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 [...] [...]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 testamentummilitare 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 testamentuminter 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, whenthe 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, butdieth 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.

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