, vel repro­bandis. Var. authorum. &c.. Besides it is a matter wherein verie much is left to the discreet consi­deration of the circumspect IudgeL. 3. §. 1. de testibus. ff., so that it is verie hard also, to prescribe any certaintie in this behalfeBar. Bald. & alij ind. L. 3. §. 1.: onely I will remember three † speci­all 6 causes whereby the witnesses are not omni ex­ceptione maiores: the first is dishonestie in ma­ners: the second is want of iudgement or vn­derstanding: the third is affection more to the one partie then to the otherHas causas veluti praecipuas prosequitur Albericus in Tract. de testib. part. 1..

7 The first † cause dooth minister exception, not onely against periured or foresworne per­sōsDe periuri testimo­nio latè Mascard. de ꝓ­bac. verb. periurus. concl. 1168., but also against al other malefactors, or law­breakersDe teste criminoso idem Mascard. de pro­bac. verb. criminosus. concl. 469., which by anie crime by thē cōmitted become infamousDe infamibus, siue iuris, siue facti. optimè Ias. in L. cunctos. C. de summa Trinitate.: for it is saide to bee a dig­nitie to be a witnesseAufrer. Tract. de te­stibus. verb. dignitas.. But al such persons, as are infamous by their euill life, the lawe esteemeth vnworthie of any dignitiec. infamibus. de reg. iur. 6., which also ponde­reth the credite of each mans saying, with the grauitie of his lifeL. 2. & 3. ff. de testibꝰ.; and therefore light life, light 8 credite also. Howbeit † amōgest many limitati­ons of this exception, drawen from the euil life of the witnesseDe quibus Mascard. & Ias. ille. conclus. 464. & conclus. 1168. hic in L. cūctos. C. de summa Trinitate., this is one, that if any man ha­uing cōmitted any crime, (periurie exceptedMascard. de probac. concl. 1168. n. 16.) hath reformed his māners, cleare frō his former fault, & hath liued honestly & laudably by the space of three yeares before his said productiō, such a persō is not repelled frō being a witnesc. testimonium. de testibus extr..

9 The second † cause doeth comprehend chil­dren§. testes Instit. de te­sta. ord., idiotesRebuff. de reprobac. & saluac. test. verb. fu­riosus. Campeg. Tract. de testib. reg. 114. Bar. Tract. de testib. n. 98. v­bi constituit diff [...]rētiā inter stultos & fatuos., lunatike personsd. §. testes. & Minsin. in §. furiosi. Instit. de Curator. vbi distinguit inter furiosum & mente captum., and such like, of whom it may be said as of the former: that as they which reforme their euill manners, and af­terwardes liue an honest and commendable life are not to be repelled, so these persons being al­tered in their knowledge, that is to say, the child being growen to yeares of discretion, the idiote made wise, or the lunatike person not distracted by his fitte, or frensie; then their testimonie is to be receiued euen of those thinges which were done during the time of their minoritieAngel. Ate. in d. §. te­stes. Alberic. Tract. de testib. c. 5. n. 18., or madnesMascard. Tract. de ꝓbac. verb. furiosus. cōcl. 828., so that they were not vtterlie voide [Page] of vnderstanding in those former estatesIul. Clar. pract. cr̄ial. q. 24. Alberic. d. Tract. c. 5. n. 24..

The third † cause, which is affection, doeth 10 reach vnto those witnesses which be of kinred or allianceDe quibus Alberic. [...] Tract. [...]. & Hector Aemilius. Tract. de testi­bus. verb. assinis., or which be tenants, seruants, or of the housholde of the partie producting themDe his te [...]tibus. idem Alberic. d. Tract. c. 2., and to the enimies of the partie against whom they are productedInimicus quatenus repellendus, docet Mascard. in d. Tract. de probac. concl. 899. qua­tenus verò recipiēdus, Campegius. Tract. de testibus. reg. 23.: Item to all those which are to reape any benefite by their depositionAlbericus. Tract. de testibus. c. 4.: wherein (as in many thinges els) very much is attributed to the discretion of the Iudge, who as the kinred or affinitie betwixt the witnesses and the partie, is neare or farre off, the feare of the tenant or seruant, of the displeasure of his Lord and master, great or little, the enmitie be­twixt the witnes and the aduerse partie, hoat or colde, or the commoditie of the witnes is to reape, more or lesse: So the wise Iudge ought to giue more or lesse credite to their saiyngs and depositionsDe huiusmodi testi­bus, Hector Aemilius. Tract. de testibus. verb. affectionem habens. Gabr. lib. 1. com. concl. tit. de testib. concl. 9. 10. 11. 12. 13. 14. 15. 16. Pa­nor. in c. super eo. de testib. extr. n. 8. Rebuff. de reprobac. & saluac. testiū. verb. inimicus. verb. domesticus. & verb. consanguineus..

What shall wee saye of the testimonie of these persons? namely, of a legatarie, of a wo­man, and of a poore man.

I suppose the † testimony of the legatary to 11 be good for the rest of the will§. legatarijs. Instit. de testam. ord., but not for his own legacyPorcius. in d. §. lega­tarijs.: and therfore where there be but two witnesses of a will, wherin either of them hath somewhat bequeathed vnto him, this will is not sufficiently prooued for those legaciesBar. in L. omnibus. C. de testibus. & Porciꝰ in d. § legatarijs., but for the rest of the will it seemeth to be suffi­ciently prouedAlbericus. Tract. de testib. c. 4. n. 57. vers. in hoc ar̄..

A woman † is also a good witnes in this case 12 by the lawes EcclesiasticallPanor. & Couar. in c. cum esses. de testa. extra.: And whatsoeuer diuers doo write, that a woman is not without [Page 188] all exceptionDec. in L. faemina. de reg. iur. ff. Grauetta. consil. 99. n. 5., because of the inconstancie and frailty of the feminin Sex, wherby they may the sooner be corruptedc. sorus. de verb. sig­nif. extr.: yet I take it that their te­stimony is so good, that a testament may be pro­ued by two women alone, being otherwise without exceptionSichard. in L. hac cō ­sultissima. § ex imper­fecto. C. de testa. Ripa. Tract. de peste. c. 2. n. 24. quae sententia cō ­munis est. Couar. in d. c. cum esses. n. 14..

13 A poore † man likewise, being an honest man is not forbidden to be a witnesViuius Thesaur. cō. op. verb. testis. Tu verò Iustinianista, vide Gab. lib. 1. com. conclu. tit. de testib. concl. 18. vbi tradita est regula de paupere teste, variè tùm ampliata, tùm limitata..

Of the particular formes of Testaments.
§. xxij.

1 So many particular formes, as kindes of Testa­mentes.

1 THe † particular formes of testaments be no fewer in number, than are the seuerall kindes of testaments: For e­uery kinde hath his particular forme, by the which it differeth from the restL. Iulianus. §. si quis. ff. ad exhibendum..

The seuerall kindes of testaments are these: that is to say, Some be solemne testaments, and some be vnsolemne: some written, and some nuncupatiue: some priuiledged, and some vn­priuiledgedSupra prima parte §§. 8. 9. 10. 11. 12. 13. &c.. Of the particular formes of eue­ry which kinde, albeit I haue already said some­thing in their seuerall definitions: yet now also it shall not be in vaine to adde thereunto these things following.

[...]
[...]

Of the forme of a solemne testament.
§. xxiij.

1 Diuers things ought to concurre to the forme of a solemne testament.

2 No man tied to the obseruation of this solemne forme.

IN the making of solemne testa­ments manie things are requisite, whereof if any one be wanting, it is not reputed a solemne testa­ment§. sed cum paulatim. Instit. de testa. ordin. & ibi Minsing.. First † it is requisite that 1 there be seuen witnesses present at the making thereofd. §. sed cum paula­tim.: Secondly, they must all be required, neither is it sufficient, that they bee present by chaunce, or vnrequiredAuth. rogati. C. de testa. L. haeredes palam ff. de testam.: Thirdly, it is requi­red, that euery witnesse doo subscribe his name with his owne hande, if he can write, or els two or three others for himL. singulos. de testa. ff. & Minsing. in d. §. sed cum paulatim.: Fourthly, it is requi­site, that the testator doo with his owne hande write his name, whom he will shall succeede, and haue all his goodes; and if he cannot write, that then he name him before those witnessesL. iubemus. L. cum antiquitas. C. de testa. Non tamen ita neces­saria est nominatio haeredis, vt proprio te­statoris ore fiat, quin sufficit, si testator, alio interrogante, an velit talem fore haeredem? Respondeat ita. DD. in d. L. iubemus. Grass. Thesaur. com. op. §. In­stitutio. q. 17.: Fiftly, it is requisite that the witnesses bee such as are not forbidden to beare testimonie in that behalfe§. testes. Instir. de te­sta. ordin.: Sixtly, it is necessarie that the witnes­ses do see and behold the testator, and not heare him onelyMenoch. de arbitr. Iud. q. lib. 2. cent. 5. cas. 475. n. 23. Minsing. in d. 5. sed cum paulatim.. It is also necessarie that the wit­nesses doo seale the testament, either with their [Page 189] owne seales, or with the seale of anotherd §. sed cum paula­tim.. Fi­nally, it is necessarie that the testament be made at one time, without any intermission, except naturall, such as cannot be auoidedEod. §. & ibi Minsing.

2 A will thus † made is called a solemne te­stament, which forme if men would obserue, (but no man is necessarily tied therevnto heere in EnglandSupr. part. 1. §. 9.) it were a more safe way, aswell a­gainst the forging of false willes, as suppressing of true willes.

Of the forme of an vnsolemne testament.
§. xxiiij.

1 What is requisite in the making of an vnsolemne testament.

1 IN the † making of an vnsolemne te­stament, it is not precisely necessa­rie to vse any of the foresaide cere­monies: This onely is needfull heer with vs in England, that the te­stator do appoint his executor, and declare his will before two or three witnesses, whose testi­monie, partly by the lawes ecclesiasticallC. cum esses. c. re­latum. el. 1. de testa. ext., and especially by the generall custom of this realmLindw. in c. statutū. verb. probatis. lib. 3. ꝓ­uincial. constit. Cant. Tract. de repub. Angl. lib. 3. c. 7. Peckius. in c. priuileg. de reg. iur. 6., is sufficient for the probation and approbation of the same will, concerning the appointing of an executor, or the disposing of goods and cat­telsAtque huc tendit quod scriptum reliquit Minsing. in Rub. de mil. test. n. 6. videlicet, apud eas gentes, quae iuris ciuilis obseruatione non tenentur (quarum Anglia est praecipua) ius militar [...]s tes [...]menti obtinere, si nulla, ꝓ­pria lex extet..

Of the forme of a vvritten testament.
§. xxv.

1 Diuers things considerable in a written testament.

2 In what matter or stuffe the testamente is to bee written.

3 In what language the testament is to be written.

4 In what hand may the testament be written.

5 VVith what notes or characters is a testament to be written.

6 Limitations of the former conclusion.

7 Of the words and sentences of a written will.

8 Whether it be necessarie that there be witnesses in a written will.

9 How the witnesses are to depose in proouing the will to be written by the testator.

10 What if the testament bee founde in the testators Chist.

WE haue heard elsewhere, in what cases it is needefull that the testa­ment bee writtenSupr. 1. part. §. 11., namely where the testator doth deuise any lands, tenements, or hereditamentsStat. H. 8. an. 32. c. 1., and also when the same ought to be written: that is to say, in the life time of the testatorEodem stat., with di­uerse other questions there absolued: Now † let 1 vs heare of some other things which may seeme to appertaine to the forme of a written testa­ment, namely in what matter or stuffe the testa­ment [Page 190] is to bee written, in what language, with what hand, letters, notes or characters, with what wordes or sentences, and whether it bee alwayes necessarie that there be witnesses of a written te­stament

2 For the † matter wherein the testament is written, the law regardeth not whether it bee paper, or parchment, or other like stuffe apt for writing§. nihil Instir. de te­sta. ordi. Spec. de Instr. edit. §. 8. n. 21. Sed quid si quis scripserit volun­tatem suam in pulue­re? numquid valebit testamentum vt scrip­tum? Et videtur quod sic per L. milites. C. de testa. Hoc vno subaudi­to, nimirum nostratiū testamenta, omni im­munitate, atque adeo iure militari gaudere, vt scriptum reliquit D. Smitheus. Tract. de repub. Angl: lib. 3. c. 7. Contrarium tamen sci­licet non valere huius­modi testm̄. tanquam in scriptis conditum, existimo: Saltem ad ef­fectum illum, de quo sit mentio in d. stat. H. 8. an. 32. c. 1. id quod ex mente illius statuti sa­cile colligere licet. Et huc ꝑtinet quod scrip­tum reliquit Molin. in L. 1. §. eod. ff. de verb. ob. n. 9..

3 Neither is it material in what † language Minsing. in d. §. nihil. the same be written, either Latine, French, or anie other tongue.

4 For the † hande or letters wherewith the te­stament is written, the lawe is indifferent whe­ther it be Secretarie hand, Roman hand, Court hand, or any other hand, either faire, or other­wise, so that the same may bee read and vnder­stoodeDD. in L. quoniam. C. de testa..

5 For the † notes or characters it skilleth not whether the same be vsuall or vnaccustomed Hoc intelligant Iu­stinianistae ꝑcedere iu­re gentium quo nos v­timur. Nam iure ciuili testm̄. in scriptis fieri non potest per notas aut zypheras inusita­tas, vt tenēt Bar. Bald. Ang [...]l & alij, in L. quo­ties. §. 1. ff. de haered. in­stituend. praeterquam in casibus exceptis, veluti in testamento militis, ad pias causas, &c. de quibus Vasq. de success. creat. lib. 2. §. 15. requisit. 16. Tiraquel. de priuileg. piae causae. c. 13. Grass. Thesaur. com. op. §. testm̄. q. 10.. V­suall or accustomed notes bee these, xx. s. for twentie shillings. Cl. li. for an hundred and fif­tie pounds, 1590. for a thousande fiue hundred fourescore and ten, with such like, whereof I might bring infinite examples: vnaccustomed notes and characters bee, as when the testator dooth vse the figure (1) in stead of the letter (A) the figure (2) in steade of the letter (B) the fi­gure (3) in stead of (C) &c. or perhaps some other more straunge characters then these in [Page] place of letters. Howbeit † if the characters bee 6 such as the same cannot be read or vnderstood, the testament is as if it were not writtenL. 1. ff. si Tabul. testa. Vasq. d requis 16.; or if they may be read and vnderstood, either by the same, or by some other writing, or by any o­ther meanes: yet if that writing were but a draught, or preparation to the testament, and not the testament it selfe, it is without anie forceL. ex ea scriptura. ff. de testa. L. fidei cōmiss. §. 1. de leg. 3..

Wordes † and sentences, are not required 7 for the forme of a testament, but for the expressing of the will and meaning of the te­statorL. quoniam indignū. C. de testa. Molin. in L. 1. §. eodem. ff. de verb. ob. n. 8. in sin.; and therefore if the writer by error omit some wordes, whereby the sense is vnper­fect: As for example, the Notarie dooth write thus (I make my wife my, of this my last will and testament) leauing out this worde (execu­tur:) in this case the error of the writer ought not to preuaile against the truth of the testa­mentL. errore. C. de testa.: for the lawe presumeth that more was spoken, though lesse was writtend. L. errore. Ita vt in hoc exemplo non sit necessaria aliqua pro­batio quòd Scriba er­rauerat, vel quod testa­tor omnia nuncupa­uerat, cùm lex ipsa sit loco probationis. Sich. in d. L. errore. Attamen necesse est probare mulierem istam esse testatoris vxorem, quā vult esse suam execu­tricem. Ias. in d L. in sin.: much lesse ought it to bee preiudiciall to the testament, where in steede of the wordes omitted, other wordes of the same sense to such purpose are vsed and expressedL. quontam. C. de te­stam.: For example, suppose that in the testament it is written, that the testator dooth bequeath such landes to such person, to haue and to holde to him and to his assignes for euermore. How soeuer in this deuise there is not any mention of heires, without which worde an estate of inheritance cannot passe, by any deed or gift made whiles a man yet liueth; yet because in testaments, the wil and the intent [Page 191] of the testator is preferred before formal or pre­script wordes, an estate of inheritance dooth thereby passe, as if he had made expresse mentiō of his heiresSupr. ead. part. §. 4.. Other examples to the same ef­fect are extant in other places of this booke, which to repeate were superfluous.

Concerning the last question, viz. whe­ther 8 † it be necessarie that there be witnesses of a written will; this is the answere, that if it be cer­taine and vndoubted, that the testament is written or subscribed with the testators owne hand: In this case the testimonie of witnesses is not ne­cessarieAuth. quod sine. C. de testa. & DD. ibid. Io. dilect. de arte testā ­di. tit. 2. c. 2. in sin. Mas­card. de probac. verb. testm̄. conclus. 1352. n. 60. &c.: But if it be doubtfull, whether the te­stament were written or subscribed by the te­stator; in this case the testimonie of witnesses is necessarie, to confirme the same to be the testa­tors 9 owne handBar. in L. si ita scrip­sero. ff. de cond. & de­mon. Alex. consil. 76. vol. 3. n. 2. 3. Paris. cōsil. 19. vol. 3. n. 26. Couar. in c. cùm tibi. de testa. extr. n. 5.. But † it is not inough for the witnesses to say this is the testators owne hand, for we knowe his handSichard. in d. Auth. quod sine. Alex. d. con­sil. 76. n. 3. 4. Menoch. de arbitr. Iud. q. lib. 2. cas. 114. n. 22. Afflict. decis. 181. n. 7., neither is it sufficient (in the opinion of diuers) to bring forth other writings of the knowne hande of the testator, and so proue the will to bee written or subscri­bed by the testator, by comparing such wri­tings with the testamentSichard. in d. Auth. quod sine. Alex. d. con­sil. 76. vol. 3. Molin. in addic. ad Alex. consil. 114 vol. 7.: For the witnesses may be deceiued (the testators hand being easie to be counterfeited,) and therefore proofe by similitude of handes is not a full proofeBar. & ali [...]. in L. ad­monendi. ff. de iureiur. afflict. decis. 181. Mas­card. Tract. de probac. verb. comparatio., sauing in those courts where the stile or custome doth approoue such testimonie for a full proofeVestrius. pract. cur. Rom. lib. 6. c. 1., or when the testament is to bee proued in vul­gar forme: neuerthelesse in this case where it is doubtfull whether the testator did write or subscribe the testament, if the witnesses doo de­pose [Page] that they did see the testator write or sub­scribe the testament, and being learned knowe the same to be his handeSichard. i [...]n d. Auth. Alex. d. consil. 76. & consil. 123. vol. 1. n. 5., or else that they did heare the testator confesse that he had made his testament, or that the same was in the handes of such a personBar. Imol. & alij, in L si ita scripsero ff. de cond. & demon. quorū opinio magis est com­munis, teste Grasso, Thesaur. com. op. §. In­stitutio. q. 16. n. 5. & §. testm̄. q. 16. in fin.; or if the testament were found in the testators Chist amongest his other wri­tings: In these cases the proofe made by com­paring of handes, albeit the testament be to be prooued in forme of lawe, is a full and sufficient proofeNatta. in d. Auth. quod sine. Grass. The­saur. com. op. § testm̄. q. 16. in fin. Mascard. de probac. verb. testm̄. conclus. 1352. n. 66.: Or if there be none of these helpes by likely circumstances, yet if on the contrarie there be no suspition of fraud or feare of subor­nation, I am of their opinion who do hold that the circumspect Iudge may allowe the proofe made by comparing of hands for a full proofeAlex. consil. 114. vol. 7. n. 4. 5 Natta. in d. Auth. quod sine. et. Grass. Thesaur. com. op. § Institutio. q. 16. n. 6. Dec. consil. 219. in fin. Socin. consil. 162. n. 4. & hanc opi­nionem ego non fal­sam, cum Molineo, immo communem, cum Alex. periculosam tamen cum Mascardo: ideoque in arbitrio iudicis positam esse, cum Decio, sentio.: But then also the writings so found in the testa­tors Chist, must be so written, as it may appeare, not to be a draught or preparation of a will, but the testament it selfeBar. in d. L. quoties. §. 1. ff. de haered. instituend. Mascard. d. concl. 1352. n. 63. Non tamen opus esse puto, vt ser­uentur illa requisita, de quibus in d Auth. quod sine. videlicet dici expressionem, exten­sam scriptionem, liberorum nominationem, &c. Quorum sine obseruatione, nec inter li­beros, nec ad pias causas testamentum valet, etiamsi constet de manu testatoris: nam ista requisita inducta sunt à iure ciuili, nec sunt sublata iure canonico, vt author est Euerard. Verum autem, inspecto iure gentium, quo iure nos Angli, haud aliter ac Romani milites, liberè fruimur, non est necessaria vel dici expressio, vel extensa scriptio, &c. Illud solùm exigitur, vt constet scripturam manu testatoris exaratam fuisse, vel subscriptam sine alia quauis solennitate, dum tamen huiusmodi scriptura non sit praeparatio ad testandum, sed ipsa dispositio, vt aliàs inpradictum est, & infra dicendum part. 7. §. 13. in fin..

But what if † the testamēt be found in the te­stators 10 Chist, or safely kept amongest other wri­tings, which testament is neither written by the testator, nor by him subscribed, but altogether [Page 192] of another mans hand: whether shall this wri­ting preuaile as the last wil and testament of the deceased or not? It shall notIas. in d. Auth. quod sine. C. de testa. Iul. C ar. §. testm̄. q. 14. n. 5. vbi dicunt hanc opini­onem esse commu­nem., vnlesse it be pro­ued that the same was written by the com­mandement of the testatorIas. in d. Auth. Mas­card. de probac. d. concl. 1352. n. 67., or vnlesse it be sea­led with the seale of the testatorc. 2. de fide Instr. extr. Et licet Decius ibidem teneat contrarium, nisi Sigillationi, acce­dat etiam subscriptio. Quia tamen haec opinio fundata est in solennitate iuris ciuilis, no­bis ius gentium attendentibus, opinor hanc Decij. sententiam non audiendam fore in foro nostro..

Of the forme of a Nuncupatiue testament.
§. xxvj.

1 Of the forme of wordes in a Nuncupatiue testa­ment.

2 Obscuritie and ambiguitie to be auoided.

3 Obscuritie what it is, and howe it maie bee a­uoided.

4 Ambiguitie what, and howe it may be auoided.

5 The difference betwixt obscuritie and ambiguitie.

6 Willes fauourablie interpreted.

7 In contractes interpretation to be made against the partie.

IN the making of a Nuncupatiue wil or testament, this is chiefly to be ob­serued, that the testator do name his executor, and declare his minde by wordes of mouth, without writing before wit­nesses§. fin. Instit. de testa. ordin. Auth. hoc inter. §. per nuncupationem. C. eod. tit. numerum tamen septinarium testiū. de quo in d. §§. non esse necessarium supra diximus.. 1 As † for any precise forme of wordes, [Page] none is requiredMolineus. in L. 1. §. eodem. ff. de verb. ob. n. 8. in fin., neither is it materiall, whe­ther the testator doo speake properly or vnpro­perlyL. quoniam indignū. C. de testa., so that his meaning do appeare, as hath beene heretofore confirmed by diuers exam­plesSupra ead. part. §. 4.. But it is not sufficient for the testator to leaue a sounde in the eares of the witnesses, vn­lesse he do leaue some vnderstanding also of his will and meaningL. sed & si. §. proscri­bere. de Instit. action. L. aetate. §. nihil. de in­ter. action. ff..

And although in written testaments it be also required, that the wordes and sentences be such as thereby the testators meaning may ap­peareSupra §. prox. praeceden.: yet more specially it is required in a Nuncupatiue testament, for more supplie may be made in written testamentes then can bee made in Nuncupatiue testaments concerning the testators meaningAuth. quod sine. C. de testa..

Wherefore † that the testator may the bet­ter 2 performe this thing, and that his mea­ning may be the better vnderstoode, he must as much as he can auoide obscuritie, and ambi­guitie De obscuro & am­biguo. vide Spiegel. Lexic. verb. ambiguū. & verb. obscurum..

Obscuritie † is auoided by speaking plainly; 3 for an obscure speech is that which either can­not be vnderstood at all, or verie hardly by rea­son of the cloudie darkenesse therof, or want of the light of plaine vtteranceSpiegel. Lexic. verb. obscurum. Cagnol. in L. semper. de reg. iur. ff..

Ambiguitie † is auoided by speaking sim­plie 4 and certainly: for an ambiguous speech is that which yeeldeth diuers senses to the hea­rer, who remaineth doubtfull in whether sense the speaker is to be vnderstoodeSpiegel. & Cagnol. vbi supra..

The † difference betwixt obscuritie and 5 ambiguitie is this. By obscuritie, the hearer is [Page 193] made like to him which walketh in a darke place, not knowing where the way lieth, whe­ther on the right hand, or on the left; before him, or behind him; or whether he be in the way, or out of the way: By ambiguitie, the hea­rer is made like vnto him, who walking in the light, meeteth with two or three wayes, and knoweth not which way to take, nor which of those wayes leadeth to that place whereunto hee ought to goeZafius in L. veteribꝰ. ff. de pactis. Spiegel. & Cagnol. vbi supra. Fa­teor tamen alias ab a­liis differentias exco­gitari, & quandoque etiam confundi.: both of them are to bee auoided.

6 And albeit † the lawe hath prouided fa­uourable interpretations, to sustaine the testa­ment where the dispositiō is obscure, ambigu­ous, 7 or vncertaineL. in testamentis. de reg. iur. ff. & DD. ibid., contrarie to the † nature of contracts, where he that speaketh obscurely or ambiguously, is saide to speake at his owne pe­rill, and that such his speeches are to bee taken stronglie against himselfeL. veteribus. ff. de pactis.: neuerthelesse howe fauourable soeuer the law be towards dead mēs willes, the lawyers are not so fauourable to their clients, and therefore if it were but to auoide long and costlie suites, it is meete that the testa­tor vtter his minde, as plainely and certainlie as he can.

Of the particular formes of other testamentes or last willes.
§. xxvii.

COncerning the formes of testaments priuiledged or not priuiledged, or of other kindes of willes, as of codicils, or of giftes in case of death, I referre the reader to those places where speciall men­tion is made of euerie of them, and of their dif­ferences of formesSupra 1. part. §§. 5. 6. 7. &c..

And chiefly concerning the formes of le­gacies, I wish the reader to peruse the manifold formes of making an executor: For as I haue often saidSupra ead. part. §. 3. & §. 4. n. 18. cum seq., by vnderstanding after how many sortes an executor may bee appointed, it is an easie matter to collect how diuersly a legacie may be left also.

THE FIFTH PART OF THIS TESTAMEN­TARIE TREATISE, WHEREIN APPEARETH WHO may bee Executor, and is ca­pable of a legacie, and who not.

The Paragraphes or Chapters of the fifth part.
  • WHat persons may bee appointed executors or be capable of a legacie. §. 1.
  • Of an heretike. §. 2.
  • Of an Apostata. §. 3.
  • Of traitors and felons. §. 4.
  • Of him that is outlawed. §. 5.
  • Of an excommunicate person. §. 6.
  • Of Bastards. §. 7.
  • Of him that is madde. §. 8.
  • Of an vnlawfull colledge. §. 9.
  • Of a libeller. §. 10.
  • Of vsurers, Sodomites, and other vicious persons. §. 11.
  • Of an vncertaine person. §. 12.

[...]HAT PERSON [...]AIE BE EXECVTOR OF [...] TESTAMENT, OR IS CA­pable of a legacie.
The fifth part.
[Page]§. j.

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.

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 executorTit. 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§. 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 forbiddenMinsing. in d. tit. de haered. instit. in prin. pract. Petr. de Ferrar. in forma libelli, ad red­dend. ration. Tutel. §. an [...]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 childrenBract 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, tū legibus..

Secondly, the testator hath libertie to ap­point [Page 196] executors, not onely those which be free, but also bondmen, or villeinesLib. 2. Instit. tit. de haered. instituend. in prin. Litleton. tit. ville­nage. fol. [...]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 anotherd. tit. de haered. instit. in prin.. And if the testator do make his owne villeine executor, he doth manumit, or deliuer his villeine from bondageIo. 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 testatorLitletō. 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 testatorLitleton. vbi supra. & sic nota quod nō 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 alsoImo 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 womenCouar. in c. tua. de testa. extr. Et est com­munis opinio. Peckius de testa. coni [...]g. lib. 1 c. 20., either single or mariedPeckius. d. c. 20. Fitzh. & Brook. d. tit. executor..

Fiftly, the testator hath power to appoint executors, not onely persons of ful age, but also infantsBrook 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 sufficientBrook. 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 oldDoct. & 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 testatorL. placet. ff. de lib. & posthu. quae lex etsi loquatur de haeredis institutione, idem tamen iuris vel in executoris cōstitutione, passim ab Anglis obseruari notoriè cōstat, quicquid dixerit ius ciuile.) In that case the ordinarie, or other [Page] 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 executor­shipQuod sine vlla con­tradictione saepissimè obseruatur, saltē 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§. 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§. & vnum Instit. de haered. instituend.: manie I say, seueral, or manie representing one bodie, as a Colledge, a Citie, an vniuersitieL. 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 will.

Of an Heretike.
[Page 197]§. ij.

1 An Heretike cannot be executor.

2 Whether an Heretike may be executor in a milita­rie testament.

3 What if the Heretike do reclaime his heresie.

AN Heretike can not bee executor; neither is he capable of a legacieL. Ariani. C. de hae­retic. Sichard. in Rub. de haered. instit. C. n. 5. Minsing. in tit. de hae­red. instit. lib. 2. Insti [...]uc. in prin.: and so odious is the crime of here­sie, that albeit the partie bee not yet condemned of heresie: neuerthelesse perseue­ring in his heresie, hee is not to bee admittedVasq. de success. pro­gress. lib. 1. §. 2. n. 20., no not in a militarie testamentL. vlt. C. de haereticis, howsoeuer a souldier hath more libertie in making an exe­cutor then anotherSupra. 1. part. §. 14..

And albeit he that is named executor, doo repent and reclaime his heresie, yet being an heretike, either at the time of the making of the testament, or at the time of the death of the te­stator, or at the time when hee vndertaketh the executorship, he is excluded§. in extraneis. Instit de haered. qual. & dif­ferentia..

For this is perpetuall, that if any person be incapable, either when the testament is made, or when the testator dieth, or when hee taketh vpon him the executorship, it is as if he were al­waies incapabled. §. in extraneis. L. si alienum. §. 1. ff. de hae­red. instituend. Sichar. in Rub. de testa. C. in fin Grass. Thesaur. cō. op. §. Institutio. q. 28.: but it hindereth not if he be not incapable at other timesd. § in extraneis. L. sed & si. §. solemus. ff. de haered. instit.; neither dooth it hinder the legatarie though he be incapable of the legacy at the making of the testamēt, so that he be capable thereof at the time of the testators deathBar. in L. non opor­tet. ff. de leg. 2. Peckius Tract. de testa. coniug. lib. 4. c. 31. Grass. The­saur. com. op. §. Insti­tutio. q. 28., (as appeareth more at large hereafterInfr. part. 7. §. 19.) the reason of the difference is, because the lega­cie dependeth of another acte; that is to say, of the testament, from whence it receiueth his power and vertue, but the testament or appoint­ment of the executor dooth not depende of an [Page] other acte, whereby it may receiue either life or strengthPeckius. d. c. [...]1..

Of an Apostata.
§. iij.

AN Apostata also is incapable of an executorship, or legacieL. hi qui secundum. C. de Aposta.: what an A­postata is, and how manie kindes of Apostacy there be, I haue else where declaredSupra §. 2. §. 15..

That which is heere spoken, is ment of A­postasie, properly so called, that is to say, of back-starting from the Christian faithBar. in Rub. de Apo­sta. C.: to whome I might ioine also Anabaptistes, for they are also incapable of executorships and legaciesL. vlt. de sacr. baptis. reit. C. Minsin. in d. tit. de haered. instit. lib. 2. Instit. in prin..

Of traitors and felons.
§. iiii.

WHosoeuer is cōuicted of treason, or felonie, as he cannot make a testa­ment or last will, as is before con­firmedSupra §§. 12. 13. part. 2., no more is he capable of anie thing disposed by testament or last willNam cùm sit dam­natus ad mortem na­turalem, mortuo aequiparatur, & sic non potest institui Bar. in L. qui vltimo. ff. de paenis. & est com. op. Grass. §. Institutio. q. 5. Vasq. de success ꝓgress. lib. 1. §. 2. n. 13..

Of him that is outlavved.
§. v.

HE that is outlawed, is out of the pro­tection of the prince, & all his goods are forfeited, and is destitute of all the aide of the lawes of this realmeSupra part. 2. §. 21.: And therefore so long as hee standeth in that case, he is not to be admitted to the executor­ship, nor can sue for his legacieFitzh Abridg. tit. ad­m̄str. n. 3. Sed non exi­stimo vtlegatum peni­tus incapacem reddi, vtpote quem relegato verius quàm deporta­to, comparandum pu­tem, (nam & relegati bona quandoque pub­licantur:) sed quia non habet personam standi in iudicio, vtlegatus nō est audiendus in iudi­cio durante vtlegatio­ne., except it be in such cases as he may make his testament, where­of mention is made beforeSupra d. part. 2. §. 21..

Of an excommunicate person.
§. vi.

ALbeit an excommunicate person may be appointed executor, and is capable of a legaciePhil. Franc. in Rub. de testa. lib. 6. n. 32. quae sententia communiter approbatur, ait Grass. Thesaur. com. op. §. In­stitutio. q. 4. Bald. in L. id quod pauperibus. C. de episcopis & cler. n. 6, yet so long as he standeth in the sentence of ex­communication, he is not to be ad­mitted by the ordinarie, nor can commence a­nie suite for his legaciec. intelleximus. de iudic. c. post cessionē. de probac. extr..

Of Bastards.
§. vij.

1 Three sortes of Bastardes.

2 Incestuous and adulterous Bastardes, are incapable of all testamentarie benefite.

3 Diuerse extensions of this former conclusion.

[Page] 4 Diuerse limitations of the same conclusion.

5 Difference betwixt the lawes Ecclesiasticall and the ciuill lawe, about the alimentation or nourish­ment of children, begotten in adulterie and incest.

6 Of the lawes and statutes of this realme, concerning Bastards.

7 Of Bastardes begotten betwixt single persons.

8 Whether the legacie left vnto the Bastard, be pre­sumed to be left for his alimentation or reliefe.

OF Bastards or children begotten out of matrimonie, there be diuers sorts: some are begotten and borne in sim­ple fornication, that is to say, of carnall copulation betwixt single persons, such as at the time of the conception or birth of the childe, may be married togetherCouar. Tract. de ma­trimonio. 2. part. c. 8. §. 4. Iul. Clar. lib. 5. §. for­nicatio.. Some are begotten in adultery; that is to say, of such parents, as both, or the one of them being maried to some other at the time of the birth and conception of the child, cannot then marie together themseluesCouar. in d. c. 8. §. 5. Iul. Clar. §. adulterium.. Some againe are begotten in incest; that is to say, betwixt such persons as are prohibited to marrie, by reason of Consanguinitie or Af­finitieCouar. in d. c. 8. §. 5. & 6. Iul. Clar §. incestꝰ..

Bastards begotten and borne in adulterie or incest, are not capable of any benefite by the te­stamēt or last wil of their incestuous or adulte­rous parentsAuth. ex complexu. C. de incest. nup. & DD ibid. Couar. de sponsal. 2. part. c. 8. §. [...]. Grass. Thesaur. com. op §. In­stitutio. q. 7., which conclusiō is accompāied with no smal traine of ampliatiōs & limitatiōsPetr. Duen. Tract. reg. & fal. verb. filius. vbi tradit regulam 14. ampliat. & 11. limitac. illustratam., of which companie these are not the meanest.

The first ampliation is, that albeit the ince­stuous or adulterous father doo name an other person to be his executor, to whom he giueth the residue of his goodes, willing him to restore the same goodes to his incestuous and adulte­rous childe: this disposition is voide in respect of the BastardBarth. Caepol. Cau­tela. 38. verb. quinta.: (neither is the executor bound to restore the same, but may retaine the same to himselfeCouar. de sponsal. 2. part. § 5. n. 7.) for whereof any person is not ca­pable directly or by himselfe, he is not capable thereof, indirectly or by an otherDuen. verb. silius. reg. 366.: yet I denie not but that the executor maie of his owne li­beralitie giue anie goods to the bastard, though not as the gift or goodes of the fatherCaepol. vbi supra. Io. Dilect. de arte testādi. tit. 1. cautela 14. n. 8. Couar. vbi supra..

The second ampliatiō is, that albeit the father should appoint his incestuous or adulterous childe his executor, willing him to bestowe his goodes on such a person, who of likelihoode would neuer demaund the same: as if he should will his executor to giue his goodes to the Em­perour, or to the Turke, if hee should in person come into England to receiue the same; this is but a fraudulent cautele, whereby the executor might haue some colour stil to retaine the same in his owne handesAlex. in L. cogi. §. hi qui solidi. ad Trebel. ff. Caepol. d. cautela. 38. Io. Dilect. de arte testā ­di. d. cautela 14.: And therefore by reasō of this fraude the disposition is voide, at least so farre as it dooth respect the benefite of the exe­cutorBald. cōsil. 399. vol. 2. Imol. in L. in tempus, de haered. instit. ff. A­lex. Dilect. & Caepol. vbi supra..

The third ampliation is, that euen he which is begotten and borne in adulterie, much more he which is begotten and borne in incest, is not onely incapable in respect of his fathers testa­ment, but is also excluded from all testamen­tarie [Page] benefite by his motherCouar. Epitom. de­spousal. 2. part. c. 8. n. 15..

The fourth ampliation is, that the disposi­tion is voide, ipso iure, which is made in fauour or for the benefite of incestuous or adulterous bastardesDuen. d. reg. 366. am. pliac. 4..

The fift ampliation is, that although the in­cestuous or adulterous bastard, be possessed of the thing to him bequeathed; yet he cannot re­taine or prescribe the same by that titleBald. in L. id quod pauperibus. C. de epis­copis & cler. per gloss. in L. nemo. ff. de vsucap Duē. d. reg. 366. ampl. 5.

The sixt ampliation is, that the adulterous, and especially the incestuous bastarde is exclu­ded, not onely by the ciuill and ecclesiasticall lawes, but also by the lawe of GodAugustin vt habet 35 q. 7. c. quid est. Duen. d reg. ampliac. 2.; but whe­ther this ampliation be true or not, I leaue to the consideration of the reuerent diuines. Di­uers other ampliations also there bee of this conclusionDe quibus Duen. d. reg. 366. Barth. Caepol. cautela. 38. & Io. Dilect. cautela. 14., which I omit, because they seeme to repugne the lawes of this realme. Nowe to the limitations.

The limitations of the former conclusion are these: First these incestuous and adulterous bastards may be executors vnto anie other per­son, sauing vnto their naturall parents, and are likewise capable of anie legacie, or deuise be­queathed vnto them by anie other, sauing by their owne parentsGloss. in Authē. quib. mod. na. effic fin. §. fin. Clar. § testm̄ q. 31. n. 4. Panor. in c. cùm habe­ret. De eo qui dux. in matrimo. quā pol. extr.; euen vnto their incestu­ous or adulterous brethren, they maie bee exe­cutors, or receiue anie other testamentarie be­nefite from themDuen. verb. filius. reg. 366. limit. 10. Afflict. decis. 96..

The second limitation is, when they are ap­pointed nude Executors Simo de Praetis. de Interp. vlt. vol. lib. 5. fol. 17. n. 27. Nec obstat quod dicitur per inca­pacem nihil posse capi. quia attento iure Can. spurius etiam incestu­osus non est om [...]ino incapax, vtpote, cui alimenta licitum est relinquere. Duen. d. reg. 366. limitac 9., that is to say, when they doo not reape anie commoditie by the te­stamentIo. de Athon. in lega­tin. libertatem. de exe­cutor. test., for then they may be executors euen [Page 200] to their owne naturall parents.

Thirdly, by the lawes ecclesiasticall they are also capable of so much of that which is be­queathed vnto them by their incestuous and adulterous parents, as will suffice for their com­petent alimentation or reliefec. cùm haberet. de eo qui dux. in vx. quam poll. per adult.: that is to say, for their foode, clothing, lodging, and other meete and conuenient necessariesL. legatis. ff. de ali­men. leg. Caetera quae ad disciplinam perti­nent, legato alimento­rū non cōtinentur, nisi aliud sensisse testatorē probetur. L. nisi. eod. tit., according to the wealth and abilitie of the parentsd. c. cùm haberet. in sin. sed neque pro ne­cessitate tantùm (vt volunt quidam) sed etiā ad decentiam, consti­tuenda sunt alimenta, si modo sacultates sup­petant. Gab. lib. 6. com. conclus. tit. de alimen. concl. 1. n. 31.. And although the ciuill lawe in detestation of this heinous sinne of incest and adulterie, did de­priue this incestuous and adulterous issue, of the hope of all testamentarie benefite, though it were left for, and in the name of alimentation, or needfull reliefed. Auth. ex cōplexu. C. de incest. nup., the rather by this meane to restraine the vnbrideled lusts of some, and to preserue the chastitie of othersL. isti quidem. ff. de eo quod met. caus. in fin. & §. fin. Instit. de noxal. action.: Neuerthelesse, forasmuch as nature hath taught all creatures to prouide for their yong, so that the very brute beastes haue a naturall care to bring vp whatso­euer they bring forthCic. lib. 1. offic. L. 1. §. 1. ff. de Iustic. & iur.: Seeing also in equitie the poore infants ought not to be punished (at least not to perish for want of foode, by occasion of the fathers faulte, whereof they are altogether faultlesseDeutro. c. 24. vers. 16. Ezech. c. 18. vers. 20. L. Sancimus. C. de paenis. L. si paena. eod. tit. dist. 56. c nasci.:) Therefore the ecclesiasticall lawe, whereby not only adulterousText. in d. c. cùm ha­beret., but incestuousDec. in 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 CourtIdem iuris est in ter­ris imperij gloss. & Pa­nor. in d. c. cùm habe­ret. Bar. in [...]. 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 [Page] 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 motherStat. Eliz. an. 18. c. 3., (without dis­tinctiō whether such infantes were begotten in incest and adulterie, or fornicationVbi 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 liuesPerkins. tit. graunts. fol. 11. Bract. lib. 2. c. 7., and also by their last willes and te­staments to be executed after their deathesPerkins. 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 [...]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 in­chauntedVideas 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 [Page 201] 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 SaraGen. 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 diseasec. si gens Anglorum, & ibi praepos. distinct. 56. Hinc est (ait Pec­kius) quod Sodomitarū 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 steppesMali cor [...] malū o­uum, & metuēda sunt paterni criminis exēpla 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 himBoer. 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 executorsIas. in L. haereditas. C. de his quibus, vt in­dig. n 7. & 8. Cui opini­oni locum concederē, etiamsi hic Auꝰ habeat legitimos filios. Cùm apud nos nulla sit ne­cessitas instituendi su­os, vt supra ead. part. §. 1; but so cannot the incestuous grandfatherBald. in L. si quis in­cestus. C. de incest. nup. Couar. in d c. 8. de spō ­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 alimentationPanor. in d. c. cū 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 executorBar. in L. si his. ff. de vulg. sub. Bald. in L. eā 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 childePraepos. in c. tanta vis. Qui filij sunt legi­timi. extra. n. 10. Card. eod. c n. 7. Melch. Kling Tract. de caus. inr̄ion. 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 realmeCard. 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 fornicationL. 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 maieNisi praeter copulam mortis machinatio in­teruenisset, vel fides data fuisset, quia tunc non valet inter eos matrimonium iure cā. 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 bastarded. c. tanta vis. & DD. ibidem., as heeretofore hath beene disputed more fullieSupr. 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 before such vnlawfull copulation and cō ­ception of the childe: This kind of fornication is tearmed Stuprum L. inter liberos. L. stuprum ff. de adul., and this kinde of bastarde seemeth to be in the same case as if he had bene begotten in adulterie.

If the mother were an harlot before the con­ception of the child, howsoeuer by the ciuil law such a bastard is not incapable of any testamēta­rie benefitCouar. de sponsal. 2. part. c. 8. §. 5. n. 15. 16 17.; yet forasmuch as by the lawes eccle­siasticallc. Nemo. 32. q. 4. Panor. in Rub. de adul. extra. and statutes of this realmeStat. Eliz. an. 18. c. 13., such co­pulation is condemned as vnlawfull, and to be punished as vngodly: I suppose that this kinde [Page 202] of bastarde is no more capable of an executor­ship or legacie, then if the mother had bene ho­nest beforeVideas Couar. in d. §. 5., especiallie if the mother were a common harlot, the testator neuertheles estee­ming hir to be cleare from pollution with anie other, and himselfe onely to be the vndoubted father of the childe, whom hee dooth make his executor, or to whom he dooth bequeath anie legacie by the name of his childe, when as in­deede he is not the certaine father of the childe, the mother hauing prostituted hir self to the fil­thinesse of others also. For in this case euen by the ciuill lawe, the Bastarde cannot be exe­cutor, nor obtaine the legacieBald. in L. quisquis ad L. Iul. C. de adult. Grass. Thesaur. com. op. §. Institutio. q. 7. n. 10. & infr. part. 7. §. 5., if not by occa­sion of the fathers crime, yet by reason of the testators errour and follie, who of all likelihood woulde neuer haue made that childe executor, nor haue shewed himselfe so good a father if hee had knowen the bad conditions of the mo­ther. Where it is saide that the parentes maie bequeath so much to their bastardes as will suf­fice for their alimentation or reliefe, what kinde of Bastardes soeuer they bee without di­stinction: It maie bee demaunded not imper­tinently, nor vnprofitablie, What if the testator doo simplie bequeath a summe of money or some other thing to his vnlawfull childe, not making any mention that hee dooth bequeath the same for the childes reliefe or alimentation: Whether in this case is it to bee presumed that the father did meane it for the childes alimen­tation or no: but if hee did so meane, the le­gacie is good, otherwise it is voide. Briefly, [Page] howsoeuer in this matter al men are not of one minde, I doo rather subscribe to their opinion, who do hold the affirmatiueAymo. Grauetta cō ­sil. 219. n. 8..

Of an vnlavvfull Colledge.
§. ix.

1 An vnlawfull Colledge cannot be executor.

2 What is vnderstoode by an vnlawfull Colledge.

3 Whether the Churchwardens may sue for a legacie left vnto the Church.

4 Particular persons of an vnlawfull Colledge may be appointed executors.

AN vnlawfull Colledge cannot bee executorL. collegium. C. de haered. instit.: By an vnlawfull Col­ledge in this place, I meane al com­panies, societies, fraternities, and o­ther assemblies whatsoeuer, not confirmed nor allowed for a lawfull corpora­tion by auctoritie of the prince, or of som other by whom they ought to bee confirmed or al­lowedd. L. collegium. Bar. in L. cum senatus de reb. dub. ff. Abbas in c. dilecta. de excess. prae­la. extr.. Notwithstanding, if the testator be­queath anie goods or money to the parishiōers of any parish to the vse of the Church, such a bequest is goodLambert. Tract. de offic. gardianorum. fol. 43 Brook. tit. corpora­tion. n. 55. 73. 77. 84. tit. done. n. 17. 50. contra Fitzh. tit. done. n. 1., and the legacie maie be reco­uered by the Churchwardēs, who albeit in eue­rie respect they bee not a lawfull corporation, yet in this respect they bee accounted a lawfull corporation, I meane in fauour of the ChurchLambert. vbi supr.: or if the seuerall and particular per­sons of an vnlawfull Colledge bee appointed [Page 203] executors, they are not to be repelledPaul. de Castro. in L, cum senatus. ff. de reb. dub..

Of a libeller.
§. x.

HE that is condemned for a famous libell is intestable, both actiuely and passiuely: that is to say, he can nei­ther make a testament, nor receiue a­nie benefite by a testamentL. is cui. §. vlt. ff. de testam. Vasq. de succes. progress. lib. 1. §. 2. n. 18..

Of vsurers, Sodomites, and others.
§. xi.

1 Manifest vsurers & Sodomites, can neither make a testament, nor reape any benefite by anothers testament.

2 Whosoeuer is forbidden to make a testament by rea­son of some crime, the same person is incapable of anie benefite by the testament of another.

AS manifest vsurers, Sodomites, and o­ther criminous persons, are forbid­den to make testaments themselues, or to dispose their goods by their last willes (as is before at large declaredSupr. part. 2. §§. 15. 16. 17. 18.;) so are they forbidden to reape any such benefite by the testament of others: for this is a commō re­ceiued conclusion, that hee that cannot make a testament or last will, by reason of some crime by him cōmitted, the same person is incapable [Page] of any legacie of goodes, disposed by the testa­ment or last will of anotherGloss. in L. is cui ff. de testa. Soarez. lib. rec. Sen. verb. testm̄. n. 82. referens hanc op. esse com. Idem Iul. Clar. §. testm̄. q. 43. n. 2..

Of an vncertaine person.
§. xij.

1 If the testator make Iohn at Stile his executor, and there be two persons of that name, neither of them is to be admitted.

AN vncertaine person cannot bee exe­cutor nor legatarie§. incertis. Instit. de lega. Io. And. Gem. & Franc. in c. si pater. de testam. 6.: For example, the testator dooth make Thomas Lante his executor, to whom also he giueth all his goodes: and there be two persons either of them being called Thomas Lante: In this case neither is to be admittedMinsing. in d. §. in­certis. per L. si quis. §. si inter. de lega. 2..

Diuers other examples of vncertaintie, with diuers declarations of euerie example, doo ap­peare in the last parte of this booke, where the reader maie bee more fullie satisfiedInfr. part. 7. §. 6. cum seq., in what sorte this former conclusion is to be admitted.

THE SIXTE PART OF THIS TESTAMEN­TARIE TREATISE, WHEREIN IS DESCRIBED THE office of an Executor.

The Paragraphes or Chapters of the sixt part.
  • OF the office of an executor. §. 1.
  • Of accepting or refusing the ex­ecutorship: And first whether the executor may be compel­led to accept the same. §. 2.
  • What is to be considered of the executor, desirous to be resol­ued, whether it were better to accept, or to refuse the executorship. §. 3.
  • Of the time which the executor hath to deliberate, whether he will vndergo the executorship. §. 4.
  • Of the office of an executor testamentarie, vnderta­king the executorship. §. 5.
  • Of diuerse questions about the making of an inuenta­rie: And first whether it be of necessitie that an inuentarie be made. §. 6.
  • What things are to be put into the inuentarie. §. 7.
  • Within what time the inuentarie is to be made. §. 8.
  • [Page]Of the forme to bee obserued in the making of an in­uentarie. §. 9.
  • Of the effect and benefite of an inuentarie. §. 10.
  • Of the probation and approbation of testaments: and namelie before whom the same are to bee prooued. §. 11.
  • By whom the testament is to be prooued. §. 12.
  • When is the testament to be exhibited & proued. §. 13
  • Of the maner or forme of prouing and approuing testaments. §. 14.
  • What fees are due about the probation and approba­tion of testaments. §. 15.
  • Of the paiment of debtes, legacies, and mortuaries. §. 16.
  • Of the making of an account; and first of the ne­cessitie thereof. §. 17.
  • To whom the account ought to be made. §. 18.
  • Of the time of making the account. §. 19.
  • Of the maner of making an account. §. 20.
  • Of the ende and effect of an account. §. 21.
  • Of the executor refusing the executorship, and what he is to take heede of. §. 22.

OF THE OFFICE OF an executor.
The sixt part.
§. i.

1 Three kindes of executors.

2 Executor by the lawe.

3 Executor by the Ordinarie.

4 Executor by the testament.

5 Diuerse kindes of executors testamentarie.

6 The office of an executor testamentarie.

NOwe followeth the sixt principall parte of this Treatise, wherein I promised to set foorth the of­fice or duetie of an executor, I meane of an executor Te­stamentarie: that is to say, of him that is appointed by the testator for the performance of the will.

1 For thou shalt vnderstand that there bee † [Page] three kindes of executors, or persons which haue to deale with the execution of dead mens willes, and disposition of their goodesSpecul. de Instr. edit. §. nunc vero aliqua. in prin., euerie of which haue their seuerall offices. The first hath his auctoritie from the lawe, the second from the Ordinarie, the third from the testator De hac trimembri executoris diuisione in legitimum, datiuum, & testamentarium. Specul. vbi supra. Cui adiungas velim Io de Canibus. Tract. de ex­ecutorib. vlt. volunt. part. 1. q. 3. n. 22. fol. mihi. 120..

The † executor which deriueth his autho­ritie 2 from the lawe, is the Bishop or Ordinarie of euerie diocesse, vnto whom the execution of testaments and last willes, especiallie ad pias cau­sas, (no executor being appointed by the testa­tor) hath apperteined and belongedL. nulli. L. si quis ad declinand. C. de epis­copis & cler. c. tum no­bis. c. nos quidem. c. Io de Testa. extr. c. statutū. de testa. lib. 3. prouin­cial. cōstit. Cant c. sta­tuimus. eod. tit. lib. con­stit. prouinc. Ebor., and that not of late time (as some haue lately diuined, or rather dreamed) but euer since Christianitie was first receiued, and established by emperiall aucthoritie, or verie shortly after: nor within this realme of England only, where the bishops to whom the approbation of testaments apper­teineLindw. in d. c. statu­tum. & in c. ita quorun­dam de testa. lib. 3. pro­uincial. constit. Cant. Io de Athon in legatin. libertatem. de execut. testa. Doct. & Stud. lib. 2. c. 28., haue continuallie by the roiall consent of the godly kings and princes of this realmec. accidit de immuni­tate ecclesiasticarū li­bertatum. lib. 3. prouin. constit. Cant. Lindw. in d. c. statutum. verb. ec­clesiasticarum liberta­tum., exercised this office, and executed this charge, for, and during so long time, and so manie ages, that (if I be not deceiued) there is not anie me­morie or ancient recorde to the contrarieLindw. in d. c. acci­lit, qui etsi antiquus sit, non potuit tamē hu­ius antiquitatis initiū inuestigatione assequi, nempe cuius regis tem poribus istud primo fuerat concessum, vt ille ingentiè fatetur., (I meane since Christianitie was first embraced, and Paganisme abolished:) but also through­out all the kingdomes and nations within the Christian Empire. For not onelie by the lawes ecclesiasticalc. tua. c. nos. c. Io. de testa. extr., vsed and obserued for ma­ny hundred of yeares, but also by the ciuil lawL. nulli. L. si quis ad declin. C. de episcopis & cleric., composed aboue a full thousand yeares sinceAnno viz. Christi 536. editus est ille Iustiniani codex, in quo leges istae inter alias inseruntur., [Page 206] this office and charge of executing the afore­saide testaments and last willes hath beene im­posed vpon the reuerend Bishops: in the since­ritie of whose consciences all Christian lawes and namely the lawe of this land, hath reposed greater confidence then in other lay people, a­bout the performance of deade mens willesPerkins in tit. de te­stamentis, fol. 94.. Hence it is, that euerie Bishop is called Ordina­rie, as if other Iudges were in this behalf incom­petent or extraordinarieOrdinarius verò di­citur, qui lege, vel con­suetudine, vel princi­pis beneficio iurisdic­tionem vniuersaliter exercet. DD. in L. more de iur. om̄. iudic.: Hence also is it that the Bishop is called Executor legitimus, Legall executor, because he onely is appointed execu­tor by lawe, where no executor is appointed by the testatorSpecul. in d. §. nunc verò aliqua de Instr. edit. Io. de Canib. de exec. vlt. vol. part. 1. q. 3. Olden. de execut. vlt. vol. tit. 2..

3 The executor † which deriueth his authori­tie from the Bishop, or Ordinarie, is he whome we call AdministratorSpecul. vbi supra.: For when the execu­tor named in the testament, dooth refuse to be, or cannot be executor; or when no executor is named in the will; it is lawfull for the Bishop or Ordinarie to commit administrationStat. Ed. 3. an. 31. c. 21 & stat. H. 8. an. 21. c. 5., and to annex the wil to the letters of administratiō Brook Abridg. tit. testament. n. 20.. And this administrator hauing his aucthoritie from the Ordinarie, is chargeable with the per­formāce of the will, as if he had bene appointed by the testatorBrook Abridg. tit. deuise. n. 35. stat. Ed. 3. an. 31. c. 11., and is called in lawe, Executor datiuus Specul. in d. §. nunc. verò aliqua. de instr. edi. Io. de Can. & Oldē. Tract. de executore., because he is giuen or assigned by the Ordinarie, to whom originallie and by law this execution doth appertaine: But with vs he is v­suallie called Administrator Stat. Ed. 3. an. 31. c. 21. & stat. H. 8. an. 21. c. 5., because hee is the Ordinaries deputie, or as it were his steward or bailife, to deale and to administer in steade of the Ordinarie; and in that respect the Ordina­rie [Page] may cal this his administrator to an accoūtStat. Ed. 3. an. 31. c. 11., and if he will, may at anie time reuoke his office or administration, like as anie other man maie reuoke his attorneyBrook. tit adm̄str. n. 3. & n. 33. (sed). si statutum 21. Hen. 8. non obstat quod quaere, et tamen videtur quod ex iusta causa poterit reuocari vt in casu Caroli ducis Suffolciae. 5. Edw. 6. non tamen pro suo libito..

The executor † which deriueth his auctho­ritie 4 from the testator, is he that is named exe­cutor in the testament, or to whome the execu­tion of the testament is committed by the dead man: For it is lawfull for euerie one hauing au­thoritie to make a will, to appoint an executor for the performance of the same willSupra part. 5. §. 1.. This ex­ecutor is tearmed Executor testamentarius, a testa­mentarie executorSpecul. in d. §. nunc verò. & Io de Can. ac Io Old. de execu. vlt. vol., & hath his aucthoritie im­mediately from the testatorPlowd. lib 1. in cas. inter Greisb. & Fox., representing the person of the dead manSichard. in Rub. de iur. delib. C. n. 1. Min­sing. in tit de haered. instituend. Instit. lib. 2. Zas. in L. si res. ff. de e [...] ­cep. & praeind. Doct. & Stud. lib. 2. c. 7., and may without the aucthoritie of the Ordinarie, enter to the te­stators goodes and cattelsPlowd. d. cas. inter Greisb. & Fox., and maie bee con­uented by the creditors and legataries of the deceased, as else where is declaredSupra part. 4. §. 2. & infra hac parte §. 3.: And after the probation of the testament, maie also com­mēce sute against the testators debtorsPerkins. tit. testa­ment. fol. 93. Brook. tit. executor. n. 49., & doth not much differ frō him in nature, whose name in the ciuil lawe is haeres Specul. de Instr. edit. §. nunc verò aliqua. n. 16. Lindw. in c. statutū. lib. 3. prouincial. const. Cant. verb. prius. Tract. de repub. Angl. lib. 3. c. 9. Haddon lib. resor. leg. ecclesi. Angl. tit. de testa. c. 1. c. 18. Adde quae superiùs adnotaui part. 4. § 2. in princip., sauing that haeres by the ciuil law, is to haue the residue of the testators goods, & maie cōuert the same to his own vse, (the funeral, dets & legacies discharged,) albeit the testator do not expresly wil that he shal haue the sameL. 3. C. de testam. mil. §. haereditas. Instit. de haered. instituend. L. interdum. ff. de haer. instit. Lindw. in d. c. sta­tutū. verb. effectꝰ. in fin: where as an executor may not cōuert the residue to his own priuate vseMagna charta. c. 18. Plowd. in c. inter Norwood. & Rede. Perkins tit. deuise. c. 8. fol. 97. Li­tleton. fol. 40. Rip [...]. in L. cùm silius famil. ff. de leg. 1. n. 21., nor anie part of the testators goods, more then that which is left vnto him by the testator, or which the Or­dinarie shall allowe him for his trauaile and [Page 207] charges, or for some other causes hereafter ex­pressedText. in d. c. statui­mus. Dom. Gem. in c. religiosus. lib. de testa. 6. n. 9. Doct. & Stud. lib. 2. c. 10. Dyer. fol. 2. & infr. ead. part. §. 3. n. 14.: Insomuch that if the executor die inte­state, the testator also from that time shall bee deemed intestate, and administration maie bee committed in this case of the goods not ad­ministredBrook. Abridg. tit. admstr. n. 1. 41. tit. exec. n. 149. Plowd. in cas. in­ter Grersb. & Fox..

Concerning the office of him that is ap­pointed executor by lawe, that is to say, of the Bishop or Ordinarie: and likewise concerning the office of the executor appointed by the Or­dinarie, that is to say, of the administrator: I doo not heere purpose to entreate, but only of the office of an executor testamentarie.

5 Of † executors testamentarie there bee di­uerse kindes; that is to say, some be nude execu­tors, such as do reape no commoditie by the te­stamentDD. in L. si quis. de leg. 2. ff. Io. de Athon. in legatin. libertatem. de executor. testam.: others not meere or naked executors, but are to receiue some benefite thereby, and may commence iudiciall actionConsule Bald. in d. L. si quis. vbi docet exe­cutorem dici posse nudum, duplici respec­tu, vel ob defectum cō ­modi, vel ob defectum actionis.; and againe, of executors some be vniuersall, and some parti­cular Olden. Tract. de ex­ecutor. vlt. vol. tit. 3. & supr. part. 4 §. 18. Bar. in L. à filio. ff. de alimen. leg.: But because I see no great vse of these distinctions here in this place, I shall speake of an executor testamentarie generallie, and as it is agreeable to euerie testamentarie executor, bee hee nude or other wise, vniuersall or parti­cularDe officio executo­ris in genere, deinde de officio executoris testamētarij, legitimi datiui in specie. Vide post alios Io. de Canib. de executor. vlt. volunt. 2. part..

6 The † office of euerie executor testamen­tarie cōsisteth in two things: the first is, in accep­ting or refusing the executorship Vide Sichar. in Rub. de iure delib. C. & infr. ead. part. §§. 2. 3. 4.. The second de­pendeth of the resolution of the executor in ac­cepting or refusing the executorship. For if hee doo accept of the executorship, then his office is extended diuersly, but especiallie it consisteth [Page] in making of an inuentarie Infr. ead. part. §. 6., in procuring the proba­tion and approbation of the testament Infr. ead. part. §. 11., in the pay­ment of debts and legacies Infr. ead. part. §. 16., and finallie in the making of an account Infr. ead. part. §. 17.. But if he resolue to refuse the exe­cutorship, his office is so much the lesse, consi­sting onlie in the auoiding of such things where­of mention is made hereafterInfr. ead. part. §. 22..

Of accepting or refusing the executor­ship: and first whether the executor maie be compelled to accept the same.
[Page 208]§. ii.

1 Diuerse questions about the accepting or refusing of the executorship.

2 The executor may be cited to accept, or to refuse the executorship.

3 If the executor being cited will not appeare, the Or­dinarie may commit the administration of the goodes of the deceased.

4 If the executor named refuse the executorship, the ordinarie may commit the administration.

5 The executor cannot be precisely compelled to vn­dertake the executorship.

6 What if he haue alreadie medled with the goods of the testator.

7 Whether the executor refusing the executorshippe, shall loose his legacie giuen vnto him in the same testament.

1 COncerning † the accepting or refu­sing of the executorship, three que­stions maie bee demaunded: First, whether hee that is named executor in the testament may be compelled to vndertake the executorship, or that it is in his power to re­fuse the sameDe hac Q. consulas Henr. Boic. in c. tua nos. de testa. extr. Pa­nor. in c. Iohannes. eo. tit. & Bar. in L. 1. de. leg 2. ff.. Secondlie, what is to be conside­red of him that is named executor, whereby he maie be resolued whether it were better to accept or refuse the executorship Infr. §. prox.. Thirdly, how long time, he that is named executor, hath to deliberate and de­termine of accepting or refusing the executor­shippeInfr. ead. part. §. 4..

2 To the first it maie bee answered, that hee † that is named executor, maie bee cited to ap­peare before the Ordinarie, or other hauing au­thoritie to proue the will, and there either to accept the executorship, or at least to refuse the 3 sameBoic. Panor. & Bar. vbi supra Plowd. in ca­su inter Greisb. & Fox.. And in case † either he will not appeare, 4 or appearing † refuse to proue the testament, the Ordinarie or other Iudge maie commit the administration of the goods of the deceased, as if hee had died intestateBrook Abridg. tit. adm̄str. n. 32. tit. exec. n. 49. 102. stat. H. 8. an. 31. c. 5.; and the administra­tors haue action and may administer the goods of the deceased, as if he had died intestate, and their authoritie or act done is good and effec­tuall in the laweBrook vbi supra. & Plowd. vbi supra. in the meane time, vntill the executors vndertake the executorshipBald. in L. de beri. C. de fidei commiss. liber­ta. Plowd. in d. cas. inter Greisb. & Fox., for then the Ordinarie maie reuoke the administration before by him committedBrook Abridg. tit. adm̄str. n. 33. quod faci­litis procedit, cum administratio commis­sa fuerit (vt sēper solet) saluo iure cuiuscunque &c..

But he † that is named executor, cannot be 5 precisely compelled to stand to the will and vn­dertakePanor. in c. Io. de te­sta. extr. n. 3. Olden. de exec. vlt. volunt. tit. 7. in fin. the executorship, vnlesse † hee haue al­readie 6 medled with goodes of the testator, as executor, for then he is not only to be cōpelled to performe the office of an executorPanor. & Olden. vbi supr. Boic. in c. tua. de te sta. extr. Plowd. in cas. inter Greisb. & Fox.; but also if he should refuse, and the Ordinarie commit the administration vnto him: this refusall is void, and he shall be charged as executorFitzh. Abridg. tit. ex­ecut. n. 35..

Moreouer, albeit † the executor named, who 7 hath not medled with the administration of the goodes of the deceased, cannot be precisely or absolutely compelled: yet if anie legacie bee left vnto him in the testament, he maie be com­pelled to stand to the executorshippe, or else to loose the legacie: so that he shall not reape the benefite, if being duely admonished, he refuse the burthenQuae positio locum vendicat, etiamsi exe­cutor sit coniuncta persona, vt habet com­munis opinio. Gribald. Thesaur. com. op. verb. tutor. Rom. consil. 235. Adde Io. de Canib. d. Tract. de executore. vbi plures enumerat huius regulae limitationes, nempè quod non est compellendus, quarum firmitatem, quia suspe­ctam habeo, eas silētio praetereo..

What is to be considered of the execu­tor, desirous to be resolued whether it were better to accept or to refuse the execu­torship.
§. iij.

1 Diuerse things to be considered of him which would be resolued, whether it were better to accept or to refuse the executorship.

2 The first thing to bee inquired in this case concer­ning the testator.

3 Of the aucthoritie and charge of the executor.

4 The executor may not medle with the landes, tene­ments or hereditamēts of the testator, but the heire.

[Page 209] 5 The heire hath not to deale with the goods and cat­tels of the testator, but the executor.

6 The testator may giue power to his executor to sel his landes for paiment of his debts, or other purpose.

7 What if some of the executors named do refuse, whe­ther may the rest sell the lands according to the te­stament.

8 Whether the executor of him that had lands in see simple, fee taile, or for tearme of life, maie recouer the rents, fee fermes, or other arrerages against the tenant which ought to haue paied the same in the life of the testator.

9 The second thing to be required concerning the te­stator.

10 Of the authoritie and charge of the executor of an executor.

11 Whether diuerse being assigned executors, whereof some be dead, the executor of the executor deceased may bee ioined in action with the executor surui­uing.

12 Of the aucthoritie and charge of the executor of an Administrator.

13 What is to be considered about the last will of the testator.

14 Whether the executor maie conuert the residue to his owne vse.

15 Whether he that is named executor, shall lease his legacie if he do refuse the executorship.

16 What is to be considered in the person of the exe­cutor.

17 What is to be considered in a wise executrix.

18 What is to be considered in the person of the coexe­cutor.

[Page] 19 Whether one executor maie preiudice another.

20 Whether one executor maie sue another.

21 VVhether one of the executors maie alone sell the goodes of the testator.

22 VVhether the coexecutor after refusall, maie med­dle as executor.

23 VVhat is to bee considered in other persons with whom the executor is to deale.

HE † that is desirous to be resolued 1 whether it were better for him to vndertake the executorship, or to refuse the same, muste consider diuers things, whereof some con­cerne the testator; some concerne the executor him selfe; and some concerne the persons of others Haec & alia quae ab executore deliberante consideranda sunt, tra­dunturà Io de Canib. in Tract. de executor. vlt. vol. 2 part. q. 1. cum seq. Cui, si place at, ad­iungas Sichar. in Rub. de iure de lib. C..

Of those things which concerne the testa­tor, the first and principall thing to be regarded in this consultation, is his substance or wealth.

First of all therefore † it behoueth him that 2 is named executor, to enquire diligently, and to learne certainly (if he can) what goodes and cattelles did belong to the testator at the time of his deathSichard in d. Rub. de iure de lib. C., and what debtes were then due vnto him: And on the contrarie, what debts he the said testator did owe vnto other menCuius rei vtilitas sta­tim subijcitur..

For † as the executor may enter to all the 3 goodes and cattels which did belong vnto the testatorL cùm haeredes de acquir. post. L. haereditas. de reg. iur. ff Plowd. in cas. inter Greisb. & Fox., and were in his possession at the time of his deathCagnol. in L. in pre­cibus. C. de impub. & alijs. sub n. 278., and hath action against euerie debtor of his testator [...]nstit. de perpet. & temp. action. Terms of law. verb. executor.: So shall euerie one, to [Page 210] whom the testator was indebted, haue action a­gainst the executor (especially hauing an obliga­tion or other specialtie) so farre as the goods of the testator will extendL. fin. &. sin. de iure de lib. C., and so long as the exe­cutor hath assets in his handsTerms of Law. verb. executor.: howbeit, where anie debt is due to the testator, this shall not charge the executor as assettes, because it is a thing in action, not in possessionBrook Abridg. tit. ex­ecutor. n. 112.: which conclusion is very reasonable, when as the exe­cutor hath vsed such diligence for the recoue­rie: thereof, that he cannot be iustly charged or woorthily blamed for not hauing the same in his owne handsc. sine c [...]lpa. de reg­iur. 6. quod si per cum st [...]tit, quo minus ha [...]e­at, in eo casu est, de iu­re ciuili et [...]an. ac si in manibus retineret. L. iure ciuili. ff. de cond. & demon. Peckius in c. cùm non stat. de reg. lib. 3. c. 6. & 7..

4 As † for landes, tenements, and heredita­ments of the testator, they shall descende to his heire, and shall not come to the executor: For 5 by the lawes of this realme, as † the heire hath not to deale with the goods and chattels of the deceasedDoct. & Stud. lib. 1. c. 7. &c. 24 Idem lib. 2. c. 10. &c. 12. termes of law. verb. executor., no more hath the executor to doo with his lands, tenements, and hereditamentsDoct. & Stud. vbi supra. Tract. de repub. Angl. lib. 3. c. 6. 7.. Albeit, where lands be deuisable by wil, (wher­of 6 we haue spoken beforeSupr. part. 3. §. 1. cum sequentibus.) the † testator maie giue power and authoritie to his executor to sell the same landes, either for the paiment of his debts, or for some other purposePerkins. tit. deuise, fol 104. 105., and the sale made thereof by the said executor is good and lawfullPerkins. eod. loco.: insomuch that diuers persons be­ing 7 named executors by the testator, though † part of the executors named in any such testa­mēt of any such person, making or declaring any such will of any landes, tenemens, or other he­reditaments, to be solde by his executors after the death of any such testator, doo refuse to take [Page] vpon him or them the administration & charge of the same testament and last wil, wherein they be so named to be executors, and the residue of the same executors doo accept and take vppon them the care and charge of the same testament and last will, it is enacted by the statutes of this realmeStat. H. 8. an. 21. c. 4., that then all bargaines, and sales of ‘such landes, tenements, and hereditaments so willed to bee solde by the executors of anie such testator, as well before the making of that statute, as after made, or to be made by him or them onely of the same executors that so doth accept, or hath accepted or takē vpō him or thē, any such cure or administration of any such will and testament, shall be as good and effectuall in lawe, as if all the residue of the same executors, named in the saide testament, so refusing the ad­ministration of the same testament, had ioined with him or them in making of the bargaine and sale of such landes, tenements, or other he­reditaments, so willed to be solde by the execu­tors of any such testator, which before that time had made or declared, or that after should make or declare any will of any such landes, tene­ments, or other hereditaments after his decease to be solde by his executors, as may appeare by the statute in that behalfe made. Howbeit it is prouided, that the said statute shal not extend to giue power and aucthoritie to anie executor or executors at anie time after, to bargaine, or to put to sale, anie landes, tenements, and heredi­taments, by vertue and aucthoritie of anie will or testament, made before the saide statute, o­therwise [Page 211] then they might doo by the course of the common lawe, afore the making of the same.’

Besides that, supposing the case were such, as the landes being deuisable, the executors had power by testament to sell the same lande, and to distribute the profits in pios vsus: yet after the death of the testator, the inheritaunce shall des­cende vnto the heire, and shall remaine in him, vntill the executor haue solde the samePerkins. tit. deuises. fol. 104. 105.. And if the executors themselues doo enter into the landes, after which entrie some man offereth a summe of money or price of the same land, and the executors refuse to take the money offered, because the money offered, is vnder the value of the lande, and the executors intende to sell the same dearer, and so keepe the lande in their owne handes, by the space of one, two, or three yeares, conuerting in the meane time the pro­fites arising forth of the same land, to their own proper vse. In this case, the heire of the testa­tor deceased, may enter to the landes, and put out the executorPerkins. vbi supra. Brook Abridg. tit. de­uise. n. 19..

8 ‘As † for rents due to the testator by the or­der of the common law of this realmeVide stat. H. 8. an. 32▪ c. 37., the exe­cutors or administrators of tenants in fee sim­ple, tenantes in fee taile, and tenants for tearme of life, of rent seruices, rent charges, rent secks and fee fermes, haue no remedy to recouer such arrerages of the said rentes or fee fermes, as were due vnto those testators in their liues, nor yet the heires of any such testator, nor any per­son hauing the reuersion of his estate after his [Page] decease, may distraine or haue any lawfull ac­tion to leaue any such arrerages of rentes or fee fermes, due vnto him in his life, by reason wher­of the tenantes of the demaine of such landes, tenements, or hereditaments, out of the which such rents were due and paiable, who of right ought to pay their rents & fermes, at such daies & terms as they were due, did many times keep holde, and retaine such arrerages in their owne handes, so that the executors and administra­tors of the persons, to whom any such rents or fee ferms were due, could not haue or come by the arrerages of the same, towards the paiment of the debts, and performance of the will of the said testator. For remedie wherof, it is enacted by the statutes of this realme, as followeth, viz. that the executors and administrators of euery such person or persons, vnto whome anie such rents or fee fermes, is or shall be due, and not paide at the time of his death, shall and maie haue an action of debt for all such arrerages a­gainst the tenant, or tenants, that ought to haue paide the saide rent or fee ferme, so being be­hind in the life time of their testator, or against the executors and administrators of the said te­nants. And also furthermore, it shall be lawfull to euerie such executor or administrator of any such person or persons, to whom such rent or fee ferme is or shall be due, and not paide at the time of his death, as is aforesaid, to distraine for the arrerages of all such rentes and fee fermes, vpon the landes, tenements, or other heredita­ments, which were charged with the paiment [Page 212] of such rents or fee fermes, and chargeable to the distresse of the saide testator, so long as the saide landes, tenements, or hereditaments, con­tinue, remaine, and be in the seasin or possession of the said tenant in demaine, who ought im­mediately to haue paide the saide rent or fee ferme so being behinde to the saide testa­tor in his life time, or in the seasin or possession of any other person, or persons, claiming the said lands, tenements, and hereditaments onely by and from the said tenant by purchase, gift, or discent, in such like maner & forme, as their said testator might, or ought to haue done in his life time: And the saide executors and administra­tors shall for the same distresse, lawfully make auowrie vpon their matter aforesaid. Prouided alwaies, that this act nor any thing therein con­teined, shall not extend to any such mannour, lordship, or dominion in Wales, or in the mar­ches of the same, whereof the inhabitants haue vsed time without minde of man, to pay vnto euerie Lord or owner of such lordship, mannor or dominion, at his or their first entrie into the same, any summe or summes of money, for the redemption and discharge of all duties, forfai­tures, and penalties, wherewith the same inha­bitantes were chargeable vnto any of the saide lordes, auncestors, or predecessors before his said entrie.’

‘And further, be it, &c. that if any man which now hath, or hereafter shall haue, in the right of his wife, any estate of fee simple, or fee taile, or fee ferme, and the same rents, or fee fermes now [Page] be, or hereafter shall be due, behinde and vn­paide in the wiues life, then the said husbande after the death of his saide wife, his executors, and administrators, shall haue an action of debt for the said arrerages, against the tenant of the demaine, that ought to haue paid the same, his executors or administrators; and also the saide husbande, after the death of his saide wife, may distraine for the saide arrerages in like maner and forme, as he might haue done if his said wife had beene liuing, and make auowrie vpon his matter, as is aforesaid. And likewise it is, &c. that if any person or persons, which now hath, or heereafter shall haue, any rentes, or fee fermes, for tearme of life, or liues, of any other person or persons, and the saide rent or fee ferme, nowe or hereafter shall be due, behinde and vnpaide in the life of such person or per­sons, for whose life or liues the state of the saide rent or fee ferme did depende and continue: And if the saide persons doo die, then he vnto whome the saide rent or fee ferme was due in forme aforesaide, his executors or administra­tors shall, and may haue an action of debt a­gainst the tenant in demain, that ought to haue paide the same when it was first due, his execu­tors and administrators, & also distraine for the same arrerages vpon such lands and tenements, out of the which the saide rentes or fee fermes were issuing and paiable, in such like maner and forme as he ought, or might haue done, if such person or persons, by whose death the aforesaid estates in the said rents and fee fermes was de­termined [Page 213] and expired, had been in full life and not deade; and the auowrie for the taking of the same distresse, to bee made in maner and forme aforesaid.’

9 Secondly †, concerning the testator, it shall be behouefull for thee that art desirous to bee resolued, whether it were better to accept or re­fuse the executorship, to inquire & learne whe­ther the same testator were executor or admini­strator to anie other person.

If he were executor, then by the statutes of 10 this realmeStat. 4. Ed. 3. an. 25. c. 5. Idem iure ciuili in haerede haeredis. L. 2. & 3. de petic. haered. ff. Contrarium in haere­de executoris, tàm iure ciuili, quàm canonico, Bar. & alij, in L. à filio. ff. de alimen. leg. gloss. in c. fin. de testa. 6. verb. mortuo., thou † being executor of an exe­cutor, shalt haue actions of debts, accountes, and of goodes caried away of the first testator, and execution of recognizances made in court of recorde, to the first testator, in the same ma­ner as the first testator shoulde haue, if hee were in life, aswel of actions of the time past, as of the time to come, in all cases where iudgement is not as yet giuen betwixt such executors; but the iudgement giuen to the contrarie in times past, ought to stand in their force. And on the con­trarie, the executor of the executor shal answere to others to whom the first testator was indeb­ted, as much as he shall recouer of the goods of the first testator, euē as the first executor should doo, if he were in full life. But the goods which did belong to the first testator, shall not bee put in execution for the debt of the second testator, which goods the executor of the executor shall haue, by relation to the first testator, as immedi­ately executor vnto him, and not by relation to the second testator, executor to the first testa­torPlowd. in casu inter Bransby & Grantham. Atque ita soluitur no­dus de quo Bar. & alij in L. veluti. ff. de petic. haered. vtrum videlicet haeres haeredis succe dat priori testatori, ex testamēto vel ab inte­stato? nobis enim intel­ligitur succedere ex te­stamento, vtcun (que) [...]on fuit in primo testamē ­to nominatus, id quod disputandi rationem praebuit., [Page] and so the propertie which the second te­stator had by the saide relation is taken away, and is in such case as if the second testator had neuer beene executorPlowd. vbi supr.. Howbeit this is to bee vnderstoode with this limitation, viz. if there bee no executor of the first testator suruiuing. For † if the testator did make diuerse execu­tors, 11 whereof some be yet liuing, that executor of the first testator suruiuing, and the executor of his coexecutor, cannot be ioined both toge­ther in one actionBrook Abridg. tit. ex­ecut. n. 99. Contrarium in haeredibus constitu­it ius ciuile, quo si ali­quis ex haeredibus de­cesserit, pluribus re­lictis haeredibus, hi om­nes accipere debent il­lampartem, quae ad haeredem defunctum pertinuit, familiae her­ciscund [...]e actione. L. si familiae hercis. eod. tit.: but the executor of the first testator suruiuing, he alone shall haue action a­gainst the debtors of the first testator, and he a­lone shall be conuented by them, to whom the first testator was indebted, and not both iointly togetherBrook Abridg. tit. exec. n. 99.: for the executor of an executor hath not to deale with the goodes of the first testa­tor in this case, that is to say, where there is an other executor of the first testator suruiuing: in so much that where there bee two executors, whereof one maketh an executor, and dieth, his coexecutor suruiuing, which coexecutor after­wardes dieth intestate: yet in this case the exe­cutor of the executor may not medle with the goodes of the first testatorBrook Abrid. tit. ex­ecut. n. 149.: for so soone as the executor which made his testament died, (the other suruiuing) his power was determined or finished by his death, and all the power did re­maine in the coexecutor suruiuing, who after­wardes dying intestate, it is in the power of the Ordinarie, to commit the administration of the goodes of the first testator not administred to the next of kinne to the first testator, and not to [Page 214] the executor of that executor which died firstBrook. d. n. 149. & in tit. adm̄str. n. 45.: Much lesse may the executor of the executor meddle with the goods of the first testator, whē the coexecutor is yet liuing: And if he doo, the executor suruiuing maie haue action against him for such goodes as he hath of the first te­statorBrook. tit. exec. n. 99.. And besides that, the creditors of the first testator may haue action against the execu­tor of the executor in this case, as executor of his owne wrongBrook. eod. n. 99.. Moreouer, it is to be noted, that the executor of an executor can­not sell the lande of the first testator, who by his testament gaue power to his executor to sell the sameBrook. tit. exec. n. 3.: for after the death of that executor the power ceaseth; vnlesse diuers being appoin­ted executors, some of them die, or refuse to prooue the will, for then the others suruiuing, or accepting, maie sell the same, as is afore­saide.

12 If † the partie deceased to whome thou art executor, were not executor to another, but ad­ministrator onely: thou art not to succeede in his place in the admin [...]stration of the goodesFitzh. Abridg. tit. adm̄str. n 3., but a newe administration is to be graunted of the goodes not administred by the administra­tor to the next of kinne, not of the administra­tor, but of him that died firstFitzh. vbi supr. prin­cipall grounds. fol. 61. pag. 2..

13 There is yet † a further consideration to be had of some thinges, which seeme to concerne the testator, not to be neglected by the execu­tor desirous to bee resolued, whether it were better to accept or refuse the executorshippe, namely the consideration of the last wil and te­stament [Page] of the deceased, & of the legacies and deuises therein giuen: Wherein the executor is not onely to consider, whether the testator hath giuen more then the deathes part doth ex­tend vnto, (in which case what course is to bee followed is alreadie elsewhere prescribedSupr. part. 3. §. 17.:) but also in case † any thing do remaine, the funeral, 14 debts & legacies discharged, the executor may not thinke to conuert the same to his owne proper vseMagna charta. c. 18. c. statutum. §. statuimus. de testa. lib. 3. prouin­cial. constit. Cant. Do­minic. à S. Gem. in c. religiosus▪ de testam. 6. n. 9. Doct. & Stud. lib. 2. c. 10. circa medium., nor any more of the testators goods then is giuen to him by the testator in his life time, or by his will, or which the ordinarie shall allowe him for his labour, or in lieu of some debts due vnto him by the testator, or due by the testator to some other person, and dischar­ged by the executorText. in d §. statuimꝰ. Dyer. fol. 2. & fol. 310.. And † if after due admo­nition 15 to him giuen, he refuse the executorship, or to performe the will, he shall lose his legacie bequeathed vnto him by the same testator, al­though hee were of kinne, or allied vnto the same testatorRom. cons. 207 & 235. cuius opinio com­munis est, vt per eand. cons. 235. & ꝑ Gribald. Thesaur. com. op. verb. tutor.: the reason is, because he is dee­med vnworthie the benefite that refuseth the burthenc. qui sentit. de reg. iur. 6.. Moreouer, l [...]re the executor dooth what in him lieth, to make the partie deceased to die intestateGribald. Thesaur. com. op. verb. tutor.. But if the executor be not ad­monished to vndertake the office, then being the testators kinsman, or such a person to whom the testator woulde haue giuen the legacie, though he did not performe the will, he dooth not loose that legacie in not vndertaking the executorshipIas. Alex. & Sichard. in L. si legatarius. C. de leg.; neither shall the wife loose her thirds, nor the children their filiall portions in refusing the executorshippeAuth hoc amplius. C. de fidei commis. No­uel. de haered. & falcid. §. si quis autem.: much lesse shall [Page 215] the creditour loose his debt due by the te­stator.

After the consideration of the estate of the 16 testator, he † that is named executor must also consider his own person, in whom many things ought to concurre, but chiefly it is requisite that he be prudent, diligent and faithful Io. de Canib. Tract. de execut vlt. volunt. [...]. particula. q. 1.: wherein if there bee anie defecte, I meane if either he be ignorant, negligent, or vnfaithful, he is verie like to finde the office verie troublesome, peruad­uenture also discommodiousIo. de Cani. vbi supr., vnlesse there be certaine hope, that being ignorant hee will vse the aduise of those that be skilfull, and that of a negligent person he will become diligent, ea­singe himselfe also of such businesse, as might hinder the expedition of this office, and that howsoeuer hee had behaued himselfe in other affaires vnfaithfully: yet in this office hee will haue an honest care, well and truely to dis­charge that trust committed vnto him, alwaies hauing before his eies, not onely the forfeiture of his bonde, by his vnfaithfull dealing, toge­ther with the ignominie by deceiuing the dead mans expectation, but also the daunger of his soule by the breach of his othe: for he must bee sworne to execute the will, and to administer 17 the goods well & faithfullyHoc viridi obseruan­tia passim fit notorium, maxime infra prouin­ciam Ebor.. If † a wife during the couerture be named executrix, there is this further to be cōsidered in her person, that she a­lone cannot sue for any debt due to the testa­tor, nor be sued for any debt due by the testator, without her husbandBrook Abridg. tit. ex­ecut. n. 178.: but she alone may doo any acte extraiudiciall, as the paying of debts or [Page] legacies, or the receiuing or releasing of anie debtes due to the testatorBrook. eod. n. 178.: yea the husbande without the wife (though she alone be execu­trix) may doo any extraiudiciall acte, aswell as his wife executrixFitzh. Abridg. tit. ex­ec. n. 23. 40. Brook. eod. tit. n. 147. 151. 152.: and therfore if the husband release or remit any debt due to the testator, the same is good and auailable, not onely during the mariage, but also after the death of her hus­bandFitzh. & Brook. vbi supra.. But if the wife die, the husband cannot conuert any of the goods and cattels belonging to the first testator to his owne proper vse; for of such goodes the wife her selfe may make a te­stament, appointing an executor without the licence of her husband, as is before more fully declaredSupra. 2. part. §. 9..

Finally, concerning the persons of other with whome thou that art named executor in the testament hast to deale; it behoueth † thee 18 to haue a speciall consideration of thy coexecu­tor Io. de Canibꝰ. Tract. de exec. vlt. vol. parti­cula. 2. q. 1. n. 17., (if any be) least he be an ouermatch for thee, that is to say, whether he be of more ex­perience, and greater wealth then thou art, and namely whether he be a couetous and conten­tious personIo. de Cani. d. q. 1. n. 18. If he be, take thou good heed, for it is to be feared, that † he wil keepe all the goods 19 from theeBrook Abridg. tit. exec. n. 98., that he alone will receiue the debts due to the testator, and make them a release, for this also he may dooBrook. tit. exec. n. 37: without doubt, if he be such a person, he hath learned this lesson, that one † executor cannot sue another, for possession of 20 the testators goodsBrook. eod. tit. n. 98., because howe many exe­cutors soeuer they bee, they are all but as one person, and no man can sue himselfeArg. c. debitum de baptis. extr. L. praeter. ff de tut. & cur. dat. ab his Plowd. in casu inter Panor. & Yardley. fol. 143.: and so [Page 216] the possessiō of one is as the possession of ano­therFitzh. tit. exec. n. 32; & herby thou shalt remain without reme­die, vnlesse it be for a legacy left vnto thee alōeBrook. tit. exe. n. 104., or vnlesse thou maist haue some slender remedie before the OrdinarieBrook. eod. tit. n. 37. It is also verie likelie, that 21 he alone † wil sell the testators goods: In which case he alone will & may sue for the money due for the sameBrook. tit. exec. n. 66: but if there be any debt due to be paied in the behalfe of the testator, then looke assuredly that thou shalt be sued as well as heSupra part. 4. §. 20, howsoeuer execution may passe against him a­lone which hath the goodsBrook. tit. exec. n. [...]6. To conclude, if thy coexecutor be such a person, as is aforesaid, a hundred to one he will not suffer thee to par­take of the commoditie, but of the trouble thou shalt not auoid but be partaker.

22 This also is not to be omitted, that † if thy coexecutor doo refuse the executorship before the ordinarie, and thou alone dost proue the te­stament, yet may he afterwards (so long as thou liuest) administer the goods, or remit the debts due to the testatorBrook. tit. exec. n. 38 Dyer. fol. 160, and thou canst not hin­der him; neither canst thou recouer against the 23 persons by him so releasedBrook. eod. tit. n. 37 & n. 117. After † consideratiō of thy coexecutor, there is regard also to be had to the rest of those persons with whome thou art to deale, viz. to the creditors and legataries, and to the paiment of debts; for debts are to be paide before legaciesL. scimus. C. de iure delib.: and of debtes some are to be preferred and satisfied before others, and likewise of legacies, as els where hath beneSupr. part. 3. §. 17., and shal beInfr. ead. part. §. 16. shewed: otherwise it may come to passe that the executor shalbe forced to pay out of his [Page] owne purse, after he haue spent all the testators goodes and cattelsd. L. scimus. Doct. & Stud. lib. 2. c. 10..

By the due consideration of those things, viz. First, of the estate or condition of the testa­tor: secondly, of his owne estate; and thirdly of the coexecutor or other person with whom he is to haue any dealing, it is not hard in my opi­nion for the executor to collect, whether it is likely to be beneficiall or hurtfull, to accept or refuse the executorship, and to resolue accor­dingly, at the least if hereunto hee also take a viewe of those things which doo appertaine to the office of an executor, accepting the exe­cutorship hereafter describedInfr. ead. part. §. 5. tum §§. sequentibus..

Of the time vvhich the executor hath to consult, whether he will vndertake or refuse the execu­torship.
§. iiii.

1 The time of deliberation arbitrarie.

THe time † wherein he that is named 1 executor in the testament, is to deli­berate and determin, whether he will accept or refuse the executorship is vncertaine, and left to the discretion of the Ordina­rie Legatin. libertatem de exec. testa. & ibi Io. de Athon. v [...]b. appro­batam consuetudi­ [...]em., who vseth at his pleasure, and when he wil, [Page 217] not onely within the yeareQuod verò annus deliberandi iure ciui­li conceditur (L. cum in antiquioribus. C. de iu­re delib.) Illud ita intel­ligendū, vbi haeres non confecto inuentario tenetur vltra vires haereditatis. Siquidem non tenetur haeres inuen­tarium facere, si iuri tantùm ciuili attendamus (L. scimus. §. fui. de iure delib. C. & ibidem Sichard.) dummodo velit subire periculum soluendi vniuersa defuncti debita: Sed iure Legatin▪ quo nos cōmuniter vtimur, executor tenetur praecisè ad confectionem inuētarij, nec tenetur vltra vires bonorū. Quare sublata causa, id est, periculo soluendi debita vltra vires bonorum defuncti, per confectionem inuentarij, quam non potest euitare (vt infra eadem parte §. 6.) sublatâ (inquam) causâ, tollitur effectus, id est, annuale tempus deli­berandi: Num velit huic periculo seipsum subijcere? nam executores quoad confectionē inuentarij, tutorum potius quàm haeredum naturam sapiunt. Lind. in c. statutum. §. inhi­bemus. de testa. L. 3. prouincial. constit. Cant. verb. prius., but within a mo­neth or two, to cite him that is named executor, to accept or refuse the executorship.

Of the office of an executor testamen­tarie, vndertaking the execu­torship.
§. v.

1 Wherein the office of an executor doth principallie consist.

1 IT † appertaineth to the office of an executor testamentarie heere in England, accepting the executor­ship (amōgst other thingsDe quibus consulas velim Io. de Canib. Tract. de executor. vlt. vol. part. 2. q. 1. n. 26. vbi decem enumerat exe­cutoris officio incum­bentia.) to cause an inuentarie to be madeVt infr. ead. part. §§. 6. 7. 8. 9. 10., to pro­cure the will to be proued and approuedVt infr. ead. part. §§. 11. 12. 13. 14. &. 15., to pay the testators debts and legaciesInfra §. 16.: and finally to make an accountDe quo infr. ead. pat. §§. 17. 18. 19. 20. 21..

Of diuers questions about the making of an inuentarie: and first, whether it be of necessitie that an In­uentarie be made.
§. vi.

[Page]

1 By the lawes ecclesiasticall of this realme, and sta­tutes of the same, an inuentarie is necessarie.

2 The executor which presumeth to administer the goodes, and refuseth to make an inuentarie, may be punished.

3 The reason of this necessitie.

COncerning the making of an in­uentarie, it is expedient to vnder­stand whether it bee simplie necessarie that an inuentarie be made, what things are to be put into the inuen­tarie; within what time the inuentarie is to bee made; in what maner; and what be the effects of an inuentarie.

That † an inuentarie is necessarie to be made 1 by an executor testamentarie, is euident, as well by the lawes ecclesiasticall of this realmeLegatin. libertatem. tit. de executor. testam. c. statutum. §. inhibe­mus. lib. 3. prouincial. constit. Cant., cōfir­med by continual vse; as also by the statutesStat. H. 8. an. 21. c. 5. of the same: neither † ought the executor to med­dle 2 with the goods of the deceased, before hee make an inuentaried. §. inhibemus.. And if any executor refuse to make an inuentarie, & neuerthelesse presume to administer the goodes of the deceased, he may be punished at the discretion of the Bishop or OrdinarieLegatin. libertatem. de executor. testa..

The † reason is, least the executor being dis­posed 3 to deale vnfaithfully, shoulde defraude the creditors or legataries, by concealing the goods of the deceasedFrancis. Porcellin. Tract. de inuentario. q. 1. per §. sancimus. de haered. & fal. in Auth..

What things are to be put into the inuentarie.
§. vij.

1 All goodes, cattels, wares, merchandizes, moueable and immoueable, are to be put into the inuentarie.

2 Leases are to be put into the inuentarie.

3 Corne on the grounde is to bee put into the inuen­tarie.

4 Grasse or trees growing, are not to bee put into the inuentarie.

5 Whether such things as are affixed to the freeholde, ought to be inuentaried.

6 Whether debts are to be put into the inuentarie.

7 Whether money due for land, is to bee put into the inuentarie.

1 THe † things that are to be put into the inuentarie, are all the goods, & cattels, and rights which were the testators, or did belōg, or were due vnto him at the time of his death, whether they bee moueable or immoueable, corporal or vncorporallFrancis. Porcellin. Tract de inuentar q 3. Pract. Petr. de Ferrar. de forma libelli, quo a­gitu [...] [...] tationem Tutel. Si­chard. i [...] §. sin autem. L. fin. C. de iure de lib. n. 9.: wherunto also agreeth the statutes of this realme, wherby it is enacted, that a true and perfect inuentarie be made of the goods, cattels, wares, merchandizes, as well moueable as not moueable, whatsoeuer that 2 were of the person deceasedStat. H. 8. an. 21. c. 5.: and therefore † leases ought not to be omitted foorth of the in­uentarieCattalla et [...]nim sun [...] realia. Termes of law. verb. chattels., how many soeuer they be.

Likewise † emblemetes, or corne growing 3 vpon the ground ought to be put into the in­uentarie, seeing they belong to the executorPerkins. tit. deuise. fol. 99. & hanc opinio­nem longaeuus com­probanit vsus, quicquid dicat Sichard. post An­gel. in d. §. sin autem.: but † not the grasse or trees so growing, which 4 belōg to the heireParkins. vbi supra., nor † things that are affixed 5 to the tenement, and are made parcell of the free holde: such I meane as belong likewise to the heire, and not to the executorL. accessorium. de reg. iur. 6. huc facit. L. caetera. de leg. 1. ff. in princ..

The † debts due to the testator are to bee 6 put into the inuentarieGloss. in L. chi. ogra­phus. ff. de adm̄str. tut. Quod verum quidem est, si existant instru­menta, aliàs non requi­ritur, vt inscribantur, donec recuperentur, & in manibus tractentur, vt quae inte [...]im non rectè dicantur reperta. Lindw. in d. c. statutum. §. inhibemus. verb. bo­nis. Pract. Ferrar. for­ma libelli, ad reddendā rationem tut. §. in suo. n. 13. Aequum tamen est, vt aliqua fiat com­memoratio huiusmodi creditorum, vtut incer­torum, ne sublata pe­nitus corum memoria decepti maneant de­functi creditores, liberi, legatarij, vel alij in­teresse habentes in ea parte.. But the debts due by the testator, they need not to be put into the in­uentarieLind. in d. c. statutū, & Ferrar. vbi supra.: and if any such debts be put into the inuentarie the Ordinarie shall do well to make diligent examination, whether the testator did owe any such: for many times debtes are thrust into the inuentarie which are not due by the testator, and so the legataries and children of the deceased, are often defrauded, at least of some part of their due, by the vnfaithfulnesse of the executor, and negligence of the Ordinarie, or his officer.

Landes †, tenements, and hereditamentes, 7 with their appurtenances, such I meane as doe not belong to the executor, but descend to the heire, are not to be put into the inuentarie: In­somuch that if the testator will by his testament or last will, that the same lands be solde: In this case by the statutes of this realme, neither shall the money thereof comming, nor the profites of the saide landes for any time, be accounted as any of the goodes or cattelles of the person deceasedStat. H. 8. an. 21. c. 5.: and consequently are not to be put into the inuentarie.

Within vvhat time the inuentarie is to be made.
§. viij.

1 The time for making and exhibiting the inuentarie, is left to the moderation of the ordinarie.

2 The inuentarie ought to bee made before the execu­tor meddle with the testators goodes, except in some cases.

1 THe † time appointed for the ma­king and exhibiting of the inuen­tarie, by the lawes ecclesiasticall of this realm, is left to the discretion and moderation of the OrdinarieText. in c. statutum. §. inuentarium. tit. de testa. lib. 3. prouincial. constit. Cant. vnde palā est non obtinere ius ci­uile, quo haeres ad per­ficiendum inuentariū quandoque 66. dies, quando (que) annum ha­beat, maxime si incipi­at intra mensem à mor te defuncti. Sichard. in L. fin. §. sin autem. C. de iure delib., who may appoint a shorter or longer time, as the distance of the place where the goodes re­maine, being more or lesse, together with other circumstances, shall minister occasionLind. in c. statutum. verb. arbitrio..

2 And † if the ordinarie doo not appoint a time, the executor had neede to beware, that he doo not administer the goodes of the deceased, vntill he haue caused an inuentarie to be made: For how soeuer the acte of him that is named executor, is saide to holde in lawe before the prouing of the willPlowd. in cas. inter Greisb. & Fox., and the making of the in­uentarieLindw. in d. c. statu­tum. verb. prius. in fin. illius gloss.: neuerthelesse, hee that so presu­meth to meddle and administer as executor be­fore he make an inueniarie, is subiect to ecclesi­asticall punishmentLegatin. libertatem. de executor. testam., vnlesse it be for doing such things, as cannot be deferred till the inuentarie [Page] be made; as for intermedling about the fune­rals, or disposing of such thinges as cannot bee preserued with keeping, and such likeIo. de Athon. in d. le­gatin. libertatem. verb. inuentarium. d. c. sta­tutum. §. inhibemus. in text. & in gloss..

Of the forme to be obserued in the ma­king of an inuentarie.
§. ix.

1 What persons ought to be present at the making of the inuentarie.

2 Whereof the inuentarie is to be made.

3 Inuentarie indented.

4 Of the othe of the executor about the inuentarie.

5 The goods and cattelles are to be valued.

6 Of the auncient forme of preising the goodes.

‘BY the statutes of this realmeStat. H. 8. an. 21. c. 5., it is thus enacted concerning the forme to be obserued by the executor testa­mentarie in making of an inuentarie; viz. that the † executor or executors, named by 1 the person deceased, calling or taking vnto him or them of such persons two at the least, to whō the person dying was indebted, or made any le­gacie, & vpō their refusall or absence two other honest persons, in their presence & by their dis­cretions shall make, or cause to be made, a true and perfect inuentarie † of all the goodes and 2 cattels, wares and merchandizes, as well moue­able as not moueable, whatsoeuer that were of the said persons so deceased; and the † same shal 3 cause to be indented, whereof one part shall be [Page 220] 4 by the saide executor vpon † his othe to bee ta­ken before the Bishops ordinaries, their offici­als, & ordinaries, or other person hauing power to take probate of the testament, vpon the holy Euangelist to be good and true; and the same one part indented shall present and deliuer in­to the keeping of the said bishop, ordinarie, or ordinaries, or other persō hauing power to take probate of testaments; and the other part of the saide inuentarie indented, to remaine with the executor: and that no bishop, ordinary, or other person whatsoeuer, hauing aucthoritie to take probate of testaments, vpon paine in the saide statute conteined (viz. tenne pound) doo re­fuse to take any such inuentarie to him or them presented or tendered, to be deliuered, as is aforesaide.’

5 Thus farre the statute, whereunto it may be added, that † it is not sufficient to make an in­uentarie, conteining all and singular the goods of the deceased, vnlesse the same be particularly valued and praisedBar. in L. fin. C. de magist. conuen. Hoc addito. quòd quoad confectionem inuen­tarij executores magis assimulantur tutoribꝰ, quàm haeredibus, vt su­periùs adnotaui ex Lind. in c. statutum. §. in hibemus. de testa. lib. 3. prouincial. con­stitu c. Cant. verb. prius. by some honest and skil­full persons, to be the iust value thereof in their iudgements and consciences, that is to say, at such price as the same may be solde for at that timeDe probatione rei mobilis vel immobilis, vide Mascard. Tract. de probac. verb. valor..

6 In ancient † time amongst many other so­lemnities of inuentariesDe quibus DD. in L. fin. §. sin autem. C. de iure delib., this order was obser­ued: First of all the moueable goodes were in­uentaried and praised, as houshold stuffe, corne, and cattell, &c. then the immoueable, as leases of groundes or tenements, after that the debts due to the testator were set downeFranc. Porcel. Tract. de inuentario., which or­der [Page] is for the most parte obserued at this time here in England: sauing that some doo omit leases, wherein they do amisseSupra ead. part. §. 7.: others praise them among the moueables: but it were better to praise them seuerally.

Of the effect and benefite of an inuentarie.
§. x.

1 The goodes conteined in the inuentarie are presu­med to be in the hands of the executor.

2 The testator is presumed to haue no more goodes then are described in the inuentarie.

3 Whether sufficiencie of goodes bee presumed when there is no inuentarie.

DIuerse be the effects and benefites of an inuentarieQuorum Castrensis quinque, Minsingerus septem. ostendit: ille in d. L. scimus, iste in §. sed nostra. Instit. de hae­red. qual. & differentia. Sed hotum maxima pars nostratibus parū prodest., this one I thought good to note, namely, that † all such 1 goodes and cattels as are conteined in the inuentarie, are presumed to haue belon­ged to the testator, and after his death to be­long, and to be in the power of the executorL. scimus. §. legitima. C. de iure delib. & ibi Sichard.. And on the † contrarie, that no more goodes, 2 and cattels, are presumed to haue belonged to the testator then are conteined in the inuen­tarieBald. & Sichard. in d. §. legitima..

And therefore if any creditor or legatarie doo affirme, that the testator had any more goodes then be comprised in the inuentarie, he must proue the same; otherwise the Iudge is to [Page 221] giue credite to the inuentarie, being made in maner and forme aforesaideAlciat. Tract. de prae­sump. reg. 3. praes. 20. Mascard. de probac. concl. 939.. Although indeed 3 when † the executor entereth to the goodes of the deceased, and maketh no inuentarie ther­of, nor wil not suffer the quantitie thereof to be knowen: In that case our lawe presumeth, that the testator [...]ad sufficient to discharge, not onely all his debts, but all his legacies alsoBald. in L. filium. C. famil. herciscund. n. 37 Sichard. in L. fin. §. & si praefatam. C. de iure delib. n. 1..

Of the probation and approbation of testaments and namely before whom they are to be proued.
§. xi.

1 Diuers questions about the probation of testaments.

2 Testaments are to be prooued before the Bishop or Ordinarie.

3 Certaine cases wherein testaments are to be proued before others, then before the Bi [...]hop.

4 Of the prerogatiue of either Arch [...]ishop.

5 What is ment by Notable goods.

1 COncerning † the probation and ap­probation of testaments, these things are chiefly to bee enquired, before whome the testament is prooued, by whom, when, howe, and what fees hee due in that behalfe.

2 The person † before whom the testament is to be proued, is the Bishop of the Dioces, where the testator dwelledLegatin. libertatem. de execut. testam. c. itē quia. c. statutum. de te­sta. lib. 3. prouincial. const. Cant. c. statuimꝰ. lib. prouincial. constit. Ebor. & Lindw. in d. c. statutum. Doct. & Stu. lib. 2. c. 28. Perkins. tit. testament. fol. 94. Trac. de repub. Angl. lib. 3. c. 7. stat. H. 8. an. 21. c. 5., or his officerPerkins. vbi supra. Fitzh. Abridg. tit. te­stament. n. 3. Brook. e­od. tit. n. 12. c. fin. de fide instr. extr. Sichard. in L. 2. n. 3. C. de testa., to whom [Page] by auncient custome obserued this many hun­dred yeares, together with the roiall consent of the kings and princes of this land, the probati­on and approbation of testaments haue apper­teinedLindw. in d. c. statutū. verb. ecclesiasticarum libertatum. Qui in d. c. Item quia verb. insinu­ationem, vbi existimat testamentorum insinu­ationem, seu publicati­onem, iure ciuili non pertinere ad episco­pos, sed iure tantùm authenticorum, (quo ius codicis corri­gitur, & quod ius au­thēticum sancitum fuit ab Imperatore Iustini­ano vltra mille annos retro numerandos,) non solùm executio, sed etiam ipsa insinua­tio & publicatio, coram episcopis ordinariam iurisdictionem exercē ­tibus fieri potest, vt fir­mat Sichard. in L. 2. C. de testa. n. 3.: Sauinge † in certaine Signories or 3 Lordships, where the probation and approba­tion of testamentes of the tenaunts there dwel­ling, dooth by prescription appertaine to the principall LordFitzh. tit. testament. n. 2. Doct. & Stud. lib. 2. c. 28.: and sauing in certaine pecu­liar iurisdictions, where by prescription or com­position, or other speciall title, the probation and approbation of the testaments of such as dwell and die within those places, dooth apper­taine to the iudge of the peculiarIo. de Athon. in lega­tin. libertatem. de exec. testa verb. Ordinario.: And sauing where no goodes are bequeathed in the testa­ment, but onely landes, tenements, and heredi­taments, or other lay fee are deuised; and that in such places where neither insinuatiō, nor in­rotulation is necessarieSupr. part. 3. §. 3.: And sauing † where 4 the partie deceased at the time of his death had notable goods extant in diuerse diocesses or iu­risdictions, for the probation, approbation, and insinuation or publication of the last willes and testaments of such persons, doth appertaine to the Archbishop or metropolitan, within whose prouince such notable goods be dispersed in di­uerse diocesses or other inferior iurisdictionsLind. in d. c. statutū. verb. ad quos pertinet. Perkins. tit. testament. fol. 94. Fitzh. Abridg. tit. adm̄str. n. 7. Brook. eod. tit. n. 48., whether it be within the prouince of Canter­burieLindw. in d. c. statutum. verb. laicalis feodi stat. H. 8. an. 23. c. 9. & ple­niùs per Instrum. & Actorum libros. Curiae praerogatiuae Archiepisc. Cant., or within the prouince of YorkePerkins. tit. testament. fo. 94. pag. 2. stat. H. 8. an. 23. c. 9. & euidētius per Instrum. & Actorum libros in ar­chiuis Archiepiscopi Ebor. fideliter per plurimorum seculorum curricula conseruata..

5 What † is ment by Notable goods, in this place, or when they are so to be tearmed, diuers authors haue bene of diuers opinions. Some haue bene of this opinion, that if the testator died possessed of goods, or cattels, to the value of fortie shillings, in two seueral diocesses; then he ought to be deemed to haue notable goodes Perkins. tit. testa­ment. fol. 94.. Others haue beene of this minde, that the testator is to be deemed to haue notable goodes, though at the time of his death he had but one penie in another DiocesseFitzh. tit. adm̄str. n. 7.. Others do not on­ly varie from the former opinions, but are also at variance with them selues, accounting those for notable goodes, sometimes when they extend cleerely to a hundred shillinges sterling: some times when they extend to ten pounde eleuen shillings, vj. pence: sometimes when they ex­tend to xxiij. pound three shillings, farthing, & not vnderLindw. in d. c. statu­tum. verb. laicis.. Finally, others are of this iudge­ment, that he is said to haue notable goods, which hath goods to the value of ten pounde of cur­rant money of England, dispersed in diuers dio­cesses or iurisdictions: and this opinion seemeth to me to be most commonly receiuedPlowd. in casu inter. Greisb. & Fox. fol. 281..

By vvhome the testament is to be proued.
[Page]§. xij.

1 The testament is to be proued by the executor.

2 Any person hauing the testament may be compel­led to exhibite the same.

THe † person by whome the testa­ment 1 is to be prooued, is the exe­cutor named in the testamentPerkins. tit. testa­ment. fol. 93., whom the Ordinarie or other per­son hauing aucthoritie for the pro­bate of the testaments, may conuent, to the in­tent to proue the testament, and to take vpon him the execution thereof, or else to refuse the sameStat. H. 8. an. 21. c. 5.. This may the Ordinarie or other com­petent iudge doo †, not onely ex officio L. 1. ff. quemadmodū testa. app. & ibi Bar. n 1., but at 2 the instāce of any partie hauing interestBald. & Angel. in d. L. 1. Opinor etiam quòd ad eius instanti­am, cui nihil est relictū exhibendum testm̄. sci­licet, vt inde certior fiat, Nunquid legatum aliquod sibi relictum sit a defuncto. gloss. & Bald. in L. 2. ff. quemad­modum. testa. app. in princ., which interest is proued by the othe of the partieBar. & Bald. in d. L. 1..

If the executor haue not the testament in his custodie, but some other person, then may such person be compelled to exhibit the sameL. 1. in prin. & §. hoc interdict. ff. de Tab. exhibend.. And it is sufficient to proue that once he had it, for he is presumed still to haue the same, vnlesse he affirme vpon his othe, that the same is not in his possessionAlex. in L. 2. C. de te­sta. n. 3. verb. tamen..

When the testament is to be exhibited and prooued.
[Page 223]§. xiii.

1 The testament is not to bee proued whiles the testa­tor liueth, but after his death.

2 If it be vnknowen whether the testator be dead or aliue, whether may his testament be proued.

1 IF † the testator bee yet liuing, the Iudge may not proceede to the pro­uing and publishing of his testamētL. 2. §. si dubitetur. in fin. ff. quemadmodum testa. app., at the petition either of the execu­tor, or any other, sauing at the request of the te­stator himselfeBar. in d. §. si dubite­tur. Sichard. in L. 2. C. de tes [...]a..

If the testator bee dead, the Iudge maie proceede to the prouing of the willL. 2. C. de testam. & DD. ibidem.: and the time of exhibiting and proouing the same, is left to his discretion, and he may appoint a lon­ger or a shorter time, according as the place is further distant, or nearer, or as other due cir­cumstances shall induce himL. 2. §. vtrum. ff. quē ­admodum testa. app..

2 If † it be vnknowen whether the testator be liuing or dead: For as much as some are of opi­nion, that euery man is presumed to liue till he be an hundred yeares oldeQuam opinionem (tanquam communē) acriter defendit Viui­us. Thesaur. com. op. verb. viuere. Molinaeum haereticum appellans qui contrariam crebr [...] ­orem dixit.: it seemeth by this opinion, that the Iudge may not in the meane time proceede to the publication of the testa­ment, vnlesse there be lawfull proofe, or suffici­ent prescription for the testators death. On the contrarie, others are of opinion, that a man is not presumed to liue so long, that is to say, vn­til he attaine to an hūdred yearesQuorum opinionē magis communem re­fert Molinaeus in A­postil. ad Alex. consil. 1. vol. 5. n. 24., for that men commonlie die betwixt lx, and lxx. yeares of their ageFranc. Herculan. de probac. negatiuae. n. 290. pro quo sacir. Psalmus 89.: and so by their opinion, it seemeth that the will may be prooued after the age of se­uentie yeares, of him that is absent, for that hee is not then presumed to be liuing.

I suppose if a man be absent, and no certaine [Page] proofe of his death, or life, that the will maie be prooued, and that the testament it selfe is a presumption of his death in this caseIas. & Sic [...]ard. in d. L. 2. C. de testa. alter. n. 7. alter. n. 8..

Of the maner of proouing Testaments.
§. xiiij.

1 The forme of proouing testaments, is twofold.

2 Of the vulgar forme.

3 Of the forme of lawe.

4 Of the difference betwixt the vulgar and the legall forme.

5 Of a thirde forme of probation of testaments.

6 Of the othe and bond of the executor.

THat it is necessarie for the proofe of testaments, that there be either witnesse or writing, is alreadie de­claredSupra p [...]rt. 4. §. 1.: Also what number of witnesses, and what maner of writing is sufficient, is likewise declaredSupra d. part. 4. §. 25. 26.: wher­fore in this place, I [...]hall not neede to speake, sa­uing onely of the manner of procee [...]ing in the probation and approbation of testaments.

This † maner and forme therefore heere in 1 England, is of two sortes, the one is called the vulgar or common forme, the other is tearmed, the solemne forme, or forme of law Ad imitationem cō ­firmationis, quae nunc fit in forma communi, nunc in forma solen­ni, & specifica. Molin. in consuet. Paris. §. 5. Alex. consil. 123. vol. 4. n. 18. &c. Dec in Rub. de consir. vtili vel inutili..

The † vulgar or common forme, is more com­pendious 2 or briefe then the other: For after the death of the testator, the executor presen­teth [Page 224] the testament to the Iudge, and in the ab­sence, and without citing or calling of such as haue interest, produceth witnesses to prooue the same, who testifiyng vpon their othes (viua voce) that the testament exhibited, is the true, whole, and last testament of the partie decea­sedStat. H. 8. an. 21. c. 5.: The iudge doth therupon, and sometimes vpon lesser proofe, annex his probate and seale to the testament, whereby the same is con­firmedQuae omnia frequē ­tissimà passim obser­uatione fieri est mani­festum..

3 When † the testament is to be prooued in forme of lawe, it is requisite that such persons as haue interestBald. in L. 2. C. de te­sta. n. 2. Sichard. in eand. L. (that is to say) the widow and next of kinne to the deceased, to whom the admini­stration of his goods ought to be committed, if he had died intestateStat. H. 8. an. 21. c. 5. Et hi quidem, vt vide­tur, citandi sunt nomi­natim, licet si incer­tum sit quis succedere debeat ab intestato sufficit citatio genera. lis omnium, scilicet quorum interest. Si­chard. post Bald. in d. L. 2. Kling de testa. or­din. Instit. n. 10. & n. 14., are to be cited to be pre­sent at the probation and approbation of the testamentAliàs quoad non ci­tatos, nullum facit prae­iudicium. Paul. de Ca­stro. consil. 96. vol. 1. Si­chard. in d. L. 2. n. 4. Grass. Thesaur. com. op. §. testm̄. q. 61. Kling. vbi supra., in whose presence the will is to bee exhibited to the iudge, and petition to bee madeNon tum requiritur libellas, vel litis conte­statio. Sichard. in d. L. 2 n. 7. in sin. Simode Prae­tis de interp. vlt. vol. lib. 2. dub. 2. fol. 3. n. 4. by the partie which preferreth the willNec. refert an sit ex­ecutor, vel fideicom­missarius, vel legatari­us; vel an futurus sit reus, an actor, quamuis contrarium quoad le­gata [...]ium respondeat Paris. cons. 24. vol. 3. sed male, vt per Simo. de Praetis. vbi supra., and enactedBald. in d. L. 2 C. de testa. n. 3. vbi assignat rationem. for the receiuing, swearing and examining of the witnesses vpon the same, and for the publishing or cōfirming thereofFormam petic. vide apud Sichard. in d. L. 2. n. 2.: wher­vpon witnesses are receiued, and sworne accor­dingly, and are examined euerie one of them secretly, and seuerally, not onely vpon the alle­gatiō or articles made by the partie producing them: but also vpon interrogations ministred by the aduerse partieBald. & Sichard. in d. L. 2., and their depositions committed to writingBald. Alex. & Sichar. in d. L. [...].: afterwards the same be published, and in case the proofe be sufficient, [Page] the Iudge doth by his sentence or decree, pro­nounce for the validitie of the testamentNon tamen opus est sententia definitiua in scriptis, sed interlocu­toria. Bald. Alex. Ca­strens. & alij in d. L. 2..

Which † two formes being compared to­gether, 4 we may easily perceiue the differences betwixt the one and the other: of which diffe­rences, I suppose this to be of the greatest mo­ment, that in the vulgar forme, such as haue in­terest are not cited to be present at the proba­tion of the will, whereas obseruing the forme of lawe, they are to be cited to that ende: which difference of forme woorketh this diuersitie of effect, namely that the executor of the will pro­ued in the absence of them which haue inter­est, may be compelled to proue the same againe in due forme of lawePaul. de Castr. con­sil. 96. vol. 1. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 2. soluc. 3. fol. 207. n. 4 & 5.. And if the witnesses be dead in the meane time, it may indaunger the whole testamentPaul. de Castr. d. cō ­sil. 96. DD. in L. 2. C. de testa., especially if ten yeares be not past since the probation, whereby necessarie so­lemnities are presumed to haue bene obseruedL. filiusfamil. C. de petic. haered. nisi sortè contrarium probetur ex inspectione actorū.: whereas the testament being prooued in forme of lawe, the executor is not to be compelled to proue the same any more: and although all the witnesses afterwardes bee dead, the testament doth still retaine his full forceL. 2. C. de testam. So­cin. Iun. consil. 89. vol. 1. Kling. in tit. de testa. ordin. lib. 2. Instit. n. 10..

Besides † these formes of prouing testaments 5 aboue recited, which are referred to that kinde of probation which is called publicatio testamen­ti De qua in d. L. 2. C. de testa.; there is yet another forme, which is called apertura testamenti De qua in L. 1. ff. quemadmodum. testa. app., which forme doth onely re­spect written or closed testamentsL. 1. & 2. quemadmo­dum testa. app. ff. & DD. in L. 2. de testa. C.: in the ma­king wherof, amongst many other solemnities, the ciuill lawe did require that the witnesses should put to their seales, and after the death of [Page 225] the testator, at the opening of this written or closed testament; the same lawe did also require that the same witnesses should be called by the magistrate to acknowledge their sealesL. 4. ff. quemadmo­dum testa. app., or to denie the sealingL. 5. eod. tit. quemad.. But as we doo not obserue that solemnitie of the ciuill lawe in the sealing of the testaments by the witnesses; no more doo we obserue that solemnitie which the ci­uill lawe requireth in opening of testamentes sealed, vnlesse this may seeme to haue some re­semblance with this third forme, de apertura te­stamenti, which is enacted in the statutes of this realme, viz. that the Bishop or Ordinarie, or o­ther person hauing aucthoritie to take probate of testaments, vppon the deliuerie of the seale and signe of the testator, do cause the same seale to be defaced, and thereupon incontinent rede­liuer the same sealed vnto the executoror execu­tors, without claime or chalenge thereunto, to be madeStat. H. 8. an. 21. c. 5. Crederem tamen hu­iusmodi verba statuti non referre veterem illam formam de aper­tura testamenti: sed po­tius, quoniam multa solent astutè sieri, quā ­do sigillum mortui in­terceptum est, eaprop­ter statuto caueri, vt si­gillum ad Iudicem de­ducatur, vt ipsius for­ma ab eodem peruer­tatur. Materia autem executori statim resti­tuatur. Haddon. de re­formac. legum ecclesi­astic. tit. de testa. c. 19., &c.

6 Furthermore †, it is to bee noted that in what manner soeuer the testament be prooued, the executor before he be admitted by the Or­dinarie to execute, and before hee haue the will vnder the seale of the Ordinarie, is to pro­mise by vertue of his othe, and if it be behooful also to enter into bond, to make a true account when he shall be thereunto lawfully called by the Ordinariec Statutum. §. & post­quam. de testa. lib. 3. prouincial. constituc. Cant..

What fees are due for and about the probation and approbation of testaments.
§. xv.

1 Where the cleere goodes doo not exceede the value of fiue pounde, onely sixe pence is due to the Re­gister.

2 Where the cleere goodes being aboue fiue pound, doo not amount to fortie pound, onely three shillinges sixe pence is due, viz. two shillings six pence to the Ordinarie, and twelue pence to the register.

3 Where the cleere goods exceede fortie pounde, there fiue shillings is due, viz. two shillings sixe pence to the Ordinarie, and two shillings sixe pence to the Register.

4 What fees are due for the copies of testaments or in­uentaries.

5 The penaltie whereinto they fal which offend by ex­torting greater fees then are here limited.

‘IT is enacted and established by the statutes of this realmeStat. H. 8. an. 21. c. 5., that from the first day of Aprill, anno domini 1530, that † nothing shall 1 be demaunded, receiued, or taken by any Bishop, Ordinarie, Archdeacon, Chan­cellour, Commissarie, Officiall, nor any other maner of persō or persons, whatsoeuer they be, which now haue, or at any time hereafter shall haue authoritie or power to take or retaine pro­bation, [Page 226] insinuatiō, or approbation of testamēts, or testaments by himself, or themselues, nor by his or their registers, scribes, praisers, sūmoners, apparators, or by any other of their ministers for the probation, insinuation, and approbation of any testament, or testaments, or for what wri­ting, sealing, praising, regestring, sines making of Inuentaries, and giuing in of acquittances, or for any other maner of cause concerning the same, where the goods of the testator of the said testament, or person so dying, doo not amount cleerly ouer and aboue the value of an hundred shillings sterling, except onely to the scribe, to haue for writing the probate of the testament of him deceased, whose goodes shall not be a­boue the same cleere value of an hundred shil­lings, sixe pence; and for the commission for the ministration of the goodes of any man decea­sing intestate, not being aboue like value of an C. shillings cleare, sixe pence. And that neuer­thelesse, the Bishop, Ordinarie, or other person or persons, hauing power or aucthoritie to take or receiue the probatiō or approbation of testa­ments, refuse not to approue any such testamēt, being lawfully tendered or offered to them, to be proued or approued, whereof the goodes of the person so dying, amount not aboue the va­lue of an hundred shillings sterling: so that the same testament be exhibited by him or them in writing, which was thereunto affixed readie to be sealed, and that the same testament be law­fully proued before the same Ordinarie (before the sealing) to be the true, whole, and last testa­ment [Page] of the same testator, in such forme as hath beene commonlie accustomed in that be­halfe.’

‘And when † the goodes of the testator doo 2 amount ouer and aboue the cleare value of an hundred shillinges, and doo not exceede the summe of fortie pounde sterling, that then no Bishop, Ordinarie, or other kinde of person or persons, whatsoeuer he or they be, now hauing, or hereafter shall haue aucthoritie to take pro­batiō or approbation of any testament or testa­ments, as is aforesaid, by them selues, or any of their said Registers, scribes, praisers, sūmoners, apparators, nor to any other their ministers, for the probation, insinuation, or approbation of a­ny testamēt, or testaments, or for the registring, sealing, writing, praising, making of inuentaries, giuing of acquittances, fines, or any other thing concerning the same, shall take, or cause to bee taken of any person or persons, but onely three shillings sixe pence, and not aboue; whereof to be to the Bishop, Ordinarie, or to any other per­son or persons, hauing power and aucthoritie to take probation and approbation of any testa­ment or testamentes, for him or his ministers, two shillings sixe pence, and not aboue, and twelue pence residue of the same three shil­lings sixe pence, to the scribe, for the registring of the same.’

‘And where † the goods of the testator, or 3 person or persons so dying, doo amount ouer and aboue the cleare value of fortie pound ster­ling, that then the Bishop nor Ordinarie, nor o­ther [Page 227] person or persons, nowe hauing, or which hereafter shal haue power or aucthoritie to take probate of testaments, as is aforesaid, by him or themselues, or any of his or their registers, scribes, praisers, sūmoners, apparators, or anie o­ther their ministers, for the probation, insinua­tion and approbation of any testament or testa­ments, or for the registring, sealing, writing, prai­sing, making of inuentaries, fines, giuing of ac­quittances, or any thing concerning the same probate of testaments, shall from the saide first day of Aprill, take or cause to be taken, of anie person or persons, but onely fiue shillings, and not aboue, whereof to be to the saide Bishop, Ordinarie, or other person, hauing power to take the probation of such testament or testa­ments, for him and his ministers, two shillings sixe pence, and not aboue, and two shillings, six pence residue of the same fiue shillings, to be to the scribe for registring of the same, or else the same scribe to bee at his libertie to refuse two shillings sixe pence, and to demaund and haue for writing of euerie ten lines of the same testa­ment, wherof euery line to containe ten inches in length, one penie.’

4 ‘And in † case any person or persons, at any time hereafter require a copie or co­pies of the said testamentes so proued, or of the said inuentarie so made, that then the saide Or­dinarie or Ordinaries, and the other persons ha­uing aucthoritie to take probate of testaments, or their ministers, shall from time to time, with conuenient speede, without any frustratarie de­lay [Page] deliuer, or cause to be deliuered, a true copie or copies of the same, to the saide person so de­maunding them, or any of them, taking for the serch, & for the making of the copy, either of the said testament or inuentarie, but only such fee as is before rehearsed, for the registring of the said testament; or else the said scribe or register to be at his election, to demaund, haue, and take for euery ten lines thereof, being full proportion before rehearsed, one penie.’

‘Prouided alwayes, that where any person or persons, hauing power or aucthoritie, haue v­sed to take lesse summes of mony then is aboue­said for the probate of testaments commissions, or administrations, or other cause concerning the same, shall take or receiue such summe or summes of mony for the probate of testaments and commissions of the administrators, and o­ther causes concerning the same, as they before the making of this acte haue vsed to take, and aboue.’

‘And it is enacted †, that euerie Bishop, Ordi­narie, 5 Archdeacon, Chancellor, Commissarie, Officiall, & other person and persons, hauing, or they which hereafter shall haue aucthoritie to take probate of testamēts, their registers, scribes, praisers, apparators and all other ministers what soeuer they be, that shall do, or attempt to bee done, and attempted against this acte or ordi­nance in any thing shall forfaite for euery time so offending to the partie grieued in that be­halfe, so much mony as any such person aboue­saide shall take contrarie to this present acte, and [Page 228] ouer that shall loose and forfaite tenne pounde sterling, whereof the one moitie shall bee to the king, and the other moitie to the partie grieued in that behalfe, that will sue in anie of the kings Courts for the recouerie of the same, in which action, no assoine shall be admitted or allowed.’

Of the paiment of debts, legacies, and mortuaries.
§. xvi.

1 Many questions about the paiment of debts and legacies.

2 What debts are first to be discharged.

3 Of the debt due to the prince.

4 Of debts due by recognizance and statute merchant.

5 Of iudgements and condemnations.

6 Of obligations.

7 Of billes and bookes.

8 Of debts without specialtie.

9 Whether the executor may allow his owne debt.

10 Of paying part, and receiuing an acquittance for the whole debt.

11 Of paying the testators debts with the executors owne money.

12 Of Mortuaries.

13 No Mortuarie to be taken but in certaine cases, and that vnder a certaine paine.

14 No Mortuarie due where the moueable goodes doo not extend to ten markes.

15 No Mortuarie due, but in those places where they haue bene vsed to be paied.

16 One onely Mortuarie due, and that in the place of [Page] the most abiding of the deceased.

17 Three shillings foure pence due for a Mortuarie, where the moueable cleare goodes doo exceede ten markes, but doo not amount to thirtie pound.

18 Sixe shillings viii. pence due for a mortuarie, where the cleare moueable goods extend to thirtie pounde or aboue, and be vnder fortie pound.

19 Ten shillings due for a Mortuarie, the cleare moue­able goods extending to fortie pound or aboue.

20 Diuerse persons discharged of Mortuaries.

21 Other interpretations extending and limiting this statute concerning Mortuaries.

HOw † far the executor is bounde to 1 pay debts and legaciesSupr. ead. part. §. 3., how the pai­ment of debts is to be preferred be­fore legaciesSupr. part. 3. §. 16., how legacies are to be paid out of the deathes partEod. §. 16., howe the deathes part is sometimes the whole cleere goods, some times halfe, and some times but a thirde partEod. §. 16.: Also whether in case the legacies do exceed the deathes part, it be in the election of the execu­tor to preferre one legacie before another; or what other order is to be takenSupr. part. 3. §. 17.: Al these things are more fully heretofore declared, and neede not here to be iterated. It remaineth † therefore 2 that in this place bee shewed, which debts are first to be discharged, in case there be not suffi­cient goods and cattels to pay all the testators debts, or whether it be in the power of the exe­cutor to pay which debts he will: and if any re­maine [Page 229] cleere, then whether Mortuaries are to be paied, and how much is to be paid for Mor­tuaries.

3 First † of all therefore, I suppose that the debt due by the testator to the Prince is to be dischar­ged, and that it is not in the choise of the exe­cutor, to preferre any other debt due to anie subiectMagna charta. c. 18. quod verum est non so­lùm in actionibus per­sonalibus, sed etiam in hypothecarijs, saltem iure quo nos vtimur, vtcunque iure ciuili ex hypothecarijs credito­ribus prior tempore, potior iure..

4 Secondly †, the debt due vpō statute merchāt & recognizance is to be discharged (if there be as­sets) before any personal debtQuibꝰ enim res obli­gatae sunt, sunt illi poti­res quàm creditores, qui personali tantùm actioni incumbunt. L. eos. C. qui potiores in pig.: for that by force of the recognizance, not only the person of the debtor is bounde, but also after the day of pay­ment be expired, the moueables of the debtor may be apprehended and solde for the paiment of the debtAnno 13. Ed. 1..

5 Thirdly † (if yet there remaine sufficient goods and cattels) before other personal debts, whether they be due by obligation, bill, or o­therwise, iudgements and condemnations are to bee dischargedBrook Abridg. tit. ex­ecut. n. 172. Do. & Stu. lib. 2. c. 10..

6 Fourthly †, (if the goods and cattels will suffice) obligations are to be dischargedBrook. d. n. 172.. And if there be diuerse obligations, then it seemeth to be in the power of the executor, to discharge which obligatiō, & to gratifie which of the cre­ditors he wilBrook. vbi supr. Doct. & Stud. lib. 2. c. 10.; which being done, the other cre­ditors be without remedie, if there be no assets, vnlesse the day of paiment in the one obligatiō be expired, and the day of paiment of the other obligatiō is not yet come; in which case the for­mer obligation is to be first satisfiedBrook. d. tit. exec. n. 172.; or vnlesse there be suite commenced for some obligation, [Page] for then it is not in the power of the executor to discharge an other obligation, for the which no action is brought in preiudice of the former suiteBrook. d. n. 172.: But if there be two obligations, and the two seuerall creditors bring seuerall actions a­gainst the executor, he that first obtaineth iudg­ment, must be first satisfiedBrook. eod. n. 172..

Fiftly †, after obligations (supposing suffi­ciencie 7 of goods) debts due vpon simple billes, or merchant bookes, or other like specialties, are to bee dischargedDoct. & Stud. lib. 2. c. 10..

Finally †, if the creditor haue no specialtie, 8 or writing, it seemeth that the executor is not bounde by the lawes of this realme to pay the same, albeit he had assets in his handes (sauing seruāts wagesBrook. tit. exec. n. 87 163.) because in euerie case where the testator might wage his lawe, no action lieth a­gainst the executorTermes of law. verb. executor.. Howbeit an action of the case may be brought against the executor, vpon the promise or assumption made by the testa­tor in his life time by worde onely without wri­ting, if there be assetsBrook. tit. executor. n. 171.: But if there be no assets to satisfie all these aforesaide creditors, then obseruing the order aforesaid, beginning with the paiment of the debt due to the prince, and so forward, I suppose it is a discharge against the restQuod facto inuenta­rio sine impedimento procedit, alias secus si respiciamus ius ciuile. L. scimus. §. & si praefa­tam, ídque ob prae­sumptam fraudem.; otherwise it is daungerous to the execu­tor, if hee pay debts without specialtie before those debts which are due vpon specialtie, or if hee discharge obligations before iudge­mentsBrook. Doct. & Stud. locis supradictis., &c.

Bur here it may be demaunded, what if the testator were indebted to the executor, whether [Page 230] 9 may † the executor allowe his owne debt in preiudice of other creditors? By the ciuillL. scimus. §. in com­putatione. C. de iure delib. and our ecclesiasticalc. statutum. §. statui­mus. de testa. lib. 3. pro­uincial. const. Cant. lawes, he is in the same case as other like creditors: and I suppose also that by the lawes of this realme, he may allow his owne debt in preiudice of other like creditorsPlowd. in cas. inter Woodward. & Darcy. licet contratium te­neat Brook. tit execu­tor. n. 57. 59. 112. 114. 118. cuius opinio com­muniter hodie repro­batur, vt non semel mi­hi nunciarunt iurispe­riti huius regni An­gliae, non pauci, nec mediocriter docti., in case he haue made an inuentarie.

Furthermore it is to be noted in this place, 10 that † if the executor pay to some of the credi­tors part of the debt due by the testator, and re­ceiue an acquittance for the whole, as if the te­stator be indebted to one in fortie poūd, wher­of the executor paieth but ten pound, and ne­uerthelesse taketh an acquittance of the whole fortie pounde, this acquittance shall not pre­iudice anie other creditor, but for ten pounde onelyBrook. tit. assets. n. 1. & tit. executor. n. 6.

Moreouer, it is to be noted, that this hath beene deliuered and receiued for lawe, viz. that 11 if † the executor did pay with his owne money so much of the testators debts, as the value of the testators goods or cattels did arise vnto, and retaine in his handes the testators goodes or cattels, then such paiment should not preiudice the other creditors, to whom the testator was indebted, but should charge the executor as as­setsBrook Abridg. tit. assets. n. 6. 8. tit. exec. n. 116. 150. tit. adm̄str. n. 38. 37. 51. Lindw. in c. ita quorundam. verb. sibi. de testa. lib. 3. pro­uincial. constit. Cant., and therefore that it behoueth the execu­tor to alienate the goods of the testator for the paiment of his debts, if he would bee safe from paying any more debts then the goodes of the testator did extend vntoBrook. & Lindw. vbi supra. Quibus adiun­gas Sichard. in L. vlt. §. & si praefatam. n. 11. 12. C. de iure delib.. Howbeit, at this pre­sent the contrarie opinion seemeth to preuaile in this our realme, namely, that the executor [Page] paying the iust value of the testators goodes to the creditors, maie retaine the same goodes in his hands, which neuerthelesse shall not charge the executor as assetsDyer. fol. 2. & fol. 187.

Concerning † Mortuaries, it is enacted by 12 authoritie of Parliament as followethStat. H. 8. an. 21. c. 6.. ‘No † par­son, 13 vicar, curate, parish priest, ne any other spi­rituall person, nor the fermers, bailifes, ne les­sees, take, demaund, or receiue of any person or persons within this realme, for any person or persons dying within this Realme, for anie Mortuarie or corse present, ne any summe or summes of money, ne any other thing for the same, more then is hereafter mentioned, ne also shall conuent or call any person or persons be­fore the Iudge spirituall, for the recouerie of a­ny such Mortuaries or corse present, or any o­ther thing for the same, more then 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. shalbe allowed.’

‘First † it is enacted, that no maner of Mor­tuarie 14 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 [Page 231] value of ten marke.’

15 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.

16 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.

17 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.

18 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.

19 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.

20 ‘Prouided † that no woman being couert baron, ne child, nor for any person not keeping [Page] 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 21 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 [Page 232] 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.
§. xvii.

1 Diuerse reasons wherefore executors are to ac­count.

2 Whether the executor be subiect to account, being re­leased by the testator.

HEre many things may be consideredSuper 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, 1 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 knowenArgument. 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 officesIo. 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 [Page 233] 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 himIo. 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 being detected, hee may be iustly punished, and others by his punish­ment premonishedOlden. vbi supra.. By this also that aswell the ciuill lawes, as the ecclesiasticall lawe, be so precise in making of inuentaries, wee may learne the necessitie in making of an account: for if executors were not accountable, the vse of inuentaries were to little purposeIo. de Canib. in d. §. nouissimum..

To conclude, all equall lawes of euery well gouerned common wealth, haue fauoured the execution of testaments, and last willes of men deceased, and haue had speciall care that they should not be frustrated: and therefore no man can with safe conscience, speake against the ren­dering of an account, or seeke immunitie from 2 the sameOld. d. Tract. tit. 8.. Insomuch that if † the testator should discharge his executor from making an accoūt: yet neuerthelesse, if the executor deale fraudu­lently, the Ordinarie may in his discretion, exact an account at his hands for the reformation of such fraudeLind. in c. religiosa. verb. rationem. de te­stam. lib. 3 prouincial. constit. Cant. Io. de A­thon. in magna gloss. in Legatin. libertatem. de exec. testam. Io. de Canib. & Io. Olden. locis superius citat [...]s.: for it is not to be presumed, that the testator in graunting to the executor immu­nitie [Page] from making an account, did thinke that the executor would deale vniustly and fraudu­lentlyLind. Io. de Canib. & Io. Olden. vbi supra., and so did not pardon any such vniu­stice or fraude, whereof he had no conceiteL. si quis. ff. de lib. leg., but rather hoped that the executor would dis­charge his office with all fidelitie, so that there should not need any account, and in that re­spect onely (I meane in the case of his fideli­tie) did acquite him from rendering of an ac­countLind. vbi supra..

To vvhom the account ought to be made.
§. xviij.

1 The account is to be made to the Ordinarie.

2 Whether the account is to be made to the creditors or legataries.

3 Whether the account is to be made to the coexecutor.

THe † account is to be made by the 1 executor testamentarie to the Bi­shop or Ordinarie, to whome the probation of the testament apper­tainethClem. Vnic. de testa. c. statutum. §. & post (quam). de testam. lib. 3. prouin­cial constit. Cant. Io. de Canib. de executor. vlt. vol. 2. particula. §. nouissimum. per L. nulli. C. de Episc. & cleric., who therefore not vnapt­ly may be tearmed the executor of executors, because he examineth the account of euery ex­ecutor; and the father of the fatherlesse, for that to poore Orphanes he is in steed of a fatherIo. de Canib. in d. §. nouissimum. n. 9., in prouiding how they may obtaine that which is left vnto them, by the testament of their fa­ther or other person deceased.

2 And albeit † it seemeth that the executor is not tied to make an account to the legataries or creditors extraiudiciallyIo. de Canib. in d. §. nouissimum., yet I suppose that at the instance or promotion of such legataries & creditors inuocating the office of the Iudge, he may be compelled to render an account to the Ordinarie iudiciallyPer ea quae inferius scribuntur ead. part. §. 20..

3 To † this question, whether an executor be bound to make an account to his coexecutor, it is answered, that extraiudicially an executor may exact an account of his coexecutor, but not in iudgementLind. in d. c. statutū. §. & postquam. verb. rationem. in fin. gloss. suae ibidem.: but the ordinarie may call them both, or either of them to a iudiciall ac­countL. 2. de adm̄str. tut. C. Lind. vbi supr..

Of the time of the account.
§. xix.

1 The time is left to the discretion of the Ordinarie.

2 Of the generall and particular account.

1 THe † time appointed for making of the account seemeth to be arbitra­rie, that is to say, left to the discre­tion of the OrdinarieText. in c. statutum. §. & postquam. de te­stam. lib. 3. prouincial. constit. Cant.. And † al­though it may seeme that the exe­cutor ought not to bee called to a generall ac­coūt of his whole executorship, before he haue had sufficient time for the performance of the willLindw. in d. §. & postquam. verb. con­gruè. & verb. rationem reddere. (which is a twelue monthL. nulli. C. de Episc. & cler. Boie. in c. tua no­bis. de testa. extra. Co­nar. in c. 3. eod. tit.:) Neuerthe­lesse in the meane time, if the executor doo not administer faithfully; or if the Ordinarie thinke [Page] it conuenient, the executor may bee compelled to make a particular accountLind. in d. c. statutum verb. congruè. & verb. rationem reddere. Io. de Canib. de executor. vlt. vol. §. nouissimum. q. 10., and so in diuers respects the lawe hath appointed the time di­uersly.

But whatsoeuer the lawe hath determined herein, it is for the most part euerie where with­in this realme obserued, that the executors pro­mise to the Ordinarie by vertue of their othe, to make a true and perfect account, whensoeuer they shal be thereunto called by the said Ordi­narieText. in d. §. post (quam)., and therfore may be called to a generall account within the yeareIo. de Athon. gloss. in Legatin. libertatem. verb. approbatam.: yet I referre the rea­der to the seuerall stiles of seuerall Courts, for his further information in this behalfe.

Of the maner of making an account.
§. xx.

1 What proofe is requisite in the account.

2 Of the distribution of the residue.

3 Of the office of the ordinarie in the account.

4 What manner of expences are to bee allowed to the executor.

5 Of the citation in the account.

IF we respect what is to bee perfor­med by the executor, who maketh the accountDe forma reddendi rationem praeclarè Ol­den. in Tract. de exe­cutor. vlt. vol. tit. 8. & Menoch. de arb. iud. lib. 2. cas. 209., he is not onely to de­clare what goodes and cattelles be­longing to the testator, he hath re­ceiuedMolineus in consue­tud. Paris. §. 6. gloss. 6. n. 18., and what debts and legacies he hath [Page 235] 1 paied for the testatorMolin. ibid.: and to † make due proofe of euery paiment, that is to say, of lesser summes by his othe, and of greater summes by other proofesIo. And. in addic. ad Specul. de Instr. edit. §. nunc verò. verb. quid si executor. Lind. in c. statutum. verb. reddere rationem. lib. 3. prouin. constit. Cant. Io. de A­thon. in Legatin. liber­tatem. de executor. te­stam. Mascard. Tract. de probac. verb. expen­sae. concl. 722., such as the Ordinarie shall allowe ofMenoch. d. cas. 209. Old. de executor, vlt. vol. tit. 8. Mascard. de probac. conclus. 720., but also if any thinge doo remaine of the 2 said goodes and cattelsL. cùm seruus. ff. de cond. & demon., (the funerals † toge­ther with the debtes and legacies satisfied and dischargedMagna charta. c. 18.) the same ought to be distributed, and conuerted in pios vsus c. statutum. §. statui­mus de testa. lib. 3 pro­uincial. constit. Cant. c. cum tibi de testa. extr Plowd. in cas. inter Norwood. & Read. Doct. & Stud. lib. 2. c. 10. circa medium.: neither ought the executor to applie anie part thereof to his owne priuate vse, more then is giuen him by the te­stator, or which the Ordinarie shall allowe him for his laobur, or for the like considerationText. in d. §. statuimꝰ, Quod tamen intellige prout supra scripsi ead. part. §. 1. in fin.. But of this distribution of the residue (in pios vsus) there is but small vse in these daies, as well for that the residue is commonly left to the execu­tors, as also for that the executors are afraid that some vnknowen debts due by the testator, shoulde afterwarde arise, and so the executor be compelled to pay the same out of his owne purse.

If we respect what is to bee performed by the Ordinarie in the making of this account, I 3 suppose that it † dooth appertaine vnto his of­fice, not onely to examine the account, and to see whether the same be rightly calculated, and whether the accomptant doo charge himselfe with the receite of the whole goodes and cat­tels of the testator, and how much he hath dis­bursed, either for funerals, debts, or legaciesMenoch. d. cas. 209. Olden. d. tit. 8.: but also to haue a regard what maner of expen­ces the accomptant requireth to bee allowed 4 vnto him: for † sumptuous and delicate expen­ces [Page] are not to be allowed, but honest and mo­derate, according to the condition of the per­sonsd. c. statutum. §. statui­mus. Old. d. tit. 8. n. 5.. And after due examination of the saide account, the Ordinarie finding the same to bee true and perfect, may pronounce for the validi­tie thereof, and so acquite the executor, so farre forth as appertaineth to the ecclesiastical courtDe qua re attendē ­dus est cuiusque fori stilus.. But if vppon the examination of the saide ac­count, it doo appeare, that the executor hath not dealt faithfully, the account is to bee re­iectedVide infr. §. ꝓx..

But whether † we respect the office of the 5 accomptant, or of the ordinarie, this is perpetu­allie to be obserued, that the creditors to whom the testator did owe any thing, and the legata­ries to whome the testator did bequeath anie thing, and all others hauing interest are to be ci­ted to be present at the making of the saide ac­countSpecul. de Instr. edit. §. nunc vero aliqua. n. 45. Lind. in d. c. statu­tum. §. & post (quam). verb. ordinarios., otherwise the account made in their absence, and they neuer called, is not preiudi­ciall vnto themL. de vnoquoque. ff. de re iud. & DD. ibid. & supr. ead. part. §. 14..

Of the ende and effect of an account.
[Page 236]§. xxj.

1 The making of an account, ordained in fauourable regard of testaments.

2 The effect of a perfect and iust account.

3 The effect of an vnperfect account.

1 THe † ende for which it is ordeined, that euery testamentarie executor should be subiect to make an accoūt, is this, that the lawfull testaments and last willes of them which depart this life, should be fullie effected and accomplished, according to their true and honest intents, & that the occa­sion of defrauding the dead man, & mispending his goods by vnhonest executors, might be pre­uentedIo. de Canib. Tract. de exec. vlt. vol. §. no­uissimum. Io. Olden. eod. Tract. tit. 8. & supr. ead. part. §. 17..

2 The † effect which ariseth of a true and iust account, is this, the executor hauing well and faithfully performed his office, and made his ac­count accordingly, ought to be acquited & dis­charged from further molestation and suites, as one that hath fully administred and finished his officeMenoch. d. cas. 209. in fin Brook Abridg. tit. adm̄str. n. 14., neither is he to bee called by the Ordi­narie to any further accountL Semel. C. de Apoch. Olden. de exec. vlt. vol. tit. 8. n. 17..

3 But this finall † discharge & acquittance can not be obteined, vntill the executor haue fully administred & accompted. And if any inferior Iudge (I meane vnder the degree or dignitie of a Bishop) do grant vnto any executor letters of acquittāce or final discharge, before a lawful ac­count of full administration and faithful execu­tion be made, that Iudge is ipso facto suspended ab ingressu ecclesiae by the space of sixe monethsc. fin. de testam lib. 3 prouincial. constit. Cant. in fin.. Besides that, the acquittance it self doth not be­nefite the executor, when it appeareth that hee hath not fully and faithfully administredLind. in d. c. fin. verb. acquietanciarum..

Of the executor refusing the executor­ship, and what he is to take heed of.
§. xxij.

1 The executor resolued to refuse, must not meddle as executor.

2 Who is said to meddle as executor, or not.

IF the † executor named in the testamēt 1 resolue not to stand to the executor­ship, but to refuse the same; then must he beware that he do not administer the goodes of the deceased as executor, for ha­uing once administred as executor, he may at a­nie time after be compelled to vndergoe the burthen of an executorPanor. in c. Iohānes. Boic. in c. tua nobis. de testa. extr., and also may be sued as executor by the creditors of the testator, though he cānot sue others as executor, for that he hath not the will vnder the ordinaries sealePerkins. tit. testamēt. fol. 93. Plowd in cas. in­ter Greisb. & Fox. Brook. tit. exec. n. 49..

A † man is then saide to administer as execu­tor, 2 so that thereby he may be cōpelled to stand to the executorship, when he dooth performe those acts which be proper to an executorL. pro haerede. ff. de acquir. haered. Mantic. de coniect. vlt. vol. lib. 12. tit. 9. n. 18., as to pay the debts due by the testator, or to receiue any debtes due vnto the testator, or to giue ac­quittances for the sameMascard. de probac. concl. 44. n. 5. 29. 45. Fitzh. Abridg. tit. executor. n. 38., with other like actesAditio haereditatis quomodo ꝓbatur copi­osè Masca. Tract. de ꝓ­bac. qui per multas cō ­clusiones hanc materi­am prosequitur. in verb. aditio..

But if a man do those acts, which are not pro­per to an executor, he is not said to haue admi­nistred as executor to the effect aforesaidMantic. de coniect. vlt. vol. lib. 12. tit. 9. n. 18, as to feed the cattel of the deceased, least they should perishd. L. pro haerede. Fitzherb. tit. exec. n. 45., or to take into his custodie the goodes [Page 237] of the deceased, to the ende they may bee safe from being stolne or purloinedd. L. pro haerede., or to dispose of the testators goods about the funeralsEad. L. pro haerede. & ibi DD. Lind. in d. c. statutum. Fitzh. tit. ex­ecut. n. 38. Brook. tit. adm̄str. n. 6. 28., for these be deedes of charitie common to euerie christian, and not peculiar to an executorL. non hoc. C. vnde legitimi. d. L. pro haere­de. Fitzh. tit. exec. n. 38.. Like­wise to make an inuentarie of the goods of the deceased, is not to administer as executorMantic. de coniect. vlt. vol. lib. 12. tit. 9 n. 15. Ias. & Alex. in L. vlt. §. sin autem. C. de iure delib. quae opinio com­munis est aduersus Bar. & eius sequaces. vt refert Mascard. de probac. concl. 48. sed cum distinctione, vt ibi per eundem., or to deliuer to the wife her conuenient apparelBrook. tit. adm̄str. n. 6. Tu autem vide Mas­card. de probac. concl. 44. n. 46. &c., or to take the testators horse & ride him, or to vse him as his owne, supposing him not to be the testators but his ownBrook. tit. adm̄str. n. 28. Huc. pertinet quod scriptum reliquit Mas­card. de probac. concl. 45. n. 46. &c., or to take of the goods of the testator by the lawful & vnfraudulent gift of the testatorBrook. tit. executor. n. 162. Mascard. d. cōcl. 45. n. 29. &c.: And generally, whosoeuer as a meere trespasser, entereth into the goods of the testator, whether it be to things liuing, as horse, kine, sheepe; or dead things, as pots, pannes, di­shes, conuerting the same to his owne proper vse, and not to the vse of the testator, as to the paiment of the testators debts or legacies, doth not administer as executorBrook. tit. executor. n. 165. tit. adm̄str. n. 42.

Howbeit in these cases and such like, who­soeuer feareth to be adiudged executor, admi­nistring of his own wrong, the most safe course is, not to meddle at all, but vtterly to abstaine from all manner of vse of the testators goodes, and namely, let him beware that he do not sell any goodes, or kill any cattell of the deceasedBrook. tit. adm̄str. n. 26. Quamuis iure ciuili certo certius est, eum, qui res perituras, quae videlicet, seruando seruari non possunt, distraxit, in ea causa esse, vt pro haerede non gesserit, quia hoc non adeundi ani­mo factum esse praesumitur. d. L. pro haerede..

THE SEVENTH PART OF THIS TESTAMEN­TARIE TREATISE, DECLARING BY WHAT MEANES TESTA­ments or last willes be­come voide.

The Paragraphes or Chapters of the last part.
  • BY what meanes testamentes or last willes become void. §. 1.
  • Of testamēts made by feare. §. 2.
  • Of testamēts made by fraud. §. 3
  • Of testamentes made by flat­terie. §. 4.
  • Of errour. §. 5.
  • Of vncertaintie. §. 6.
  • Of vncertaintie, either because no certaine person is named, or some being named, none of that name is to be found. §. 7.
  • Of vncertaintie arising for that there be diuerse per­sons of one name. §. 8.
  • Of vncertaintie by occasion of alternatiue or disiunc­tiue speech. §. 9.
  • [Page]Of vncertaintie respecting the thing bequeathed. §. 10
  • Of vncertaintie respecting the time or date of the te­stament, viz. where two testaments appeare, and it is vncertaine whether is the latter. §. 11.
  • Of an vnperfect testament. §. 12.
  • Of the defect in the testators meaning. §. 13.
  • Of a later testament. §. 14.
  • Of reuoking the testament made. §. 15.
  • Of cancelling the testament made. §. 16.
  • Of the alteration of the state of the testator. §. 17.
  • Of forbidding or hindering the testator to make an o­ther testament. §. 18.
  • When he that is named executor, cannot or will not be executor. §. 19.
  • Of ademption of legacies. §. 20.
  • Of translation of legacies. §. 21.
  • Of diuerse meanes whereby legacies are lost, considera­ble in the person of the legatarie as of enmitie, &c. §. 22.
  • Of the death of the legatarie before the legacie be due. §. 23.
  • Of the destruction of the thing bequeathed. §. 24.

BY WHAT MEANES testaments or last vvilles be­come voide.
The seuenth part.
§. i.

1 Testaments lose their force two wayes.

2 By what meanes testaments are voide from the be­ginning.

3 By what meanes the testament once good, is made voide afterwards.

4 Howe we may knowe when the testament is voide from the beginning.

HItherto of those things which apper­teine to the making and accomplishing of testaments: nowe of such things as tende to the dissolution ther­of.

1 Albeit † the meanes whereby testaments and last willes doo loose their force, be manyDe quibus Vigelius in sua method. iur. ci­uil. lib. 9. c. 5. cum seq.: [Page] yet they may be reduced to twoViglius in tit. quib. mod. testa. infir. Instit..

The firste is, when † there is some ori­ginall 2 defect or corruption in the testamentL. si quaeramus. ff. de testa., which may happen diuers waies, either because the testator is such a person as cannot make a testa­ment or last will Supra part. 2., or because the thinges bequeathed are not deuisable by will Supra part. 3., or because the maner of the disposition is vnlawful Supra part. 4., or for that the person na­med executor is incapable thereof Supra part. 5., or for some o­ther cause hereafter expressedInfr. §. prox. cum §§. seq. vsque ad §. 14.: and such a te­stament or last will being voide originally, or from the beginning, is called Nullum, somtimes iniustum, or non iure factum Minsing. & Vigl. in d. tit. quib. mod. testa. infir. Instit..

The other meanes is, when † the testament 3 or last will being free from originall fault, dooth afterwards become voide Vigl. in d. tit. quibus mod. testa. infir.. And this also may hap­pen diuerse waies, as by the making of a later testament §. posteriore. Instit. quib. mod. testa. infir. & infra §. 14., or by reuoking or cancelling of that which is madeL. 1. de his quae te­sta. del. ff. & inf. §§. 15. 16., or by alteration of the state of the testator§. alio Instit. quibus mod. testa. infir. & infra §. 17., or by forbidding or hindering the testa­tor to make another testamentTit. si quis aliquem restari prohib. ff. & C. & infra §. 18., or if he that is named executor will not, or doth become vnable to be executor L. 1. ff. de iniust. rup. & irrit. testam. & infr. §. 19., and by many other meanes more particularly shewed hereafterInfr. §. 20. cum reli­quis §§ vsque ad finem. And this kind of testament which once being good, becommeth voide ex post facto, is sometimes called ruptum, sometimes irritum Tit. de iniust. rupt & irrit. testam. ff. d. §. alio Instit. quib. med. testa. infir..

Touching the former of these voide testa­ments, forasmuch † as we haue alreadie declared who may make a testament, what thing may be disposed, what forme is lawfull, and who maie be executor or legatarie: and on the contrarie, what person can not make a testament, what [Page 240] thing cannot bee deuised, what forme is not lawfull, and what person is not capable of an executorship or legacie, it is a matter of little la­bour, and lesse difficultie, by examination of the premisses, to collect and discerne when the te­stament is originally voide, either in respect of the testator, or of the thing bequeathed, or of the forme of the disposition, or of the person of the executor or legatarie. Whereunto it maie be added, that the testament is originally voide, or at the least voidable by exception, when the testator is compelled by feare Infra §. prox., or circumuented by fraude Infra. §. 3., or ouercome by immoderate flatterie Infra §. 4., to make the same. It is also voide from the be­ginning, sometimes by reason of error Infra §. 5., some­times by reason of vncertaintie Infra §. 6. cum seq., and sometimes by reason of imperfection Infra §. 12., and sometimes be­cause the testator hath not animū testandi Infr. §. 13., a mea­ning to make his testament or last will.

Touching the other kinde of these testa­mentes, such I meane as were good at the first, but do become voide afterwards, we shal speake more particularly hereafter.

Of the testament made by feare.
§. ii.

1 Exception of feare destroieth the testament.

2 Whether this exception be preiudiciall to anie other then to the author thereof.

3 What if the testament be confirmed with an othe.

4 What if the feare be not of present hurt.

5 What if the testament bee made after the time of [Page] the violence offered, and not at that instant.

6 Whether the testament made by feare bee voide, ipso iure.

7 Vaine feare hindereth not the validitie of the te­stament.

8 The testament confirmed after feare be past, is good.

9 The testament is good, sauing in fauour of the au­thor of this feare and his complices.

10 What if the testator protest that he made his testa­ment being compelled by feare, whether dooth this protestation make voide the testament.

NOthing is more contrarie to free consent then feareNihil consensui. de reg. iur. ff.: worthilie † 1 therefore is that testament to bee repelled which is made vpon iust feareBar. in L. fin. si quis aliquem testari ꝓhib. ff. Ias. & Sichard. in Rub. si quis aliquem. C. quamuis communi Doctorum opinione, huiusmodi testamentū non sit ipso iure nullū. vt per Grass. Thesaur. com. op. §. testm̄. q. 83. Soarez. lib. rec. senten. verb. testam. n. 56. 57., which conclusion is di­uersly both extended and limi­ted.

The first extension is, that the testament made by feare is vneffectuall, not † onely in respect of 2 that person who put the testator in feare, but al­so in respect of other persons alsoGloss. in Rub. si quis aliquem prohib. ff. Bar. in d. L. fin. Boss. Tract. var. tit. de his qui pro­hib. aliquem testari. n. 4.; albeit igno­rant of that feare wherewith the testator was constrained in that behalfeBar. & Boss. vbi supra contrariam tamen o­pinionem tenent Ias. & Sichard. in Rub. si quis aliquem. C. sed distin­gue, vt infra in limi­tac. 4..

Secondly the † testament is ouerthrowne 3 by the exception of feare, albeit the testator did with an othe confirme the same, during the fearec. quamuis. de pactis. lib. 6.. For where a man being ouercome with feare, to the ende hee may escape that daunger, doth sweare with his mouth to performe that [Page 241] thing, which he intendeth not in his heart: this othe dooth not giue any strength to that acteDD. in d. c. quamuis. Felin. in c. si vero. de iu­reiur. extra. n. 8. de­clar. 4.; but contrariwise the act is so much the weaker, by how much the suspition of feare by this ex­torted othe is made the stronger.

4 Thirdly †, not onely that testament is de­priued of lawfull force, which the testator is constrained to make by present force and vio­lēce, but that also where the testator is not only threatned with future euils, being such as maie moue iust feareSichard. in d. Rub. si quis aliquem. C. n. 1. Ias. in §. quadrupli. In­stit. de action. vbi tradit quinque genera metus: although by the ciuill lawe in other respects, that is to say, of greater or lesser punishment of the authour of this feare, there is great difference, whether hee exercise vio­lence against the testator, or threatnings onely, as also whether the violence bee open or se­creteSichard. in d. Rub. Iul. Clar. §. falsum. & pract. criminal. q. 83., of which punishment we haue no great vse in Englande except it bee for forgerie of willesStat. Eliz. an. 5. c. 14..

5 Fourthly, albeit † the testament were not made at the time of the violence or threat­nings executed, but afterwards: yet the cause of the feare still enduring, it is of no lesse force then if it had bene made at the time of the for­mer beating or threatningsZas. in L. si ob turpē. ff. de cond. indeb. Pec­kius. Tract. de testa. coniug. lib. 1. tit. 9. n. 3..

The limitations of this former conclusion 6 are these. First, the testament † made by feare is not voide ipso iure, but voidable by the helpe of exceptonBar in L. sin. si quis aliquem testari ꝓhib. ff. Are. in L. 1. ff. de testa.: the reason is, because he that doth an act through feare, doth after a sort consentL. si mulier. § pen. ff. quod me. causa., that is to say, of two euils he chuseth the lesseWesenb. in tit. quod met. causa. ff., and is willing rather to make a testamēt, then to incurre the perill threatnedWesenb. ibid.. And albeit some [Page] be of this opinion, that the testament made by feare is voide, ipso iure; and that in this case a constrained will is no will, being rather noluntas then voluntas Vasq. de success. crea. §. 17. requisit. 22. Ias. in Rub. si quis ali. quem testari prohib. C., yet the common opinion is a­gainst themVasq. d. §. 17. n. 5. , vnlesse the coaction be not con­ditionall, but precise, necessarie, and ineui­tiableQuia tunc omnino deest voluntas. Wesen. in tit. quod met. causa..Grass. Thesaur. com. op. §. testm̄. q. 83. Soarez. eod. lib. verb. testm̄. n. 56. 57. Mantic. de coniect. vlt. vol. lib. 1. tit 3. lib. 2. tit. 7.

The second limitation is, when † the feare 7 is but a vaine feareL. si quis ab alio. ff. de re. iud. L. vani de reg. iur. ff. (for a iust feare onely, that is such a feare as may moue a constant man or woman, maketh voide the testamentc. ad audientiam. c. cum dilectus de his quae me. cum extra. Mantic. de coniect. vlt. vol lib. 2. tit. 7. n. 6.; as the feare of death, or of bodily hurt, or of imprison­ment, or of the losse of al or most part of goods, and such like feare) whereof no certaine rule can be deliuered, but is left to the discretion of the Iudge, who ought not only to consider the qualitie of the threatnings, but also the persons as well threatned, as threatning; and in the threatned the sexe, the age, the courage, or pusil­laminitie: and in the person threatning, the power, the disposition, and whether hee bee a meere boaster, or performer of his threatesMenoch. de Arb. Iud cas. 135. Mascar. Tract. de probac. concl. 1054. Idem Menoch. Tract. de praesump. lib. 3. praes. 126..

Thirdly, if the † testator afterward, when 8 there is no cause of feare, doo ratifie and con­firme the testament, I suppose the testament to be good in lawL. 2. C. de his quae vi, &c. L. si ob turpem. ff de condict. in deb. Si­chard. in L. si per vim. C. de his quae vi, &c. n. 3..

Fourthly, where † it is saide that the testa­ment 9 is vneffectuall, as well in respect of the authour of the feare, as of others for whome he extorteth any benefite in the testament: yet if the testator of his owne accorde, do in the same testament bequeath any legacie to any other persons besides these afore named, the testa­ment [Page 242] in that respect is not vnlawfullBar. in d. L. [...]in. n. 3. si quis. aliq. ff. Bal. in L. 1. eod. tit. C. n. 7..

10 Fiftly, if the † testator after the making of the [...]estament, do affirme or protest generallie, that the testament by him made was done through feare: not expressing particularly by whom he was compelled thereunto, such bare protesta­tion doth not make voide the testamentBald. in d. L. 1. Man­tic. de coniect. vlt. volu. lib. 2. tit. 7. n. 5.: but if the testator doo expresse by whome hee was constrained, protesting that he would gladly al­ter the testament, but for feare of the persons by him named; by such assertion the testament is voide, at the least in the preiudice of those personsMantic. vbi supra. Si­chard. in Rub. si quis a­liquem testari prohib. C. n. 5..

Of testaments made by fraude.
§. iii.

1 Fraude as detestable as force.

2 Whether all maner of deceit be euill.

3 What if the deceite be verie small.

1 FRaude † is no lesse detestable in lawe then open forceOlden. de action. class. 5. fol. 518. in actiō. ex testamento., wherefore when the testator is circumuented by fraude, the testament is of no more force, then if hee were con­strained by feareL non enim. de in­offic. testa. L. 1. de ex­cep. doli. ff..

2 Neuerthelesse † when the deceit is not euil, but good, (for all deceite is not euillZas. in tit. de dolo malo. ff.) such de­ceit doth not hinder the testamentBald. in L. 1. si quis aliquem testari prohib C. & Sichard. in Rub. i­bidem.: for exam­ple, the testator intending to bestowe all his [Page] goodes vpon some vile and naughtie person, omitting his honest wife and dutifull children; if the wife or children beguile the testator, per­swading him that that lewde person is dead, or by some other meanes deceiue the testator, and so procure themselues to be made executors, or vniuersall legataries: this deceit is not repro­ued as euill, and therefore the testament is not to be repelled as vnlawfullBald. in d. L. 1. n. 17..

It seemeth † also, that the testament is not 3 void, when the deceite is verie light and small, such as can not beguile a prudent man or wo­manc. cum dilectus. de his quae vi vel metus causa extra.: for as that feare onely is tearmed iust, and is able to ouerthrow the testament, which may ouercome a constant man: so that deceite onely seemeth sufficient to repell the approba­tion of a testament, which may deceiue a pru­dent personPanor. in d. c. cum dilectus. n. 4. Marsil. sing. 207. Alex. in apo­stil. ad lect. Bar. in L. e­leganter. ff. de dolo. in prin. d. L.. Howbeit (if this limitation bee true) yet as in that case it is left to the discretion of the Iudge to determine what feare is iust, re­specting the qualitie of the threates, together with the disposition of the parties: so in this case the iudge comparing the deceite with the capacitie or vnderstanding of the person de­ceiued, may best discerne, whether it be such a deceite as maie ouerthrowe the testament or notArg. d. c. dilectus..

How the testator may be induced by fraude too make or reuoke his testament, were it not that the craftie would put the same in practise, is a thing not altogether vnworthie the vnder­standing. But lest by instructing the better to auoide the same, I might also teach the euill af­fected [Page 243] to follow the same: Sufficeth it, to refer the reader to that which hath beene spoken of captious willesSupra part. 4. §. 11., and to that which hereafter shall be vttered of forbidding or hindering the testator to make or alter his willInfra §. 18..

Of testaments made by flatterie.
§. iiij.

1 Flatteringe perswasions not alwaies vnlawfull.

2 What if feare go before.

3 What if fraude be intermingled with flatterie.

4 What if the testator bee vnder the gouernment of the flatterer.

5 What if the flatteries be immoderate.

6 What if the testator haue made a former testament.

1 IT is not † vnlawfull for a man by ho­nest intercessiōs and modest perswa­sions, to procure either another per­sō or himselfe to be made executorOlden. de action. class. 5. fol. 518. action. ex testament [...].: neither is it altogether vnlawful for a man, euen with faire & flattering speeches, to moue the te­stator to make him his executor, or to giue him his goodsL. vlt. si quis aliquem testari prohib. ff. & C. ac DD. ibidem., except in these cases following.

2 The first case is, when † he that is made ex­ecutor, did first beate or threaten the testator, and thereby did put him in feare: for then it is iustly suspected and presumed, that the testator is moued to make his testament, rather by feare then by faire speechesPeckius de testa. cō ­iug. lib. 1. c. 9. n. 23. Ias. & Sichar. in L. vlt. C. si quis aliquem testari ꝓ­hib. Menoch. de arb. Iud. cas. 395. n. 41. verb. hoc fortius..

The second case is †, when vnto flatterie is 3 ioyned fraude or deceitSichard. in d. L. vlt. n. 13. Olden. de action. class. 5. fo. 518. Menoch. d. cas. 395. n. 41. Afflict. decif. 69..

The third case is, when the testator, is a per­son of weake iudgement, and easie to be per­swaded, and the legacie greatMolin. in apostil. ad Dec. consil. 489.

The fourth † case like vnto this is, when 4 the testator is vnder the gouernment of the per­swader, or in his daungerMolin. in d. Apostil.: And therefore if the phisition during the time of sicknesse, be instant with the testator to make him his executor, or to giue him his goods, this testament is not goodPeckius de testam. coniug. lib. 1. c. 9 n. 6. Bar. in L. Archiatr. de profess. & med. lib. 10. C; for the lawe presumeth, that the testator did it, least the phisition should forsake him, or negli­gently cure himPeckius vbi supra. & in c. 17. eod. lib. Lucas de penna in d. L. Ar­chiatri. iuxta illud Poetae. Garrulus aegroto medicus, si forte medetur: Alter adest morbus con­tinuusque dolor.. So it is if the testator being sicke, his wife neglect to helpe him, or to pro­uide remedie for the recouerie of his health, and neuerthelesse in the meane time busily ap­plie him with sweete and flattering speeches, to make her his executrix, or to bestow his goodes vpon her: for in this case, the disposition is vn­effectuallPeckius. d. lib. 1. de testa. coniug. c. 9. n. 5. Mathe. de afflict. decis. 69..

The fift case is †, when the perswader is ve­rie 5 importunatec. fin. 20. q. 3. Abb. in c. praeterea. de offic. de­lega. extr. Menoch. de Arbitr. Iud. cas. 395. n. 41. & latiùs Peckius. d. c. 9. n. 9.: for an importunate begger is compared to an extortor [...]mol. in c. petitio. de iureiur. Peckius in d. c. 9. n 9. L. 1. §. per­suadere. ff. de ser. cor., and it is an impu­dent part still to gape and crie vpon the testator, and not to bee content with the first or seconde deniallPeckius vbi supra. Rebuff. Tract. de re­scrip. ar. 2. gloss. 3..

The sixt case is †, when the testator hath 6 made another testament before, for then the later testament made at the instigation or re­quest of another person, is not good in preiu­dice of the formerSocin. Iun. consil. 14 vol. 2. Peckius in d. c. 9. versic. tertio., as elsewhere is and shall be declaredSupra part. 2. §. 27. inf [...]a §. 14. limitac. 4..

Of errour.
[Page]§. v.

1 Error may happen in diuerse respects.

2 Of error in the person of the executor or legatarie.

3 Of error in the name of the executor or legatarie.

4 Of error in the qualitie of the executor or legatarie.

5 Whether a false cause make voide the disposition.

6 Error in the thing bequeathed, manifold.

7 Of error in the proper name of the thing bequea­thed.

8 Of error in the name appellatiue of the thing be­queathed.

9 Of the difference betwixt a proper name, and a name appellatiue.

10 An obiection with the answere.

11 Certaine cases wherein error in the name appella­tiue is not hurtfull.

12 Error in the substance of the legacie, dooth destroie the legacie.

13 Error in the quantitie of the thing bequeathed, is not hurtfull.

14 Certaine cases wherein error in quantitie doth de­stroie the legacie.

15 Certaine cases wherein the error in the quantitie of the thing bequeathed as a certaine bodie is not hurtfull.

16 Error in the qualitie of the thing bequeathed, doth not destroie the legacie.

17 Error in the forme of the disposition, doth destroie the force thereof.

ERror dooth sometimes ouerthrow the disposition of the testator, som­times not: Therefore that we may vnderstande whether this errour hurt or not, wee are to consider † 1 whether the error dooth respect the executor or legatarie, or the thing bequeathed, or the forme of the disposition: And if it doo respect the execu­tor or legatarie, then whether the testator doo erre in the person, or in the name, or in the qualitie of the executor or legatarie.

When † the testator doth erre in the person 2 of the executor or legatarie, supposing him whom he maketh executor, or to whō he doth bequeath any legacie, to bee another person then he is, the disposition is voideL. quoties. ff. de hae­red. instit.: for exam­ple, the testator intending to make Iohn at Stile his executor, or to giue to Iohn at Stile an hun­dred pound, he saith, I make Iohn at Noke my executor, or giue I to Iohn at Noke an hundred pound. In this case neither can Iohn at Stile, nor Iohn at Noke be executors, or obtaine the legacieDD. in d. L. quoties. The reason is this: Iohn at Noke is ex­cluded, because the testator neuer thought it. Iohn at Stile is excluded, because the testator neuer spoke it: for meaning without speaking is nothing, and speech without meaning is lessed. L. quoties. & L. in ambiguo. ff. dereb. dub..

When † the testator doth erre in the name 3 of the executor or legatarie, and not in the per­son, [Page 245] such error doth not hurtL. si. in nomine. C. de testa., but in certaine cases: one is when the testator is blind; for then it is suspected that the testator dooth mistake the person, together with the nameIas. & Sichard. in d. L. si in nomine. Ripa. in L. si quis in fund. ff. de leg. 1. n. 9. quem vide.. Another is, when the testator dooth erre in the name of his owne sonneSicha. in d. L. si in no­mine. n. 14. Ripa. in L. si quis fundi. ff. de leg. 1. vbi sublimitat hanc li­mitac. quādo viz. natus & educatus esset silius in loco remoto., or of his fatherRipa. in d. L. si q̄s. n. 8: the reason is, for that this grosse error doth note the testator of follieSichard. & alij in d. L. si in nomine.: But a foole, or he that is not of sound memorie cannot make a testamentSupra 2. part. §. 1.: much more is the disposition voide, if the testator do erre in his owne nameIas. in d. L. si in nomi.: as if the testator say, I Peter make my testament, where his name is Iohn: for this is a plaine and euident proofe of his follie, or lacke of sufficient memorieBar. in L. cum in libe­ris. C. de haered. instit. & est communis opi­nio, vt per Grass. The­saur. com. op. §. Institu­tio. q. 29. n. 2..

4 When † the testator doth erre in the qualitie of the executor or legatarie, this error is not hurtfullL. falsa demonstra­tio. ff. de cond. & demō. c. 1. 29. q. 1. Mantic. de coniect. vlt. vol. lib. 4. tit. 5. n. 16. Paul. de Ca­stro. in L. quoties. ff. de haered. instit., vnlesse that qualitie were the finall cause wherefore the testator made him execu­tor or legatarie: for the error in such a qualitie dooth make voide the dispositionL. neque professio. C. de testa.: for exam­ple; the testator saith, I make my cosin Iohn at Stile my executor, or I giue to my cosin Iohn at Stile an hundred pound: in this case, if Iohn at Stile be not cosin to the testator, he cannot ob­taine the executorship, or legacied. L. neque. & ibi DD. & Grass. Thesaur. cō. op. §. Insti. q. 29. n. 4. vbi refert hanc op. esse receptā ab omnibꝰ, nisi fortassè restator solet appellare illum cōsan­guineum suum.. Hereunto it may be added, that if the testator do erroniously expresse a false cause, the disposition is voidBar. in L. demonstra­tio. §. quod autem ff. de cond. & demon. n. 13.: for example; the testator saith, because thou didst lend me an hundred pounde, I bequeath vnto thee an hundred poundBar. vbi supra. verb. quaedā causa proxima.; or because my sonne is dead, thou shalt be my executorL. sui ff. de haered. in­stit. Sichard. in Rub. de haered. instit. C. n. 3.: In which cases the cause being false, the disposition is of no force. And although it be written, that a [Page] false demonstration or false cause, dooth not hurt the dispositionL. cum tale. §. falsam. de cond. & demon. ff. §. longè. Instit. de lega.: yet that is to bee vnder­stoode, where the testator dooth not ignorant­ly, but wittinglyGloss. in L. 1. C. de falsa causa adiect. & ibi Doctores. expresse the same.

But † when the testator dooth ignorantlie 5 expresse a cause, which is so annexed vnto the legacieBar. in d. L. demon­stratio. §. quod autem. de cond. & demon. ff. n. 13. & Paul. de Castr. in d. L. n. 5., as without the which cause hee would not haue giuen that legacieSecus si causa sit im­pulsiua tantum, quae ab ignorante adijcitur, nā illa quantūcūque falsa, non viciat dispositionē, nisi fortè non causati­uè, sed conditionaliter sit adiecta, quia tunc viciatur dispositio, siue intellexerit, siue igno­rauerit testator cau­sam illam non existere. Sichar. in d. Rub. Paul. de Castr. in d. L. demō ­stratio. Minsing. & alij, in d. §. longè. Instit. de lega. Vigelij Method. iur. ciuil. lib. 12. c. 10. ex­cep. 71.: in this case the cause being false the legacie is voidePorcius in §. longè. Instit. de lega. & ibi Minsing n. 2. Sichard. in Rub de haered. insti. C. & Paul. in d. L. de­monstratio.

If the † error touch the thing bequeathed, then 6 we are to enquire whether the testator doo erre in the name, or in the substance, or in the qualitie, or in the quantitie of the thing bequeathed.

The † error of the testator in the proper name 7 of the thing bequeathed, doth not hurt the va­liditie of the legacie, so that the bodie or sub­stance of the thing bequeathed bee certaine§. siquidem in nomi­ne. Instit. de lega. quae sententia communis est. Grass. Thesaur. cō. op. §. Legatum. q. 65.: for example; the testator dooth bequeath his horse Bucephal, whereas the name of his horse is Arundell: this errour is not hurtfull, but that the legatarie may obtaine the horse Arundell, if the testators meaning be certaineBar. Zas. & alij, in L. si quis in fūdi. ff. de leg. 1.: for names were deuised to discerne thingsL. labeo. ff. de sup. leg.: If therefore wee haue the thinge, it skilleth not for the named. §. si quidem in no­mine. Inst. de lega..

The † errour in the name appellatiue of the 8 thing bequeathed, doth destroy the legacieSi quis in fundi. ff. de leg. 1.: for example; the testator intending to bequeath a horse, doth bequeath an oxe, or meaning to bequeath gold, doth bequeath apparell: in both these cases the legacie is voided. L. si quis in fundi.. The reason of the difference (I meane of the diuers effects be­twixt the error in proper names, and the error [Page 246] 9 in names appellatiue) is because † a proper name is an accident, attributed to some singular or indiuiduall thing, to distinguish the same frō other singular things of the same kinde: whereas names appellatiue doo respect the substance of things, and being common to euerie singular of the same kinde, make them to differ from 10 things of other kinde or substanceMinsing. in d. §. si quidem in nomine. n. [...] DD. in d. L. si quis. & in L. si in nomine. C. de testam.. Against † this reason it is commonly obiected, that words or names are but inuented to signifie thingesText. in d. §. si quidé in nomine., and that the wordes of the testator are to bee drawen euen into an improper sense, to main­taine the will and disposition of the testatorL non aliter. de leg. 3. ff. Mantic, de coniect. vlt. vol. lib. 3. tit. 5. n. 2.. To the which obiection it is answered, that these woordes which haue a manifolde sense, may be stretched to that sense which is contai­ned therein, albeit improperly: but to compre­hend that sense, which is not at all within com­passe of the wordes, neither properly nor im­properly, they may not be stretched so farreRipa. & Zas. in L. si quis in fundi. ff. de leg. 1. ille. n. 26. iste. n. 20., for then this conclusion hath place: That which I would, I spake not; that which I spake, I would not; and so neither is goodL. in ambiguo. de reb. dub. ff..

11 Neuerthelesse †, it is not perpetually true, that the errour in the name appellatiue of the thing bequeathed, doth make voide the dispo­sition: for if the thing bequeathed be present, & the testator doth with his hand demonstrate the same, albeit he doo erre in the name appella­tiue, it dooth nothing hinder the validitie of the legacieGloss. in L. quae ex­trinsecus. ff. de verb. ob. Ias. in d. L. si quis in fundi. qui ibi refert hāc opinionem esse veram.. Likewise if there bee some confor­mitie or similitude betwixt the name appella­tiue, and the name wherein the testator dooth [Page] erre, the legacie is not voide: as if the testator meaning to bequeath his bookes, dooth be­queath his papersGloss. in d. L. si quis in fundi Bar. in L. quae­situm. §. si mihi. de leg. 1. & est com. op. ait Grass. Thesaur. com. op §. legatum. q. 65.: or if the testator protest, that the legacie shall passe by those tearmes, for then the error in the name appellatiue is not hurtfullGloss in d. L. si quis in fundi. & quod haec. communis sit, nume­rat Ripa in d. L. si quis. n. 27. & Grass. §. legatū. q. 65.: or if by common vse of speech the name appellatiue be altered; for then it is in the electiō of the testator, to vse whether name he will, euen that which is lesse properIas. Zas. & Ripa. in d. L. si quis in fundi.: or if the names be artificiall, not naturall, as to vse proc­torship, for curatorship Minsing. in §. si qui­dem in nomine. Instit. de lega. n. 2..

The † error in the bodie or substance of the 12 thing bequeathed, dooth destroy the legacieSi quis in fundi. de leg. 1. ff., like as in the person of the executor or lega­tarieL. quoties. de haered. instit. ff..

When † the error is in the quantitie of the 13 thing bequeathed, it doth not hurt the legacieL. qui quartam. de leg. 1. ff.: For example; the testator meaning to bequeath the fourth part of his goodes, dooth by wordes bequeath the one halfe; or meaning to giue but fiftie pound, dooth bequeath an hundred pound: or contrariwise the testator meaning to bequeath a great quantitie or summe, dooth ex­presse a lesser rate or summeEt sic valet legatum, siuè quantitas sit con­tinua, siuè discreta: vel vt alij loquuntur, siuè pars sit quotitatiua, si­uè numeralis. Ias. & Zas. in d. L. qui quartā.: In these cases the legacie is good, and the legatarie may obtaine so much as the testator did meane, bee it more or lesse then the portion or summe vtteredBald. Paul. de Castr. Alex. Ias. & Zas. in d. L. qui quartam. quamuis Bar. contrariam partē teneat, casu quo minor summa sit ex pressa, cu­ius opinio communi­ter reprobatur. Et sic valet legatum vtroque casu..

Howbeit † if the quantitie be bequeathed 14 as a certaine bodie: as if the testator bequeath an hundred pound lying in such a chest, when as there is no money in the chest, in this case the legacie is voideL. si seruus. §. si quin­que. L. sed & si certos nummos. ff. de leg. 1. Minsing. in §. huic ꝓx­ima. Instit. de lega. n. 8. Grass. §. legatum. q. 59. n. 3.. Likewise if the testator doo generally bequeath vnto another whatsoeuer [Page 247] he himselfe doth owe vnto that other, the te­stator not being indebted; the legacie is voideL. si sic. §. si mihi. ff. de leg. 1.. So it is if the testator do say, I do bequeath vnto such a man tenne pounde which hee oweth me; in this case also the legacie is voide, if the legatarie be not at all indebted to the testatorMinsing. in d. §. huic proxima. Instit. de lega.. So it is, if the testator doo bequeath a certaine summe to one, which either hee (the legatarie I meane) or some other doth owe vnto the testa­tor, when no such summe is due by either of them to the testatorL. si sic. §. si mihi. & Ias. in d. §.: for whether the testator did knowe, or not know, that nothing was due vnto him: in both these cases the legacie is voidePaul. de Castr. in d. §. si mihi. & Minsing. in d. §. huic proxima.. So it is, if the testator supposing himselfe to be indebted to another, dooth bequeath that debt to the person to whom he erroniously sup­poseth himselfe to be indebted, not expressing any quantitie, for the legacie is in this case voide, as is aforesaidd. §. si mihi.. But if the testator know­ing himselfe not to be indebted, doth say, I be­queath to such a person ten pound which I do owe vnto him, in this case the legacie is good, notwithstanding the false demonstrationEod. §. si mihi. & Minsing. in §. huic ꝓx­ima. Instit. de lega. n. 6.: neither is the testator presumed to erre in this case, and therefore vnlesse the executor make proofe of the error, the legatarie may recouer the legacieCastrens. in L. 2. C. de falsa causa adiect..

15 Where † I said a little before, that the lega­cie of quantitie being bequeathed as a certaine bodie, as when the testator dooth bequeath an hundred pound lying in such a chest, or which such a person doth owe vnto him, that then no mony being foūd in the chest, or nothing being [Page] due by that person, the legacie is voideL. si seruus. §. si quin­que. L. sed & s [...]certos nummos. ff. de leg. 1.. This conclusion dooth admit these limitations: one is when the misreport or false demonstration is not ioined to the substance of the legacie, (as beforeHoc ipso §. & pleniꝰ supr. part. 4. §. 17. n. 8. &c) but to the execution thereof: as thus, viz. I giue to A.B. an hundred pound, and I will that the same be paide of the money which I haue in such a chest, or of the mony which such a man doth owe vnto me. For albeit there bee not any mony in that chest, nor any due by that person named by that testator, neuerthelesse the whole legacie is due, and is to bee paide of the testators goodesL. quidam testamen­to. ff. de leg. 1.: for the legacie being once pure and simple, and perfect in it selfe, it is not made conditionall by that which followeth, in another sentence respecting the performance, and not the substance of the legacie, for by such demonstration the testator is presumed to haue had a care onely howe the legacie might bee paide, the more easily, or with lesse discommo­ditie to the executor, not whether it should bee paide at all vnto the legataried. L. quidam. & L. paulo. de leg. 3. Bar. Castrens. & alij in d. L. quidam..

Another limitation is this, when some part of the legacie consisting in quantitie is extant, though not al, according to the demonstration of the testatorL. si seruus. §. si quinque. ff. de leg. 1.: For example, the testator doth bequeath ten pound remaining in such a chest, at whose death fiue pounde onely is founde in that chest: In this case howsoeuer this legacie be, as of a certaine bodie, yet fiue pound is due and recouerable by the legataried. §. si quinque., but no more then fiue pound: Insomuch that if at the death of the testator there were ten pounde found in [Page 248] that chest, whereas at the time of the making of the testament there was no more but fiue poūd in the chest: In this case fiue pounde onely is duePaul. de Castr. in d. §. quinque. n. 9., vnlesse the testator at the will making did thinke that there had beene ten pounde in the chest, and so did adde other fiue pounde there­unto, to make the summe answerable to his o­pinion, for then the legatarie may recouer the whole ten pounde, as if the same had beene all there, as well at the making of the testament, as at the testators deathIdem Castrens. in d. §. quinque. n 9..

And here note, that the testator is presumed to haue thought that there had bene ten pound in the chest, like as it is set downe in his testa­ment, vnlesse the executor doo proue the con­trarie, viz. that the testator did know that there was but fiue pound in the chest when he made his testamentIdem Castr. in d. §..

16 Error † in the qualitie of the thing bequea­thed, doth not hurt the legacie, when the bodie or substance is certaineAngel. in d. L. si quis in fundi. ff. de leg 1., no more then the er­ror in the proper name: and therefore if the te­stator bequeath his white horse, hauing but a blacke horse, the legacie is goodEt est com. op. Ripa. in d. L. si quis in fundi. Grass. §. legatum q. 56..

17 Error † in the forme of the disposition, maketh the same to be of no forceL. quoties haeres. §. tantundem. ff. de haere. instit.: For example; the testator intending to make an executor, or to bequeath any legacie conditionally, and not o­therwise, doth by error omit the condition: In this case the disposition concerning the execu­torship or legacie is voided. §. tantundē. & DD; ibidem.. Howbeit if the testa­tor doo appoint an executor, or bequeath anie legacie, according to certaine conditions after­wards [Page] to be written, no conditions being after­wards written, the disposition is good, and as it were simplie madeL. pen. C. de Instit. & sub.; vnlesse it doo appeare that the testator did meane, that the disposition should not take place without those conditions followingMolin. in apostil. ad Dec. in d. L. pen., as in the former exampled §. tantundem..

Of vncertaintie.
§. vi.

1 Diuerse are the meanes whereby vncertaintie doth growe.

THat we may the better vnderstand when the vncertaintie is such, as it dooth ouerthrow the disposition, (for sometimes it doth destroy the same, and sometimes not) wee are to be aduertised †, that the vncertaintie dooth 1 somtimes respect the person of the executor or lega­tarie Infra §. 7. §. 8.: somtimes it doth respect the thing bequea­thedInfra §. 10.: and sometimes it doth respect the time or date of the testament Infra §. 11..

The testament is vncertaine in respect of the person of the executor or legatarie by di­uerse meanes, especially by these meanes fol­lowing.

First, when it cannot bee vnderstoode by whome the testator meaneth, either for that there is no person certainly named, or else some being named, yet no person of that name to bee founde Infra §. prox..

Secondly, when there bee diuerse persons of [Page 249] one and the same name, whereby the testator ma­keth his executor, or dooth bequeath anie le­gacieInfra §. 8..

Thirdly, when the testator dooth appoint executors or giue legacies alternatiuely, or dis­iunctiuely, as I make A. or B. my executorInfra §. 9..

Of the other vncertainties; viz. in respect of the thing bequeathed, or date of the testament, it followeth afterwardsInfra §. 10. §. 11.. In the meane time therefore of the vncertaintie concerninge the person of the executor or legatarie.

Of vncertaintie, either because no cer­taine person is named, or some being named, none of that name to be founde.
§. vij.

1 The vncertaintie of the person maketh voide the disposition.

2 If the person at the first vncertaine, be afterwardes made certaine, whether is the disposition good or no.

3 What if some person be named, but no person found of that name.

1 WHere † no certaine person is named executor or legatarie, the will in that point is voideBar. in L. quidam. ff. de reb. dub. Clar. §. testm̄. q. 36. Grass. Thes. com. op. §. legatū. q. 64.: and therefore if the testator say, I make one man of the world my executor, or I giue to one of the world an hundred pound, no man can be exe­cutor, [Page] nor recouer the hundred pound by this dispositionAetiologia est, quia ista persona est incer­ta ex incertis. Bar. Grass. & Clar. vbi supra. Are. in §. ex incertis. Instit. de lega. & Man­tic. de coniect. vlt. vol. lib. 8. tit. 4., vnles he be able to proue, that the testators meaning was that he should be execu­tor, or haue the legacyMinsing. in d. § ex incertis. Saltem valet legatū iure can. Felin. in c. 1. de pact. extra.. Likewise wher the testa­tor saith, I make that person my executor, or giue him an C.li. whose name is written in a schedul. in the custodie of such a man, when as in deede there is no such schedule to be found, or being found, yet no name therein: this disposition is voideBar. in L. si ita ff. de cond. & demon. Couar in c. cum tibi de testā. extra. Simo de Praetis. de interp. vlt. vol. lib. 3. soluc. 1. n. 12.: neither is it sufficient that a paper or schedule be extant, and that the name be there­in plainly conteined, vnlesse also it appeare by sufficient proofe or lawfull coniectures, that this schedule is the verie same, whereunto the testator made relationBar. in d. L. si ita. Couar. in d. c. cum ti­bi. Grass. Thesaur. com. op. §. Instit. q. 16. Mant. de coniect. vlt. vol. lib 1. tit. 7. n. 7. Clar. § testm̄. q. 36. in fin..

If † no certaine person bee named at the 2 first, but afterwards made certaine by euent, the testament or disposition is of no lesse force then if the person had beene especially and certainly named at the firstL. quidam. & ibi. Bar. de reb. dub. ff. Angel. A­re. in d. §. incertis. Inst. de legat.: For example; the testator maketh that man executor, or giueth him an hundred pound, which shall marie the testators daughter: In this case whosoeuer shall marrie the testators daughter, he is to be admitted to the executorship, and may obtaine the legacie, as if he had beene named at the firstd. L. quidam, de reb. dub. ff. Nec obstat quòd tutor non potest dari is qui venit aliquo euētu certificandus, quia cō ­trarium procedit iure cano. Apost. ad Bar. in L. duo. ff. de testa. tute. Adde quod licèt exe­cutor non nunquam assimuletur tutori, vt ꝑ Bar. in d. L. quidam. & per DD. in L. si quis a filio. §. si quis pluries. de leg. 1. Tamen in Anglia aptiùs comparatur haeredi, qui incertus ex incertis euentu certificandus potest institui. Are. in d. §. ex incertis. Instit. de lega.. And this conclusion proceedeth whether the marriage be made in the life time of the testator, or after­wardsL. vter. cum sequent. ff. de cond, Instit. Donellus in L. quidam. de reb. dub. Bald. consil. 188. vol. 5.: sauing where the mariage is made after the death of the testator, if it be likely that the [Page 250] testator would not haue made that person exe­cutor, or haue giuen him the legacie, if he had thought that it would so fall out, that he should haue married his daughter, (for that perhaps that person was enimie to the testator, or other­wise vnworthie of any benefite by the testator:) In this case the person marrying the testators daughter after his death, cannot be executor, or recouer the legacieDonel. in d. L. quidād [...] reb. dub. Simo. de Prae­tis. lib. vlt. de Interp. vl. vol. fol. 128. n. 9..

3 If † a certaine person be named, but no such person be to be found, and the meaning of the testator vtterly vnknowen; it is as if the testator had made no mention of anyL. 2. ff. de his quae pro non script..

Of vncertaintie arising because there be diuerse persons of one name.
§. viii.

1 Where diuerse persons be of one name, the disposition is voide.

2 What if the testators meaning be knowen.

3 What if the one of them be a familiar friend, the o­ther not.

4 What if the one be of kin to the testator, the other not

5 The disposition ad pias causas, is not voide by rea­son of vncertaintie.

6 What if the testator giue somewhat to the Church, what Church is vnderstood.

7 What if there be diuerse churches of one name.

8 If the testator giue any thing to the poore: which poore are to haue the same.

9 The authoritie of the executor testamentarie, in di­stributing to the poore.

[Page] 10 What if the executor make his kin his executor, who is to be admitted.

11 What if the testator make an others kinne his exe­cutor.

WHere † the testator nameth some 1 one man his executor, or doth be­queath some legacie vnto him, and there be diuerse men of that name; this vncertaintie maketh voide the dispositionL. si quis. §. si inter. ff. de leg. 2. Bald. in L. hac consultissima. C. Qui testa. fac. poss. n. 4.: For example; the testator maketh Titius his executor; whereas there be diuerse persons so called: or to speake after the maner of our temporall lawyers, the testator maketh Iohn at Stile his executor, or giueth to him an hundred pound, and there be two persons cal­led Iohn at Stile, and the testator maketh no difference, but leaueth it vncertaine of whome he did meane: In this case neither of them can obtaine the executorship or legacieDD. in d. §. si inter..

But † if the one of them doo prooue that 2 the testator did meane, that he should be execu­tor or haue the legacie, it is sufficient for the ob­teining of the executorship or legacieBar. in L. quidam. ff. de reb. dub. Simo. de Praetis. de interp. vl. vo. lib. 1. fol. 97. n. 1..

Or if † one of them appointed be one of the 3 testators familiar acquaintance, and his friend, the other a straunger: In this case the straunger is excluded, and the other admittedL. quem haered. ff. de cond. & demon. Man­ [...]ic. de coniect. vlt. vol. lib. 8. tit. 4. n. 5.: or both of them being friends; yet if one of them bee ioi­ned in greater friendship with the testator then the other, he is to be preferred to the executor­ship [Page 251] or legacie befor the otherSimo. de Praetis. de Interp. vlt. vol. lib. 1. fol. 100. n. 3. Mantic. de coniect. vlt. vol. lib. 8 tit. 4. n. 5..

4 Or if the one of them † be of kin to the te­stator, and the other not of kin, the kinsman is to be preferredL. cohaeredi. §. qui discretas. ff. de vulg. sub. Mantic. de coniect. vlt. vol. lib. 8. tit. 4. n. 5.: and if they bee both cosins, then I suppose that whether of them were to be admitted to the administratorship, in case the testator had died intestate, that he is to bee admitted to the executorshipIas. in L. 1. §. hoc au­tem. ad Trebel. lect. 3. ff. Simo de Praetis. de Interp. vlt. vol. lib. 1. fol. 98. n 9▪ Mantic. de con­iect. vlt. vol. lib. 4. tit. 6. n. 3. 4..

5 Or if † the disposition be made ad pias cau­sas, it is not voide, by reason that the name is common or agreeable to diuerse. And there­fore 6 † if the testator doth bequeath any thing to the Church, not expressing what Church hee dooth meane, the disposition is not voide, but is to be vnderstood of his parish ChurchGloss. in L. quidam. ff. de reb. dub. Abb. in c. iudicante. de testa. extr. Bar. & Ias. in L. 1. de sacrosan. eccle. C. Grass. Thesaur. com. op §. Institutio. q. 12. & §. Legatum. q. 64. Manti. de coniect. vlt. vol. lib. 8. tit. 6.. And 7 if the testator † name a Church, and there be di­uerse Churches of that name, it is to bee vn­derstoode of his parishe ChurchBar. in L. conditione. §. cum ita. ff. de cond. & demon. Panor. in c. iu­dicante de testa. extra.: For ex­example; the testator dooth bequeath to Saint Peters Church in Oxford an hundred pound, where there be two churches of that name; this disposition is not voide: But the bequest is due to the testators parish Church, or where he did more vsually resorte to pray vnto God, or to heare his wordeEt haec est com. op. ait Ias. in L. qui insulā. ff. de verb. ob. Grass. Thesaur. com. op. §. le­gatum. q. 64. Couar. in d. c. iudicante de testa [...]. extra.. And if neither of them bee his parish Church, neither can it appeare that the testator did more frequent the one then the other: or on the contrarie, if both of them were his parish Churches, for that perhaps he kept a family in either parish, and did equally frequent either Church: In these cases, by the opinion of some writers, the legacie is to be diuided be­twixt the ChurchesBarba. in d. c. iudicā ­te. & ibi Couar. aste­rens hanc opinionem esse veriorem.. But by the opinion of the [Page] more part, it is in the power of the executor, or if the executor do refuse to proue the will, or that there be no executor appointed by the testator, thē it is in the power of the ordinarie, to bestow the same legacie on whether church he thinketh goodHostiens. & alij in d. c. iudicante, quorum op. esse com. fatetur Couar. in d. c. iudican­te. Idem quoque dicit Grass. Thesaur. com. op. §. legatum. q. 64. Be­nedict. Capra. Tract. re­gul. & fall. reg. 113., as the cōsideration of diuers circumstan­ces shall induce him: wherein (amongest other things to be remembred by the Ordinarie) this is not to be forgotten, viz. whether parish is the poorerGloss. in d. c. iudican­te. Mantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 4..

In like maner if the testator † make the poore 8 his executors, giuing them the residue of his goods: this disposition is not voide by reason of vncertaintie, for that it is a testament ad pias causas Tiraquel. Tract. de priuileg. piae causae. priuileg. 56.. By the poore therefore in this place, is vnderstoode the poore of the parish where the testator did dwell and keepe houseL quis ad Declind. §. vbi. C. de episcopis & cler. gloss. in c. si pater. verb. pauperes. de testa. lib. 6. Couar. in c. cum tibi de testa. extr. Man­tic. de coniect. vlt. vol. lib. 8. tit. 5. n. 2.: for it is likely that he did beare a great affection to the poore where he dwelledMantic. d. tit. 5. n. 2., especially also if the testator were buried in the same placePanor. consil. 99. lib. 2. n. 4.: and therefore the Ordinarie in this case ought to prouide, that the poore haue their due, accor­ding to the meaning of the testatorL. nulli. C. de episco­pis & cler. d. c. iudican­te. de testa. extra. & gloss. ibidem.. But if the † testator doo bequeath a certaine summe to 9 be distributed amongst the poore, and doo ap­point an executor, then it is the office of that ex­ecutor to distribute the sameMantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 2., who in the di­stribution thereof is not necessarily tied to be­stowe it wholy vpon the poore of that citie, pa­rish, or place where the testator did dwellGem. & Franc. in c. si pater de testa. lib. 6. (vn­les the testator did meane that the same should be bestowed on them aloneMantic. d. tit. 5. n. 2:) neither is he pre­cisely tied to make choise of the poorest per­sonsBar. in L. vnum ex familia. §. 1. ff. de leg. 2. Bald. in rep. L. 1. de sa­crosan. eccle. C. Man­tic. d. tit. 5. n. 6.; [Page 252] but may vse a further libertie, so that he do not abuse the sameParis. consil. 45. vol. 3. & Mantic. d. tit. 5. n. 8.: for he may not so make choise of any person, as it may seeme too op­pugne the testators liking and meāingAngel. in L. sed & si. §. si libertis. ff. de iud. Paris. consil. 26. vol. 4. n. 29.: neither may he bestow the whole legacie vpon one per­son aloneBar. in L. 1. ff. de op. leg. Bald. in rep. L. 1. C, de sacrosa. eccle. Man­tic. de coniect. vlt. vol. lib. 8. tit. 5. n. 18. 19., nor vpon himselfe, nor his children vnlesse they be verie pooreBrook. tit. exec. n. 116 c. tua nos de testa. extr, Imol. in Clem. 1. de te­sta. Mantic. d. tit. n. 9., nor vpon such per­sons as will vnthriftily spend it; but vpon such poore to whom it may do good, and especially if the kinsfolkes of the testator be poore, and of the same parish where the testator did dwell, they are to be preferredBald. in L illa Institu­tio. ff. de haered. instit. Paris. consil. 26. vol. 4. Mantic. de coniect. vlt. vol. tit. 5. n. 17..

10 Hereunto it may be added, that if the † te­stator make his kinne his executor, or giue his goodes to his kinne, that this disposition is not voide, but that they which bee in the next de­gree of kinred to the testator, to whom the ad­ministration of his goodes were to be commit­ted, if he had died intestate, are to be first admit­ted to the executorshipIas. in L. Gallus. §. quidam rectè. ff. de lib. & posthu. Tiraquel. de retract. ligniager. §. 11. gloss. 12. Grass. Thesau. com. op. §. Institutio. q [...] 20. n. 12., or to enioy the legacie during their liuesBar. in L. cum ita. §. fin. ff. de leg. 2. Paris. cō. sil. 49. vol. 2. Gra. ff The­saur. com. op. §. legatū. q. 41. & §. fideicommis­sum. q. 16., and after their deathes, the other next of kin to the testator are to be admit­ted one after another, successiuely by degrees, and not altogetherPaul. de Castro. in d. L. cum ita. §. fideicom­misso. Cuius op. cō. est vt tef [...]rt Paris. consil. 11. n. 28. vol. 3. Couar. in c. Ranutius. §. 2. de testa. extra. Grass. The­saur. com. op. §. fideicommissum. q 16.; sauing where the testator doth make anothers kinred his executor, or doth bequeath some legacie to any others kin: for then they are all to bee admitted together, without respect or degree, neerer or further ofBar. in L si cognatis. ff. de reb. dub. Simo. de, Praetis. de interp. vlt. vol. lib. 3. fol. 91. n. 28. Grass. Thesaur. com. op. §. Institutio. q. 20. n. 10.: The reason of the difference is, because the te­stator is not presumed to carie an equall affec­tion [Page] towardes euerie of his owne kinne, but to him that is neerer of kinne greater loue, and to him that is further off, lesser: And therefore of his owne kinred the best beloued is first pre­ferred, which inequalitie of good will, is not presumed towardes anothers kinred, and therefore they are admitted without diffe­renceBar. & Simo. de Prae­ris. vbi supra..

Vncertaintie arising by reason of al­ternatiue or disiunctiue speech.
§. ix.

1 The executor saying, I make A. or B. executor, it is as if he had saide, I make A. and B. executor.

2 What if the testator be more affected to the one then to the other.

3 What if the election be referred.

4 What if the one be capable, the other not.

THe alternatiue † or disiunctiue speech 1 of the testator in making executors or disposing of any legacie, doth not hurt the testamentL. cum quidam. C. de verb. signif.: And therefore if the testator say, I make A. or B. my executors, or I bequeath to such or such a person an hun­dred pound: this disposition is not voide, but both of them shall be admitted executor, and both of them obteine the legacie, to be diuided betwixt themd. L. cum quidam. & DD. ibidem..

And albeit, at the first there was great dis­sension [Page 253] and conflictes in opinions about this question; at last it was established for lawe that this worde (or) in fauour of testamens should be taken for (and Text. in d. L. cum qui­dam.) when it is so placed betwixt two persons, as it may seeme to minister doubt to the hearer, of whether person the testator did meane§. melius. in d. L. cum quidam.: And therefore the testator saying, I make A. or B. my executor, it is in effect, as if hee had saide, I make A. and B. executorsd. §. melius., &c. which conclusion notwithstanding is some­times limited, and one onely of the persons is to bee admitted.

2 The first limitation is, when † the testator dooth beare more affection to the one then to the other; for then he to whom the testator bea­reth more affection, is to bee preferred before the otherRipa. in c. inter cae­teras. de rescrip. extra n. 54. Paris. consil. 21. vol. 3. Iul. Clar. §. testm̄. q. 80. n. 5.: For example; the testator saith, I make my brother, or his children my execu­tors, or I bequeath to my brother, or his chil­dren such a thing: In this case, forasmuch as the testator is presumed to carrie a greater loue to his brother then to his brothers children, hee shall first be admitted to the executorship, and obtaine the legacie, and enioy the same during his life, and after his decease, his children then shall be admittedL. cum pater. §. à te. ff. de leg. 2. Bald. in c. 1. de eo qui sibi & haered. suis. lib. feud. Iul. Clar. d. q. 80. n. 5.. But this vnequall order of affection hath not such vnequall effect, when the testator doth make his brother and his chil­dren executors, by this worde and, or with, as before hath beene declared, for then they bee all admitted equally and not succes­siuelyIas. in L. Gallus. §. quidam rectè. ff. de lib. & posthu. Clar. §. testm̄. q. 80. n. 6. quae opinio ab omnibus iuris in­terp. est recepta, ait Clar. eod. n. 6..

3 An other limitation is, when † authoritie [Page] is granted to another of making election: For example; the testator maketh his executors A. or B. whome the Ordinarie shall chuse, or gi­ueth an hundred pound to A. or B. whome the executor shall chuse. In this case, this disiunc­tiue or, standeth properly, and is not changed into a coniunctiue: and so election being made of the one, the other is excludedL. [...] Titio. aut Serio. de leg. 2. L. vtrum. §. cū quidam. de reb. dub. ff..

An other limitation is, when † the one of 4 the persons is not capable of the executorship or legacie: for then also the disiunctiue stan­deth properlie, and the other person alone shall obtaine the executorship or legacieIas. in L. cum quidā. C. de verb. signif. limi. 5. quippe qui alias ha­bet in eo loco istius regulae limitationes..

Of vncertaintie respecting the thing bequeathed.
[Page 254]§. x.

1 Whether vncertaintie by reason of generalitie in the thing bequeathed, dooth make void the dispo­sition.

2 Whether the disposition bee voide when that is be­queathed which of the Logitiās is called Species.

3 Whether the legacie of wine or corne, no quantitie being expressed, be voide.

4 By the equitie of the ecclesiasticall lawes, vncertaine testaments are saued from destruction.

5 Who ought to choose where a legacie is giuen gene­rally, the executor or the legatarie.

6 The maner of election.

7 Of legataries who must choose first.

8 Of collegataries dissenting amongest themselues, what meanes is to be vsed.

THat the disposition or bequest is sometimes ouerthrowne or desti­tute of effect, by reason of the vncertaintie of the thing bequea­thed, may appeare by that which hath beene alreadie spoken of error in the thing bequeathedSupra. ead. part. §. 5▪: For by what meanes the testator dooth erre, by the same meanes is his disposi­tion made vncertaine: concerning which kind of vncertaintie, whether it destroy the legacie or no, dooth there appeare. Now therefore of some other kinde of vncertaintie respecting the thing bequeathed, and namely whether the vn­certaintie growing by occasion of generalitie, make voide the bequest, or not.

1 First, when † any thing is bequeathed vnder such generall wordes, that the meaning of the testator is vnknowne, the disposition remaineth without effect: as when the testator saith, I do be­queath something, or I bequeath a substance, or I bequeath a bodie, or a liuing creature Gloss. & DD. in L. le­gato. generaliter. & L. si domus. ff. de leg 1., for that which the Logitians call genus either generalissi­mum, or subalternum, being bequeathed, the exe­cutor is said to bee deliuered, if he giue but a peece of bread, or a flieAccurs. Bar. & com­muniter DD. in d. L. legato. quamuis Zasius in d. L. & Io. Rub. lib. 2. sententiarum. c. 14. di­cunt inutile quidē esse legatum, non tamen quia haeres dando quid minimum liberetur, sed quia effusum adeo & incertum est legatū, vt inutilem▪ potius quā vtilem actum, concipe­re voluisse, testator in­telligatur..

2 If the † testator bequeath such a thing, which in Logicke is called species Quod enim dialecti­cis est species Iuristae genus appellant, quē ­admodum & species dicitur à iurisc [...]nsul­tis, id quod Dialectici appellant indiuiduum. Minsing. in §. si gene­raliter. Instit. de legat., & in law genus, then we are to cōsider, whether the same thing do re­ceiue his limits of nature, as a horse, a tree, &c. or of a man, as a shippe, a gold chaine, or of weight, [Page] number, or measure, as lead, money wheatZas. lib. 1. Sing. re­spons. in princ. n. 33. Minsing. in d. §. si ge­neraliter., &c.

In the first case, viz. if the testator bequeath a horse, the bequest is good, whether the testator haue any or noneBar. Paul. de Castro. & omnes Doctores in d. L. legato..

In the second case, viz. if the testator be­queath a shippe, or a golde chaine, by the common opinion of writers, the legacie is voideAngel. & Alex. in L. si domus. ff. de leg. 1. Ias. in eand. L. n. 16. ampl. 2. & 3. Bar. & Lanc. Dec. [...]n L. quod in [...]erum. §. & si Nauem eod., vnlesse the testator haue a shippe, or a chaine. But o­thers are of opinion that the legacie is good, al­though the testator haue no ship, or chaineZas. Sing. intel. lib. 1. c. 1. n. 42. 43. &c. Peckiꝰ de testa. coniug lib. 5. c. 26. Minsing in §. sed si generaliter. Instit. de lega. n. 9. 10. Claud. cau­tiuncula, & alij, de qui­bus Peckius in d. c. 26, qui hanc sententiam vt veriorem defendunt in re magis dubia, nē ­pe in domo simpliciter legata. Grass. §. legatū. q. 61. n. 4. in fin.: and this opinion seemeth more reasonable, & more agreeable to the equitie of the ecclesiasti­call lawesZas. in L. Triticum. & in L. ita stipulatus, de verb. ob. ff., especiallie if the testator knew that he had no ship, or chaine of his owne, when he made his will.

In the third case, viz. if the testator doo be­queath lead, or money, or wheate, not expressing the quantitie, the bequest is vnprofitable, be­cause of the great vncertaintie: at least it see­meth the executor is deliuered, by deliuering a verie littleL. nummis. ff. de leg. 3. Gloss. in d. L. legato.. Howbeit if the legacie consisting in weight, number, or measure, be disposed for the performance of some acte, or other certaine consideration, as for the building of some bridge, or amending of high waies, or for the e­ducation or alimentation of some person, or maintaining him at studie, or for the reliefe of the poore, or for the repairing of the Church, or for other like vses: In these cases the legacie is not voide, albeit no quantitie be expressed: for so much is vnderstoode to be disposed, as may satisfie or answere that purpose, whereunto it is appointed; and as the ordinarie considering [Page 255] the necessitie of the thing, and the abilitie of the testator, and the continuance of the gift, shall deeme conuenientZas. in L. ita stipula­tus. de verb. ob. ff. n. 14. 15. & Ripa. in eand. L. n. 19. 20. 21. &c..

3 Moreouer, by the † equitie of the lawes ecclesi­asticall, not onely the legacie generall of things consisting in weight, number, or measure, as of wine, of oile, of corne, of iron, of brasse, mony, &c. is good and auailable, without any quanti­tie expressed by the testator, which quantitie is vnderstood to be left to the discretion of the or­dinarie, to be limited by him as due circumstan­ces 4 shall induce himArchid. in c. sunt nonnulli. 1. q. 1. Abb. in c. 1. de dec. extr. gloss. & DD. in c. nos quidē. de testa. extra.: but also by the same † e­quitie, it seemeth that the general legacie euen of that which the Logitiās cal genus (which may be verified of things different in kind) is not voidVeluti si animal le­gatum fuerit Zas. in L. Triticum. ff. de verb. ob. n. 11. Archid. in c. sunt nonnulli. 1. q. 1.; but it is to be certified and declared by the Or­dinarie according to the estate of persons, the common cause, and whatsoeuer may be collec­ted by other circumstancesZas. vbi supra. & in L. si ita stipulatus. ff. de verb. ob. & ibi Alex. & Ripa.: much lesse is the legacie void, where the testator doth bequeath a certaine quantitie of corne, or wine, or other things consisting in number, weight, or mea­sure, not expressing the kind of corn, viz. wheat, rie, or barlie; or of wine, viz. white, secke, or claretZas. & Ripa. in d. L. si ita stipulatus..

5 Here it may bee demaunded, who † shall choose, where the legacie is generall, the execu­tor or legatarie? To this question thus: If the testator doo expresly graunt the election, the doubt is easily answered: he to whom the elec­tion is grantedGrass. Thesaur. com. op. §. legatum. q. 62. in. prin. Lanc. Dec. & Ias. in l. legato. ff. de leg. 1..

If there be no expresse graunt made by the testator, then if the woordes of the disposition [Page] be directed to the legatarie: as if the testator shall say, I will that A. B. shall haue a horse, the electi­on dooth belong to the legatarieGloss. in L. lucio. ff. de leg. 2. & h [...]ec opin [...]o commu­nis est, tes [...]e Grasso, d. [...]legatum. q. 62. n. [...].: but if the wordes of the disposition be directed to the exe­cutor: as if the testator say, I will that my execu­tor giue to A.B. a horse, then the election doth appertaine to the executorCouar in c. [...]dican­ [...]e. d [...] [...]e [...]a. extr. n. 3. [...]as. & a [...]ij in d L. legato quo [...]um opinio com­mua [...] est, vt per Gras. vbi supra.. If the wordes be neither directed to the executor, nor to the legatarie, it is answered, that if the thing bequeathed haue his limites assigned of nature, then the election is in the legatarie, in case such things be extant a­mongst the testators goods: and in case there be no such extant, the election is in the executorGloss. Alex. Ias. Zas. in d. L. legato genera­liter. & horum senten­tia communis est, ait Grass. d. q. 62. n. 3.. But if so be that the thing bequeathed be limi­ted by man, the election dooth apperteine to the executorIas. in d. L. legato. n. 20. Grass. d. q. 62 n. 3. verb. aut verò. contra­rium Minsing. in d. §. si generaliter. n. 9. sed prior opinio est com­munis, vt per eund. Grass.: and so it is of things consisting in number, weight, or measureL. 3. & 4. ff. de Tritic. vin. & oleo leg. Zas. in d. L. legato. n. 18., albeit there be of those things extant amongest the goodes of the deceasedAtque haec opinio communiter approba­tur, siuè test [...]tor de certo senserit, siue nō, vt per Grass. vbi supra. qui [...]amen distinguit., much more if there be none extantMinsing. in d. §. si ge­neraliter. n. 7. Zas. [...]n d. L. legato in sin..

Prouided † alwayes, that of those things 6 whch be extant the legatarie hauing the bene­fite of election, must not choose the very bestGloss. in L. si quis à filio. §. si quis plures. ff. de leg. 1 Zas in d. L. le­gato generaliter. n. 13. 14. Minsing. in d. §. si generaliter. n. 6., vnlesse there be no more but two of the things extant (for then he may choose the betterL. si seruus. §. cum homo. ff. de leg. 1. Zas. in d. L. legato. n. 14.) or vnlesse the testator do graunt election, for then he may choose the bestL. 2. ff. de option. leg. & Wesenb in eund. tit. n. 1. per L. in testamentis. de reg. iur. ff. è regione stat Zasius scribe [...]s, quòd etiamsi legatatio detur optio, non tamen optima, sed mediocria sunt eligenda. in d. L. legato. n. 13.. And likewise on the contrarie part, where the election belongeth to the executor, he may not obtrude to the legata­rie, the very worst of those things which be ex­tant [Page 256] in the patrimonieDD. in d. L. legato. Couar. in c. iudicante de testa. extra. n. 3. & hoc indubitatum in speciebꝰ. Sed in quāti­tatibus & in summis, quod minimum est de­beri intelligitur, si Ca­strensi credamus. in d. L. legato. n. 4. Verum in huiusmodi legatis ser­uandum est boni viri arbitrium. Archid. in c. nonnulli sunt. 1. q. 1. Abb. in c. 1. de dec. ex­tra. n. 6.: and whereas there be not any such thinges amongest the testators goods, the executor must prouide some com­petent thingZas. in d L. legato. n. 22. post gloss. ibidem..

Furthermore, it is to be remembred, that if the testator hauing two things, wherof the one is much better then the other (be it for example two horses) do bequeath to two persons either of them a horse, he that is first named in the te­stament may first chooseBar. in L. qui duos. ff. de leg. 1. quae senten­tia communiter approbatur, vtrefert. Grass. d. §. legatum. q. 62. in fin..

8 Finally, this is not to be omitted, that if the † legataries dissent aboute the election of the thing bequeathed, this controuersie is to be de­cided by lot, if it be not otherwise resolued who in that choise is to be preferred§. optionis. Instit. de lega..

Of vncertaintie in respect of the time or date of the te­stament.
[Page]§. xj.

1 When it is vncertaine whether of two testaments is later, both are voide.

2 The testament in fauour of children is presumed last.

3 The testament ad pias causas, is presumed last.

4 The will once proued, is not to be reproued by an o­ther of the same date.

5 A souldier may die with two testaments.

6 Which of these two testaments is presumed later, the testament ad pias causas, or the testament in­ter liberos.

WHere † two testaments be founde, 1 but vncertaine whether of them is the later: in this case neither testa­ment is goodGloss. in L. vlt. C. de edict. [...]i. Adria. toll. Clar. §. testm̄. q. 100., for no man can die with two testamentsL. quaerebatur. ff. de testō. mil., and so the one testament doth destroy the otherBar. in L. 1. §. 1. ff. de bon. poss. secundum Tabul..

Neuerthelesse, if the † one testament be 2 made in fauour of the testators children, or of those who are to haue the administration of his goods, in case he had died intestate, and the o­ther testament in fauour of others; then that te­stament shall preuaile which is made in fauour of the testators children, or of them which o­therwise are to haue the administration of his goodsBar. in d. §. 1. Sichar. in L. vlt. C. de edicto Di. Adr. toll. Mantic. d [...] coniect. vlt. vol. lib. 2. tit. 15. n. 17..

Or if † the one testament be made ad pias causas, 3 the other not; then that testament ad pias causas is presumed last, and so to take placeIas. & Sichard. in d. L. vlt..

Or if † the one testament be proued (the other 4 perhappes not as yet appearing) and the execu­tors in possession of the testators goods by ver­tue of the testament alreadie proued, it is not af­terwards to be reproued, nor the executors dis­possessed, by meanes of the other testament of the same dateBar. in d. §. 1. Ias. & Sichard. in d. L. vlt..

Or if † the testaments be militarie testaments, 5 for then perhaps they are both good, because a souldier may die with two testamentsL. quaerebatur. ff. de mil. testa..

Where it is saide, that that testament is pre­sumed later, which is made in fauour of them [Page 257] that are to haue the benefite of the administra­tion of the testators goods, or ad pias causas, ra­ther then those testaments which are not made ad pias causas, nor in fauour of them which are 6 to haue the administration: What † if two te­staments be found, the one in fauour of the te­stators children, or such as are to haue the ad­ministration of the goods of the deceased; the other made ad pias causas, and it dooth not ap­peare whether of them is former or later, whe­ther is to be presumed last, and so of force? I sup­pose that if they which are to haue the admini­stration of the testators goods, in whose fauour the testament is made, be the testators children, then that testament made in their fauour is to be presumed later, rather then the testament ad pias causas Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 43. Vide supra 1. part. §. pen. in sin. & quod ibi adnotaui ex Augusti­no.: otherwise the testament ad pias cau­sas is to be presumed later, rather then that te­stament made in fauour of collaterall kins­menMantic. vbi supr. per L. sancimus. C. de sa­crosan. ecclesia..

Of an vnperfect testament.
§. xij.

1 Two sorts of vnperfect testaments.

2 Whether a testament which is vnperfect in respect of solemnitie be voide.

3 When a testament vnperfect in respect of will is voide.

4 Two meanes whereby testaments are saide to be vn­perfect in respect of will.

5 Whether the testament be voide which is vnperfect by the former of these two meanes.

6 By the ciuill lawe the testament vnperfect in respect [Page] of will is voide.

7 Whether a testament ad pias causas being imper­fect in respect of will, be voide.

8 That which hath place in testaments ad pias cau­sas hath place also in our testaments.

9 Whether a testament being vnperfect in respect of will, by the second meanes be voide or not.

10 What if the testator after hee haue declared his whole will, reserue somewhat to be done at an other time.

11 What if the testator hauing declared his testament doo sende for a Notarie to write, and die in the meane time.

OF imperfect † testaments there be two 1 sorts, the one vnperfect in respect of solemnitie; the other vnperfect in re­spect of will L. hac consultissima. § ex imperfecto, C. de testa. & ibi Paul. de Castro. Ias & alij. Boer. decis. 240. n. 4. & 5..

That testament is said to be vnperfect in re­spect of solemnitie, which wanteth some of the legall requisites, necessarie to the constitution and denomination of a solemne testamentSichard. & alij. in d. §. ex imperfecto., of which we haue alreadie spokenSupra 1. part. §. 7. & part. 4 §. 23..

That testament is said to be imperfect in re­spect of will, which the testator hath begun, but cannot finish as he would, being preuented by death, insanitie of minde, or other impedi­mentsIas. Sichard. & alij, in d. §. ex imperfecto. L. si is qui de testa. ff. L. fu­riosus. qui testa. fac. poss. C..

The † testament which is vnperfect in re­spect 2 of solemnitie, is vtterly voide by the ciuill laweL. 1. de iniusto testō. ff. L. hac consultissima. §. ex imperfecto. C. de testa. & DD. ibid. Min­sing. in §. sed cum pau­latim. Instit. de testa. ord. n. 12. Iul. Clar. §. testm̄. q. 89.: but by the lawes ecclesiasticallc. relatum. el. 1. c. cū esses. de testa. extra., and espe­cially [Page 258] by the generall custome of this realmeTract. de repu. Aug. lib. 3. c. 7. Lindw. in c. statutum. de testa. lib. 3. prouinc. const. Cant., the testament is good without any such solem­nities, sauing that where lands, tenements, and hereditaments be deuised by will, the solemni­tie of a writing in the life time of the testator, is precisely necessarie, without the which the de­uise of lands, tenements, and hereditaments is meerely voidper Stat. H. 8. [...]an. 32. c. 1. vt refert D. Smith. Tract. vt supra. Quod tamen quaere..

3 The † testanent which is vnperfect in re­spect of will, is sometimes vtterly voide, and sometimes it is good, so farre forth as it is done: which diuersitie of effects, doth arise by the di­uersitie of the meanes whereby the testament is vnperfect.

If we would therefore know particularly when the testamēt is vtterly void or not, which is vnperfect in respect of will, it behooueth vs to take particular view of the seuerall meanes whereby the will of the testator is made vn­perfect.

4 The † meanes whereby the testament is vn­perfect in respect of will, seeme to be twoMascard. Tract. de probac. verb. testm̄. cō ­clus. 1352. n. 70. ibi. Se­cundus casus. Grass. T [...]esaur. cō. op. in §. te­stm̄. q. 19. vbi proponit tres casus.: the first is, when the testator after he haue begunne to make his testament, and intending to proceed further at that present, is then suddenly euen whiles he is making of his testament, pre­uented by death, or insanitie of minde, or by some other impediment, so that he cannot fi­nish the same according to his purposeL. si is qui de testam. ff. L. furiosum. qui te­sta. fac. post. C. Ias. & Sichard. in L. pen. de Instit. & sub. C..

The other meane is, when the testator is not hindered at that present time of making his testament, but after he haht begun to make his testament, deferreth the finishing or perfecting [Page] thereof vntill another time, and in the meane time dieth, or otherwise becommeth inte­stableOldrad. consil. 119. Paul. de Castr. cons. 75. vol. 1. & consil. 450. vol. 2. Peckius. Tract. de testam. coniug. lib. 1. c. 18..

When † the testament is vnperfect after the 5 first maner, it may seeme that the same is vtter­ly voide, euen touching that which is alreadie done; yea although the testator had appointed an executor, which is the substance of the testa­ment: and there † is no question, but that by the 6 ciuill lawe it is voide, though it were the testa­ment of the father amongst his childrenBar. Bald. Castrens. & alij, in L. hac consul­tissima §. ex imperfe­cto. C. de testa. quorum op. com. est, vt referunt Iul. Clar. §. testm̄. q. 9. & Michael. Grass. Thesa. com. op. §. testm̄. q. 12.. But whether it bee voide iure gentium, and conse­quently by that law which we vse here in Eng­land, is a question not altogether vndoubtfull: and the resolution seemeth to depend vppon the veritie of another question: namely, whe­ther a testament ad pias causas being vnperfect with that imperfection of will, be good or not: For if a testament ad pias causas be good, not­withstanding such imperfection, then our testa­ments are also good: and if that testament bee not good; then ours are likewise nought: for these testaments ad pias causas, are ruled secundum ius gentium Panor. in Rub de te­sta. extr. n. 9. Tiraquel. de priuileg. piae causae. c. 3. &c. 5. Corne. cons. 307 Couar. in c. relatū. cl. 1. n 6. Paul. de Castr. consil. 75. circa medi­um. vol. 1. & consil 450. vol. 2. Grass. Thesaur. com. op. §. testm̄. q 18. vbi dicit hanc op. com. esse iure can.; and so are oursDixi supra part. 1. §. 9..

Now † that a testament ad pias causas being 7 vnperfect in respect of will, is vtterly void, euen touching that which is alreadie done, is holden by a great many of writers, and those of great account and authoritieBald. in rep. L. 1. de sacrosan. eccle. C. q. 6. Angel. in L. si is qui de testa. ff. Fulgos. consil. 117. Anch. in c. 2 de te­sta. extr. Are. in d. L. si is qui. Boer. decis. 210 Vasq. de success. crea. §. 22. n. 6. Paris. consil. 24. vol. 3. Tho. Gram. decis. 62. Sichard. & Curtius Iun. in d. L. hac consultissima. §. ex imperfecto., whose opinion is also testified to be commonIul. Clar. §. testm̄. q. 7. Immo magis est com. ait. Grass., and highly extolledAb hac opinione in Prax. non licere recedere scripsit Ruinus. consil. 7. n. 8. vol. 3. Eand. op. esse non modo com. sed canonicam & verissimam, laudat Vsuius. Thesau. com. op. verb. testamentum. tandem ma­gis communem esse, asserit Grass. §. test. n. q. 19.: [Page 259] their reason is, because in this case here is de­fect of consent, without which consent no te­stament is goodSichard. in d. §. ex imperfecto.. There is defect (say they) of consent in this case, because testators whiles they are making of their testaments, vntill they haue finished the same, doo put in, and put out, they adde, they reuoke, and they alter manie things alreadie by them disposedClar. §. testm̄. q. 7.: Other rea­sons also they haue, the which in my opinion are not altogether so forceableNempè quod testm̄. ratione voluntatis im­perfectum. non valet inter liberos, ergo nec fauore piae causae: Sed negatur argumentum per ea quae superiùs dicta sunt prima parte de priuileg. vtriusque testamenti..

On the contrarie, others whose not onely number is more exceeding, but authoritie and estimation more excellent, are of this opinion, that where the testator hath begunne his testa­ment, and hath bequeathed certaine legacies ad pias causas, and intending at that present to proceed further, is then suddenly by death or other impediment preuented, or hindered, that he cannot finish his testament: neuerthe­lesse those legacies alreadie made ad pias causas, are not thereby infringed, but do continue still firme and effectuall, as if the testator had fini­shed his testament, according to his former purposeBar. & Imola. in L. is qui. ff. de testa. Castren. consil. 456. vol. 1. Pa­nor. in c. 1. de success. ab intestat. extr. Alex. in L. hac consultissima. §. ex imperfecto. C. de testa. A [...]e. in §. fin. Inst. quib. mod. testa. infir. Ias. consil. 15. vol. 4. So­cin. Tract. reg. & sal. reg 300. Ioh de Ana. consil. 7. Barba. consil. 42. vol. 4. Calca. consil. 13. Dec. in c. 1. de fide instr. extr. Tiraquel. de priuileg piae causae. c. 7. Mascard. de pro­bac. verb. testm̄. Couar. in c. relatum. el. 1. de testa. extr., and this their opinion is testified to be more commonly receiuedTiraquel. Tract. de priuileg. piae causae. priuileg. 7. Mascard. de probac. verb. testm̄.. The reason of their opinion is, because touching those legacies al­readie giuen, there is no defect of naturall con­sentPanor. in d. c. 1. de success. ab intestat. extra.: For although there bee imperfection of will in respect of his whole testament, because the testator cannot absolutely finish the same according to his purpose: yet in respect of that which is done, there is no imperfection of willTiraquel. de priuileg piae caus. e. priuileg. 7. Dec in c. 1. de fide in­str. extr. (the perfect is not to be hurt by the imperfectc. vtile. de reg, iu [...]. extra.) [Page] And albeit testators whiles their willes and te­staments are in making doo many times adde and diminish, and alter diuerse things, yet who is able to say that concerning this, or that parti­cular legacie alreadie giuen, the testator would haue made any addition, diminution, or altera­tion: The presumption is rather to the contra­rie, for perseuerance and not mutation of will is presumedL. cum qui volunta tem. ff. de probac.. In deed if it can be prooued that the testator did meane at that present to alter those legacies before giuen ere he had finished his testament and could not, being then sud­denly preuented by death, or otherwise, then the former opinion hath placePaul. de Castr. in L. iubemus. de testa. & DD. in L. pen. de Instit. & sub. C., that the dispo­sition is voide, otherwise notQuia nemo praesu­mitur habere plus in corde quam in ore. Bald. in L. si is qui. ff. de testa..

By † this now which hath beene spoken of 8 testaments ad pias causas, we may iudge whether our testaments here in England bee good or not, when they be inperfect by the first meanes, viz. where the testator whiles he is in making his testament, after he haue appointed an executor, or giuen some legacies, and intending to pro­ceed further, is euen then suddenly interrupted and hindered, that he cannot finish the same ac­cordingly.

When † the testament is imperfect by the 9 second meanes of imperfection of will, that is to say, when the testator after he haue begun to make his testament, doth put off or defer the fi­nishing thereof vntill an other time, and in the meane time dieth, or is otherwise letted, that he cannot make an end thereof, as he meant, how­soeuer by the rigour of the ciuill lawe the testa­mēt [Page 260] in this case may seeme to be void, euē tou­ching that which is alreadie donePaul. de Castr. con­sil. 150. vol. 2.: yet by that lawe which this realme of England doth admit, in this case (I meane ius gentium) concerning those things alreadie disposed, the testament is not voide by the reasons before alledged. For as in the former case the legacies alreadie giuen are not voide, where the testator cannot finish his testament as he woulde at that time: so in this case, the legacies before disposed, or the consti­tution of the executor befor made, dooth not become voide, where the testator cannot fi­nish his testament as he purposed at another timeCum igitur eadem ratio in vtroque casu militet, idem etiam ius constitui oportet. Nec casus diuersitas, sed ra­tionis identidas inspi­ci debet Aymo Gra­uetta. consil. 190..

10 Much lesse † is that testament voide, where the testator hauing declared his whole will and intending to do no more at that present, reser­ueth somewhat to be done at another time, and in the meane time dieth: For euen by the ciuill law in this case the testament is perfect, not­withstanding such reseruationsAret. Ias. & Sichard. in L. pen. C. de Instit. & sub. Grass. Thesaur. com. op. §. testm̄. q. 12. n. 4. quam sententiam communiter receptam monstrat. post Lud. Zant. Respons. pro vx. n. 302.. Wherefore if the testator after that he hath made his will, do say that he wil adde, diminish, or alter any thing in his will the next day, and die in the meane time, before any such additions, detractions, or alterations be made, the testament is not to be noted of imperfection by any such reseruati­on of adding, diminishing, or altering his testa­mentSimo. de Praetis. de Interp. vlt. vol. lib. 1. fol. 195. Io. de Ana. cons. 44; because these things may be don by way of codicill, without the which the testament is sufficiently perfectSichard. in L. pen. de Instit. & sub. C. in sin., and especially the testa­ment remaineth firme and effectuall, where the testator dooth ouer-liue the time by him pre­scribed [Page] for such additions, diminutions, or alte­rations, for then he is presumed to haue repen­ted him of such additions, by not dooing the same when he mightAlex. cons. 74. vol. 1. Olden de action. class. 5. fol. 498. Paul. de Cast. in L. iubemus. C. de te­sta..

Hereunto † it may be added, that where 11 the testator hauing declared his whole will be­fore witnesses, causeth the a Notarie or Scribe to be called vnto him intending to haue the same committed to writing, for a more sufficient proofe of his testament, and before the com­ming of the Notarie dieth: In this case the te­stament is good, and ought to preuaile as a Nuncupatiue testamentAlex. in L. hac con­sultissima. §. ex imper­fecto. C. de testa. Grass. Thesaur. com. op. q. 12. n. 6. Mantic. de coniec. vlt. vol. lib. 1. tit. 7. n. 6. vbi ostendit hanc op. esse com.: neuerthelesse, if it may be prooued, that the testator did restraine himselfe to the written testament, and that it was his will and meaning, that the testament should not be of force, vnlesse it were written, then the testator dyeth in the meane time be­fore it be written, the testament shall not be al­lowed as a Nuncupatiue testament, & so not at allBar. post Dyn, in L. vlt. ff. de iure codicill. Oldrad. consil. 119. Ca­strens. consil. 75. vol. 1. & cons. 450. vol. 2. Pec­kius. de testa, coniug. lib. 1. c. 18. Grass. The­saur. com. op §. testm̄. q. 11. el. 1.: But it is not presumed, by sending for a Notarie, that otherwise the testator would that his testament should take no place, vnlesse it were writtē Couar. in c. relatum. el. 1. de testa. extra. n. 11. ibi tertia conclusio. Mantic. d. c. 7. n. 6., but rather for a more ready proofe of his willGrass. d. §. testm̄. q. 12 in sin..

Of defect in the testators meaning.
§. xiij.

1 No testament good without a firme resolution of the minde to make a testament.

2 Wordes vttered rashly, or vnaduisedly done, not import a firme purpose in the testator.

[Page 261] 3 It is the minde and not the words which giueth life to the testament.

4 What is to be considered to prooue a firme intent of making a testament.

5 Of the draught of a will in writing.

6 If a writing be founde in manner of a will, whe­ther is it presumed the verie will, or but a draught thereof.

1 IF the † testator haue not animum te­standi, that is a firme resolution, or adui­sed determination of making his testa­ment, his testament is voide, or rather 2 no testamentL. Diuus. ff. de mil. testa. §. plane. Instit. de mil. testa.. And therefore † if any man rash­ly, vnaduisedly, incidently, ieastingly, or boa­stingly, and not seriously, nor with a firme pur­pose to make his will, do say and affirme (as of­tentimes it happeneth) that he will make such a man his executor, or will leaue vnto him all his 3 goods, this is no testamentL. vlt. ff. de testa. & DD. ibi, & in d. L. diuus & §. plane. Hottoman. cons. 5. vol. 1. Socin. iun consil. 179. vol. 2. Paris. consil. 89. vol. 3. Hyero. Franc. in L. quicquid. de reg. iur. ff.: For † it is the mind and not the wordes of the testator, that giueth 4 life to the testamentMantic. de coniect. vlt. vol. lib. 2. tit. 15. in fin. L. ex feodo. ff. de haered. instit. At (que) huc pertinent quae superiꝰ à me scripta sunt in ex­plicatione definitionis testamenti. verb. sen­tentia. 1. part. §. 3.. Which † minde or earnest purpose ought to be proued by circumstancesGloss. in §. plane. In­stit. de testa. mil., as that the testator was verie sicke when hee spake these wordesGloss. in L. diuus. ff. de mil. testa., or that he did require the witnesses to beare witnesse thereofeadem gloss. in d. L. diuus., or that hee framed and setled himselfe earnestly to the ma­king of his testamentGloss. in d. L. plane., or by other circumstan­ces of like effectL. Pamphilo. §. pro­positum. ff. de leg. 3. & DD. ibidem., wherein the Iudge is to con­sider the condition of the person speaking the words, the time, the place, the occasion, the ma­ner [Page] of speech, and in whose presenceMenoch. de arbitr. Iud. lib. 2. centur. 5. cas. 496., and namely whether the words were of the present or future timePaul. de Castr. in L. fin. ff. de testa. Hottom. d. consil. 5.: and if the words be of the fu­ture time, then whether they bee such as doo import the acomplishment of the act, or but the beginning onely: for those of the former sort being executorie, are equiualent to woordes of the present timeAlciat. Ripa. & alij, in L. serui electione. ff. de leg. 1.: By which circumstances the discreete Iudge may the better collect, whether he that vttered the words had a minde or pur­pose thereby to make his testament or notMenoch. d. cas. 496. ex quo abundè hauri­re poteris, vnde sitim tuum extinguas..

As wordes † onely without a constant pur­pose 5 of making a testament, do not make a testa­mēt, so that writing which is prepared or desti­ned for a draught or image of the testators will onely, or for a more readie direction of the te­stator wherby to make his testamēt afterwards, is no more to be accounted a testament before it be acknowledged by the testator for his te­stamentL. ex ea scriptura. de testa. L. fidei commissa. §. 1. de leg. 3. ff., then is the draught of a sentence to be taken for a sentence, vntill it be pronounced by the IudgeL. 2. & 3. de senten. ex breuiloqua recit. C. c. sin. de re iud. 6. Vantius de nullitat. viz. de null. ex defectu processus, &c. n. 69. 70. Bald. in d. L. fidei commiss. §. 1. E­uerard. consil. 155. n. 8., or the draught of an obligation is to be accounted for an obligation before it be sealed and deliuered by the oblige as his acte and deedeL. contractus. C. de fide Instr..

Notwithstanding I do not hereby meane, that it is alwayes necessarie the testator should acknowledge before witnesse the testament by him written, to be his last will and testament, or that it is alwayes necessarie, that he should sub­scribe his name, or put his seale thereunto, for the testament written with the hand of the te­stator, may be good without anie of these [Page 262] things, as heretofore I haue confirmedSupra part. 4. §. 25▪.

6 But now this doubt may arise, what † if a writing bee found written indeede with the hand of the testator in maner of a will, where­in he hath disposed his goodes and appointed an executor, but the writing is neither sealed with the testators seale, nor subscribed with his name, nor by him acknowledged before wit­nesses, to bee his last will: whether shall this writing be accounted to be a draught of the te­stators will, or the testament it selfe? I suppose that the solution of this question, resteth in the varietie of circumstances: For if the writing be vnperfect L. ex ea scriptum de testa. L. fidei commissa. de leg. 3. ff., for that perhaps the testator dooth leaue of in the middest of a sentenceBald. & Angel. in d. L. ex ea scriptura Eue­rard. cons. 155. n. 9., and with­out any dateAuth. quod sine. C. de testa. Euerar. d. con­sil. 155. Non tamen af­firmo necessarium [...] vt tempus inscriba [...] prout ius ciuile in om­ni testamento, etiam inter liberos exigit, sed quia communiter ap­poni solet tempus à nostratibꝰ in suis testa­mentis scriptis, omissio igitur temporis (argu­mento à cōmuniteriac cidentibus) denotat praeparationem rei, potius (quam) ipsam rem., or if the same bee written with straunge charactersL. quoties. § 1. ff. de haered. instit. Bar. Bald. Ang. & alij ibidem. Nō quòd idcirco vitiosum sit testm̄. quia scriptum notis vel zypheris inu­sitatis maxime iure gentium attento sed quod deducto argumē ­to à cōmuniter accidē. praeparatio magis quā res ipsa videatur, quia perpauci vera sua te­stamenta literis vel characteribus inusita­tis conscribant., or if the same be written in paper, and great distance betwixt euery line, with diuers emendations and corrections made betwixt the linesPaul. de Castr. Sich. & alij, in L. contractus. C. de side instr.: if also the same be founde a­mongst other papers of small value or accountDD. in D. Auth. quod sine., by these circumstaunces it seemeth rather a draught or preparation to a testament, then the testament it selfeEuerard. d. cons. 155.. But on the contrarie, if the writing be perfect or fullie finished, hauing a certain date of the day, moneth, and yeare, and be writ­ten with vsual and accustomed letters in parch­ment, without corrections, and with small di­stance betwixt the lines; and also found in some chest of the testator amongst other writings of the testators, of great value and moment: by these circumstances it seemeth rather to be the very testament it selfe, then a draught onelyDD. in d. Auth. quod sine. Euerard. d. consil. 155. Adde quae supra scripsimus. part. 4. §. 25..

Of a later testament.
§. xiiii.

1 Diuerse meanes whereby the testament being good at the first, is afterwards infringed.

2 A man may make as many testaments as he list.

3 Onely the last testament is of force.

4 This conclusion that the later testament dooth in­fringe the former, diuersly extended.

5 The same conclusion diuersly restrained.

6 Of the clause derogatorie of future testaments.

7 Questions about clauses derogatorie.

8 Of clauses derogatorie, some are derogatorie of the power of making testaments, some of the will.

9 When the clause is derogatorie of the power of ma­king testaments, mention or reuocation thereof is not necessarie.

10 When the clause is derogatorie of the will of ma­king testaments, then it is needful to make mention thereof.

11 Certaine cases wherein mention or reuocation of the testament derogatorie is not necessarie.

12 Three manner of reuocations, generall, speciall, and singular.

13 The force of the generall reuocation.

14 The effect of the speciall reuocation.

15 The effect of the singular reuocation.

16 The effect of generall mention.

17 The effect of particular mention.

18 How a testament may be reuoked, wherein is a spe­cial clause derogatorie circumscribed with certaine limites.

19 What is chiefly to bee obserued about those testa­ments, [Page 263] wherein be clauses derogatorie.

20 Clauses derogatorie of small force in the testa­ments of simple persons.

21 What if two testaments appeare, but doth not ap­peare whether of them is later.

IT hath beene signified alreadie, 1 that † a testament which is good and lawfull at the beginning, may afterwards become voide by di­uerse meanesSupra ead. part. §. r.: as by the making of a later testament In hoc ipso §., and by reuoking Infra §. 15. and cancelling Infra §. 16. the testament made, by alteration of the testators state Infra § 17., by forbidding or hindering the testator to make another testament, or to correct the for­mer, and by diuerse meanes hereafter en­suingInfr. §. 19. 20. cum se­quen. vsque ad finem libri..

Concerning the first of these meanes, that is to say, the making of a later testament, so large and ample is the libertie of making testaments; 2 that † a man may as oft as hee will make a newe testament, euen vntill the last breathL. 4. ff. de adim. lega. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 1., neither is there any cautele vnder the sunne to preuēt this libertieBar. in L. si mihi. §. in legatis. ff. de leg. 1. Ol­den. de action. class. 5. in prin fol. 197.. But no man can die with two testa­mentsL. ius nostrum. de reg. iur. ff. L. sancimus. C. de testa., 3 and therefore † the last and newest is of force§. posteriore. Instit quib. mod. testa. instr.: so that if there were a thousand testa­ments, the last of all is the best of all, and ma­keth voide the formerParis. consil. 10. lib. 3 n. 4..

4 This † conclusion, that the later dooth in­fringe the former, is diuersly enlarged. First the later testament dooth infringe the former, albe­it [Page] it the executor of the later do refuse the execu­torship, or die, either during the life of the testa­tor, or after his deathd §. posteriore. In­stit. quib. mod. testa. in­fir. Mascard. Tract. de probac. concl. 1282. n. 2., for it is sufficient that once he might haue beene executorEod. §. posteriore.. Second­ly, the later testament doth infringe the former, albeit the prince or Emperour himselfe were appointed executor of the formerL. si quis. C. qui testa fac. poss.. Thirdly, the later testament doth make frustrate the for­mer, albeit the former were a written testament, and the later but a nuncupatiue testamentVasq. de success. re­solue. lib. 1. §. 1. n. 26. 27 Perkins. tit. testament. fol. 92., Fourthly, the later dooth infringe the former, albeit there be no mention in the second testa­ment of reuoking the formerMinsing. & Vigli. in d. §. posteriore.. Fiftly, the la­ter testament dooth reuoke the former, albeit in the former there bee a clause derogatorie of willes and testaments afterwards to be madeBar. in L. si mihi & tibi. §. in legatis. ff de leg.: but thē whether it be necessarie, that in the later testamēt there be mentiō or reuocation of that former testament, or of the clause derogatorie, is hereafter declaredInfra §. 15.. Sixtly, the later testament doth make voide the former, albeit there be xx. witnesses of the former, and but two of the la­terCouar. in Rub. de te­sta. extr. part. 2. in prin. Vasq. de success. resolu. lib. 1. §. 1.. Seuenthly, the later testament dooth take away the former, albeit in the former testament the executor is appointed simplie or without condition, & in the later conditionally, and the same condition also violatedd. §. posteriore. In­stit. quib mod. testa. in­fir., so that the con­dition be of something then to come at the time when the condition was made. But if the executor of the later testament be made vppon some condition then present, or past, the condi­tion not existing, the former testament is not reuokedMinsing. in d. §. po­steriore. n. 6.. Eightly, the later testament doth make [Page 264] void the former, albeit the testator haue sworne not to reuoke the sameCouar. in Rub. de te­sta. extra. part. 2. n. 9., the othe also being re­uoked together with the testamentIul. Clar. §. testm̄. q. 94. Grass. Thesaur. cō. op. §. testm̄. q. 87. & hoc (inquit) est valdè no­tandum..

5 The restrictions † of this former conclusion are these: First, the later testament dooth not make voide the former, when the later is vnper­fect, in respect of the testators will§. ex eo Instit. quib. mod. testa. infir. L. san­cimus. C. de testa.; and not in­respect of solemnitieSupra hoc ipso §. Ampliac. 3. & 6.. Secondly, the later testa­ment doth not make voide the former, when it is vehemently suspected that the testator was compelled to make the later testament by feare, or violenceSimo de Praetis. de Interp. vlt. vol. lib. 4. fol. 226. n. 49. sed an sufficiat probac. per v­nicum testē, vide ibid.. Thirdly, the later testament doth not make voide the former, when it is suspected that the testator was induced to make the later by fraude or deceiteSimo de Praetis. vbi supr. & supra ead. part. §. 3.. Fourthly, the later testament doth not take away the former, the later being made at the interrogation or sugge­stion of some other personZas. cons. 3. vol. 1. n. 41. Aymo. consil. 10 n. 13. Apostil. ad Ripam. in L. 1. §. si quis ita ff de verb. ob. n. 9. vbi dicitur hanc op. esse com. & supra ead. part. §. 4., especially when the testator is very sick, & in peril of deathSocin. Iun. consil. 148 vol. 2. n. 15.: for then it doth not take away the former, made by the proper motion of the testatorVide quae scripsi supra part. 2. §. 26., vnlesse it appeare plainly of the expresse will of the testator to re­uoke the formerGabriel. lib. 4. com. conclus. tit de testa. conclus. 2. n. 9. post Rui. cons. [...]2 n. 11▪ vol. 2., or vnlesse the testator himselfe did dictate the testamentGabriel. ibid. n. 21, in fin., or vnlesse the later testament be in fauor of the testators childrē, or others, who were to haue the administration of his goods if he died intestateSocin. Iun. consil. 144. n. 5. vol. 2.. Fiftly, where the testator hath made two testaments, a former and a later, both being written; and the same te­stator afterwardes lying sicke vppon his death bed, some neighbour of his presenting to the testator both the testaments, willing him to de­liuer to them which of these testaments he will [Page] shal stand for his last wil, if the testator being of perfect minde and memorie, shall deliuer to them the former testament: In this case the te­stament so deliuered shall be the testators last will, albeit it were first madePerkins. tit. testa­ment. fol. 92.. Sixtly, the second testament dooth not reuoke the former, when the second testament dooth not in any wise dis­sent from the former, but agreeth with the same in all points, especially if the later were made ve­rie shortly after the former, for then they both seeme but one testament in diuers writingsVigl. in d. §. posterio­re. Instit. quibus modis testa. infir.. Seuenthly, the former testament is not reuo­ked, when in the later will, there be no execu­tors named, for then the later is but a codicill or addition to the former testament, wherein exe­cutors be namedInstit. de Codicil. vide supra part. 1. §. 5.. Eightly, the former testa­ment is not reuoked by the later, where the te­stator dooth take an othe not to reuoke the for­mer, vnlesse there be expresse mention of the same testament, or of the otheVasq. de success. re­foluc. lib. 1. §. 1. n. 32. Grass. Thesaur. com. op §. testm̄. q. 86. Iul. Clar. §. testm̄. q. 94. n. 5.. Nienthly, the later testament doth not take away the former, when it is made in heate of anger, and displea­sure conceiued by the testator against the exe­cutor of the first testament, whereas afterwards they be reconciled and ioined in amitie as be­foreL. quicquid de reg. iur. ff. Mantic. de con­iect. vlt. vol. lib. 12. tit. l. n. 25.. Tenthly, the † former testament wherein 6 is a clause derogatorie of willes and testaments afterward to be made (as if the testator say, What soeuer testament I shall hereafter make, I will that the same be of no force, &c.) is not alwais infringed by the later testament, vnlesse there be sufficient mention or reuocation of the former testament or clause derogatorieGloss. in L. si mihi & tibi. §. in legatis. ff. de leg. 1. quam commu­niter receptam dicit Ias. in L. Horatius. ff. de lib. & posthu..

7 If you demaund in what † cases mention or reuocation is to be made of the former testa­ment hauing a clause derogatorie, and in what maner this mention or reuocation ought to be made, and is sufficient for the reuoking of the former testament, with the clause derogatorie: Surely this question, especially concerning the maner of mention or reuocation to be made in the second testament, is very difficult, and such as in the answering whereof, the writers doo fight amongst themselues mightily, and doo contradict one another verie stronglyVt prius per Couar. in Rub. de testa. extra. part. 2. & per Iul. Clar. §. testm̄. q. 99. & per Grass. Thesaur. com. op. §. testm̄. q. 89. & per Mantic. de coniect. vlt. vol. lib. 12. tit. 8., so that the victorie is verie doubtfull, and verie hard it is to know whether opinion is truer, or more commonly receiued. Others labouring to re­concile these cōtradictions, and to pacifie these contentions, haue waded so farre for fine and daintie distinctions, that they seeme to swimme vp and downe, and to slote hither and thither, I know not whither, in a deepe and bot­tomlesse sea of intricate & confused diuisionsBar. in L. si quis in prin. de leg. 3. Michael. Grass. §. de testm̄. q. 89. DD. in L. si mihi & tibi. §. in legatis. ff. de leg. 1., so that if a man would aduenture to followe them to the end of their voiage, he might well doubt whether euer he should obtaine any ha­uen or safe landing: wherefore for mine owne part, I thought to wade no further from the shore then I should find fast footing, & where I might be within the readers reach.

8 Concerning the question therefore, first of all we are to vnderstand † that of clauses deroga­torie there be two sorts, the one derogatorie of the power of making testaments, the other dero­gatorie of the will of making testamentsClar. Grass. Couar. vbi supra. DD. in d. §. in legatis.: ‘Ex­ample [Page] of the first is, whē the testator vseth these or the like words: I doo from henceforth renounce the power of making any other testament: Or thus; I will that hereafter I haue no more libertie or authori­tie to make mo willes or testaments, &c. Example of the second; when the testator vseth these or the like words: If I make any testament hereafter, I will that the same be of no force: or thus; If I make any testament hereafter, except therein I write the Lordes praier, my minde and will is that the same be voide and of none effect DD. in d. §. in lega­tis. Couar. in d. Rub. Clar. & Grass. vbi supr..’ The vse of this distinc­tion or difference betwixt clauses derogatorie of power and of will is this.

If † the clause be derogatorie of the power 9 or libertie of making of testaments, & afterwards the testator maketh another testament, it is not needfull therein to make any mention, or reuo­cation of the former testament, or clause dero­gatorie therein conteinedBar. in L. si quis in prin. de leg. 3. Ias. in d. § in legatis. Clar. §. testm̄ q. 99. n. 2. Grass. §. testm̄. q. 89. n. 3., for the former is ta­ken away by the second, as if there had not bene any such clause derogatorie therein at all: the reason is, because the clause derogatorie of the power of making testaments is vtterly voide in law, neither can a man renounce the power or libertie of making testamētsBar. d. L. si quis. n. 4. Clar. & Grass vbi supr., neither is there any cautele vnder heauen to preuent this li­bertieBar in d. §. in legatis Olden. de action. class. 5. in prin. fol. 497. Man­tic. de coniect. vlt. vol. lib. 12. tit. 1. n. 1., which also indureth whiles any life en­durethL. 4. ff. de adimen. le­gatis., as hath bene aforesaid.

If † the clause be derogatorie of the testa­tors 10 will, then it is necessarie that in the later te­stament there be mention or reuocation of the testament with the clause derogatorie, other­wise the former testament is still in forceBar. in L. si quis. de legatis. 3. Clar. § testm̄. q. 99. Grass. §. testm̄. q 89.: the [Page 266] reason is, because there is presumed a defect of the testators will in the second testament, and that his meaning is not to haue the former re­uoked, without making mention of the former derogatorie testamentCouar. in d. Rub. de testa. extra. part. 2. Clar. & Grass. vbi supra Mantic. de coniect. vlt. vol. lib. 12. tit. 8. Paris. consil. 10. vol. 3 n. 9. 24. &c..

11 Neuerthelesse † it is not perpetually true, that the testament wherein is a clause deroga­torie of the testators will, is not infringed by the later testamēt, wherein is no mention or reuo­cation of the former testament derogatorie, for it faileth in diuers cases. The first case is, when it may be prooued by other coniectures, that it was the testators meaning, that the former testa­ment should be reuokedCouar. in d. Rub. 2. part. n. 19. vers. quart. conclus. Paris. consil. 10. vol. 3. n. 21. Grass. d. q. 89. n. 6. Clar. d. q. 99 n. 8. Mantic. de coniec. vlt. vol. lib. 12. tit. 8. n 13. Mascard. de probac. conclus. 1282. n. 43.. Another case is, whē there be ten yeares expired from the time of the first testamentBald. in L. sancimus. C. de testa n. 6. Grass. d. q. 89. n. 10. Clar. d. q. 99. n. 19.. The third case is, when the te­stator dooth with an othe confirme the later te­stamētBald. in d. L. sancimꝰ in fin. Grass. d. q. 89. n. 8. Clar. d. q. 99. n. 10.. The fourth case is, when the second te­stament is made in fauour of the testators chil­drenL. vlt. C. de Curator. furios. Grass d. q. 89. n. 9. Mantic. d. tit. 8. n. 27., or some other person intirely beloued of the testatorIas. in d. L. sancimus. C. de testam. limi. 6.. The fift case is, when the exe­cutor named in the former testament after the making thereof dooth grieuously offend the testatorIas. in d. L. sancimus. lim. 2..

For the other question, (viz. what maner of reuocation is to be made in the second testament, that it may suffice to reuoke the former testament, wherein is a clause derogatorie of the will of 12 the testator) we must note † that there be three sorts of reuocations, one generall, another spe­ciall, the third singular, or indiuiduall Grass. Thesaur. com. op. §. testm̄ q. [...]9. n. 4. Clar. §. testm̄ q 99. n. 7. Mantic. de coniect. vlt. vol. lib. 12. tit. 8. n. 6.. Generall, when the testator in his later testament vseth these or the like wordes: ‘I will that this testament [Page] shall stand, notwithstanding any other will or testa­ment by me heretofore made: or thus; I reuoke and make voide all former willes and testaments, &c. Speciall when the testator hath these or the like tearmes.’ I doo hereby reuoke all former testa­ments, notwithstanding any clause derogatorie in the same. Singular, wherin the testator saith, I make my last wil and testament, notwithstanding that clause derogatorie of my former will, that I would not haue that testament reuoked, vnlesse I should insert in this testament the Lordes praier. Or thus: Notwithstan­ding that clause derogatorie in my former will, wher­by I would that no will or testament afterward to bee made should preuaile, albeit I should specially derogate from the former. Or thus: Notwithstanding that wil where I made such a person my executor. Or thus: Notwithstanding that will which I made in such a place, at such a time, and before such witnesses, &c Bar, in L. si quis in prin. ff. de leg. 3. Couar. in Rub. de testa. extra part. 2. n. 19. Clar. §. te­stm̄. q. 99. Grass. §. te­stm̄. q. 89. Mantic. de cō ­iect. vlt. vol. lib. 12. tit. 8.. These distinctions obserued, I make these con­clusions.

The first conclusion is, that † if in the later 13 testament there be a generall reuocation, as not­withstanding all former testaments, &c. the for­mer testament wherein is a clause derogatorie of the testators will, is not thereby taken a­waieBar. in d. L. si quis. Socin. Iun. in eand. L. n 24. Grass. Thesau. com. op. § testm̄. & haec opi­nio (inquit ille) est ve­ra. q. 89. n. 4., albeit there bee but one former testa­mentIas. in L. sancimus C. de testam. quae senten­tia communis est. teste Grass. d. q. 89. n. 5. con­trarium Bar. in d. L. si quis, cuius opinio cō ­muniter reprehēditur, asserit Tobias Nonius consil. 26. col. 2. & secū ­dum communem opi­nionem esse pronunci­andum à Iudice, mo­net. Tiraquel. de leg. conub. gloss. 7. n. 131. Clar. d. q. 99. n. 3. affir­man [...] quòd in lib: suo aut Bar. verba sunt corrupta, aut non fide­liter à Doctoribus re­citata. Tu igitur consu. las librum proprium..

The second conclusion is, that † if in the 14 second testament there be a speciall reuocation, as notwithstanding any testamentes with their clauses derogatorie, &c. the former testament with the clauses derogatorie of the testators wil is thereby taken away [...]y. in c. quod semel de reg iur. 6. Alex. d. L. sancimus. Clar. §. testā. q. 99. n. 4. & per eum centetur communis o­pinio..

15 The third conclusion is, that † if in the se­cond testament there be a singular reuocation of the former testament, as notwithstanding such a testament made before such a Notarie, &c. the same former testament hauing therin a general clause derogatorie, is sufficiently reuoked, although in the second testament there be no mention of the clause derogatorie in the former testamentBar. in. d. L. si quis. n. 8. Couar. in d. Rub. de testa. extr. n. 19. versic. cert. conclus. qui ibi attestatur hanc op. esse & com. & veriorem..

16 The fourth conclusion is this †, that if in the former testament, there be a speciall clause derogatorie, the same is taken away by the se­cond, wherein is generall mention made of the former testament, and of the clause dero­gatorieBar. in d. L. si quis. col. 3. DD. in d. L. san­cimus. Couar. in d. Rub. de testa. n. 19. ver­sic. cert. conclusio, vbi dicit hanc op. esse com..

17 The fift conclusion is †, that if in the for­mer testament there bee a speciall derogatorie clause, the same is not taken away by the second testament, wherein is particular mention of the same testament without mention of the clause derogatoriePaul. de Castr. consil. 206. vol. 1. Couar. in d. Rub. n. 19. verb. primum in quaestione..

18 The sixt conclusion shall be, that † if in the former testament there be a special clause dero­gatorie, circumscribed with certaine limits: for Example; I will that this testament shall stand, not­withstanding any other to be made hereafter, vnlesse in the same I shall write, or cause to bee written the Lordes praier, &c. The same former testament may be taken away by a second, albeit the lords praier be not written in the sameBar. in d. L. si quis. Couar. in d. Rub. n. 19. verb. secundum Apo­stil. ad Bar. in d. L. san­cimus. C. de testa. Bald. consil. 178. vol. 4.: but then it is behoouefull that in the second testament there be mention, not onely of the testament, but al­so of the clause derogatorie: as, I will that this later testament shall stand, notwithhanding any for­mer [Page] testament by me made conteining whatsoeuer wordes or clause derogatorie: Which done, the for­mer testament is taken awayBar. in d. L si quis. Paul de Castro. consil. 284. vol 1. Couar. in Rub. de testa. extr. part. 2. n 19. Mantic. de con­iect. vlt. vol. lib. 12. tit. 8. n. 10. At (que) hanc opinio­nem communem lau­dat Couar. Sal. Dyn. & alijs refragantibus..

Other conclusionsVideant Iustiniani­stae. Mantic. de coniec. vlt. vol. lib. 12. tit. 8. & Couar. in d. Rub. de te­sta. part. 2. n. 19. I might adde, but I thought † good to deliuer this one for all, the 19 same in my opinion being more worthie to be remembred, which conclusion is this, that it behooueth the Iudge where hee findeth such clauses derogatorie in any testament, to con­sider the persons of these testators, namely whe­ther they be such persons as do vnderstand the force and effect of these clauses derogatorie, and reuocatorie, yea, or nay: and to examine the occasions of inserting the same clause; espe­ciallie this is to be considered, whether these clauses be added by the proper motion of the testator himselfe, or at the instigation and per­swasion of some other, as the executor, the lega­tarie, the NotarieSimo de Praetis. de Interp. vlt. vol. lib. 4. fol 227. n. 60. &c., &c. For if the testator do vn­derstand the effect of such clauses derogatorie, and did insert the same wittingly and willingly of his owne accord, it is presumed that he did so, least peraduenture afterwards he might be solicited and induced by the instigation and im­portunitie of his kinsfolkes, or the molestation of some other, receiuing small benefite by the testament, and hoping to gaine more by the al­teration or reuocation thereof, to chaunge or reuoke the same, contrarie to his former setled purpose, and firme resolution. In which case, if at any time after the testator make a newe testa­ment, the former is not easily reuokedParis. consil. 10. lib. 3. n. 10. 11. &c., vnlesse in the second he doo make mention and reuo­cation [Page 268] of the former testament, with the clause derogatorieSimo. de Praetis. de Interp. vlt. vol. lib. 4. fol. 227. n. 61. &c., in cases where reuocation is ne­cessarie, as in the former conclusions is prescri­bed: otherwise the said forme not obserued, it is to be presumed, that it is not the testators meaning to infringe and frustrate his former testament, made with such constant resolution, 20 and precise cautionSimo. de Praetis. vbi supra.. But on the contrarie, if † the testator were but a simple person, not vn­derstanding the effect of such derogatorie, or reuocatorie clauses, and the rather if the same clauses were inserted in the former testament by the Notarie, at the petition or by the direc­tion of such as were benefited by the same te­stament, or some of their friends, being loth to haue the same altered or reuoked: then howso­euer the former testamēt be corroborated with cunning or precise clauses, of inserting the lords praier in the second testament, or of not reuo­king the former testament, although in the se­cond he should specially reuoke the same: all these cunning clauses & curious cautions not­withstanding, the former testament may be the more easily reuoked, without any such precise obseruation of speciall reuocation aboue de­scribedIdem Simo de Prae­tis. loco superiùs alle­gato, vbi locupletissi­mè de hac re. Cui ad­ijcias Didac. Couar. in Rub. de testa. extra. n. 19. verb. decimoter­tio. Mantic. de coniect. vlt. vol. lib. 12. tit. 8. n. 15 Barba. consil. 72. vol. 3. Paris. consil. 10. vol. 3. n. 21. &c..

Thus we haue seene in what cases the for­mer testament is infringed or not infringed by the last testament. If any doo here demaund of 21 me, what † if two seuerall testaments doo ap­peare to bee made by one person, but it dooth not appeare which is former or later, which of these shall preuaile. This question is sa­tisfied [Page] a little beforeSupra ead. part. §. 11. & supra. 1. part. §. 16. n. 17., thither I referre the reader.

Of reuoking the testament made.
§. xv.

1 Lawfull for euery man to reuoke his testament, and to die intestate.

2 Reuocation of a mans testament is not presumed.

3 Diuerse extensions of this former conclusion.

4 Diuerse limitations of the same conclusion.

5 Whether a bare reuocation doo ouerthrowe the te­stament.

AN other of those meanes whereby the testamēt which was good at the beginning, is afterwards made void, is reuocation of the same testament. For † as it is lawfull for euery testator to adde 1 and diminish, to and from his testament, and to alter the same: So is it likewise lawfull for eue­rie person hauing made his testament, to reuoke the same, and to die intestateBald. in L. sancimus. C. de testam. Mantic. de coniect. vlt. vol. lib. 2 tit. 15..

But † no man is presumed to haue reuoked 2 his testament once made, vnlesse it be prouedL. eum qui volunta­tē. ff. de ꝓbac. Mascard. Tract. de probac. concl. 1280. qui varijs & am­pliac. & limitac. hanc conclus. ornauit.: Insomuch † that if a man do liue by the space of 3 fortie yeares, after he haue made his testament, yet is not the testament presumed to be reuo­ked by the course of so long timePaul de Castr. Alex. & Ias. in d. L. sancimus. C. de testa. Quaere tamen Bart. Sing. 183. & Mantic. lib. 6. tit. 3. n. 46. etiamsi prius fuerit testamentum ad pias causas.. And albeit during the same time his wealth and substance doo greatly increase, yet is not the testament [Page 269] presumed to be reuokedAlex. & Ias. in d. L. sancimus.. And albeit the testa­ment be in preiudice of such as otherwise were to haue the administration of the goods of the deceased: yet all those things concurring, viz. the long time, the increase of the testators wealth, and the preiudice of such as are to haue the administration of the testators goods, the testament is not presumed to be reuokedPaul. de Castr. Ias. & Alex. vbi supra.. And albeit the testament be made in time of sicke­nesse and peril of death, when the testator doth not hope for life, and afterwards the testator re­couer his health, yet is not the testament reuo­ked by such recouerieAlex. & Ias. in d. L. sancimus. Masc. Tract. de probac. conclus. 1280. n. 17. 18.: Or albeit the testator make his testament by reason of some great iourney, yet it is not reuoked by the returne of the testatorDyn. in L. potest. de haered. instit. ff. reper­torium Bertachini. verb. testm̄. reuocatur. n. 48.. And albeit the testator after the making of the testament haue a childe borne vnto him, I suppose that the testament is not presumed thereby to be reuokedHoc ita ob defectum patriae potestatis. L. quod dicitur. ff. de lib. & posthu., especially if the testator did liue a long time after the birth of the childe, and might haue reuoked the testa­ment, and did notMantic. de coniect. vlt. vol. lib. 12. tit. 2. in fin. quamuis inspec­ta iuris ciuilis disposi­tione, contraria opinio approbatur. Grass. §. legatum. q. 67. Ripa. in L. si vnquam. C. de do­nac. 42. Mascard. de ꝓ­bac. conclus. 1280. n. 153. quae cōclusio am­pliatur & limitatur per Prat. Tract. reg. & fal. lib. 2. reg. 466. fol. mihi 16. verb. legato..

4 On the † contrarie, the testament is some­times presumed to bee reuoked, and the will of the testator altered. One case is, when he that is appointed executor or legatarie after the ma­king of the testament, doth become enemie to the testator, or doth him some great iniurieAuth. si captiui. C. de episcopis & cler. Man­tic. de coniect. vlt. vol. lib. 12. tit. 1. n. 34. quod quidem in legatis & fi­deicommiss. quae nuda voluutate adimi pos­sunt, multo facilius ad­mittitur, quàm in hae­redis institutione, vt in L. 3. §. vlt. & L. ex parte. ff de adimen. lega. & Mascard. de probac. concl. 1280. n. 150. Verum tum dic vt per Bar. in d. L. ex parte. In­stitutum propter grauiss. inimicitias à se ortas haereditatem amittere.. An other case is, when the testator in heat of anger or displeasure conceiued without iust cause a­gainst his sonne, or other persons, to whom the [Page] administration of his goods were to be com­mitted, if he had died intestate, making his te­stamēt in fauor of others & afterwards (the heat of his displeasure being extinguished) they be reconciled: for by this reconciliation, the testa­mēt is presumed to be reuokedL. filium. de inoff. te­stō. Hyero. Franc. in L. quicquid de reg. iur. [...]f. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 25.. The third case is, when the testator hath begun to make his te­stament, but is letted or hindered by the execu­tor that he cannot proceed as he would to the finishing of the testament, or further disposing of other legacies: For in this case the will of the testator is presumed to be reuokedL. si scriptis. ff. de his quibus vt indig. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 24., cōcerning any benefite which the person so hindering the testator, otherwise ought to haue reapedL. 2. ff. si quis aliq. te­stari prohib. vide quae inferiùs scripta sunt §. 18.. The fourth case is, when the testator being extreme­ly sicke, and afraid to die, dooth bequeath some legacie ad pias causas, and after dooth recouer his health: for there the legacie is also presu­med to be reuokedBar. in rep. L. 1. C. de sacrosanct. eccles. n. 41. Repertor. Berta­chin. verb. testm̄ reuo­catur. n. 47.. It may seeme strange, that legacies left to good and godly vses should bee reuoked, rather then other prophane legacies, but I take the reason to be, for that it is presu­med that the testator did not intend to giue le­gacies to so good an vse in that extremitie, but in case he should die of that sicknesse, and so not dying, the legacie is reuokedBar. & Bertachin. v­bi supra..

It is † a question appertaining to the reuo­cation 5 of a testament not altogether free from doubt, whether a testament may be reuoked by a bare and naked reuocation, that is to say, whe­ther the testament bee sufficiently reuoked, when the testator saith, I reuoke my former testa­mēt, or I will that my former testament be of no force?

Manie writers are of this opinion, that the 6 testament is not reuoked by a bare reuocation before witnesses, vnlesse the testator had added vnto his former words, and saide, because I will die intestate Bar. in L. si iure. ff. de leg 3. Alex. & alij, in L. sancimus. C. de testa. quorum opinio multo­rum testimonio com­munis est. Dec. consil. 582. Clar. §. testm̄. q 91 Grass. §. testm̄. q. 84. Si­mo de Praetis de In­terp. vlt. vol. li. 4. fo. 226 Vasq. de success. crea. lib. 2. §. 15. requisit. 17. n. 62. vbi sic, sicut (inquit) si vas aureum, vel argē ­teum, vel luteum fece­ris, deinde iustetis illud infectum fieri, non per hoc infectum fiet, nisi manꝰ adhibeas, illúd (que) fregeris ita quoque testm̄. &c. Sed Bar. alia ratione nititur, quia vz ex hac voluntate non potest adiri haereditas..

Others are of a contrarie opinion, esteeming that it is sufficient to make a bare reuocation without any expresse mention of dying inte­stateBald. in L. sancimus. C. de testa. Socin. Iun. consil. 145. asserens hāc sententiam pluribus, & maioris ponderis auc­toritatibus confirma­tā. Quinimo narrat e­andē cuilibet sensato & rationabili intellec­tui quadrare, & quem­libet Iudicem posse ab opinione Bar. recede­re: cum quo etiā con­uenit Mantic. de con­iect. vlt. vol. lib. 12. tit. 19 Item Gid. papa q. 200. Barba. cōsil. 60. vol 2. & Raph. Cuma. in d. L. si iure, non dubitans pronunciare considerationem Bartoli esse Truffam.. And this opinion in my vnderstanding is more sound, and more reasonable: for whiles the testator wil not haue his testament to stand, it followeth that it is his will and meaning to die intestateAlex. cōsil. 104. vol. 2., and so the next of kin to be called to the administration of his goods. Besides it seemeth absurd and vnreasonable to maintaine a testament, not onely without a mans will, but euen against his willMantic. d. lib. 2. tit. 15. n. 22., at least within this realme of England, where we doo not obserue the so­lemnities of the ciuill law: this opinion is to be preferred; for euen by the ciuil law, legacies are taken away by a simple and naked reuocationL. 3. ff. de alimen. leg.: and so bee diuerse testaments; those I meane wherein those solemnities are not necessarie, as testamēts ad pias causas Alex post Bald. d. consil. 104., or amongst the testators childrenAlex. eod. consil. 104., or militarie testamentsVasq. de success. resoluc. lib. 1. §. 9. n. 7.: wherefore as those testaments are reclaimed and made void by a bare reuocation, so ought our testaments to be measured with the same line, and to enioy like libertie, aswell in the dissolution, as in the constitutionCōsulas Vasq. d. n. 7. vbi testm̄ militare eā ob causam nuda voluntate posse dissolui contendit, quia nuda voluntate potest cōstitui per L. nihil tā naturale. de reg. iur. ff. Cōsulas etiā de hac re Masc. de ꝓbac. concl. 1282. n. 36. (quam) has dissidētes op. distinction [...]s faedere cōciliare conatꝰ est.

Of cancelling the testament.
§. xvj.

1 A mans minde is knowen as well by deedes as by wordes.

2 Of the effect of cancelling testaments.

3 Whether a nuncupatiue testament lease his force by cancelling the writing.

4 Diuerse cases wherein the testament is not hurt by cancellation.

5 If it bee vnknowne who did cancell the same, to whom is the same to be attributed.

AN other of the meanes whereby the testament which was good at the be­ginning, is afterwards made voide, is the cancelling or cutting of the testa­mentCācellare est in mo­dum crucis expungere vel illinire. Bar. in L. 1. § sed consulto. ff. de his quae testō. del. Spiegel. Lexic. verb. cancellare., for the † will and meaning of a man is no 1 lesse shewed by his deedes thē by his woordsMinsing. in §. ex eo. Instit. quib. mod. testa. infir. Vasq. de success. crea. lib. 2. requis. 17. n. 62.: And therefore hee that cancelleth or defaceth his testament, is thereby thought to haue this will and meaning, to take away the force and vertue thereofL. 1. & L. proximè. ff. de his quae testa. del. & DD. ibid. Vas. de succes. crea. §. 15. requisit. 17. n. 60. 61. &c.: which will in this respect ought to bee obserued for a lawe, and so the testament cancelled and defaced, is to bee ad­iudged voidIntellige ope excep­tionis, non ipso iure. gloss. in L. 1. ff. de his quae testō. del. quae op. est com. Grass. Thesau. com. op. q. 85. n. 1..

And † that this cancelling or defacing of 2 the testament being obiectedAliàs ipso iure nō vi­ciat. d. gloss. communi­ter recepta., doth destroy the force thereof, is supposed to bee extended to those testamentes Nuncupatiue, which after­wards be reduced to writingPaul. de Castr. in L. fin. ff. de his quae test. del.: so that † if a man 3 [Page 271] first make his testament by word of mouth, then causeth the same to be written, and afterwards doth wittingly and willingly cancell or cut the same writing, or otherwise deface it, that then such testamēt is void, as if it had bene written at the beginningZas. consil. 2. vol. 1. n. 29. Grass. Thesaur. co. op. §. testm̄. q. 85. vbi hā [...] sententiam & veriorē, & humaniorem refort, & huic etiam sentētiae subscripsit Vasquius de success. crea. lib. 2. §. 15. requis. 17. n. 61. 62. quic­quid in contrarium statuat Iul. Cla. §. testm̄ q 93. vel Minsinger. in §. pen. Instit. quib. mod. testa. infir. vel ante eos Bald. in d. L. sin. vel post eos Mascard. de proba. conclus. 1282. n. 31.: neither doth it profite to proue the same by witnesseVasq. d. requisit. 17. n. 63., for although the instru­ment or writing doo not appertaine to the sub­stance of the testament: yet by the cancelling thereof, the testator is p [...]esumed to haue repen­ted of the making thereof, and to haue reclai­med or reuoked the sameVasq. & Grass. vbi su­pra.. Furthermore, albeit there appeare no cause of vnworthinesse either in the executor, or any other legatarie, whereby the testator might be mooued to disappoint thē of their hope; yet by cancelling the testament, the whole testament shall be voideVasq. de success. reso­luc. lib. 1 §. 4. in prin. Doctores in L. cancel­lauerat. & in L. proxi­mè. ff. de his quae testa. del.: And the testator is presumed to haue done it in their fa­uour, who are to haue the administration of his goods after he dieth intestateDyn. & DD com­muniter. in L. nostram. ff de his quae testō. del. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 31. Clar. §. testm̄. q. 93 Grass. §. testm̄. q. 85..

4 The cases † wherein this former conclu­sion, (viz. that by cancellling or defacing the testament, the same is made voide) dooth faile, are these.

The first is, where the testament was can­celled by the testator himselfe vnaduisedly, or by some other person without the testators consent, or by some other casualtieL. 1. §. sed consulto. ff. de his quae testō. del. Bar. in L. si iure. de leg. 3. Angel. Are. & Min­sing. in §. ex eo. Instit. quib. mod. testa. infir..

The second case is, when the testator after he haue wittingly and willingly pulled away the seales, doth seale the same againeL. si t [...]stamentum. ff. qui testa. fac. poss..

The third case is, when the whole testament is not cancelled or defaced, but some part ther­of [Page] onely raced, blotted, or put out, for the other parts of the testament doo remaine firme and safeL. proximè. §. sētētia ff. de his quae in testō. del. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 31. infin., as they were before, although the dele­tion were in the chiefe part of the testament, namely the assignation of the executorWesenb. in d. tit. de his quae in testō. del ff. Mantic. vbi supra..

The fourth case is, when there be seuerall papers or writings of one tenure, each of them conteining the whole testament, the defacing or cancelling of some of them dooth not hurt the testamentL. pluribus. ff. de his quae in testato. del., vnlesse it be proued that the te­stators mind was contraried. L. pluribus. & ibi Doctores..

The fift case is, when the testament is lost, either in the life time of the testator, or after, for so much as may be prooued by witnesses, is still in forceL. 1. § sed consulto. ff. de his quae in testato. del. cum gloss. ibid..

What † if the testament be found cancel­led 5 and defaced, but it is not knowen who did cancell it or deface it, to whom is this acte of cancelling or defacing the testament to be attri­buted, to the testator which made it, or to some other, which otherwise peraduenture might be hindered by it.

It seemeth not to be reputed the act of the testatorZas. consil. 2. lib. 1., for mutation or change of the minde is not to be presumedL. eum qui. ff. de probac., especially after a man hath done a thing with such deliberation and resolution, wherewith testaments commonly are made and finishedSupr. 1. part. §. 3. verb sententia. & hac ipsa parte paulò superiùs, viz. §. 13..

On the contrarie, it seemeth that it ought not to be accounted the act of any otherIo. Fa [...]er. in §. ex eo. Instit. quib. mod. testa. infir. Peckius. de testa. coniug. lib. 1 c. 46. n. 1.; for that were to presume fraud and deceite in men which ought not to be presumed, vnlesse it be prouedL. dolum. C. de dolo..

In this controuersie therefore I suppose that the person in whose custodie the testament is found so cancelled or defaced, is to be adiud­ged to haue done the acte, whether it be the te­stator or anotherDD. in L. si vnus. C de testa. Mantic. de cō iect. vlt. vol. lib. 12. tit. 1. n. [...]0..

And if it be so that the testament were kept in such a place, as not onely the testator, but o­thers might haue accesse vnto it: In this case the arguments and circumstances of the fact being equall and indifferent, the cancelling or defa­cing of the testament, is rather to be ascribed to the testator then to othersZas. d. consil. 2. vol. 1. n. 1. & n. 15. Faber. in §. ex eo. Instit. quib. mod. testa. infir., who is also presu­med to haue done the same wittingly and wil­linglyPaul. de Castr. in L. 1. §. sed consulto. ff. de his quae in testō. del.: sauing in legacies of freedom, or ad pias causas, which being blotted or put foorth by the testator, it is not presumed to haue beene done willinglyPaul. de Castro, in d. §. Tiraquel. de pia causa. priuileg. 16. Mā ­tic. de coniect. vlt. vol. lib. 12. tit 2. n. 25.. But when the arguments and cir­cumstances be vnequall, and the greater pre­sumptions that it should be the acte of another rather then of the testator, it is to be adiudged accordinglyZas. d. consil. 2. n. 15. 16. 17. 18. &c.: for the fewer and weaker pre­sumptions giue place to the more & strongerc. afferte mihi glad [...]ū de pr [...]sump extr. Mā ­tic. de coniect. vlt vol. lib. 12. tit. 17. & Zas. vbi supra..

Of the alteration of the state of the testator.
[Page]§. xvij.

1 What maner alteration of the state of the testator doth make voide his testament.

2 Two times wherein the testator must haue power to make a testament.

THe alteration † of the state of the 1 testator, is also a meane whereby the testament which was good at the beginning, doth after become voide§. alio Instit. quibus modis testa. infir.; the which alteration may happen diuerse waiesVidelicet▪ maxima & media capitis dimi­nutione. gloss. in d. §. alio. Item voluntariè & inuitè. Minsing. in §. nō tamen. Instit. eod. tit., but especially when the testator is conuicted or condemned of such a crime, after the making of his testament, for the which the law depriueth him of this power and abilitie of making a testamentd. §. alio. & ibi gloss. & DD..

What maner of crimes they be, whereby the state of the testator is so altered, that thereby he is made intestable, is aboue expressedDe quibꝰ sigillatim. supra part. 2. & part. 5., to wit heresie, apostasie, treason, felonie, sodomie, in­cest, manifest vsurie, and such like: whereunto also I might adde captiuitieL eius qui apud ho­stes. ff de testa. supr. part. 2. §. 8., not for that cap­tiuitie is a crime, but for that it hath the same ef­fect with those crimes, to ouerthrowe the te­stament. But if the captiue recouer his former libertie, then the testament made before the captiuitie recouereth his former force§. non tamen Instit. quib. mod. testa. infir.. And if he that is conuicted or attainted of treason, or felonie, obtaine the princes pardon, with re­stitution to his former state, then the testament made before such his conuiction is likewise re­uiued and restoredL. si quis §. quatenꝰ. ff. de iniust. testam.; and in both cases the te­stament is good, without any newe confirma­tion or declarationQuod verum quidē est in capitis diminu­tione necessaria, secùs in voluntaria. Minsing. & Platea. in d. §. non tamen.. Howbeit in this they dif­fer; for the testament of the person which reco­uereth his former libertie, is good euen from [Page 273] the beginning, as if he had neuer beene in cap­tiuitieGrass. Thesaur. com. op. §. testm̄. q. 25.: but his testament whose crime is pardo­ned, and himself restored, is of force onely from the time of restitutionIoh. Platea. in d. §. nō tamen.. Againe, if the pardon doo onely import a remission of the penaltie, without restitution of his former estate, then the testament before made dooth still remaine voideMinsinger. in d. §. non tamen..

2 And here note † that there be two times wherein it is necessarie, that there be in the per­son of the testator abilitie to make a will, the one is, the time of the making of the testament, when it receiueth his substance or being: the other is, the time of the death of the testator d. § non tamen. L. 1. § exigit. de bon. poss. secundum Tab. infr. §. 19. Porcius. in §. in ex­traneis. Institut. de haered. qual. & differ., when it recei­ueth his strength and efficacie (as for the time betwixt the making of the testament, and the death of the testator, it skilleth not whether the testator haue any such power or notd §. non tamen. & Minsing. ac alij ibid.:) and therefore if any person being attainted of some crime, doo whilest he is intestable make his te­stament, and afterwards obtaine a full pardon, with full restitution, the testament neuerthe­lesse is voide, because of the originall defectAretin. in d. §. non tamen. Simo de Praetis. de Interp. vlt. vol. lib. 1. fol. 146. n. 56..

Of forbidding or hindering the te­stator to make an other te­stament.
§. xviij.

1 The former testament is voide, where the testator is forbidden to alter the same, or to make a new te­stament.

2 Diuerse extensions of this foresaid conclusion.

3 Of hindering the Notarie or witnesses to haue ac­cesse [Page] to the testator.

4 Of disturbing the testator by making a noise.

5 Of immodest perswasions.

6 Whether this prohibition be proued by the assertion of the testator.

7 Diuers limitations of the first conclusion, viz. that the testament is ouerthrowen, where the testator is hindered in altering the same.

8 Of disturbing the testator with noise and wee­ping.

9 Whether the prohibition of one bee preiudiciall to others.

Amongst many other meanes wher­by the testamēt which was good at the beginning, is afterwards made void, this is one not to be omitted, (seeing it is so oftē practised) name­ly when † the testator intending to alter the testa­ment 1 before made, or to make a new testament is forbidden or crossed, so that he cannot or dare not doo as hee intendedTit. si quis aliquē te­stari prohib. ff. & C.. By this prohi­bition and maner of crooked dealing, the testa­ment which should haue beene altered is made voideL. 1. & 2. ff. si quis ali­quem testari prohib. Boss. Tract. de var. crim. Tit. de his qui aliq. te­stari ꝓhib Menoch. de arb. iud quaest. cas. 395. Socin. l. in. consil. 148. vol. 2. qui omnes locu­pletissimè scripserunt de hac [...]e. Eos igitur videas vel [...]m..

The reason is, because as those testaments are not found at the beginning which are made by feare or fraudeSupr. ead. part. §§ 2. & 3.: so that testament which for feare, or by fraude the testator dare not, or cannot alter, is from hencefoorth infected with the same disease, and so from henceforth to be [Page 274] esteemed of no more force or efficacie then these otherWesenb. in tit. si quis aliq. &c. ff. n. 1..

2 This conclusion, † that the testament doth become voide, when the testator is prohibited to alter the same, doth proceed not onely when the testator himselfe is prohibited or put in 3 feare: but also when the † Notarie or witnesses be letted or stopped, that they cannot haue ac­cesse vnto the testatorBar. in L. fin. ff si quia aliquem testari pro­hib. Boss. in d. tit. de his qui prohib. &c. n. 2. Paris. cons. 67. lib. 3.: for he that dooth not permit, is said to prohibiteParis. d. consil. n. 13.. And therefore if the wife being made executrix, or any other person benefited by the testament, vnderstan­ding that the testator is about to alter [...]is will, will not suffer his friends to come vnto him, pretending peraduenture that hee is fast a­sleepe, or in a slumber, or the Phisition gaue in charge, that none should come to himPeckius. Tract. de testa. coniug. lib. 1. c. 13, or pretending some other excuse, (or els all excu­ses set apart, do for charities sake shut them forth of the dooresVt est apud Teren. prae amore exclusit cum soras.:) In these cases the testament is void, in detestation of such odious shiftes and practisesPeckius vbi supra..

4 Secondly, this conclusion hath place, if † af­ter the comming of the Notarie or witnesses, & preparation of all things necessarie for the alte­ration of the former testament, some person of intent and purpose to hinder the altering of the same will, doth make a noise, and keepeth such a sturre, exclaiming and quarrelling with such as seeke to haue the testament altered, that the te­stator being therewith disturbed and offended, did not then alter his will, and shortly after diedAnch. consil 337. Menoch, de A [...]b [...]r. Iud. cas. 395 n. [...]8. 39..

Thirdly †, this conclusion hath place not 5 only where the testator is prohibited by threat­nings, or hindered by fraude, but also when he is ouercome with importunate requests, and fraudulent perswasions, not to alter his former testamentAfflict. decis. 69. n. 7. Menoch. d. cas. 395. n. 41. huc pertinet quod scripserunt Inno. in c. petitio. de iureiur. extr. & Rebuff. Tract. de re­script. tom. 2. art. 2. gloss. 3..

Fourthly †, this conclusion doth proceed, 6 albeit there bee no stronger proofe of vio­lence, or impediment offered to the testator in this case, then the assertion of the testator him­selfeParis. consil. 66. n. 119 vol. 3. Socin. Iun. consil 148. n. 14. Menoch. d. cas. 395. n. 40..

In these cases following †, the former con­clusion 7 doth not proceede. The first case is, when the testator had no purpose to alter his testament: for if any doo forbid the testator to alter his testament, when the testator hath not anie purpose to alter the same; this prohibition dooth not hurt the force of the testament alrea­die madeL. 1. ff. si quis aliquē. Bar. in L. vlt. eod. tit. n. 13. Menoch. d. cas. 395. n. 31. & est co. op. quod duo sunt probanda, vz. voluntas mutandi te­stm̄. & prohibitio. So­cin. Iun. cōsil. 148. vol. 2.. The second case is, when the feare which is vsed in the prohibition is vaine, or but light, such (I meane) as cannot moue a constant personParis consil. 97. n 41. vol. 3. Menoch. d. cas. 395. n. 32. & nos dixi­mus supr. ead. part. §. 2. The third case is when the testator is prohibited, but not at that present time, when he intended to alter his former testament, for such prohibition is not hurtfullSocin. sen. cōcil. 105 vol. 3. Socin. Iun. consil 148. n. 3. vol. 2. Paris. consil. 67. n. 33. vol. 3. Menoch. d. cas. 395. n. 32. Boss. d. tit. de his qui prohib. &c. n. 2. in fin.. The fourth case being like to the former, is when the testa­tor after the prohibition might verie well at sundrie times haue altred his testament, and did notMar. Socin. Iun. con. sil. 148. n. 48. vol. 2. Pa­ris. consil 67. n. 62. vol. 3. Menoch. d. cas 395. n. 25.: for in not altering the testament when he might, he seemeth to allowe it and confirme itMascard. de probac. conclus. 1280. n. 54. Mantic. de coniect. vlt. vol. lib. 12. tit. [...]. n. [...]2. per L. tractabatur. ff. de testa. mi [...]. quod ta­men se [...]o con [...]ide­ [...]andum est, vt per Mā ­tic. vbi supr. & Pe [...]kius Tract. de testa. coniug. lib. 1. c. 11.. The fift case is, when the testator is not com­pelled by feare, nor circumuented by fraud, but induced with flattering speeches voide of de­ceite, [Page 275] (such as may become an honest wife, or faithfull friend) not to alter his testamentMenoch. d. cas. 395. n 42. per L. vlt. ff. si qui [...] aliquem testari ꝓhib.. The 8 sixt case is, when † all things necessarie for the alteration of a testament being prepared, the ex­ecutor or legatarie, or other person, with his noise or weeping, dooth disturbe the testator that he cannot alter his testament, not of pur­pose to hinder such alteratiō, but being moued with compassion, to see the testator grieuously afflicted with sicknes, or being stricken with an vnfeigned sorrowe, through feare of the testa­tors death, or otherwise ouercome with an ho­nest or kinde care or griefe, and not able to sup­presse the force of this vehement passion; dooth burst into teares, and so with noise of his lamen­tations dooth disturbe the testator, that he can­not proceed in the alteration of his will: In this case the former testament is not made frustrate by such disturbance, albeit after that, the testa­tor neuer had the like opportunitie of altering his testamentParis. consil. 67. vol. 3. n. 47. 48. Socin. Iun. consil. 148. vol. 2. n. 33. verb. nam dum primo▪ &c.. Howbeit the iudge must be ve­rie wary, and learne by the circumstances of the fact, whether this noise and exclamation be of 9 policie, or of simplicitieMenoch. d. cas. 395. n. 39.. The seuenth † case is, when the executor or legatarie dooth forbid or hinder the testator to alter his testament, in which case the former testament is voide, onely in preiudice of that person, which doth prohi­bite or hinder the testator to alter the same, but not in preiudice of another not cōsenting ther­untoL. 2. si quis aliquem testa. prohib. ff.: much lesse doth the prohibition of that person, who is to reape no benefite by the testa­ment, hurt those executors which otherwise [Page] should be administrators, in case the partie died intestateMenoch. d. cas. 395. n. 20. post Bar. in L. vltim. si quis aliquem testari prohib. ff n. 11., vnlesse it doth appeare that the testa­tor would haue chaunged his whole testament, and haue appointed newe executors, for then this prohibition maketh voide the whole testa­ment, like as if the testator had beene compelled to make the same at the firstBar. in d. L. vlt. Me­noch. d. cas. 395. n. 17. Paris. consil. 67. vol. 3..

There is much adoo in the ciuill lawe about this question▪ who ought to haue the testators goods, when hee is compelled to make his te­stament, or hindered that hee can not reuoke his testament, the prince or the heires of the deade personDe qua q. Menoch. de arb. iud. cas. 395.? But with vs if any die inte­state, the administration of his goodes is to bee committed to the widow, or next of kinneStat. H. 8. an. 21. c. 5., and doth not go to the prince though the executor or legatarie be vnworthie.

When he that is made executor can not, or will not be exe­cutor.
[Page 276]§. xix.

1 Though the executor be incapable, the legacies are still due.

2 The executor ought to be capable of the executorship at three seuerall times.

3 It is sufficient for the legatarie, if he be capable of the legacie at the testators death.

4 What if the disposition be conditionall.

1 ALbeit † where he that is named exe­cutor in the testament, either can­not or will not be executor, by the lawes of this realme the legacies bequeathed in the same will are still due, and to bee paied by such as shall haue the administra­tion of the goodes of the deceasedBrook Abridg. tit. executor. n. 20. dixi iu­re huius regni, nàm se­cus est iure ciuili, hae­reditate non adita. L. 1. in fin. de iniusto testō. L. fidei commissum. de leg. 1. L. imperator. de leg. 2. ff. L. hoc non sit indistinctè verum, vt per Vigelij method. iu­ris ciuil. à quo tradita est regula cum pluri­mis limitationibus & sublimitac. lib. 12. c. 9.: in which case the will is to bee annexed to the letters of administration (as heretofore I haue declaredSupr. part. 1. §. 6. n. 6) yet by reason of the incapacitie or refusall of the executor, such disposition is thereby depriued, both of the name and nature of the testamentInstit. tit. de haeredit. quae ab intestat. def. in princ. Brook vbi supra., and so the partie is said to die intestate.

I shall not neede to repeate here particular­ly, by what means the executor may become in­capable of the executorship.

This one thing I thought good to note in 2 this place, that by the ciuill lawe † hee which is named executor, must be capable of the execu­torship at three seuerall times§. in extraneis. In­st [...]t de haered. qual. & differentia. vide supra part. 5. §. 2. & quae in il­lo §. ad notaui.: First at the ma­king of the testament, for then the testamēt taketh his substance or beingChrist. Porcus. in d. §. in extraneis.. Secondly, at the time of the death of the testator, for then the testament receiueth his strength & confirmationIdem Porcus. in e­od. §.. Third­ly, at the time of the probation of the will, and vn­dertaking the executorship, for then the testament entereth to his effect and executionIdem ibid. quamuis Ias hisce rationibus, totus non acquiescat. quippe qui alias meli­ores, atque (vt ille in­quit) fundamentalio­res assignat, in suis ad­dic. ad Christ. Porcum. in d §.. Howbeit 3 it is † sufficient in a legatarie, if he be capable of the legacie or deuice at the time of the death of the testatorBar. in L. si alienū. §. 1. ff de haered. instit. in fin. Peckius. Tract. de testam. coniug. lib. 4. c. 31. n. 5. Grass. Thesaur. com. op. §. Institutio. q. 28. n. 4., vnlesse the deuise be not pure and [Page] simple, but conditionall: for in conditionall dispositions both the executor, and also the le­gatarie, must be capable at the time of the per­formance or existence of the conditionBar. Grass. & Peckius vbi supra.; as for any other time, whether it bee betwixt the ma­king of the will, and the testators death, or be­twixt his death and the probation of the will, it skilleth not▪ for though the executor be thē in­capable, it hurteth not§. in extraneis. Instit. de haered. qual. & diffe­rentia., especially if † the dispo­sition 4 be conditionall; for then it is not requi­red in the executor (much lesse in the legatarie) that he be capable at another time, sauing onely at the time of existence or performance of the condition, no not at the making of the will, or death of the testatorAlex. in L. 2. ff. de vulg. & pup. sub. n. 11. Grass. d. §. Institutio. q. 28. n. 3. quae op. com. est Licèt non desint qui contrariam teneant..

If the executor doo refuse to vndergo the burthen or office of an executor, then he loo­seth whatsoeuer legacie is left vnto him in the testamentBar. & Sichar. in L. si legatarius. C. de le­gatis., sauing as elsewhere is recitedSupra part. 6. §. 3..

Of ademption of legacies.
§. xx.

1 By what meanes legacies become voide.

2 Ademption of legacies what it is.

3 Ademption of legacies two fold.

4 The testator may at any time alter his will, either wholy, or in part.

5 Ademption of legacies not to be presumed.

6 Corne in the barne being bequeathed, whether the same being spent, and other corne there at the death of the testator, the legacie be extinguished.

7 Whether the ship bequeathed, being altered and re­newed, the legacie be extinguished.

[Page 277] 8 Whether the house bequeathed, being by peecemeale reedisied and renued, may be recouered.

9 What if the testator do voluntarily pull downe the house, and erect another in place thereof.

10 What if the house bee burned, or blowen downe, and another erected, whether may this newe house be recouered.

11 An answere to an obiection.

12 Whether by necessarie alienation of the thing be­queathed, the legacie be adempted.

13 What if the alienation be voluntarie, the legacie is extinguished.

14 What if the voluntarie alienation bee voide in lawe.

15 What if the testator should redeeme the thing alie­nated.

16 Whether lands deuised, alienated, and redeemed, may be recouered.

17 The reasons of either lawe being contrarie in this point.

18 If the thing bequeathed be pledged, it is not there­by adempted.

19 Whether the receiuing of the debt bequeathed by the testator, be an ademption of the legacie.

20 A flocke of sheepe being bequeathed, whereof one a­lone is left, whether that one be due.

1 MAny other † meanes there be, where­by the testament which was good at the beginning, becommeth void af­terwardsCentum penè casus quibꝰ resolouitur testm̄. commemorat Vasq. de success. resoluc. lib. 1.: but it were too long [Page] to rehearse them all: let it suffice therefore, that I haue spoken of such as happely may the ofter fall out in fact. Now it remaineth that I speake of such meanes, whereby legacies giuen and bequeathed by the testator become voide: Of which meanes some do proceede from the fact of the testator Hoc ipso §. & §. seq.: some haue relation to the fact or per­son of the legatarie Infra §§. 22. & 23.: some to the thing bequeathed Infra §. vlt..

In respect of the fact of the testator are legacies made voide, especially by ademption, and by translation of the thing bequeathedInstit. tit. de ademp. & translac. legatorū & tit. de adimen. vel transferend. leg. ff..

Ademption † is a taking away of the legacie 2 before bequeathedDD. in d. Rub. de ad­emp. & translac. leg. Instit.: Translation is a bestowing of the legacy bequeathed vpon some other per­sonMinsing. in d. Rub.. Ademption may be without translation, but translation of a legacie cannot be without ademptionMinsing. vbi supra. Wesenb. in tit. de adi­men. vel transfferend. leg. ff..

Ademption † of legacies is two folde, ex­pressed 3 and secrete Wesenb. in d. tit. de adimen. leg. ff.: expressed, when the testator doth by words take away the legacie before gi­uenL. 2. & 3. de adimen. leg. ff.: secrete, when the testator doth by deedes without words take away the legacie: as whē he doth giue away the thing bequeathed, or doth voluntarily alienate the same before his deathL. rem legatam. de adimen. leg. ff..

It is † lawfull for euery testatorL. 3. de re. iud. L. 3. de reg. iur. ff. so long as 4 he liueth, to reuoke or alter his willL. 4. ff de adimen. leg. ff., either wholy or in partL. vlt. de adimen. leg. ff., either in the same will, or in another, either solemne or vnsolemneQuod si alio testa­mento insolenni fiat ademptio, tunc non ip­so iure, sed ope excep­tionis tollitur legatum. Grass. Thesau. com. [...]. §. legatum. q. 78., simplie, [...]r conditionallyL. datum. C. de le­gatis..

When the testator dooth expresly reuoke the legacie, it is not materiall whether he doo vse wordes direct contrarie: as I doo not giue, I do not bequeath, or any other words whatsoeuer, [Page 278] so that his meaning may appeareL. 2. & 3. ff. de adimé. leg. Insti. tit. de ademp. legat..

5 Ademption † of legacies is no more to be presumed, then the reuocation of the testa­mentsBald. in L. si pluribus ff. de leg. 1. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 2. 6 vnlesse it be proouedL. eum qui voluntatē, ff. de probac.. And therefore † if the testator doo bequeath all the corne in his barne, and after the making of his will, the testa­tor suruiueth vntil all the corne be spent, and o­ther corne put in the pleace thereofSecus si non sit repo­situm per modum sur­rogationis, ait Angel. in L. si seruus. §. qui quinque. ff. de leg. 1. Mascard. de probac. conclus. 1283. n. 33.: this spen­ding of the corne is no ademption of the lega­cie; and therefore the legatarie shall haue such corne as is founde in the barne when the testa­tor diethBar. in d. §. qui quin­que. Mantic. de con­iect. vlt. vol. lib. 12. tit. 2. n. 9., vnlesse the corne found in the barne at the death of the testator, bee greater in quan­titie then was the corne at the time of the will making: for so much is due, but not a greater quantitie then was the firstPaul. de Castr. in d. &. qui quinque. Mas­card. de probac. d. cōcl. 1283. n. 33. 34..

7 Likewise if † the testator do bequeath a ship, and afterwardes dooth by peecemeale repaire and renue the same, so that there remaineth no­thing of the olde shippe but onely the bottome tree: here is no ademption of the legacie, and therefore the legatarie may recouer the whole shippeL. quod in rerum. §. & si nauem. ff. de leg. 1. Spiegel. Lexic. verb. carina. Mantic. de con­iect. vlt. vol. lib. 12. tit. 2. n. 7..

8 Or if the † testator doo bequeath a house, and afterwards by peecemeale repaire the same, so that there is no parte of the olde matter or stuffe remaining, the will of the testator is not hereby presumed to be chaunged, and thetfore the legatarie may recouer the house so repai­redL. si ita legatum. §. fi domus. ff. de leg. 1.: For it is deemed to bee the same house still in lawe, as in the former case it is deemed to be the same shipIas. in d. §. si domus. n. 1. Mascard. de probac. conclus. 1280. n. 21. Zas. in d. §. & si nauem..

9 But if the † testator did at once voluntarily [Page] pull downe all the whole house bequeathed, & did afterwards erect anew house in the same place; then by the ciuill lawe, the will of the te­stator is presumed to be changed, and the lega­cie extinguishedPaul. de Castr. in d. § si domus. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 6.. And although by the lawes of this realme, it may be otherwise in contracts and couenants amongst such as be liuingId quod non semel mihi nunciatum fuit.: ad­mit it were so (as in some sort it is answerable to the ciuil lawIntellige quoad iura realia quorum intuitu aedificiū destructum & restitutum cen [...]tur idem. L. seruitutes. §. sublatum. ff. de seruit. verb. praed.) yet the reason of the difference is not obscure, which is this. In cōtracts, couenāts, and graunts made amongst such as be liuing, he to whom this or that is lawfully graunted, hath by and by a certaine right and interest thereinBar. & alij. in d. §. vlt., which without his consent ought not to bee impairedL. Id quod nostrum. de reg. iur. ff., and whatsoeuer is builded vpon ano­thers ground, yeeldeth thereunto, and thereby becommeth his, which is the owner of the ground§. cum in suo solo. Instit. de rerum diuis.. But in a testament or last will, there is no such right deriued to the legatarie, in, or to the thing bequeathed, vntill the testator bee deadBar. in d. L. si ita lega­tum. §. vlt. de leg. 1. verb die ergo.: and therefore, if in the meane time the testator do alter his minde (which alteration is manifest, as well by deeds as by wordsL. Paulus. ff. rem rat. haberi. Wesenb. in tit. de adimen. leg. ff. n. 2. & 4.:) In this case the legatarie which hath no right, cannot make such claime to the thing bequeathed as another may doo, to whom a thing is couenan­ted or graunted, and so hath a right and inter­est thereinBar. in d. §. vlt. & Ias. ibid. n. 6.. In deed if the testator were deade, and so a right in the legatarie, and then the heire or executor should pull downe the house deui­sed, and erect a new house in the same place, the legatarie might recouer the newe builded houseL. domos. de leg. 1. ff. & ibi DD: but being pulled downe by the testa­tor, [Page 279] whiles as yet there was no right or interest in the legatarie, the legacie is extinguishedText. in d. L. si ita le­gatum. § si domus. Mascard. de probac. conclus. 1280. n 27., as is aforesaid: vnles a contrarie meaning be proued in the testator, viz. that he did not intend to re­uoke the deuise, by destroying the thing deui­sedEod. §. si domus., because peraduenture he did protestL. at si cleric [...]. §. ple­rique ff. de relig. & ibi Bald. be­fore he caused the house to be pulled downe, that hee did not thereby meane to make voide the deuise, or after the reedifiyng thereof, did ratifie and confirme his former willArg. L. 1. §. 1. de leg 3 ff. Brook Abridg. tit. deuise. n. 8., or did ma­nifest his meaning by other equiualent con­iectures, without which proofe of such the te­stators meaning, the legacie is so surely extin­guished, that albeit the testator did pull downe the house, with intent to reedifie the same, or to make it biggerIas. in d. L. si ita. §. vlt de lega. 1. ff. n. 13. in sin.: and albeit it were reedified of the same matter or stuffePaul. de Castr. & Ias. in d. §. si domus. Mas­card. de probac. concl. 1280. n 25., yet it cannot be reco­uered as due to the legatarie: for now hauing a new form, it is not the same but another houseIidem Castreus. Ias. & Mascard. vbi supra. Mascard. de probac. conclus. 11 [...]0. n. 25., and so being another thing thē that which was bequeathed, how can it be rightly chalenged by the legatarieVide DD. in L inter stipulantem. ff. de verb oblig..

What if † the house bequeathed be blowen 10 downe with violence of the winde, or be con­sumed with fire, or otherwise by casuall means destroyed, against the will of the testator, and a new house erected by the testator, in the [...]l [...]ce where the former stood; whether may the lega­tarie recouer the house newly erected? By the opinion of some he mayIas. in L. domos. ff. de leg. 1. n. 1. & in L. si ita legatum. §. si domus. e­od. tit. n. 13., for if the testator had not erected a new house, by the ciuill lawe the ground whereon the house did stand, should belong to the legatarieL. si grege legato. ff. de leg. 1. in fin. Paul. de Castr. in d. §. si domus. verb. sed ponc. & ibi Ias. n. 2. & 7.. Seeing then the groūd [Page] is the legataries, it followeth that the house is the legataries alsoL. si seruum filij. §. si a cae. ff. de leg. 1. Ias. & Paul. de Castr. vbi supr. Howbeit the authour of this opinion in another place is of another opini­onIas. in L. domus. ff. de leg 1. n. 13., which opinion is also commended of o­ther writers, as more agreeable to lawMascard. Tract. de probac conclus. 1280. n. 27. & Mantic. de con­iect. vlt. vol. lib. 12. tit. 2. n. 6., because this house is another house then that which was bequeathed. And again, the text of the ci­uill law is plaine, that the house bequeathed being destroyed, if the testator build another in the same place, the legacie is extinguished, vnlesse the meaning of the testator were otherwise Text. in d. § si do­mus.. Seeing then, the text dooth not distinguish of the meanes whereby the house is destroied, neither may weMas [...]. & Mantic. vbi sup.

To the † former reason that the ground had 11 belonged to the legatarie, if the testator had not builded a new house, ergo the house also: It is answered, that if it were graunted (which of di­uers is denied) that the ground should be ong to the legatarieRaph. Cu. Petr. de Bexu. in d. §. si domus, & ibi Ias. n. 13., yet should it not belong vnto him as principall, but as accessarie, or part of the house bequeathedBar. Paul. de Castr. Ias. in d. §. si domus.: and therefore being but accessarie, it dooth not receiue any other accesse or augmentationIidem Bar. Ias. & Paul. de Castr. vbi supr.. How be it, forasmuch as these questions aboute houses deuised by will, afterwards destroyed, and then reedified, are rather to be determined by the lawes of this realme, then by the ciuill law: I do willingly yeeld the matter into their hands, to whom it principally apperteineth.

Furthermore, if † the testator being constrai­ [...] 12 neede L. fideicommiss. §. si rem. ff. de leg. 3. L. rem legatam. de adimen. leg., as to pay his debts, or to prouide him food, or other like necessarysMi [...]sing. in §. si rem. Instit. de lega. Berous. q. 9. Adde quod siuè ne­cessitas sit ex re fami­liari. siuè ex lege vtra (que) impedit praesumptio­neth reuocationis le­ [...]ati. Mascard. de pro­bac. conclus. 1280. n 126, do as it were vnwillingly alienate the thing by him before [Page 280] bequeathed, this is no ademption of the lega­cied. L. fideicomissa. §. si rem., and therefore is the executor bounde to redeeme the same, or to pay the iust value ther­of to the legatarie, vnlesse he prooue that the testator did purpose by the saide alienation to take away the legacied. §. si rem. Instit. de lega. Mascard. de pro­bac. d. cōcl. 1280. n. 127., or vnlesse the legacie were conditionall, and the alienation made be­fore the condition were extant or accompli­shedL. Stichum. ff. de lega. 1. Bald. in L. 3. C. de lega. n. 6.. 13 But † if the testator not constrained by ne­cessitie, doo of his owne accord alienate the thing be­queathed (as if he giue the same freelyL. rem legatam. ff. de adimen. lega., or doo sell the same of intent to gaine therebyBerous. d. q. 9.) this is 14 an ademption of the legacieBar. & alij, in L. r [...] legatam. ff. de adi­men. leg. & in L. 3. C. de lega.: which cōclusion † hath place, although the gift or alienation bee void in laweL. legatum. §. pater ff de adimen lega. Bar. in L. cum dn̄ [...]. § fin. de pecul. leg 1. Socin. sen. consil. 104. n. 11. vol. 3. Couar. in Rub. de testa. extra. 2. part. n. 21. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 2. quod locum habet ta­metsi legatum fuerit expressim legatum, & h [...]c sententia verior est. & receptior. testi­bus Mantica vbi supra. Mascardo de probati­one concl. 1280. n. 98. Gabriel. cons. 103. Idem iuris est si facta alienatione dominium non sit tra [...]atum. Mantic. d. tic. 6. n. 3. Mascard. d. concl. 1280. n. 100. Et licèt non desint magni nominis Interpretos, qui in con­traria stant sententia, per L. praedia §. libert. de Instr. leg. Falsissima tamen est horum sen­tentia, si verum dicat Gabr. d. consil. 103. Tu verò dic vt per D. Gentilem, acutissimè de hac re differentem. lib. 1. epist. c. 10.: For it is sufficient in last willes, for the reuoking of a legacie that the testators meaning doo appeare euen by a sufficient acteCouar. in d. Rub. part. 2. n. 21. verb. aduertendum. Grass Thesaur. com op. §. legatum. q 78. in sin..

15 Secondly, this conclusion † hath place al­though the testator should redeeme the thing alienated, the alienation being lawfulL. cum seruus. ff. de adimen. leg.: and ther­fore if the legatarie should after the death of the testator demaund the legacie alienated, and re­deemed, his petition were to be repelled, vn­lesse he did prooue a new will of the testator, or some approbation or ratification of the former will, after the redemption of the thing aliena­tedd. L. cum seruus., or vnlesse the legacie be of freedome from [Page] bondageL. verū. ff. de testam. manumiss., or giuen to some godly or charitable vseM [...]nsing. in d. §. si rē. Instit. de lega. Mantic. d. tit. 6. n. 6. Mas [...]a [...]d. d. conclus. 1 [...]80. n. 112.: or vnles the alienation were necessarie, not voluntarieBar. [...]n d. L. cum ser­u [...]s., or vnles the legatarie be neere of kin or allied vnto the testatorL. si [...]ia. § Titio. ff. de cond. & demon. Masc. d. concl. 1280. n. 111.: In these and in some other cases, the legacie redeemed may be reco­uered, as if the same had neuer bene alienatedMascard. d. conclus. 1280. n. 108. 109. &c. vbi alias videre licet huius regulae exceptiones.. Peraduenture also by the lawes of this realme † 16 landes, tenements, and hereditaments, being first deuised, and after the deuise alienated, and after the alienation redeemed, may be recoue­red, as if the same had not bene alienatedBrook abridg. tit. deuise. n. 8.. The † 17 reason of this law may be, because the alienatiō dooth not defeate the will, which is not as yet of any force vntill the testator be deadeBrook. eodem loco.: but the reason of the ciuill lawe is, because by this voluntarie or vnconstrained alienation, or gift of the thing bequeathed, being an act contrarie to the former acte of the testator, his will and meaning, (which is the life and soule of the te­stamēt,) is straight wayes presumed to be chan­gedAretin. in §. si rem Instit. de lega. Socin. sen. consil. 103. in fin. Mascard. de probac. concl. 1280. n. 100. Si­chard. in L. 3. C. de leg. n. 5., and consequently the legacie not to be a­sleepe, (as some doo dreame) but to be quite dead and extinguishedSichard. in d. L. 3. C. de leg. [...]. 5. 8.; and being once dead, cannot easily be awaked, but standeth in need of a new consent or other liuely act before it can be reuiuedL. cum seruus ff. de a­dimen. lega..

If † the thing bequeathed be not fully alie­nated, 18 as if it be pledged or pawned, the legacie is not thereby extinguishedL. qui post. C de lega.: and therefore the executor in this case is bound to redeeme the same, and to restore it to the legatarie, or to pay the price thereof if he suffer it to be forfaitedIstam conclusionem limitat & sublimitat Mascar. de probatione conclus. 1280. n. 56. &c. quem velim videas.. Likewise, if some part onely of the legacie be [Page 281] alienated, the other part not alienated is due, and may be recouered§ ff rem. Instit. de le­ga, vnlesse it be prooued that the testator did meane by alienating part, to take away the whole legacieEod. §. in fin.; or if the lega­cie be alternatiue, as if the testator bequeathe something, or the value thereof, the thing being alienated, yet may the value be reco­ueredBald. & Paul. de Ca­stro. in L. 3. C. de lega..

19 If the † testator doo bequeath an obliga­tion, or a summe of money due vnto him, and afterwards the debter vnprouoked dooth vo­luntarily pay the debt due vnto the testator, the receit of the same is no ademption of the le­gacieL. fideicommissa. §. sed si rem. ff. de leg. 3. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 19.: but if the testator do prouoke the deb­ter to make paiment, then by receit thereof the legacie is extinguishedd. §. sed si rem. & ibi Bar. & alij. L. pater. ff. de adimen. leg. Mascar. de probac. concl. 1280. n. 130., vnlesse the legatarie be able to prooue, that the testator did not thereby meane to reuoke the legacied. §. sed si rem., for that perad­uenture the testator exacting and receiuing the money, did lay it vp, and safely keepe it for the legatarieEod. §. s [...]d si rem. & ibi Bar. in fin & Bald. circa med., or did vtter in woordes that he did not intende thereby to reuoke the legacieBar. in d. §. sed si rem.: In these cases the legacie is not reuokedVide Mascar. d. con­clus. 1280. n. 132. 133..

20 Finally †, If the testator do bequeath a flocke of sheepe, and afterwards the number decrea­sing, they become fewer then a flocke, (a flocke consisteth of ten at the leastL. si grege. ff. de leg. 1. & DD ibid.) be it that of al the flocke there be left but one: In this case the will of the testator is not presumed to be altered, nor the legacie adempted, and therefore that one sheepe is due§. si grex. Instit. de lega..

Of translation of legacies.
§. x [...].

1 Translation of a legacie what it is.

2 Euery translation includeth an ademption.

3 What if the person to whom the legacie is transfer­red, be incapable thereof.

4 Certaine cases wherin translation of the legacie doth not include an ademption.

5 The legacie is presumed to be transferred with the charge imposed on the first legatarie.

6 Certaine exceptions of this conclusion.

7 One and the same thing bequeathed, first to one, and afterwards to another, whether it be wholy taken from the former legatarie.

8 If in the second disposition there be no mention of the former, it is not wholy taken from the former legatarie.

9 If there be mention of the former bequest, yet the thing bequeathed is not wholy taken away.

10 Certaine limitations of this last position.

11 Difference betwixt these wordes, I giue▪ and I be­queath.

12 What if the legacie consist in quantitie.

13 What if one summe be twise bequeathed to one per­son, whether is it twise due.

TRanslation † of a legacie is a bestow­ing 1 of the same vpon an otherMinsing. in tit. de ademp. lega. Inst. t. n 4., as ademption may be made either in the same testament or in codicils, [Page 282] simplie or condicionally: so may translation of legacies likewiseTit. de ademp. leg. Instit. L. translatio. eod. tit. ff. & DD. ibid..

A legacie † being transferred from one to ano­ther, the legacie is taken away from the former 3 legatarie, albeit † the second legatarie be incapa­ble of the legacieL. plane. §. 1. de leg. 1. L. & si transferam de adim. leg. ff.: for howsoeuer that acte is saide not to minister impediment, which is al­togither without effectc. non praestat. de reg. iur. [...]., yet forasmuch as by this translation it dooth appeare to be the testa­tors will and meaning, first to haue the legacie taken away from the former legatarie: this will and meaning ought to be obserued, so far as it mayMinsing. in d. tit. de ademp. leg. n. 6., and ought not therefore to be hindered in one thing, because it cannot be performed in 4 anotherBar. Ias. & alij, in d. L plane.. For as I said before, euerie † translation doth presuppose & include an ademptionCaeterum an transla­tio sit expressa vel taci­ta primi legati reuo­catio, quaestio est cui nō eod [...]m modo respon­dent omnes: Tu autem videas Couar. in Rub. de testa. extra. 2. part. n 21., ex­cept in certaine cases following. The first case is, when the testator in the time of great & extreme sicknesse, transferring a legacie, or bestowing the same vpon an other, dooth afterwards reco­uer his health: for by this recouerie the transla­tion is voide, and the former legacie confir­medL. Titia. §. vlt. de adi­men. leg. ff. Mantic. de coniect. vlt. vol. lib. 12. tit. 3. n. 2.. Another case is, when the testator ha­uing bequeathed a legacie to one, and hauing prouided that if the legatarie will not do such a thing to another person, that then that other person shall haue the legacie: In this case if the former legatarie be preuented by death, that he cannot perfourme the condition though hee would, the second legatarie cannot obtaine the legacieL sancimus C. le paenis. Ias. in L. cum proponas. C. de h [...]red. in [...]t. & Mantic. de coniect. vlt. vol. lib. 12. tit. 3. n. 2.. The thirde case is, when the legacie dooth consist in quantitie; as when the testa­tor dooth bequeath to one man an hundred [Page] pound, and immediately after to another man an hundred pound: here is neither translation nor ademption of the former legacie, but two seuerall legaciesL. plane. §. 1. de leg. 1. L. paulo. in prin. de leg. 3. ff.. But yet if the testator do limit this summe to some certaine bodie, as if the testator bequeath to one man an hūdred poūd which lieth in his chest; then it is all one as if he said, he did bequeath his signet, his bookes, or his armour, whereof we shall haue occasion to speake shortly afterInfra hoc ipso §. n. 7. 11..

Furthermore, it is to be † noted in this place, 5 that where any legacie is transferred from one to another, it is presumed to be transferred to the second legatarie, with such charge, or vpon such condition, as it was left to the former lega­tarie, albeit in the translation there be no ex­presse mention of any such charge of condi­tionL. Gaio. ff. de alimē. & cib. leg. L. legatum. de adimen. [...]eg. Paul de Castr. consil. 327. vol. 1.: For example; the testator giueth to one person an hundred pound, charging him to de­stribute ten shillings yearly amongst the poore during ten yeares: afterwards the testator doth bestow that hundred pound vpon an other per­son, without mention of any such yearely de­stribution: In this case the second legatarie is charged with the yearely paiment and distribu­tion of ten shillings, euen as the former lega­tarieBar. in d. L. Gaio. M [...]ntic, de coniect. vlt. vol. lib. 12. tit. 3. n. 3.: neither can he accept the one part of the legacie without the otherL. legatarius. §. si le­gatum. de leg. 1.: sauing † in certaine 6 cases. One case is, if he be able to prooue the te­stators meaning to be contrarie, viz. that it was the testators meaning to transferre and bestow the legacie simplie without any such charge or conditiond. L. Gai [...].. Another case is, when the cōdition [Page 283] is such, as the same dooth cleaue to the person of the former legatarieL. legatum sub con­ditione. de adimen. leg. L. legatum sub condi­tione. de condict. & de­mon. ff.: For example; the te­stator dooth bequeath to a woman with childe an hundred pound, if she be deliuered of a boy: this condition doth cleaue to the person of the former legatarie, and so is not transferred with the legacied. L. legatum sub cō ­ditio. de adim. legat. & ibi DD.. The third case is, when the transla­tion is made to the same person, without men­tion of any further charge or condition: for then least the second bequest should seeme su­perfluous, it is thought to be the meaning of the testator, by the second bequest to giue the same simplieL. si tibi. de adimen. leg. ff.. The fourth case is, when in the translation of the legacie, there is a new speciall charge imposed vpon the second legatarie: for then the olde charge imposed to the former le­gatarie is presumed to be remitted, least other­wise the later legatarie should bee pressed with a double chargeL. Alumne. de adimē. le Paul. de Castr. consi. 327. vol. 1. Mantic. de coniect. vlt. vol. lib. 12. tit. 3..

What if the testator after he haue giuen a legacie to one personne, doo afterwardes be­queath the same to another person, whether is this an ademption of the former legacie, or whether ought both the legataries to con­curre, and to haue the legacie betwixt them.

For answere, we are to consider, whether some speciall and certaine thing is bequeathed, or a thing consisting in quantitie.

In the former case, namely when some spe­ciall or certaine thing is bequeathed; it is materi­all whether the legacie be of lands, tenements, or hereditaments, and so the question determi­nable in the temporall court, according to the [Page] lawes temporall of this land, are of goods, and so the controuersie to be decided in the eccle­siasticall court, according to the lawes ecclesi­asticall of this realme. If of lands, tenements, & hereditamēts, as when the testator (for exam­ple) doth in the former part of his wil, deuise his lāds in such a place to one in fee, and afterwards in the later part of the same will, to another per­son in fee: it seemeth by the lawes of this realm, that the later part doth ouerthrow the formerPlowd. in cas. inter Paramor & Yardley. fol. 541.. And that as the later testament dooth destroy the former testament:Eadē enim est ratio partis ad partem, atque totius ad totum. Eue­rard. loc. top. à toto ad partem. so the later part of a testa­ment, doth infringe the former part of the same testament, when it is contrarie thereunto: ne­uerthelesse I wil not presume to affirme, that this conclusion is vndoubtedly certaine, but with due submission surrender the same, to be discus­sed by the learned in the lawes temporall, vnto whom it rightly appertaineth.

If the deuise be of goods; as when the te­stator dooth bequeath his signet, his bookes, or his horse, &c. First to one person, and after­wards to another person: then in case the se­cond legacie be simple, (I meane without men­tion of the former) the former legacie is not ta­ken away, but the two legataries concurring, ought to diuide the legacie betwixt themPaul. de Castro. Ias. & Zas. in L. si pluribus. ff. de leg. 1. Ripa. in L. re coniūcti. n. 21. de leg 3.. The reason and foundation whereupon this conclu­sion is builded, is the testators constancie, wher­in the ciuill law dooth repose such confidence, that whē he hath once bequeathed a thing, he is not presumed to take the same awayd. L. si pluribus. verb. si quidem euidentissi­mè., without euident presumptionRaph. Cum. in d. L. si pluribus. & ibi Ias. n. 12. & 13. & zas. n. 14. qui omnes tenent sufficere coniecturalem proba­tionem, non obstante quod Textus exigat euidentissimam. Quin imo, probatio vel ex coniecturis emergens, dicitur euidentissima, in translatione legato­rum. Ias. vbi supra. post Bar. in L. si constante. ff. sol. ma. n. 12. of the alteration of his [Page 284] former resolution. Insomuch that if one and the same thing be left to one person in the testa­ment, and to another in the codicill, yet is not the testator presumed so variable, as vtterly to take away the former legacie, but rather that both the legataries are to concurre, and so to di­uide the legacie betwixt themBald. in L. cohaeredi. §. cohaeres. in fin. de vulg. & pup. sub. ff. A­lex. consil. 169. vol. 5. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 3.. Where it is said that as the later testament doth destroy the for­mer testament: so likewise the later part of the testament, dooth ouerthrow the former part thereof: That is true, when it is euident that the testator did meane it should be sod. L. si pluribus. & ibi DD. Mantic. de coniec. vlt. vol. lib. 12. tit. 2. n. 3. in fin.: But if it be doubtfull, then without all doubt we ought to labour diligently to saue the testament from cō ­tradictionMantic. de coniect. vlt. vol. lib. 3. tit. 5. in fin. Socin. Iun. consil. 125. vol. 1. n. 5., and not suffer one part to fight and brawle with another; much lesse to permit one part to kill and destroy another, in case there be any place for peace, or hope of reconciliation to be had betwixt them. Againe, the argument is not of equall force, à parte ad partem, with the argumēt à toto ad totum, in case there be inequa­litie or diuersitie of reason betwixt the one and the otherEuerard. d. loco, à toto ad partem. n. 7. post Cyn. & alios legû interpretes. in L. cum notissimi. §. in his. C. de praescrip. 30. ann., as in this case: For say that such is the force of posterioritie in testaments, that the later dooth still destroy the former§. posteriore. Instit. quib. mod testam. in­firm., without any o­ther reuocationViglius. & Minsing. in d. §. posteriore.: Say and thinke, that the life of the later testament is euermore the death of the former testament, euen because it is the laterGrass. Thesaur. com. op. §. testm̄. q. 860. in prin & supra eadem part. §. 14.: yet how can it be thereby iustified, that the later part of a testament dooth destroy the former part, whereas neither part doth receiue any life before the otherBar. in L. si quis. ff. de testa. L. ex ea scri­ptura. eod. tit.: for vntill the whole testa­ment be completed, the partes thereof are as [Page] the sencelesse partes of an vnperfect creature, or confused embrio d L ex ea scriptura, Imo (inquit Textus) testamentum imper­fectum est sine dubio nullum. §. pen. Instit. quib. mod. testa. infir.: and doo receiue their life altogether at one instant; namely when the te­stator hauing finished his testament, dooth ap­proue the same for his last wil, and not beforeIul. Clat. §. testm̄. q. 7. in fin.: Like as they do receiue their strength all at one moment, namely at the death of the testator, and not before, at which time the foresaid Em­brio being now growen to a perfect childe, is then brought into the world, when the testator doth depart out of the worldChrof. Porcus. in §. in extraneis. Instit. de haer qual. & different. c. Marth. de celebr. miss. extra..

If the second bequest be qualified with men­tiō of the former: for example; the testator saith, my signet which I bequeathed to A.B. I bequeath to C. D. whether in this case the former legacie be quite taken away, or in part, is a question wherin the writers do greatly varyId quod patet per Mantic. de coniect. vlt. vol. lib. 12. tit. 4 per Couar. in Rub. de te­sta. extra part. 2. per Grass. Thesaur. com. op. §. legatum. q. 8. per Vasq. de success. progress. lib 3. §. 23. n. 96. &c. & per Doctores, in L. plane. & L. si plu­ribus. ff. de leg. 1.: but the greater nū ­ber incline to this opinion, that the former le­gacie is not wholy taken away, but that they are both ioint legatariesBar. in L. re coniun­cti. ff. de leg. 3. cuius opinionem fre­quentiori calculo re­ceptam monstrat no­bis Mantic. de coniect. vlt. vol. lib. 12. tit. 4. n. 1. et refert Grass. The­saur. com. op §. legatū. q. 180., except in certain cases. One is when it may appeare (at least by con­iectures) that it was the testators meaning to take away the legacie from the former legatarie wholy.Bar. in d. L. re con­iuncti. Mantic. d. tit. 4. n. 8. Grass. d. §. legatū. q. 80. n. 2.. Another is, when the second bequest is not made in the same testament, but after in some codicillRipa. in d. L. re con­iuncti. n. 23. de leg. 3. ff. Mantic. d. tit. 4. n. 10.. Another case is, when the testa­tor in the second disposition saith, that which I did bequeath to A.B, I giue to C. D: for this word giue, is of such force, that it seemeth who­ly to take away the former legacieCouar. in Rub. de testa. extra. part. 2. n. 21. Alciat. in L. tripli­ci. de verb. sig ff. n. 13. Mascard. Tract. de probac. conclus. 1280. n. 47..

In the second case, that is to say, when the legacie dooth consist in quantitie, if the testator doo bequeath to one man an hundred pound, and immediately to another man an other hun­dred pound: here is neither translation, nor ad­emption, but two seuerall legacies; and either legatarie in this case shall recouer an hundred poundAtque haec conclu­sio sine contradi­ctione vera est. Minsing. in §. transfer­ri. Instit. de ademp. leg. n. 8., as I haue shewed before. Where also I signified, that if the testator doo restraine this quantitie to a certaine bodie, as to the hundred pound sealed vp in such a bagge, then it is redu­ced to that case of bequeathing a certaine speci­all thing, as the testators signet, first to one; and then to anotherL. plane. §. si eadem. de leg. 1. ff. verb. sed hoc ita. & Zas. eod. §. n. 3. verb. sed finge..

If the testator doo bequeath to one man an hundred pound, and afterwards in the same testament bequeatheth to the same man an hundred pound; the second disposition is vn­derstood to be but a repetition of the former, and all but one legacieGloss. in d. L. plane. §. 1. & ibi Ias. n. 11. & Zas. n. 14. Michael. Gras. Thesaur. com. op. §. le­gatū. q. 60. Contra quā opinionē quantumuis communem, emana­uit disputatio à D. Gentil. condita, non in elegans, nec iniu­cunda. Hanc ipse legi­to. lib. disputac. fol. 51.: wherefore the legatarie in this case can recouer but one hundred poūd; vnlesse he make proofe that it was the testators meaning, that he should haue two hundred poundTunc enim saepiùs praestanda est summa, si modò euidentissi­mis probationibus o­stendatur testatorem multiplicare legatum voluisse. d. §. 1.: or vnlesse an vnequall quantitie be gi­uen to the same legatarie; as if the testator doo bequeath in one part of his testament an hun­dred pound, and in another part fiftie pound: for in this case the legatarie may recouer an hū ­dred and fiftie poundL. cum centum. de adimen. leg. ff. Ias. in d. § 1. Grass. d. q 60. vbi scri­bit hanc op. esse com.: or vnlesse where two e­qual sūmes be left to one person, the one quan­titie were left in one writing, and another quā ­titie in another writing, suppose one C. pound in the testament, another hundred pounde in [Page] the codicill; for here the legatarie may recouer two hundred poundIas. & Zas. in d. L. plane. §. si eadē. de leg. 1. & haec op. com est, vt per eosdē Doctores: & per Grass. d. §. legatū q. 60. & per Ripam. d. L. coniūcti. de leg. 3. ff., as two seuerall legacies, except the executor proue the testators mea­ning to be contrarieMinsin. in tit. de adē. legat. Instit. n. 8..

Of diuerse meanes vvereby legacies are lost, considerable in the legatarie.
[Page 286]§. xxii.

1 By what meanes he that is named executor is made incapable of the executorship, by the same meanes doth the legatarie lose his legacie.

2 The legacie is lost by reason of enimitie betwixt the testator and the legatarie.

3 Diuerse extensions of this conclusion.

4 What if the testator were the cause of the enimitie, and the legatarie in no fault.

5 Certaine cases wherein the legacie is not lost by rea­son of enimitie.

6 The legatarie being appointed tutor, looseth his lega­cie, if he refuse the tutorship.

7 The legatarie, if he accuse the testament of falsitie, looseth his legacie.

8 The legatarie which dooth cancell the testament, doth loose his legacie.

9 The legatarie dooth loose his legacie, who of his owne authoritie dooth take and possesse the thing bequeathed.

10 Certaine cases wherein the former conclusion is limited.

1 IN respect of the fact and person of the legatarie, the legacie may be­come void diuers wayes. And first generally † by all the meanes aboue recited, whereby the executor is made incapable of the executorshipGloss. in L. 3. §. fin. de adimen. leg. ff. L. ex part. eod. tit. Mantic. de coniect. vlt. vol. lib. 12. tit. 4. n. 2.: as if the legatarie doo become an heretike, an apostata, or doo forbid the testator to alter his will, &c. of all which meanes we haue spoken alreadieSupra part. 5. §§. 2. 3. 4. cum seq. & supr. ead. part. §. 18., wherefore wee shall let them passe, and des­cende to some particular causes not yet men­tioned.

2 First therefore, if the † legatarie become eni­mie to the testator, he looseth his legacieL. 3. §. fin. de adimen. leg ff. Tiraquel. in reg. cessante causa. n. 127. Mantic. de coniect. vlt. vol. lib. 12. tit. 5. in prin.. For be­sides that he seemeth vnworthie of a benefite at his handes, whom he dooth offend and iniu­rie, it is not likely that the testator would, that that person which doth persecute him with ha­tred and enimitie whiles he liueth, should reape any commoditie by his testament when he is deadL. si inimicitiae. ff. de his quib. vt indig. L. nec adiecit. ff. pro socio. Mascard. de probac. conclus. q. 1280. n. 137.: and therefore if the testators enimie should demaund any legacie, he might iustly be repelled, by reason of the defect of the testators will and consentDD. in d. L. si inimi­citiae. & in d. §. fin., which consent is the life and soule of the testament.

3 The † extensions of this conclusion are these. First, albeit the testator doo afterwards make some codicill, or additions to his testa­ment, and do not therin expressy reuoke the le­gacy, before bequeathed in his last testamēt, yet [Page] [...] [Page 284] [...] [Page] is it still presumed to be reuoked secretly, and in the intent of the testator, by reason of the afore­said hatred or enimitieL. filio. §. scia. & ibi Bar. de adimen. leg. ff. Rip. in L. vlt. de reuoc. don. C. Mantic. de con­iect. vlt. vol. lib. 12. tit. 5. n. 2. Mascard. de pro­bac. concl. 1280. n. 138..

Secondly, the former conclusion hath place, albeit the testator were ignorant of the iniurie done vnto him by the legatarie, when it is such an iniurie, for the which it is verie likely that the testator would haue reuoked his legacie, if he had knowen thereof: as if the legatarie haue committed adulterie with the testators wife, or haue deflowred his daughterGloss. in L. fideicom­missum. C. de fidei­commiss. Mantic. de coniect. vlt. vol. lib. 12. tit. 5. n. 6. & quidem ip­so iure tollitur legatū. si viuēte testatore stu­prauit eius vxor. eo ve­rò de functo, ope exceptionis Apost. ad gloss. in d. L. fideicōmissum..

Thirdly, if the wife diuert or depart from her husband, without his good fauour, she loo­seth hir legacieL. vxori de aur. & ar­gent. leg. ff. & ibi gloss. cum Bar. Mascard. de probac. conclus. 1280. n. 140. Mant. d. tit. 5. n. 3.

Fourthly, he which dooth accuse the testa­tor of any capitall crime, looseth his legacieL. filio. §. scia. ff. de adimen. leg..

Fiftly, he which becommeth capitall ene­mie to the testators brother, loseth his legacieMantic. de coniect. vlt. vol. lib. 12. tit. 5. n. 8..

Sixtly †, albeit the testator himselfe were 4 the cause of the enimitie, and the legatarie in no fault, yet shall the legatarie loose his legacieMantic. d. tit. 5. n. 9. Ias. in L. si filiam. C. de inossic. test. Ripa. in L. vlt. C. de reuoc. don. n. 151. Couar. in Rub. de testa. extr. part. 2. n. 19. versic. 5. in fin. con­tra opinionem Bar. à multis olim quidem receptam (quorum diligenter meminit Cotta in causa sororis suae, asseuerās eam esse communē in memora­bilibꝰ. verb. inimicitiae) sed hodie magis com­muniter reꝓbatā, vt refert Mascard. de pro­bac. concl. 1280. n. 144.: which conclusion may seeme hard, but the rea­son is easie, namely, because where the testator hath conceiued enimitie, there is he presumed to haue altered and reuoked his willMant. d. tit. 5. n. 9. L. 3. §. vlt. de adimē, leg. ff.: which al­teration and reuocation is so much the rather presumed when the testator himself is the cause of the enimitie, for he that wil be enemie with­out a cause, is lesse a friend then he that is vn­willingly made an enemie. And therefore I do the rather incline to their opinion, which hold that the legacie is taken away by enimitie ari­sing from the testator, without any iust cause [Page 287] giuen by the legatarie. If any thinke that this o­pinion dooth sauour more of law then of equi­tie, let him yet consider that euen in equitie, the legatarie, although innocent, ought not to re­ceiue any fauour against the wil of the testatorDec. consil. 426. Mā ­tic. de coniect. vlt. vol. lib. 3. tit. 19. n. 11.: At least howsoeuer the legararie were in no fault at the first, if at the last being prouoked by the testator, he become his enemie, seeking to be reuenged for the iniurie done vnto him: in this case hee leeseth his legacie, euen as well as if he himselfe had first broken the bond of amitieMascard. de probac. concl. 1280. n. 145. qui hoc distinctionis foe­dere contrarias opini­ones conciliari putat..

Seuenthly, if the legatarie did neglect to minister necessarie helpe to the testator in time of his sickenesse, when as he might easily haue done the same, through the want whereof the testator died, the legacie is lostL. indignū. ff. de his quibus vt indignis.: For who so looketh to be benefited by a mans death, hee ought to beware that he be not the occasion thereof, either in committing, or in omitting a­ny thing, contrarie to the rule of pietie and charitieMantic. d. tit 5. n. 10. Mascard. d. concl. 1280. n. 134. 135..

Eightly, if the legatarie by iniurious and con­tumelious wordes doo grieuously defame and slaunder the testator, or curse him with wicked speeches: In these and such like cases the lega­cie is lostL. si inimicitiae. ff. de his quibus vt indignis. Mantic. d. tit. 5. n. 11. quem velim te videre..

5 The † limitations of the former conclusion are these: First, when the enimitie is not great and grieuous, but small and lightL. [...]. § vlt. de adimen. leg. L. si inimicitiae. [...]e his quibus vt indig. ff.: for the testa­tor is not presumed to haue altered or reuoked any part of his will and testament, made with deliberation and constancie, by reason of any [Page] light offence, or small displeasure: But then when as the testator is mooued and stirred, as it were with violence of great displeasure, and thereby driuen to such bitternesse of minde a­gainst the legatarie, that it may seeme that it re­pented the testator that he had bequeathed any thing in his testament to such a legatarieMantic d. tit. 5. n. 14. Zaf Tract. de sub. c. 2. col. pen. Ias. in L. si fili­am. C. de inoffic. testa..

Secondly, when the legacie is left in respect of the good desert of the legatarieMascard. de probac. concl. 1280. n. 147. Ripa. in L. vlt. C. de re­uoc. don. n. 150.: for where desert went before, the legacie is not presumed to be taken away by the offence followingL. si pater. §. pen. ff. de donac. Bald. in L. si cū tibi ff. de dolo. Mantic. d. tit. 5. n. 17.; at the least if the offence be not very great and hei­nous, such as may be thought to alter a mans purpose, euen against him that had well deser­uedMantic. vbi supra. vide Mascard. d. concl. 1280. n. 148..

Thirdly, when the testator and legatarie be reconciled and reduced into friendship againe, for then the former enimities do not preiudice the legatarieL. 4. de adimē. leg. ff. Grass. Thesau. com. op. §. legatum. q 78. Masc. d. conclus. 1280. n. 149.: Not onely by reason of enimitie betwixt the testator and the legatarie, during the testators life; but also by other occasions af­ter the testators death, considerable likewise in the person of the legatarie, the legacie may bee lost.

If the † legatarie being appointed tutor in 6 the testament, or charged by the testator with the bringing vp of some childe, do refuse to vn­dergoe the charge, he loseth his legacieL. post legatū. verb. amittere ff. de his qui­bus. vt indignis.: which conclusion proceedeth whether he were ap­pointed tutor, either in the same testamēt wher­in the legacie is conteined, or in some codicill, the legacie being conteined in the testamentL. Nefensius iuncta. L. seq. de excus. tut. ff., or whether he were appointed by the father of [Page 288] the childe, or by any other hauing authoritie to appoint a tutord. L. Nesensius. L. naturali. de confir. tut. ff. & ibi Bar. L. si patro­nus. eod. tit. & ibi Bald., (of whom we haue spoken be­foreSupra 3. part. §. 9. cū sequen.) or whether the legacie were left condi­tionally, (viz. if he did vndertake the tutorship) or simplyL. sed haec. ff. de ex­cus. tut. Gribald. The­saur. com. op. verb. tu­tor., or whether the tutor appointed be of kin or allied to the testator or noGribald. d. verb. tu­tor Bar. Ias. Sichard. & alij, in L. si legararius. C. de lega. Et ista opi­nio communis est iure Authent. ꝑ §. his omni­bus de haered. & falcid. refragante Couar. in c. Iohannes de testa. ex­tra. sed distingue, vt per Alex. & alios. in d. L. si legatarius.. But the said conclusion faileth, when the legararie would be tutor, but cannotDD. in d. L. si legata­rius. C. de lega., or when it doth not stand by the legatarie, that he is not admitted tutorL. cum filius. §. non iure. de leg. 2 ff.: or if by other circumstances it may appeare that the testator would that he should haue the legacie, albeit he did not vndertake the tutor­ship: In which case the tutor not being moni­shed to vndertake the tutorship, dooth not loose his legacieAlex. & Sichard. in d. L. si legatarius. C. de lega..

7 Item, if † the legatarie after the death of the testator, doo accuse the testament, as a false testa­ment, he looseth his legacie therin bequeathedL. post legatū. de his quibus vt indig. ff., vnles hee being tutor to the testators children, or to some other hauing interest, that the testa­ment should not take place, doth prosecute the cause against the testament, not in his owne name, but as tutor, or for the behoofe of the pupillL. tutorem. ff. de his quib. vt indig., or vnlesse he accuse the testament, not as a false testament, but as vnlawfully madeL. pen. eod. tit. Aeti­ologia est, quia non tā iudicium defuncti im­pugnat, quàm de iure disputat., or vnlesse he desist from the sute before sentence be giuenSichard. in Rub de his quibus vt indignis. C [...]n. 7. per L 2. & per L. aliā causam. eod. tit.: In these and diuers like cases he doth not preiudice himselfe.

8 Item, if † the legatarie cancell or destroy the testament, he looseth his legacieL si quis cum falso. §. diuus. L. si quis pa­tris. Ad. L. Cornel. de falsis. ff.; & so it is, though Doctores in c. ex eo. de reg. iur. 6. Gabr lib com conclus. lib. 6. tit. de reg. iur. conclus. 1. Vigel. method. iur. ciuil. lib. 12. c. 8. causa 17. [Page] [...] [Page 288] [...] [Page] he do not deface the testament, but maliciously and fraudulently conceale the sameL. si legatarius. C. de lega..

Item, if † the legatarie of his owne authoritie, 9 without the consent of the executor, do apprehend and occupie the legacie to him bequeathed, he looseth his right and interest thereuntoL. 1. quorum lega­torum. ff. L. non dubi­um. C. de lega.: For he may not be his own caruer in this case, but ought to receiue his legacie at the handes of the execu­torSichard. in d. L. non dubium. Perkins tit. testament. fol. 94.: which executor ought first to haue all the testators goods and cattels in his hands, for the paiment and discharge of the testators debtsOld. de actione class. 2. action. 2 fol. 112. Per­kins. vbi supra. Castrēs. & Sichard in d L. non dubium. assignantes aliam rationem, nem­pè ob detractionem falcidiae.: which debts ought to be paied before lega­ciesL. scimus. C. de iure de lib. Paul. de Castro. in d. L. non dubium. Brook Abridg. tit. de­uise. n. 6..

The † limitations of this former conclusi­on 10 are these: First when the testator doth in his testament giue licence to the legatarie to take and occupie the same, without deliuerie of the executorBar. in L. Titia. §. Lu­cius. de leg. 2. Rip. in L. 1. quorum lega. ff. Sich. in d. L. non dubium. C. de lega.; which licence may be granted either expresly or secretlySichard. in d. L. non dubium. Ripa. in d. L. 1.: expresly, when the testator saith, I bequeath my horse to A.B. gi­uing him licence to take him, and to possesse him of his owne authoritie, without any deliue­rie to be made by my executorSichard. in d. L. non dubium. n. 11.: Secretly, when the testator saith, I bequeath vnto him my horse, which I will that he quietly enioy with­out trouble or molestationSichard. in d. L. non dubium. n. 12.; or by words of like importanceRipa. in d. L. 1. ff. quorum lega. n. 10. 11. 12 13. 14..

The second limitation is, when the legata­rie was in quiet possession of the thing bequea­thed, at the time of the death of the testator: In which case if there be sufficient goodes to pay the testators debts, he may still retaine the legacieSocin consil. 11. lib. 1. Ripa. in d. L. 1. n. 15. Ol­de n. de action. class. 2. action. 2. fol. 113..

The third limitation is, when the executor dooth willingly permit the legatarie, to take and occupie the legacie without contradic­tionL. 1. §. prodest. ff. quorum leg..

The fourth limitation is, when the legata­rie dooth apprehend his legacie, before the ex­ecutor haue prooued the will, and vndertaken the executorshipPaul. de Castr. in d.L non dubium. Ratio est, quia vacante haeredi­tate, legatarius non di­citur vitiose occupare., or before administration be grauntedForte tamē censuri [...] ecclesiasticis punien­dus est. per Legatin. v­nic. de bonis intestato­rum..

The fift limitation is, when the executor is negligent, and the legacie like to perish, as when certaine fruites or corne on the ground are gi­uen, and the same readie for reapingIas in d. L. non dubi­um. in fin..

The sixt limitation is, when the legatarie is ignorant, that the thing by him apprehended and possessed, was bequeathed vnto himSichard. in eand. L. non dubium. n 1..

The seuenth limitation is, when the legata­rie is also executorSichard. ibi. n. 13.. In these and other cases the legatarie dooth not loose his legacieOld. de action. class. 2. action. interdicti quod legatorū. fol. 109.: albeit (if neede be) he may be compelled to restore the samed. L. 1. quorum lega­torum, & ibi Zas. & Ri­pa. d. L. non dubium. & ibi Ias. & Sichard..

Of the death of the legatarie before the legacie be due.
§. xxiij.

1 If the legatarie die before the legacie be due, the le­gacie is extinguished.

2 A simple legacie beginneth to be due at the death of the testator.

3 What if the legatarie die at the same instant when the testator dieth.

4 If the prince die before the testator, his successors may obtaine the legacie.

[Page] 5 A conditionall legacie is not due before the condi­tion be extant.

6 If the legatarie die before the condition bee extant the legacie is not transferred to his executors.

7 Extensions of this former conclusion.

8 Limitations of the same conclusion.

9 If the legacie be referred to a certaine day, whe­ther it beginne to bee due at the death of the te­stator.

10 When the day is vtterly vncertaine, the legacie is as if it were conditionall.

11 What if the day be certaine in some respects, and vncertaine in other respects.

IF the † legatarie die before the le­gacie 1 be due, the legacie is extin­guishedL. si post. ff. quando dies. leg. ced.. That we may know when the legacie is due, we are to consi­der, whether the same be pure and simple, or conditionall, or referred to a day Gloss. in Rub. de cond. & demon. ff. Grass. Thesaur. co. op. §. legatum. q. 43. in prin.

When † the legacie is pure and simple, the 2 day wherein the legacie beginneth to be due, is the day of the death of the testatorL. vnic. § cum igitur. & §. in nouissime. C. de cad. tollend., and ther­fore if the legatarie die before that day, the le­gacie is voide: neither can the executors or ad­ministrators of the legatarie demaunde the samed. L. vnic. §. cum tri­plici.. And † so it is although the legatarie liue as 3 long as the testator: for if he doo not ouerliue the testator, but that they die both at one in­stant (both peraduenture being drowned toge­ther, or both being stroke to death at once with [Page 290] the fall of an house:) In this case also the le­gacie is not dueL. quod ff. de reb. dub., and consequently, not trans­missible to the executors or administrators of the legatarie. But if the legatarie do ouerliue the testator, though it be but a verie little, euen a moment, then the legacie is dueCastrens. in d. L. quod de Tiraquel. de iudic. in reb. exig. lim. 3. nee longè abest Ias. L. si quis. C. de Instit. & sub. n. 5., and so may be recouered by the executors or administra­tors of the legatarieL. si post diem. ff. quando dies. leg. ced.: neither is it materiall whe­ther the legatarie did know, or were ignorantL. vlt. quādo dies. leg ced. ff. of the legacie, or whether the will were proued, or the administration of the goods committed, whiles the legatary liuedL. vnic. §. sin autem C. de cad. tollend.: for in this case also the same is due to his executors or adminisrators. 4 Howbeit † the former conclusion, that if the le­gatarie die before the testator, the legacie is ex­tinguished, doth not proceed where any thing is bequeathed to the prince: for though the prince die before the testator, yet the legacie is due to the princes successorL. quod principi. ff. de leg. 2..

5 When † the legacie is conditionall, the day wherein the legacie beginneth to be due, is the day wherein the condition is performed or ex­tantL. vnic. § sin autem. C. de cad. tol. Bar. in L. si post. ff. quando dies. leg. ced.: 6 and therefore † the rule is, that the lega­tarie dying in the mean while, before the condi­tion bee extant, the legacie is extinguishedL. intercidit. ff. de cond. & demon. & Bar. in d. L. si post diem.: which rule † is extended although the legatarie were one of the testators childrenGloss. in L. vnic. de his qui ante aper. tab. C. Vasq. de success. pro­gress. lib. 3. §. 29. n. 19. quae opinio communis est, vt latiùs per Man­tic. de coniect. vlt. vol. lib. 11. tit. 20. n. 1.. Item, al­though the condition were referred to the will of the legatarie: Example; The testator giueth to A.B. an hundred pound if he will: for in this case also, if the legatarie die before he haue de­clared himselfe willing, the legacie is extingui­shedL. si ita. §. si illi de leg. 1. ff., and so nothing is due to his executors or [Page] administrators. likewise, if the cōdition be alter­natiue, whereof one part is simple, and the o­ther conditionall, if the legatarie die before the condition be extant, the legacie is vtterly voidL. cum illud. ff. quā ­do dies. leg. ced.: For example; the testator dooth bequeath to A.B. all his plate, or if his wife haue a childe, an hundred pound: albeit A.B. doo ouerliue the testator, but die before his wife haue a childe, the executors or administrators of the legata­rie can neither obtaine the hundred pound, nor the plateDD. in d. L. cū illud. Aetiologia est, quia in alternatiuis nō sunt duo legata, sed vnum..

Limitations † of this former rule are manyVigel. method. iur. ciuil. part. 4. lib. 13. c. 7. except. 2.: 8 First, when it is the testators will and meaning, that the conditionall legacie be transmittedVasq de success. pro­gress. lib. 2. §. 18. n. 94. lib. 3. §. 29. n. 16. Bar. in L. si is cui. §. hoc autem de leg. 1. in fin..

Secondly, when it dooth not stand by the le­gatarie wherefore the condition is not perfor­med, and in that respect the condition is repu­ted for accomplishedc. cum non stat. de reg. iur. 6. pleniùs supra part. 4. §. 8..

Thirdly, when the legacy is not conditional, but modallL. cum tale. ff. de cond. & demon., (of which difference we haue spo­ken beforeSupra part. 4. §. 9..)

Fourthly, when the legacie which was first conditionall, is afterwards repeated without a­ny conditionL. non ad ea. ff. de cond. & demon. et Ca­strens. ibid..

Fiftly, when the testator dooth giue the le­gacie vpon condition afterwards to be expres­sed, but expresseth noneL. pen. C. de Instit. & sub..

Finally, wheresoeuer the condition dooth not make the legacie conditionall (either be­cause it is secretly includedL. si dies. §. vlt ff. quā ­do dies leg. ced. Manti. de coniect. vlt. vol. lib. 12. tit. 20. n. 5. in the disposition, or reiectedL. conditiones. de condic. Instit ff. §. im­possibilis Instit. de hae. red. instit. & supra §§. 4. & 5. part. 4.) it doth not hinder the transmission of the legacie to the executors or administra­tors of the legatarie deceased, no more then if it [Page 291] were a simple and pure legacie.

9 When † the legacie is referred to a day, then it skilleth whether the day be altogether certaine, or altogether vncertaine, or in some respect certaine, and in other respects vncertaine.

In the first case, that is to say, when the day is certaine, the legacie beginneth to be due at the time of the death of the testator, although it can not be demaunded effectually before the day doo comeL. cedere diem. de verb. sig. ff. & ibi Alciat. &. Rebuff.. And therefore if after the death of the testator, the legatarie die also before the day of payment, the legacie is transmitted to the ex­ecutors or administrators of the legatarie, as if it had bene a pure and simple legacieL. si dies. ff. quando dies lega. ced.: For exam­ple; the testator dooth bequeath to A.B. an hun­dred pound at Easter, anno domini 1600, and afterwards dieth, and after him the legatarie di­eth also before Easter anno 1600: In this case the executors or administrators of the legatarie, at Easter 1600. may demaund and recouer the legacie, because the time is vndoubtedly cer­taine (in the reputation of lawe) aswell in re­spect of the question when, as in respect of the question whether DD. in d. L. si dies. & in L. si post diem. ff. quādo dies leg. ced. Grass. Thesaur. cō. op. §. legatū. q. 43. n. 3. 4. 5..

10 In the second case, that is to say, when † the day is vtterly vncertaine, the legacie is compared to a conditionall legacieL. dies incertus. ff. de­cond. & demon.: and therefore if the legatarie die in the meane time, the legacie is lost without hope of deuolution thereof, to the executors or administrators of the legatarie de­ceasedL. vnic. §. sin autem. C. de cad. toll.: For example; The testator saith: I do bequeath to A. B. an hundred pound when he shall be maried: or thus; I bequeath to A.B. [Page] an hundred pound to be paied when he shall be maried: here the day is vtterly vncertaine: for neither is it certaine when, neither yet whe­ther the legatarie shall marie before the euent: and therefore if the legatarie die before he be married, his executors or administrators haue no action or right to demaunde the legacieDD. in d. §. sin autē.: neither is it material, whether the day be ioined to the substance of the legacie, as in the former example, or to the execution thereof, as in the second example: for it is not deuolued neither in the one case, nor in the otherBar. in L. si cui. §. hoc autem de leg 1. post gloss. in L. Seius. ad Trebell. ff. & Alex. ibid. Mantic. de coniect. vlt. vol. lib. 11. tit. 20 n. 3. & est communis opinio, teste Grass. Thesaur. com. op. §. legatum. q. 43. n. 7..

In the third case, that is to say, when † the 11 day is partly certaine, and partly vncertaine, we are to distinguish, whether the vncertainty be in re­spect of the question whether, or of the question when.

If the vncertaintie be in respect of the que­stion whether, not of the question when: as if the testator do bequeath an hundred pound, when his sonne shall come to the age of xxi. yeares, (for here it is certaine when he shall be of that age, but vncertaine whether he shall liue till he come to that age:) In this case we must yet a­gaine distinguish: for either the time is ioined to the substance of the disposition, as when the testator saith; I giue to A.B. an hundred pound when he commeth to the age of xxi. yeares, and the legacie is not deuolued to his execu­tors or administrators, if he die in the meane timeBar. in d. L. ff cui. §. hoc autem. de leg. 1. L. ff Titio. in prin. quādo dies. leg. ced. ff. Vasq. de success. progress. lib. 3 §. 29. n. 3. (except in certaine cases elsewhere before specifiedSupra part. 4. §. 17. sub fine.;) or else the day is ioyned to the exe­cution or performance of the legacie: as when [Page 292] the testator dooth bequeath to A. B. an hun­dred pound, which he willeth to be paid when the legatarie shall be of the age of xxi. yeares, and then the legatarie dying in the meane time, his executors or administrators may recouer the legacie, when the time is expired that the legatarie should haue beene of the age of xxi. yeares if he had liuedL. ex his verbis. C. quando dies. leg. ced. Bar. & Paul. de Castr. in L. si cui. §. hoc autem ff. de leg. 1. Alex. in L. Seius ad Trebel. in fin. ff. Vasq. de success. ꝓgress. lib. 3. §. 29. n. 3. verb. quandoque. & 3..

If the vncertaintie be not in respect of the question whether, but of the question when, as if the testator do bequeath to A.B. an C. pound, when the executor of the testator shall die, or to be paied when the saide executor shall die. For here it is certaine whether the executor must die (we must all die) but when hee must die it is vncertaine: In this case the legacie is not transmitted, the legatarie dying before the executor of the testatorL. huiusmodi. ff. quā ­do dies. leg. ced. DD. in L. haeres meus. de con. & demon. Caeual. de vsufruct. mulier. n. 70. 71. quorū opinio est magis recep­ta, vt per Grass: The­saur. com. op. §. legatū. q. 43. n. 8. Vasq. de suc­cess. progress. lib. 3. §. 27, n. 11.: howbeit this legacie after anothers death, if it be duely considered, is not onely vncertaine, in respect of the que­stion when, but also in respect of the question whether, because it is vncertaine also whether the legatarie shal ouerliue the executor, not on­ly when the executor shall died. L. haeres meus. de cond. & demon. ff., as elsewhere hath beene declaredSupra. part. 4. §. 17..

Of the destruction of the thing be­queathed.
§. xxiiij.

1 The legacie is extinguished, if the thing bequeathed do perish.

2 What if it perish by the fact or negligence of the executor.

[Page] 3 What if the legacie be generall, or doo consist in quantitie.

4 What if one thing of two things be bequeathed, whereof the one doth perish.

5 What if the thing bequeathed be not destroyed, but the forme thereof altered.

IF the † thing bequathed do perish or 1 be destroied, the legacie is extingui­shed§. si res legata. Instit. de lega., and the legatarie destitute of remedie: For example; The testa­tor doth bequeath vnto thee his best oxe, which oxe i [...] afterwards killed: In this case the legacie is extinguishedL. mortuo boue. ff. de leg. 2., insomuch that neither the skin, nor the flesh, nor the price, is due vnto theed. §. si res legata. & ibi Minsing.: which rule notwithstanding is limited in certaine cases.

First, when † the thing bequeathed dooth 2 perish by the fact or negligence of the execu­tor: as when the executor after the death of the testator, conuerteth the thing bequeathed to his owne proper vseGloss. in d. L. boue. & in L. lana. de leg. 3. ff., or when he maketh de­lay, in not paying or deliuering the thing be­queathed so soone as he may, after he haue vn­dertaken the executorshipL. omnia. de leg. ff. Intellige si modo prae­cedat interpellatio, vel hominis, vel certae diei. L. si ex legati cau­sa. ff. de verb. ob. sed nō sufficit mora irregula­ris, nempè quae ex iu­ramēto oritur. Cagnol in L, quod te. ff. si cer. pe. n. 97., or dooth vniustly deferre the proouing of the will, and vnderta­king the executorshipL. equis. ff. de vsur. & fruct., and the thing bequea­thed perish in the meane time: for then the le­gacie is not so extinguished, but that the lega­tarie may recouer the value thereof: albeit the thing it selfe be not extantPaul. de Castr. in L. seruum filij. §. si pocu­la. de leg. 1. L. senatus. eod. tit. Mantic. de cō ­iect. vlt. vol. lib. 9. tit. 12. c. 3.: And albeit per­aduenture [Page 293] it would haue perished likewise, if it had beene deliuered to the legatarie in due timeAlex. Ias. & alij, in L. nemo de verb. ob. ff. quotum op [...]nio est cō ­munis, vt refert Ias. vbi supra. & Soarez lib. recept. sententiarum. litera M [...]n 222. de qua sententia tanto minùs dubitatur, quanto ma­gis dubitatur an res apud legatarium peri­tura fuisset. Quod si manifestè constat rem eodem modo fuisse pe­rituram apud legata­rium, hie multi rece­dunt ab illo communi dogmate existimantes aequiorem opinionem esse, vt non teneatur executor. Soarez vbi supra. Ripa. in L. si in­sulam. de verb. ob. n. 97.

3 Secondly, when † the legacie is generall, or consisteth in quantitie; as when the testator dooth bequeath a horse, or an oxe (not this horse, or that oxe:) or whē the testator doth be­queath certaine quarters of wheate, or other graine, not this or that graine lying in such a barne or garner: this kinde of legacie cannot perish, though all the testators cattell do perish, and all his corne be consumedL. incedium. C. si cer. pe. L. non amplius §. 1. de leg. 1. ff. Minsing. in §. si res legata. Instit. de lega. ff.: and therefore the legatarie may recouer his legacie, vnlesse some certaine thing were offered to the legata­rie, which he without iust cause refused to take: for then if the same thing do perish afterwards, the legacie is extinguishedL. huiusmodi. §. sti­chum. & §. si cui. de lega. 1. ff..

4 Thirdly, when † one of two things is be­queathed alternatiuely; as if the testator doo be­queath his apparell, or his bookes, the one of these being consumed, the other of them may be recoueredL. cum res. §. sed si. de leg 1., vnlesse the election appertai­ning to the executor, he offred the one of them to the legatarie, which afterwards perishedL. huiusmodi. §. sti­chum. & §. si cui. de leg. 1. L. statu liberum. §. vlt. de leg. 2. ff..

5 Fourthly †, when the thing bequeathed, wherof the former is altered, may be reduced to his first matter; as when the testator doth bequeath some masse of metall be it gold or siluer, tinne, or such like, whereof the testator afterwardes dooth make some vessell, or other instrument. Or on the cōtrarie, the testator hauing bequea­thed a cuppe of golde, or other vessell, or instru­ment of metall, dooth afterwardes dissolue [Page] the same to his first matter: or the testator ha­uing bequeathed a cup of golde, dooth make a chaine thereof: the will of the testator by such alterations is not presumed to bee altered, and therefore the legacie is not thereby extingui­shedBar. Lancel. Dec. & alij, in L. seruum silij. §. si pocula. ff. de leg. 1. quorum opinio com­muniter approbatur, vt refert Ias. cod. §. n. 5..

But if the thing bequeathed after the forme therof be altered, cannot be reduced to that which it was before; as wooll when it is made clothe; or timber, when it is hewen or made parcell of a ship: the testator hauing bequeathed certaine wooll or timber, and afterwards translating the same to other forms, from whence they cannot be reduced to the former, the legacie is extin­guishedL lana. ff. de leg 3. Bar. Paul. de Castro. & alij communiter. in d. L. seruū filij. §. si pocu­la. de leg. 1., vnlesse it doo appeare that the will of the testator therein is not chaungedd. §. si pocula..

Other limitations there be of this rule, as also diuers other causes whereby legacies may be lost: But neither haue I conuenient leisure to proceede in the discourse thereof, neither do I thinke the same either so needfull or profita­ble to be knowen, as these wherof I haue made choise, and which I haue alredie deliuered. And therefore I thought good onely to referre such as areDe quibus plene Vigelius in sua methodo exac­tissima iuris ciuilis. lib. 12. c. 10. caus. 51. vbi enumerat 70. causas amittendi legata. farther studious in that point, and here cut off the threed of this testa­mentarie treatise.

FINIS.

An Epilogue.

THus for thy loue (louing coun­trieman) haue I deliuered vn­to the view of thy iudgement, the picture of my conceite con­cerning testaments, which if thou shalt beholde sharply, then I feare strongly, thou wilt espie in steed of iust proportion, lamenes, or want of some no­table members; and in steed of delectable beautie, de­formitie, or spots of soule and loathsome errors. Where­fore as at the first I did earnestly intreat for fauour; so now in the ende I do humbly begge for pardon. And although peraduenture I might vse some reasons to draw thee therunto, (as by giuing thee to vnderstand, First that all the lims and bones of this my testamen­tarie picture, were not onely heretofore out of ioint; but scattered and dispersed farre asunder, some amongst the lawes ciuil, some amongst the decrees and decre­tals, some amongst our prouinciall constitutions, and some amongst the lawes, statutes, and customes of this realme: and therefore the labour in searching and ioi­ning of some of these dismēbred members, to be rather thankfully accepted, than the not collecting of al to be accounted a fault. Secondly, that these manifolde lawes being so cōtrarie one to another, and the interpreters of euery seueral law being at euerlasting variance amōgst themselues about euery sentence, euery worde, and eue­rie letter almost; the blots and blemishes of the worke are so much the more tolerable, by how much the sim­ple truth is often obscured and mistaken for error; and error (clothed in truthes garment) imbraced manie [Page] times for truth it selfe, euen of the learned. And third­ly, that forasmuch as no man hitherto since England was Albion, hath set forth a perfect Idea of an Eng­lish testator, or a right paterne of a lawfull testament within this land: The authour therefore in aduentu­ring to breake the yse to make the passage easie for his countrymen, failing sometimes of the fourd, and fal­ling into the pit, may seeme worthie to be pitied, or at least vnworthie to be reprehended in this interprise, no lesse profitable for this common wealth, then it is v­suall to die:) Neuerthelesse, because it more tendeth to the aduauncement of thy commendation, to bee in­treated then perswaded, and more fitte for mine owne safetie to craue with humilitie, then proudly to chalenge that which may be denied: reiecting therfore these foresaid reasons, I do wholy submit my selfe vnto thy courtesie, beseeching thee to vse me friendly, and either to pardon freely, or to admonish charita­blie: so shall I haue iust cause to commend thy vertue and gladlie amend any fault committed.

H. S.

Whereas there be sundrie escapes in the print, I haue (for thy ease) caused those of greater conse­quence to be amended with a penne: the rest I shal desire thy selfe to amend, or to sustaine without griefe.

AN ALPHABETICALL TABLE of the particular contents of this treatise, wherin is relation to the leafe.

A
  • ACcount wherefore exacted of the executor. fol. 232
  • Account whether it may be re­leased by the testator. 233
  • Account to bee made to the ordi­narie. 233
  • Account whether it is to bee made to the creditors or legataries. 234
  • Account whether it is to bee made to the coexecutors. 234
  • Account when it is to be made. 234
  • Account generall and particular. 234
  • In the Account what proofe is re­quisite. 234
  • By accusing the testament of falsitie the legatarie doth loose his lega­cie. 288
  • Ademption of legacies what it is. 277
  • Ademption of legacies two fold. 277
  • Ademption of legacies not presu­med. 278
  • Administrators to bee accountable to the ordinarie. 92
  • Administration of the testators goodes, to whom it is to be com­mitted, the condition of the exe­cutorship depending vnaccompli­shed. 169
  • Administration of the testators goods may be committed to the ordinarie, vntill the executorship take place, & after it is ended. 171
  • Affirmatiue conditions about mari­age, are not reiected, but in some cases. 152
  • Affirmatiue conditions of marry­ing somtimes harder then the ne­gatiue part. 152
  • Age of testators, wherein they may deuise their lands. 35
  • Age of testators, wherein they may deuise their goods. 35
  • After the Age of fourteene yeeres a boy, and after twelue a woman, may make their testamentes of their goods. 35
  • Age, how old soeuer dooth not de­priue a man of libertie to make his testament. 42
  • Alienation of pupils goodes by the tutor, whether it be good or not 102
  • Alienation of the things bequea­thed, whether it may be prohibi­ted, or no. 154
  • Alienation of the thinges bequea­thed sometimes lawfull, notwith­standing the testators prohibi­tion. 155
  • By Alienation of the thing bequea­thed, whether the legacie be ex­tinguished. 285
  • Alteration of the testators state, whether it make voide the testa­ment. 272
  • Alter his will the testator may at any time. 277
  • Ambiguitie, what it is, and how it may be auoyded. 192
  • Analogie betwixt a testament, and a iudiciall sentence. 9
  • Animus testandi, howe it is proo­ued. 8
  • An Apostata cannot make a testa­ment. 55
  • Apostata worse then an heretike. 55
  • Apostata what he is. 55
  • Euery Apostata is not intestable 56
  • [Page]An Apostata cannot bee executor. 197
  • Armed souldiers. 26
  • Of Armed souldiers, whether euerie one be equally priuiledged. 27
  • Arguments of madnesse. 38
  • Arbitrarie conditions accounted for accomplished, when the let is not in the partie. 132
  • Arbitrary conditions not accoun­ted for accomplished, whē it doth stande by the partie. 132
  • Arbitrarie conditions whē the same must be performed, no time being expressed by the testator. 157
  • Arbitrarie conditions, in what com­passe of time it ought to bee performed, after the testators death 158
  • Ascrip [...]itius glebae. 44
  • The authoritie and charge of an ex­ecutor. 209
  • The Authoritie & charge of the ex­ecutor of an executor. 213
  • The Authoritie and charge of the executor of an administrator. 214
  • Authoritie of the executor testamē ­tarie in distributing to the poore. 251
  • The Authoritie of a tutor. 101
  • The Auncient forme of making in­uentaries. 220
B
  • Of Bastards there bee three sortes. 198
  • Bastards begotten in incest, or adul­terie, whether they be capable of any testamentarie benefite. 198
  • Bastards by whom they are to bee nourished by the lawes of this realme. 200
  • Bastards, how farre they be capable of any benefite by the lawes of this realme. 200
  • Of Bastards begotten betwixt single persons. 201
  • Benefite by the ministers of Gods worde. 27
  • Benefite by the studie and practise of law. 27
  • A Blind man may make a nuncupa­tiue testament. 52
  • A Blind man, whether he may make a written testament. 52
  • Boasting words do not bind or dis­pose. 8
  • The Bonde called Mutiana cautio, whence it had the name 138
  • Bonde ought to bee put in, where there is prohibition of alienation. 155
  • A Bondslaue cannot make a testa­ment. 43
  • Bondmen as well as free, may be ex­ecutors. 196
  • Burgage landes deuisable by will. 71
  • Burgage lands to whom, and after what maner are they deuisable. 71
  • Burgage lands whether they be de­uisable by any other, but a citi­zen. 71
  • Burgage tenure is a kinde of tenure in soccage. 71
  • Burgage lands being deuised, whe­ther liuerie or seisin bee need­full. 72
C
  • Cancelling of a testament ad pias causas, is presumed to be done vnad­uisedly. 31
  • By Cancellation the force of the te­stament is ouerthrowne. 270
  • By Cancellation, whether a nuncu­patiue testamēt lose his force. 270
  • Cancelling of a testament somtimes is not hurtfull to the testamēt. 271
  • [Page]Cancelling of the testament, to whom it is to be imputed, when it is vnknowne who did it. 271
  • By Cancelling the testament, the legatarie doth loose his legacie. 288
  • A Captiue during his captiuitie, can not make a testament. 45
  • If the Captiue escape, whether the testament made during captiui­tie, be good or not. 45
  • Captiuitie doth not make voide the testament made before. 45
  • Captious conditions, wherfore they be so tearmed. 146
  • That Captious dispositions are void, this position is diuersly extended. 146
  • Captious conditions do not alwaies make void the disposition. 147
  • Casuall conditions not accounted for accomplished, before the e­uent. 133
  • Casuall conditions sometime repu­ted for accomplished, albeit the same be not indeed performed. 133
  • Casuall and mixt conditions, whe­ther the same may be performed before the making of the will. 157
  • A Casuall condition may be accom­plished at any time. 157
  • No Cautell can take away the liber­tie of making a testament. 61
  • Children, whose father or mother is in bondage, whether they be free or bond. 43
  • The childe begotten before mariage shalbe the husbands, though ano­ther got it. 162
  • The Child begotten during mariage is deemed to be the husbandes, though another man had to doo with the wife. 162
  • The Child sometime like to the hus­band, being begotten by the ad­ulterer, & what is the reason. 163
  • The Childe begotten during mari­age, in some cases is not adiudged the husbands. 164
  • The Child whether shall it bee dee­med the former, or later husbāds, when it is vncertaine whether of them did beget the same. 165
  • If the Child be heard to crie, the fa­ther shall be tenant by the cour­tesie. 167
  • The Child, if it were not heard to crie, whether shall the father bee tenant by the curtesie. 167
  • The Childe in the mothers wombe, being made executor, & she deli­uered of diuers children, whether shal euery of thē be executors. 168
  • Church goods cannot be deuised. 93
  • Churchwardēs may sue for a legacy left vnto the Church. 202
  • Church, if any thing be left vnto the Church, what Church is vn­derstood. 251
  • Citation, whether it be necessarie in prouing of testamants. 224
  • Citation whether it be necessarie in making of an account. 235
  • By the Ciuill and Canon lawes a King cannot giue away his king­dome. 67
  • Clause derogatorie manifold. 265
  • Clause being derogatarie of the power of making testaments, men­tion or reuocation thereof is not necessarie. 265
  • Clause being derogatorie of the will of making testaments, then it is needfull to make mention there­of. 265
  • In clauses derogatory, what is chief­ly to be obserued. 267
  • Clauses derogatory of small force in the testaments of simple persons. 268.
  • [Page]This worde Codicill what it is. 12
  • Codicill rightly defined. 12
  • Codicill called a little will, testa­ment, a great will. 12
  • The Codicill compared to a boate, the testament to a ship. 13
  • Codicils vpon what occasion they were deuised. 13
  • Codicils may be made in writing, or without. 13
  • Codicils may bee made, either by him who hath made a testament, or which dieth intestate. 13
  • Codicils part of the testament, whe­ther they be made before, or after the testament. 13
  • Codicils, & testaments agree in the efficient cause, but they haue cō ­trarie effects. 14
  • Coexecutor not excluded by his re­fusall before the ordinarie. 183
  • In the Coexecutor many thinges considerable. 215
  • Condemned to perpetuall prison, whether hee may make a testa­ment. 46
  • Condition in a testament ad pias causas, neede not be obserued pre­cisely. 31
  • Conditions expressed in the disposi­tion, do not alwais make the same conditionall. 116
  • Conditions impossible, or vnhonest, do not make the disposition con­ditionall. 117
  • Conditions necessarie, whether they make the disposition conditio­nall. 117
  • Conditions being referred to that which is past, are improperly con­ditions. 117
  • Conditions necessarily vnderstood, do not make the disposition con­ditionall. 117
  • Of Conditions, some be necessarie, some impossible or indifferent. 121
  • Conditions necessarie. 121
  • Conditions impossible diuers. 122
  • Conditions possible manifold. 122
  • Conditions necessarie, or impossible doo not suspende the effect of the disposition. 124
  • Conditions possible, do suspend the effect of the disposition. 124
  • Conditions partly certaine, & partly vncertaine, do suspend the effect of the disposition. 124
  • Conditions first possible, afterwards impossible, whether they make void the disposition. 126
  • That Cōdition which is both impos­sible, and vnhonest, maketh voide the disposition. 126
  • Conditions impossible, by reason of repugnancie, whether they make void the disposition. 126
  • Cōditions possible whether they do alwaies suspend the effect of the disposition. 127
  • Conditions inducing a forme, are to be obserued precisely. 128
  • The Condition whether it may bee performed by an other person, thē him, that is therein named. 130
  • The Condition whether it be repu­ted for accōplished, when the im­pediment is not in the partie. 131
  • Conditions arbitrarie are accoūted for accomplished, if the let pro­ceed not from the partie. 132
  • The condition not performed by the impediment of the testator, whether the same be reputed for accomplished in law. 134
  • The Condition being affirmatiue, it sufficeth not to put in bonds. 137
  • The cōdition being negatiue, whe­ther it be sufficiēt to put in bōds. 138
  • The condition, if it cannot be accomplished during life, then it suffi­ceth to put in bonds. 138
  • [Page]The condition being negatiue, if it may be performed, during his life to whom it is imposed, there the caution hath no place. 139
  • A condition negatiue is then said to be accomplished, when it cannot be infringed. 139
  • The Condition being once accom­plished, whether it be sufficient, though it doe not endure. 141
  • The Conditiō being casuall, it suffi­ceth if it were once accōplished. 141
  • The Condition being arbitrarie, it is sufficient that the same was once accomplished. 142
  • The Condition being mixt, then it is sufficient that the same was once accomplished. 142
  • The Condition, if it endure not by his fault, by whom it is to be ac­complished, the thing bequethed cannot be obteyned. 143
  • The Condition beeing of mariage, whether it be reputed for accom­plished if the executor were once willing, though afterwards vnwil­ling. 143
  • Conditions against the libertie of mariage vnlawfull, except in cer­taine cases. 150
  • Condition with the arbitrement, will or consent of another, vnlawfull. 150
  • Condition of prohibiting mariage with some persons, not vnlawfull. 151
  • Condition hauing relation to the mariage of a thirde mariage, whe­ther the same be vnlawfull. 151
  • Condition prohibiting mariage not reiected, when pia causa is substitu­ted. 152
  • Conditions affirmatiue about mari­age not vnlawful but in some cases 152
  • Condition of mariage, with the ad­uise or counsell of another, not vnlawfull. 152
  • Condition of mariyng with the con­sent of another, to be obserued in part. 153
  • Condition of not marrying, doeth not hinder restitution simply im­posed. 153
  • Conditions, within what time the same ought to be performed, no certaine time beeing expressed 156
  • The Condition, whether it may be performed before the making of the will. 157
  • Conditions arbitrarie, whē the same ought to be performed. 157
  • The Condition, whether it may be performed betwixt the making of the will, and the death of the te­stator. 158
  • The Condition, within what com­passe of time it may, or ought to be performed after the Testators death. 158
  • Condition of mariage, whē it ought to be performed. 159
  • Condition of prohibiting mariage, whether it bee meant of the first mariage onely. 151
  • Condition prohibiting mariage, in some place not vnlawfull. 151
  • Conditionall legacie not due before the condition be extant. 290
  • The Condition depending, if the le­gatarie die, whether the legacie be transferred. 290
  • Corne on the ground, wherof a man is seised in right of his wife, whe­ther the same be deuisable. folio 93
  • Corne on the ground, whether the same be deuisable by the lessee, the lessor being seysed in right of [Page] his wife. 93
  • Corne on the ground, whether the same be deuisable by the tenant, by the curtesie. 93
  • Corne on the ground deuisable by the tenant in dower. 93
  • Corn growing on lands morgaged, whether the same be deuisable. so. 93
  • Corn on the ground, whether the same may be deuised by the testa­tors daughter, where a sonne and heire is afterwards born, or wher­in her mother dooth recouer her dower. 94
  • Corn on the ground to be inuenta­ried. 218
  • Corn in the barn bequeathed, the same being spent, and other corn there at the testators death, whe­ther the legacie be good. 278
  • Custome of Gauelkind, whence it sprang. 71
  • Custome of deuising lands to certain vses, reformed. 72
D
  • He that is both Deaffe and Dumbe may make a testament. 51
  • Deaffe, but not dumbe, whether he may make a testament. 52
  • Declaration of a mans will may be referred to another. 148
  • Definition of a testament. 3
  • The Definition of a testament vn­worthily reprehended. 3
  • Definitions dangerous in law. folio. 4
  • Definitions wherfore dangerous. fol. 4
  • A perfect Definition very profitable 5
  • Definition of a last wil. 11
  • Definition of a codicill. 12
  • Definitions of a codicill and a testa­ment, how they agree or differ. 12
  • Definition of a legacie or deuise. fol. 14
  • Definition of a gift in consideration of death. 16
  • Definition of a solemne testament. 17
  • Definition of a testament mētioned in the Ciuil law, whether it agree with our testaments in England. 19
  • Definition of a testament compre­hendeth both solemne and vnso­lemne testaments. 19
  • Definition of a testament is not of a­ny speciall testament. 21
  • Definition of a priuiledged testamēt 24
  • Definition of a testament amongst children. 29
  • Definition of a testament ad pias cau­sas. 30
  • Definition of an idiot, or naturall foole. 39
  • Definition of a slaue. 43
  • Definition of an Apostata. 55
  • Definition of a famous libel. 58
  • Definition of appointment of an executor. 112
  • Defect in the testators meaning. 261
  • Defect of solemnitie, whether it doe make void the testament. 257
  • Defect of will, whether it destroy the testament. 258
  • Degrees of consanguinitie prohibi­ting mariages here in Englande. 57
  • Of Degrees of Executors. 177
  • Debtes, whether they ought to be put into the inuentarie. 218
  • Debtes, which are first to be payed. 228
  • Debtes to the Prince are first to be payd. 229
  • [Page]Of Debts due by recognisance, and statute merchant. 229
  • Of Debts vpon iudgementes. folio. 229
  • Of Debtes vpon obligation. folio. 229
  • Of Debts vpon billes and bookes. 229
  • Of Debts without specialty. 229
  • Debt due to the executor, whether it is to be allowed. 230
  • Debts due by the testator, dischar­ged by the executor with his own mony, whether he may retain the testators goods. 230
  • A Debt being bequeathed, and af­terwards receiued by the testator, whether the legacie be extingui­shed. 281
  • Difference betwixt a testament, and all other kindes of last willes. 7
  • The Difference betwixt a testament and other sentences. 10
  • Difference betwixt the definition of a last will, and the definition of a testament. 11
  • Difference betwixt these two words, Lawfull, and Iust. 11
  • Difference betwixt these two words, Disposition, and Sentence. 11
  • Difference betwixt a legacie, and a gift in case of death. 14
  • Difference betwixt a slaue and a vil­leine. 43
  • Difference betwixt the executor of an executor, and the executor of an administrator. 92
  • Differēce betwixt these two phrases, (if he do not marry,) and, (so long as he doth not marry.) 153
  • Difference betwixt these phrases (Jf he die without issue) and (If he haue no issue.) 166
  • Difference, whether the legacie be referred to the substance, or exe­cution of the disposition. 173
  • Difference betwixt substituting by proper names, and by names ap­pellatiue. 179
  • Difference betwixt obscuritie & am­biguity. 192
  • Difference betwixt the lawes Ciuill, & the lawes Ecclesiasticall, about the education of bastards. 200
  • Differēce betwixt the vulgar and le­gall forme of prouing testaments 224
  • Difference betwixt a proper name, and a name appellatiue, 246
  • Difference betwixt these wordes, (J geue) and (I bequeath) 284
  • Different effects of a simple assigna­tion of an executor, and a simple legacie. 119
  • Distinction of legacies confounded. 15
  • Distribution of the residue of the te­stators goods. 235
  • Diuers kinds of conditions. 121
  • Deuise of landes not good without writing. 23
  • Doctors of the law, and cleargy mē, what priuiledges testamentary they enioy. 27
  • All Doctors or Diuines, not priui­ledged. 28
  • Donor of lands in taile, whether he may prohibite alienation. 154
  • Doubt about the date of willes, ma­keth both voyd. 29
  • Dumbe, but not deaffe, whether such a person may make his testament. 52
  • A Drunken person, whether he may make a testament. 42
E
  • Of Ecclesiasticall persons, some be regular, some be secular. 64
  • [Page]Ecclesiasticall persons are not sim­ply prohibited to make their testa­ments. 64
  • Ecclesiasticall persons may make their testamentes of all goods which they haue, not in right of the Church. 64
  • Ecclesiasticall persons cannot make their testaments of things immo­ueable, which they posses in right of the Church. 65
  • An Ecclesiasticall person may make his testament of the glebe by him sowen.. 65
  • An Ecclesiastical person, whether he may make his testament of all mo­uable goods which he hath in right of the church. 65
  • Effects of interlocutorie and defini­tiue sentences, be contrary. 9
  • The Effects of testaments and codi­cils, contrarie. 14
  • Efficacie of a nuncupatiue testamēt. 24
  • The effect of dieng with or without a testament. 112
  • Effect of a pure or simple nominati­on of an executor. 116
  • Effects of conditions diuers and cō ­trarie. 123
  • The Effect of the disposition is not suspended by necessary or impossi­ble conditions. 124
  • The Effect of the disposition is sus­pended by possible conditions. 124
  • Effects of substitution of executors. 177
  • Effects of an inuentarie. 220
  • Effects of a perfect account, 236
  • Effects of a bare reuocatiō. 169
  • Effectes of an vnperfect accoumpt 236
  • Effect of cancelling testamentes. 270
  • Election, whether it belong to the executor, or legatarie. 255
  • Election, in what maner it ought to be made. 255
  • Election belōging to the Legataries, which of them ought to chuse first 256
  • In Election, if the collegataries dis­sent, what meanes is to be vsed. 256
  • Emblements. See corn on the groūd
  • Encrease or decrease of solemnities, doeth not make any disagreement betwixt our testamentes, and the definition of a testament. 20
  • In England testators are not tied to the obseruation of any other so­lemnities, the such as bee Iuris Gentium. 6
  • In England our testaments, though vnsolemne, haue the effectes of te­staments properly so called. 21
  • End of an account. 236
  • Enimity a cause whereby the legata­rie doeth lose his legacie. 286
  • By Enimitie, whether the legacie be lost, if the testator were the cause thereof. 286
  • By Enimitie the legacie is not al­wayes lost. 287
  • Errors detected about the definition of a testament. 7
  • Error may happen diuers wayes. 244
  • Error in the person of the executor, or legatarie, doth destroy the dis­position. 244
  • Error in the name of the executor, or legatarie, whether it hurte the disposition. 244
  • Error in the qualitie of the execu­tor or legatarie, whether it de­stroy the disposition. 245
  • Error in the thing bequeathed, ma­nifold. 245
  • [Page]Error in the proper name of the thing bequeathed, whether it de­stroy the legacie. 245
  • Error in the name appellatiue of the thing bequeathed, whether it de­stroy the legacie. 245
  • Error in the substance of the legacy, whether it make voyd the legacie 246
  • Error in the quantitie of the thing bequeathed, whether it be hurtful 246
  • Error in the quality of the thing be­queathed, whether it be hurtfull. 248
  • Error in the forme of the disposition destroyeth the force therof. 248
  • Essentiall forme of a testamēt, is the naming of an executor. 112
  • Examples out of the olde testament, whereby it may seeme lawfull for kings to geue away their king­domes. 66
  • Examples out of prophane histo­ries, tending to the same ende. 66
  • Examples of a pure or simple ap­pointment of an executor. 114
  • An Excommunicate person maye make his testament, except in certaine cases. 60
  • An Excommunicat person, whether he may be executor. 198
  • An Executor, wherefore he cannot dispose the testators goods by le­gacie. 49
  • An Executor made without expresse mention of this worde Executor. 115
  • An Executor may bee made, either by the proper motion of the testa­tor, or at the interrogation of an other. 116
  • Executor, when is he said to be ap­pointed conditionally. 120
  • An Executor may be made vniuer­sally, or particularly. 175
  • An Executor may be ordeyned, ey­ther from a time, or for a time. 171
  • An Executor may bee made in the first, second, or third degree. 176
  • The Executor of an executor may sometimes be sued, as executor in his owne wrong. 182
  • Executor euery one may be, which is not forbidden. 196
  • Executor by the law. 205
  • Executor by the Ordinary. 206
  • The Executor is not to meddle with lands, tenements, & hereditamēts. 210
  • The Executor may be cited to ac­cept or refuse the executorshippe. 208
  • The Executor being cited, if he will not appeare, the Ordinarie may commit administration. 208
  • The Executor cannot be compelled to vndertake the Executorshippe. 208
  • Executor of an executor, whether he may ioyne with the executor sur­uiuing 213
  • The Executor punishable, which doeth administer without an in­uentarie first made. 217
  • The Executor resolued to refuse the executorship, must not meddle as executor. 236
  • Executor, when doeth he administer as executor. 236
  • Executor ought to be capable of the executorshippe at three seuerall times. 276
  • Expences to be allowed to the exe­cutor. 235
  • Exposition of testaments fauorable. 24
F
  • [Page]False cause, whether it destroy the disposition. 245
  • A Famous libel what it is. 58
  • The Father may by his will appoint a tutor to his childe. 96
  • In Fauour of libertie the condition need not to be obserued precisely. 130
  • Feare and Fraud make voyd the te­stament. 10
  • Feare hindereth the effect of the te­stament. 240
  • Feare, whether it be preiudiciall to any other then vnto the author thereof. 240
  • Feare, whether it destroy the testa­ment confirmed with an oath. fol. 240
  • Feare of future hurte, whether it destroy the testament. 241
  • Feare, whether it be proued by the protestation of the testator. 242
  • Fees due about the probation of the testaments. 225
  • Fees due for copies of testamentes, or inuentaries. 227
  • Felons intestable. 53
  • Felons landes who shall haue. 53
  • Whether he that is onely indited of Felony may make his testamēt. 53
  • Whether he that is only apprehen­ded for felonie, may make his te­stament. 54
  • Felons goods not to be seised be­fore atteindure. 54
  • A Felons testament conuicted, is voide, though he be neuer execu­ted. 53
  • Flatterie not alwayes vnlawful. 243
  • Flattery mingled with feare, doeth hurt the testament. 243
  • Flatterie mingled with fraude, de­stroyeth the testament, 243
  • Flattery destroyeth the force of the testament, whē the testator is vn­der the gouernment of the flat­terer. 243
  • Flattery if it be immoderat, hinde­reth the disposition. 243
  • A Flock of sheep being bequeathed, if all perish but one, whether that one be due. 281
  • Formes of testaments so many as there be kindes. 111
  • Of Formes testamentary, some be generall, some particular. 111
  • Forme essentiall of a testamēt, is the appointment of an executor. 112
  • The Forme of the bond called Mu­tiana cautio. 140
  • The Forme of a solemne testament. 188
  • The form of an vnsolemne testamēt 189
  • The Forme of a nuncupatiue testa­ment. 192
  • Forme to be obserued in making of an inuentary. 219
  • Forme of prouing testaments, two­folde. 223
  • The former testamēt is not reuoked by the second, made by flatterie. 243
  • Former testament voyd, where the testator is forbidden to alter the same. 273
  • Former testament in some cases is not void, although the testator be forbidden to alter the same. 274
  • Forfeiture for extortion of fees. 227
  • Foundation of the testament. 112
  • Fraud as detestable as force. folio 242
  • Fraud doeth not alwaies destroy the testament. 242
  • Freedome requisite in the testator. 10
  • Funerall expences to be deducted out of the whole goods. 104
G
  • [Page]Gardian, see Wards.
  • Gauelkind lands may be deuised by will. 70
  • Gauelkind lands, by what occasion they were made deuisable. 70
  • The Generall signification of this word testament 2
  • The Generall forme of testamentes twofolde, essentiall, & accidentall. 111
  • Generall legacie of all, or the resi­due of the testators goods, whe­ther it make an executor. 115
  • Generall legatarie is not alwais vn­derstood to be the executor. 115
  • A Gifte in consideration of death, what it is. 16
  • Three sorts of Gifts in consideratiō of death. 16
  • Which Gift in case of death is com­pared to a legacie. 16
  • Goods, at what age they may be de­uised. 35
  • Goods of any kinde, are deuiseable, except in certain cases. 91
  • Goods which a man hath ioyntly with another, are not deuiseable. 92
  • Goods which any hath as admini­strator, are not deuisable. 92
  • Goods of the Realm, vz. of the aun­cient crown, and iewels, not de­uisable. 22
  • Goods belonging to a church or ho­spitall, cannot be deuised. 93
  • Goods belonging to a city, borough or comminalty, not deuisable. 93
  • Goods conteined in the inuentary, are presumed to be in the hands of the executor. 220
  • Goods, other then are described in the inuētary, the executor is not presumed to haue. 220
  • Grasse, or trees growing, are not to be inuentaried. 218
H
  • Hard conditions, whether they sus­pēd the effect of the dispositiō. 125
  • An Hereticke cannot make a testa­ment. 54
  • An Heretick, whether, and when he doth forfeite his landes or goods. 54
  • An Hereticks testament not cōuic­ted, whether it be good. 54
  • An Heretick may be condēned after death. 55
  • An Heretick reclaiming his heresie, whether he may make a testamēt 55
  • An Heretick cannot be executor. 197
  • An Heretick cannot be executor in a military testament. 197
  • An Heretick reclaiming his heresie, whether he may be executor. 197
  • Heire hath not to deale with goods and cattels of the testator. 210
  • An House bequeathed, and after­wards reedified, and renued, whe­ther the same may be recouered. 278
  • The House bequeathed, being bur­ned, or blowen downe, and af­terwardes another erected, whe­ther may this new house be reco­uered. 279
  • Husbands licence necessary to the validity of the wiues testament. 47
  • The Husbande, whether hee may re­uoke the licence graunted to his wife. 47
I
  • An Idiot or natural foole who, 39
  • An Idiot cānot make a testamēt. 39
  • An Idiot, if he do make such a testa­ment as seemeth reasonable, and voyd of folly whether is the same good in law. 39
  • [Page]That Idiotes haue giuen very wise sentences, confirmed by exāples. 40
  • Idiots in the custodie of the Prince. 99
  • What Immunitie wee enioy in Eng­land concerning testaments. 18
  • Imperfection testamentary twofold. 6
  • Impossible conditions do not make the disposition conditionall. 126
  • Of Impossible conditions there bee diuers kindes. 122
  • Impossible conditions doe not sus­pende the disposition. 124
  • Impossible conditions, which the te­stator supposed to be possible, whether they suspend the disposi­tion. 125
  • Impossible conditiōs negatiue make voyd the disposition. 126
  • Incestuous mariages. 57
  • Incestuous persons, whether they may giue any thing by their testa­ments, and to whom. 57
  • Incestuous persons may in some ca­ses bequeath something to their incestuous children. 57
  • What Inconuenience would follow if vnsolemn testaments were not properly testaments. 20
  • Indifferēt betwixt a wise man and an Idiote, may make a testamēt. 39
  • Indited of felony, whether hee may make a testament. 53
  • Infants as well as others of full age, may be made executors. 196
  • Infanitie of minde, see Madnes.
  • Intestable actiuely, by occasion of any crime, is intestable also pas­siuely. 203
  • Inuentary to be made by the tutor. 101
  • An Inuentarie being made, the exe­cutor need not to pay any legata­rie his whole legacie, where there is not sufficient to pay the rest. 107
  • No Inuentary being made, how far the executor is bounde to pay le­gacies. 108
  • Inuentary necessary. 217
  • Inuentarie wherefore necessarie. 217
  • In the Inuentary what things are to be put. 218
  • Inuentarie to bee made before the executor meddle with the testa­tors goods. 219
  • Inuentary indented. 219
  • Ioyntenāt whether he may bequeath his part of Burgage land. 71
  • Whose Issue is naturall, not lawfull, whether he is said to die without issue. 161
  • Whose Issue is lawfull, not naturall, whether he be said to die without issue. 261
  • The Issue, whether it is the former, or second husbands, when it is doubted which of them did beget the same. 165
  • Issue, whether shall he be deemed to haue, who had children, but not at his death. 166
  • Issue whether shall he be deemed to haue, whose childe is vnborne when he dieth. 167
  • The Issue, if it die so soone as it is borne, whether shall the father be deemed to haue died without is­sue. 167
  • If the Issue be borne dead, or die as it is borne, whether shall the father be sayde to haue had Issue. folio. 168
  • This word Iust hath diuers significa­tions. 5
  • [Page]Iust opposed to that which is wic­ked. 5
  • Iust, taken for full and perfect, 6
  • Iust, what it signifieth in the defini­tion of a codicill. 12
K
  • Hee that Killeth himselfe, is intesta­ble. 58
  • Kin, if the testator make his Kin exe­cutor, which of his kin is to bee admitted. 252
  • Many kindes of testaments. 16
  • Two Kinds of iudiciall sentences. 9
  • Diuers Kindes of legacies now con­founded. 15
  • Three Kindes of giftes in regarde of death. 16
  • Diuers Kindes of priuiledged testa­ments. 25
  • Three Kinds of Apostasie. 55
  • Two Kindes of Ecclesiasticall per­sons, regular and secular. 64
  • Diuers Kinds of conditions. 121
  • Diuers Kinds of Bastards. 198
  • Diuers kinds of executors 205
  • Diuers Kindes of executors testa­mentarie. 207
  • A King, whether by his testament he may bestowe his kingdome at his pleasure. 66
  • Knowne or vnknowne persons, may be made executors. 196
L
  • Landes not deuisable without wri­ting. 23
  • Lands at what age they may be de­uised. 35
  • Lands are not deuisable, but in cer­taine cases. 70
  • Lands holden in gauel kind, deui­sable. 70
  • Landes holden in burgage tenure deuisable. 17
  • Lands deuisable to certaine vses. 72
  • Lands in what cases they may be de­uised by the lawes of this realm. 77
  • Lands deuised, alienated, and redee­med, whether the same may bee recouered. 280
  • Last will is a generall worde. 3
  • Last will how it is defined 11
  • Later testament doth infringe the former. 263
  • By the lawes Ciuill and Canon, a King can not giue away his king­dome. 67
  • Whether by the lawes of this realm a King may giue away his king­dome. 67
  • Leases are to be put into the inuen­tarie. 218
  • Legacies bequeathed by him which dieth intestate, by whom they are to be paied. 13
  • Legacie what it is. 14
  • Legacies proceede of liberalitie. 14
  • Legacies payable, as well by an ad­ministrator, as by an executor. 15
  • Legacies are to be payed out of the cleare goods. 104
  • Which legacie is firste to bee paied whē there is not sufficient goods to pay euery legacie wholie. 107
  • A Legacie may be giuen to or from a certain time, or to or from an vn­certaine time. 172
  • The Legacie is not transmissible, which is giuen from an vncer­taine time. 172
  • The Legacie whether it bee trans­missible the vncertaintie being about the question whether, not this question when, 172
  • The Legacie is not transmissible, if the question bee onely when, not whether. 173
  • The Legacie whether it be transmis­sible, which is giuen after a cer­taine age. 173
  • [Page]The Legacie sometimes transmis­sible, albeit the age be ioined to the substance of the legacie. 173
  • A Legacie being left to a bastarde, whether the same bee presumed to bee left for his alimentation. 202
  • A Legacie of wine or corne, no quā ­titie being expressed, whether the same be void. 255
  • Legacie due, though the executor cannot, or will not vndertake the executorship. 276
  • The legacie if it be referred to a certaine day, whether it begin to be due at the death of the testa­tor. 291
  • The Legacie is extinguished, if the thing bequeathed doo perish. 292
  • The Legacie is not extinguished, if the thing bequeathed do perish by the negligence of the execu­tor. 292
  • The Legacie which is generall, or doth consist in quantitie, cannot perish. 293
  • The Legacie whether it be extingui­shed, if the thing bequeathed be not destroied, but the forme one­ly altered. 293
  • The Legatarie may not take his Legacie of his owne authoritie 15.
  • A Legatarie may not of his owne authoritie take his legacie, and what is the reason. 119
  • Legataries, what remedie they haue for the obteining of their lega­cies. 119
  • The Legatarie may sometimes take his legacie of his owne authoritie. 119
  • A Legatarie whether hee may bee a witnesse. 187
  • Legatarie ought to bee capable of the legacie at the testators death. 276
  • Legataries by what meanes they may be made incapable of their legacies. 286
  • A Legatarie whether he loose his le­gacie, by reason of enimitie be­twixt him and the testator. 286
  • The Legatarie looseth his legacie by accusing the testament of fal­sitie. 288
  • The Legatarie looseth his legacie by cancelling the testament. 288
  • The Legatarie whether he loose his legacie by entring to the posses­sion without authoritie. 288
  • The Legatarie if he die at the same instant when the testator dieth, whether the legacie be lost. 289
  • A Libeller cannot make a testa­ment. 58
  • A libeller cannot bee executor 203
  • Licence of the husbande maketh good the wiues testament. 47
  • Licence of the husband, whether it must go before, or may concurre or follow the wiues testament. 48
  • Licence granted by the husband to the wife, whether, & when it may be reuoked. 48
M
  • Mad folks cannot make their testa­ments. 36
  • Madnes being past, whether the te­stament be good. 36
  • A mad man may make his testamēt betwixt his sits. 37
  • Madnes to be proued by him which obiecteth the same. 37
  • Madnes before the making of the testament, whether it be presumed [Page] to continue. 37
  • Madnes hard to be proued. 38
  • Madnes how it may be proued. 38
  • Madnes whether it may be proued, by singular witnesse. 38
  • Madnes whether it may be proued, when the witnesses yeelde a ge­nerall reason of their knowledge. 38
  • A Manifest vsurer cannot make a te­stament. 56
  • A Manifest vsurer not to be buried in any Church or Churchyarde. 57
  • Many being appointed executors, whether one may be admitted without the rest. 181
  • Manifest vsurers incapable of testa­mentarie benefite. 203
  • Many things to bee considered of him that would be resolued, whe­ther it were better to accept or refuse the executorshippe. folio 209
  • Mariage though it be vnsolemne, yet it is a true mariage. 20
  • Mariages incestuous. 57
  • Meaning, or will of the testator chiefe gouernour of the testa­ment. 9
  • The Meaning of the testator dili­gently to be sought, and faithfully to be kept. 9
  • Meaning to be preferred before words. 9
  • Meaning not wordes to be regar­ded. 116
  • The meaning of the testator to be preferred before the proprietie of words in the deuise of lands, pro­ued by diuers examples 118
  • For the Means it skilleth not where the end is regarded. 129
  • To medle as executor what it is. 236
  • Mention of condition doth not al­waies make the disposition con­ditionall. 116
  • Mention to be made in the later te­stament of the former amongest children. 29
  • Militarie testaments vnsolemne, yet properly testaments. 20
  • In Minoritie, whether a testament may be made with the authoritie of the tutor. 35
  • In Minority whether a souldier may make his testament. 35
  • Mind and memory presumed to be perfect. 37
  • The mind of the testator giueth life to the testament. 261
  • Mixt conditions, whether they be reputed for accomplished, when it dooth not stand by the partie, wherefore the same is not perfor­med. 133
  • Modus & conditio, how they differ. 137
  • A Monster being born, whether shal the parēts be iudged to haue died without issue. 168
  • Mony due for land, whether the same ought to be put into the in­uentarie. 218
  • Of Mortuaries. 230
  • Mortuaries to be taken but in cer­taine cases. 230
  • Mortuaries not due where the moueable goods do not extend to ten marks. 230
  • Mortuaries not due but in places where they haue bene vsed to be paid. 231
  • Mothers whether they may ap­point tutors to their children. 97
  • Multitude or scarcitie of solemnities doth not make our testaments to disagree with the former definitiō of a testament. 20
  • [Page]He that standeth Mute at the barre may make his testament of his lands. 54
  • Mutiana Cautio, why it is so tear­med. 138
N
  • Necessarie conditions, whether they make the disposition condi­tionall. 117
  • Necessarie conditions which they be. 121
  • Of Necessarie conditions there be two sorts. 121
  • Necessarie conditions doo not sus­pend the effect of the disposition. 124
  • Necessarie conditions being other­wise expressed then vnderstoode, suspend the disposition. 124
  • The necessitie of an inuentarie. 217
  • A Negatiue condition is then saide to be accomplished, when it can­not be infringed. 139
  • Notes vnaccustomed do not hurt a testament ad pias causas. 30
  • Notes or characters of a written testament. 190
  • Notable goods. 222
  • Nuncupatiue testament what it is. 24.
  • Nuncupatiue, wherefore so called 24
  • Nuncupatiue testament, of what ef­ficacie. 24
  • Nuncupatiue testaments when they be commonly made, and why then. 24
  • Nuncupatiue testament made di­uers wayes. 24
  • A Nuncupatiue testament whether it lose his force by cancellation. 270
  • Number of witnesses needfull or sufficient for the proofe of a te­stament. 185
  • The number of witnesses doth som­times supply the defect. 186
O
  • Obiections against the definition of our testaments in England. 19
  • Obscuritie what it is, and howe it may be auoided. 192
  • The office of a tutor dooth princi­pally respect the person of the pu­pill. 101
  • The office of an executor testamen­tarie wherein it doth principally consist. 217
  • Office of the ordinarie in an ac­count. 235
  • One onely vsurarie act, whether it make a manifest vsurer. 56
  • One alone, or mo together, may be appointed executors. 181
  • One of the executors may execute when the rest refuse. 183
  • One executor alone, whether hee may sue or be sued without his fel­lowes. 183
  • One executor cannot sue another. 183
  • One witnesse sometimes sufficient for the proofe of. a testament. 186
  • One executor whether he may sue another. 215
  • One executor whether he may pre­iudice an other. 215
  • One of diuers executors may sell the testators goods. 216
  • One onely mortuarie due. 231
  • One and the same thing being be­queathed, first to one, and after­wards to another, whether it may be wholy taken away from the for­mer. 283
  • The Ordinarie whether he may ap­point a tutor. 97
  • The office of a tutor secondarilie [Page] doth respect the good administration of the pupils goods. 101
  • The Ordinary, whether he may limit a cer­taine time for the performance of the condition. 159
  • The Ordinary may commit administration vntill the executorship take place, or af­ter the executorship is ended, 171
  • Oath about the inuentarie. 220
  • Oath of the executor prouing the wil. 225
  • An other person cannot make my testa­ment. 10
  • Old age alone doth depriue no man of the libertie of making a testament. 42
  • An Old man childish cannot make his te­stament. 42
  • An Old man which hath lost his memory, cannot make a testament. 42
  • An Outlawed person looseth his goods, and the benefite of the lawe. 59
  • An Outlawed person, whether hee may make his testament. 59
  • An Outlawed person doth somtimes forfeit his lands, as well as his goods. 59
  • An Outlawed person, may make his testa­ment of his lands not forfeited. 59
  • An Outlawed person, may assigne tutors te­stamentary to his children. 59
  • An Outlawed person may make his testa­ment, when there is some errour in the writ. 59
  • An Outlawed person, whether he may bee executor. 198
P
  • Of Paying part of the testators debts, & re­ceauing an acquittāce for the whole. 230
  • Peculiar to a written testament. 23
  • A Perfect definitiō, profitable to many pur­poses. 5
  • Euery Perfect wil is not a perfect testamēt. 7
  • Euery Person may make a testament, which is not prohibited. 34
  • What Persons are prohibited to make a te­stament. 34
  • Perticular executor may meddle with no more then is alotted vnto him, and there­fore no further charged, but according to that portion. 175
  • Perticular formes of testaments, be so ma­ny as there be seuerall kindes of testa­ments, 188
  • Perticular persons of an vnlawfull colledge may be executors. 202
  • At the Point of death, whether a testament may be then made. 61
  • A Poore man whether he may be a witnesse. 188
  • Poore if the testator leaue any thing to bee giuen to the poore, which poore are to haue the same. 251
  • By Possessing the thing bequeathed of his owne authoritie, whether the legatary doo loose his legacy. 288
  • Of Possible conditions there bee diuerse kindes. 122
  • Possible cōditions, whether they do alwaies suspend the effect of the disposition. 127
  • Posteriority presumed, for that testament which is among children. 29
  • The Power of parents in assigning tutors to their children. 96
  • The Power of Gardians. 99
  • Precise obseruation of the condition in a te­stament (ad pias causas) not necessary. 31
  • Of the Prerogatiue of either Archbishop. 221
  • If the Prince giue goods to the executor of an outlawed person, whether he be ther­by chargeable with the paiment of lega­cies, as hauing assets, 59
  • The Prince though he die before the testa­tor, his successors may obtaine the lega­cie. 290
  • The Prince may frustrate the gifte or testa­ment of the villaine at any time. 44
  • Priuiledged testaments, what they be. 24
  • Priueledged, wherefore so called. 24
  • Of Priuiledged testaments diuers kinds. 25
  • What Priuiledges, Diuines and Lawiers en­ioy, concerning their testaments. 28
  • What Priuiledges Souldiers enioy, in ma­king their testaments. 25
  • What Priuiledges belong to the testament, amongst testators children. 29
  • Priuiledge of proofe, whether it be peculiar [Page] to the fathers testament amongst his children. 29
  • Priuiledges of a testament, ad pias causas, what they be. 30
  • Priuiledges belonging to a military testa­ment, or amōgst children, whether they belong to a testament ad pias causas. 31
  • Priuiledged testaments being soūd without date, which is presumed to be later. 31
  • A Prisoner, whether hee may make a testa­ment. 46
  • Probation of testaments belongeth to the Bishop of the dioces where the testator dwelleth. 221
  • Probation of testamentes, sometime belon­geth to other then to the Bishop. 221
  • Probation of testaments, to be made by the executor. 222
  • Probation of the testaments to be made af­ter the death of the testator, not before. 223
  • Prodigall persons, whether they be intesta­ble. 60
  • Prochein Amie, accomptable to the warde af­ter his full age. 99
  • Prohibition of the first mariage, more odi­ous then the second 150
  • Prohibition of alienation, sometimes to be obserued as lawfull, sometimes not. 154
  • Prohibition with a cause lawfull. 154
  • Proofe of making the testament, to be made either by witnesses, or by writing. 185
  • Proofe requisite in making an accompt. 234
  • Protestation of feare by the testator, whe­ther it be a sufficient proofe of feare or not. 242
  • A Pure appointment of an executor, what it is. 114
Q
  • Of the Quantitie of lands deuisable. 103
  • Of the Quantitie of goods and cattels de­uisable. 104
  • What Quantitie of goods is due to the wife and children. 104
  • A Quantitie bequeathed first to one, and af­terwards to an other, whether this be an ademption or translation of the former legacy, 285
  • Whether a Queene may make her testa­ment. 48
  • Questions about the tuition of children, 95
  • Questions about conditions. 126
  • Questions about accepting or refusing of the executorship. 208
  • Questions about the making of an Inuen­tary. 217
  • Questions about the probation of testa­ments. 221
  • Questions about the paiment of debts and legacies. 228
  • Questions about accompts. 232
  • Questions about clauses derogatory. 265
R
  • Rare is that definition, which can not be o­uerthrowne. 4
  • Of Reason destitute cannot make a testa­ment. 8
  • Reasons tending to this purpose, that a King may by his testament make away his kingdome. 66
  • A Resonable part, whether it be due to the wife and children, when there is no cu­stome. 105
  • The Reason of the lawe, which leaueth all to the disposition of the testator. 106
  • The Reason of the custome, whereby the li­bertie of the testator is restrained. 106
  • Reasons wherefore executors are accomp­table. 232
  • Referring of the testators will, to an others will, sometimes lawfull. 148
  • By Refusal before the ordinary, whether the coexecutor be excluded. 183
  • By Refusall of the executorship, the ordina­ry hath power to commit administrati­on. 208
  • By Refusall of the executorship, whether the executor loose his legacy. 208
  • After Refusall, whether the executor may meddle as executor. 216
  • Regular persons. 64
  • Religious persons cōpared to dead men. 64
  • Religious persons compared to bond mē. 64
  • What Remedie the creditors & legataries [Page] haue during the suspence of the con­dition of the executorship. 169
  • Rentes, whether they may be recouered by the executor. 211
  • The Residue of the testators goods, whe­ther the executor may conuert to his owne vse. 214
  • Residue of the testators goods to bee di­stributed. 235
  • Resolued to refuse the executorship, must not meddle as executor. 236
  • Of Reuocations, some be generall, some speciall, some singular. 266
  • Reuocation generall, what it worketh. 266
  • Reuocation special, what it worketh. 266
  • Reuocation singular, what it worketh. 267
  • Reuoked, by what means may that testa­ment be, wherein is a speciall clause derogatorie circūscribed with certein limits. 267
  • Reuoke his testamēt may euery one. 268
  • Reuocation of a mans testament is not presumed. 268
  • Reuocation sometimes presumed. 269
  • Rigor of the Ciuill lawe, concerning te­staments. 17
  • The Rigor of the Ciuill lawe iustly refor­med. 17
S
  • Secular clarkes. 64
  • Sentence, what it signifieth. 7
  • Sentences iudiciall of two sortes. 9
  • Sentence, how it differeth from this word disposition. 11
  • A simple legacy beginneth to be due at the death of the testator. 289
  • Seuerall sortes of sentences, haue seueral effects. 7
  • How a testament differeth from other Sentences. 10
  • A Slaue, what he is. 43
  • A Slaue cannot make a testament. 43
  • A Slaue hath nothing of his owne. 43
  • A Sodomite who. 58
  • A Sodomite cannot make a testament. 58
  • He that hath sworne not to make a testa­ment, whether hee may make a testa­ment. 60
  • Solemne testamentes not vsed in Eng­land. 17
  • What Solemnities are requisite in our English testaments. 6
  • Souldiers, wherefore they enioy so great priuiledges about their testaments. 25
  • Soldiers, wherin are they priuiledged cō ­cerning their testaments. 25
  • Souldiers priuiledged, not onely in re­spect of their owne persons, but others also. 26
  • Souldiers priuiledged in respect of solem­nities testamentary. 26
  • Souldiers priuiledged in respect of the substance or forme of a testament. 26
  • Three sortes of Souldiers. 26
  • Souldiers armed. 26
  • Souldier during minoritie, whether he may make a testament. 35
  • A Ship being bequeathed, & the same af­terwards altered and renewed, the le­gacy is extinguished 278
  • Studie & practise of the law, profitable to the common wealth. 27
  • A Stranger, whether he may appoint a tutor to an others child. 97
  • Substitutions of diuers kindes. 177
  • Substitutions haue sundry effects. 177
  • The Substitute executor is not to be ad­mitted, so long as he which is institu­ted in the first degree may bee execu­tor. 178
  • The first Substitute being repelled, whe­ther the rest be repelled likewise. 178
  • The Substitute is not alwaies excluded by the admission of the executor first instituted. 178
  • The Substitute ought to succeede in that part and quantity, which was assigned to the former executor. 179
  • Sufficiency of goods, whether it be pre­sumed. 221
T
  • [Page]Testament and last will, haue diuers defi­nitions. 2
  • This word Testament is sometimes taken in a generall signification, sometimes in a speciall. 2
  • This word Testament taken generally, doth not differ from a last will. 3
  • A Testament taken specially, or accor­ding to definition, is but one kinde of last will. 3
  • A Testament what it is. 3
  • Testaments must be iust. 5
  • Testaments must be perfect. 6
  • What maketh a Testament to differ from other kinds of last willes. 7
  • The Testament not to be referred to an others will. 10
  • The Testament of no force, vntill the te­stator be dead. 10
  • Testaments amongst children vnperfect, yet properly testaments. 20
  • Testaments, whē they be properly so cal­led. 21
  • Testaments fauourably expounded. 24
  • Testaments amongst children what it is. 29
  • Testaments amongst children, presumed to be last. 29
  • Two Testamentes appearing, and no proofe which is first or last, both are void. 29
  • Testament, ad pias causas, what it is. 30
  • Two Testaments priuiledged found without date, which is presumed to be the later. 31
  • Testament may be made by any person which is not forbidden. 34
  • Testament made in minority, whether it be good if the testator liue vntill hee come to lawfull age. 35
  • Testament made during the time of mad­nes, whether it be good when the te­stator is come to himselfe. 36
  • Testament made by a lunatike person, whether it be presumed to haue bene made during his lunacy or not, 38
  • Testament, whether it may be made by him which is at the very point of deth, 61
  • Testaments to be prooued before the or­dinary. 221
  • Testaments loose their force 2. waies. 239
  • Testaments, by what means they be void from the beginning. 239
  • Testaments being good at the first, by what meanes they become void after­wards. 239
  • Testament made by force, whether it be void, ipso iure. 241
  • Testament confirmed after feare past, whether it be good. 241
  • Testament made by feare is good, sauing in fauour of the author of his feare. 241
  • Testament made in fauour of children, is presumed to be later. 256
  • Testament ad pias causas, is presumed later then others to prophane vses. 256
  • Which Testament is presumed later, the one made ad pias Causas, the other inter Liberos. 257
  • The Testament improperly tearmed Ca­ptions, which is referred to the will of an other. 147
  • The Testator must be sui iuris. 10
  • Testator at what age he may deuise lāds. 35
  • Testator, at what age he may make a te­stament of his goods. 35
  • The Testators will may not depend of an other mans wil, and what is the reason thereof. 147
  • The Testator may referre his will to an­others will, ioyned with a fact. 148
  • The Testator whether he may die partly testate, partly intestate. 171
  • The Testator may omit or exclude his own child, & make others executors. 195
  • The Testator may bequeath sometimes all, sometimes halfe, sometimes the third part of his goods. 104
  • Things discending to the heire, and not to the executor not deuiseable. 93
  • Translation of legacies, what it is. 281
  • [Page]Whether euerie Translation do include an ademption of the legacie. 28
  • Translation of legacies doth not alwaies include ademption. 282
  • In Translation of legacies, whether the charge imposed on the first legatarie be transferred to the secōd legatarie. 282
  • Traitors or fellons cannot be executors. 197
  • Traitors be intestable. 52
  • Traitors intestable from the time of the crime committed. 53
  • A Traitor pardoned and restored, may may make a testament. 53
  • Tutors by whom they may be appoin­ted. 96
  • Tutors who may be appointed. 97
  • Tutors to whom they may be appointed. 98
  • A Tutor cannot be assigned to him that is in ward. 98
  • Tutors may be appointed simplie or con­ditionally. 99
  • Tutors whether they ought to enter into bond for the performance of their of­fice. 101
  • Tutorship ended by diuers meanes. 102
  • Tutorship ended in respect of sufficient age of the pupill. 102
  • Tutorship ended sometimes in respect of the tutor himselfe. 102
  • Tutorship ended in respect of the forme of the tuition. 103
  • Two testaments priuiledged found with­out date, which is presumed to be the later. 31
  • Two witnesses needful, and two sufficient for the proofe of a testament. 185
  • Time of the crime committed. 53
  • What time hath the executor to consult whether he will take or refuse the exe­cutorship. 216
  • Time for making an inuentarie. 219
V
  • Vaine feare hindereth not the testament 241
  • Villaine compared to him that is Ascrip­titius Glebae. 44
  • A Villaine whether he may make a testa­ment or no. 44
  • A Villaine whatsoeuer he hath, his lord may take it from him. 44
  • A Villaines testament, whether it may be made void by his lord. 44
  • A Villaine being executor may make his testament. 45
  • A Villaine executor may maintain action against his lord. 45
  • Vlpian liued long before Iustinian. [...]9
  • Volun [...]arie conditions are to be obserued precisely. 129
  • Vnaduised speeches make not a testa­ment. 8
  • Vnaccustomed notes do not hurt a testa­ment ad pias causas. 30
  • An vncertaine person cannot be made executor. 203
  • Vncertaintie manifold. 248
  • Vncertaintie of the person, whether it destroy the disposition. 249
  • Vncertaintie by reason there be diuers persons of one name, maketh void the disposition. 250
  • Vncertaintie vnhurtfull, if the testators meaning be certaine. 250
  • Vncerteintie doth not hinder the disposi­tion ad pias causas. 251
  • Vncertaine by reason of alternatiue speech vnhurtfull. 252
  • Vncertaintie by reason of generalitie in the thing bequeathed, whether it de­stroy the disposition. 254
  • Vncertaine testaments preserued from destruction by the equitie of the lawes Ecclesiasticall. 255
  • Vncertaintie about the date of two testa­ments, maketh both voide. 256
  • Vniust things not to be commanded by the testator. 5
  • Vniuersall executor may enter to all the testators goods and cat [...]els, and therefore chargeable with the pay­ment of all his debts. 175
  • [Page]An Vnlawfull Colledge cannot be exe­cutor. 202
  • An Vnlawfull Colledge, when it is so re­puted 202
  • Vnperfecte is the testament by two meanes. 6
  • Vnperfect in respect of solemnitie, folio 6
  • Vnperfect in respect of will. 6
  • Vnpriuiledged testaments what they are. 32
  • Of Vnperfect testaments there be two sorts. 257
  • Vnperfect in respect of solemnitie, whe­ther the testament be void. 257
  • Vnperfect in respect of will, whether the testament be void. 258
  • Vnperfect in respect of will, the testamēt may be by diuers meanes. 258
  • An Vnperfect testament is voide by the Ciuil law. 258
  • An Vnperfect testament ad pias causas, be­ing vnperfect in respect of will, whe­ther it be voide. 258
  • Vnperfect in respect of will, the testament is not by reseruation of some thing to be added. 2 [...]9
  • Vnsolemne testament, what it is. 18
  • An vnsolemne testament, if it were not properly a testament, what inconue­nience would follow. 20
  • Vsurer manifest, cannot make a testa­ment. 56
  • Euery Vsurer is not intestable. 56
  • A manifest Vsurer, who is. 56
  • Whether he be an Vsurer which lendeth for gaine, but dooth not receiue any more then the principall. 56
  • An Vsurer is not intestable in England, vnlesse he take aboue ten in the hun­dred for a yeares forbearance, or after that rate. 56
  • Vsurie how it is punished in England 56
  • Vsurer manifest not to be buried in any Church or Churchyard. 57
  • Vsurer manifest, incapable of any testa­mentarie benefite. 203
  • Vulgar forme of prouing testaments. 223
W
  • The wardship of a child that hath lands, who shall haue. 98
  • Of Wards the hard estate. 98
  • All Wards are not subiect to the like con­ditions. 99
  • The Wardship of an infant hauing lands in soccage to whom it belongeth. 99
  • Wardship ended by diuers meanes. 102
  • The Wife cannot make her testament of lands though her husband consent. 47
  • The Wiues testament, whether it bee good after the death of hir husbande. 47
  • The Wiues testament of lands somtimes good in law, notwithstanding the co­uerture. 47
  • The Wife cannot make hir testament of goods without hir husbandes license, and why. 47
  • The Wife may in some cases make hir testament without hir husbandes li­cense. 48
  • The Wife may make hir testament of a thing in action whereof her husband was neuer possessed. 48
  • A Wife executrix may make an executor without hir husbands license. 48
  • A Wife executrix cannot giue away the testators goods by hir will. 49
  • A VVife both executrix and legatarie, cannot make a testament of that which she did accept, not as executrix, but as legatarie. 49
  • A VVife executrix and legatarie, whether shall she be deemed to haue accepted the testators goods as executrix, or as legatarie. 50
  • A wife wherefore may she not make hir testament of that which she did accept as legatarie. 49
  • A VVife licensed to make hir testament, whether she may make any mo willes but one. 50
  • [Page]Of a Wife Executrix. 215
  • The Will of the testator chiefe gouernor of the testament. 9
  • Willes are to be fauourably interpreted. 193
  • Witnesses to the number of seuen, where­fore they were exacted rather in testa­ments then in other acts. 17
  • Witnesses two or three sufficient by the law of God. 18
  • Witnesses whether they are to be requi­red in the making of a testament. 19
  • Witnesses not priuy to the contents. 23
  • Witnesses whether they be necessary in a testament amongst children. 29
  • Witnesses must be learned when they do not know the contents of the wil. 23
  • Witnesses deposing that the testator was of sound minde and memory, to be preferred before those which depose the contrary. 38
  • A Witnes euery one may be, which is not forbidden. 186
  • The Witnesses not being greater then all exception, whether the number may supply the defect. 186
  • Witnesses no greater then all exception in three respects. 186
  • Witnesses are sometimes excluded for their dishonesty. 187
  • Witnesses sometimes excluded for want of iudgement. 187
  • Witnesses sometime excluded for affectiō 187
  • Witnesses whether they be always neces­sary in a writen will. 191
  • A Woman couert cannot make a testa­ment of her lands. 47
  • A Womans testament made before mar­riage, whether it be good if she dy du­ring the couerture. 47
  • A Woman whether she may be a witnes. 187
  • Women as wel as men may be executors 196
  • This word testament what it signifieth. 2
  • This Word last will what it signifieth. 3
  • This Word lust, what it signfieth. 5
  • This VVord lust, taken for ful and perfect. 6
  • This VVord Sentence, hath many signi­fications. 7
  • VVords vnaduisedly spoken, make not a testament. 8
  • The VVordes of the testator are not so greatly to be regarded as his will and meaning. 9
  • These VVords lawfull and iust, how they differ. 1 [...]
  • These VVords disposition and sentence, how they differ. 11
  • This word codicill what it signifieth. 12
  • This word lust, what it signifieth in the definition of a codicill. 12
  • VVords vvithout meaning are of no force 116
  • By vvhat VVords the disposition is made conditionall. 121
  • Of the VVords and sentences of a vvrittē testament. 190
  • VVriting necessary in the deuise of lands. 19
  • VVritten testament vvhat it is. 22
  • Writing after the making of the testamēt vvhether it do make it a vvritten testa­ment. 23
  • A VVritten testament hath some things peculiar to it selfe. 23
  • VVithout vvriting, the deuise of lands is not good. 23
  • A VVritten Testament may be proued, though the vvitnesses be not priuy to the contents. 23
  • VVhat is to be obserued in written testa­ments, vvhere the vvitnesses are not priuy to the contents. 23
  • A VVritten testament, in vvhat manner of stuffe it ought to be written. 190
  • A VVritten testament, in vvhat language it ought to be vvritten. 190
  • A VVritten testament, in vvhat hand it ought to be vvritten. 190
  • [Page]A VVriting being found in manner of a vvill, vvhether it be presumed the very vvill, or but a draught therof. 262
Y
  • Yeares 21. requisit for the deuise of lands. 35
  • Yeares after fourteen a boy, and a vvo­man after tvvelue, may make their testaments of goods. 35
  • Yeares, See age.
FINIS.

Printed at London by I. Windet, 1591.

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