although for the most part it leaves the Cases of wills to be tried by the Ecclefiasticall Courts according to the Rules of the Civil and Common Law yet are there certan particular Cases of Lands and Chattells really and which she hath reserved to her self and those with as much brevity as we can we shall sum up 2. And in the first place all may give Legacies who are capable of making wills and who they are we have formerly mentioned but no man can rightly bequeath Lands or Tenements who hath not the possession of them at the time of the making of the will b Fulb. Par. e. Devises fo 37. a. 32. 34. H. 8. which is to be understood if no other person be not also in possession in his right or name for one may bequeath a Reversion 3. All men also are capable of Legacies who are not especially excepted by the Law which are religious persons and persons not yet in being although they afterwards shall be As if one makes a bequest to such a Colledge or Chantry of which name though there be not any at the time of the Testators death yet there happens to be one afterwards c Perk. 505 Fulb. ib. fo 35. b. but a Post humus in favour of Testaments Although he be in the Wombe is notwitstanding supposed to have being d Tearmes v. devise 4 A Husband although he cannot make a Gift to his wife in his life time because they are both adjudged one and the same person during Matrimony yet he may give and bequeath Lands unto her by will in regard that Legacies take no Effect before the death of the Testator by which this conjunction is dissolved e Fulb. ib. 36. a. 5. One may also give a Legacy to an uncertain person which may afterwards be rendred certain as an annuity is given to A. for life and after his death to him who shall first in the Morning enter Saint Pauls Church and to his Heires B. enters in the morning before any one else this Legacy shall inure not only to A. but to B. and his Heires also f Id. ib. 6. A Body politick unlesse by the Kings particuler Charter is not in capacity of receiving an Estate bequeathed g Perk. 505 7. By our ancient Law Fees could not be bequeathed by will h Id. 537. Brit. c. 34. 27. H. 8. c. 10. Dr. Stu. l. 1. c. 7. and c. 20. Dier fo 74. n. 14. but necessarily discended to the next Heires i Glan l. 7. c. 1. Bract. l. 2. c. 26. Dier fo 127. n. 54. except contrary to the Common Law the particular custome of any City or Corporation permitted k Lit. l. 2. c. 18. F. N. B. 198. I. unlesse the Heir consented to such bequests Whosoever therefore would by his will give Lands to another did first infeoff one in them to the use of himself and his Heirs l Perk. 528. and by this means he might bequeath the use of the said Lands although he could not the Lands themselves unto a third person m Id. ib. 97. but later times have remedied this inconveniency or rather poor and weak comment and hath deereed that not only uses but even the Lands themselves with some moderation may be bequeathed n 32. H. 8. c. 1. Bro. testam 19. Swinb part 3. S. 4. Coo. l. 7. Case Butler fo 30. for of a Knights Fee we are yet obliged to leave the Heir a third part and we are prohibited the bequeathing of Lands by a will nuncupative in regard of the deceit and fraud they are subject unto o Dier 155. n. 21. 8. If a man and his Wife ioyntly purchase Lands to them and the Heirs of the man and the Husband bequeath them after the death of him and his wife to a stranger this is good For in this case the Husband hath the Fee-simple p Perk. 539. 9. If there be two Joynt-Tenants in Fee-simple where by the custome of the place Lands and Tenements may be given by will and one of them bequeaths his right to a third person this is void For since a Will is not in force untill the death of the Testator the right of a Joynt-Tenant at the very instant of his death is transferred by law unto his fellow q Inst Jur. Com. c. 15 which notwithstanding is otherwise in Partners because Partners have their Lands by blood and Inheritance and not by the Courtesy or pleasure of a Donor Joynt-Tenant have theirs r Ib. 10. A man may also appoint by his will that his Executors may sell those Lands which he hath in Fee and which he may bequeath and that the profits arising from such Saile may be imployed for pious uses or for the good of his Soul s Perk. 422. 541. 543. 21. H. 8. c. 4. but iâ— they shall cease to fulfill the command of the Testator within two years the Heir may enter upon them and eject them t Fulb. par c. Devises fo 40. Plow fo 523. 11. A. being Tenant in Socage gives the Lands which he hath in Fee-simple to his wife for tearm of life the Remainder to B. his Brothers Son and the Heires males of his Body and if it shall happen the said B. to dy without Heires of his Body begotten not expresly nor implicitely naming males there the said Remainder to C. another Kinsman and his Heires males in Fee-simple and for defect of Heires males of the said C. then to the next Heirs males of the said lineage lawfully begotten B. dies leaving only Issue D. a Daughter the question is whether D. shall have the Lands by force of those words and if it shall happen c. or some other Heir male more remote But it was adiudged that those words did not create a general Tail to the Heirs of B. or hinder the Lands from remaining to the Heirs males according as devised u Dier 171. n. 7. 12. Chattells of any sort may be bequeathed by will w Perk. 511. wherefore the profits arising either from the custody of a Body or Lands of a Ward a Lease for years Horses Oxen Sheep Gold Silver either in Plate or Money Rings all manner of Vessells without exception are diviseable x Id. 525. unlesse the Testator had but a Joynt possession of them at the time of his death y Dr. and. Stu. l 1. c. 6. Lit. l. 3. c. 3. and unlesse they be affixed to the Fee or Free-hold and cannot being reputed parcell of it be removed without wast z Bro. Execut. 65. 13. Monies also due upon Bond or Condition may be devised for that after they are paid to the Executors they are due to the Legatee a Perk. 527. 14. Chattells which a man hath in right of his Wife as Leases for years c. are deviseable b Id. 560. 15. A thing uncertain may be also devised so long as it may be reduced to
although there be no mention of Heires i Id. ib. which notwithstanding some affirm joyntly k Perk. 557. 33. If a man bequeath Lands to another in these words I give my Lands to A. to give them or sell or dispose of them at his discretion This is a Fee-simple l Terms ib. 34. A Testator bequeatheth Lands to A. and the Heires Males of his Body A. hath Issue only a Daughter and of her a Grand-son In this case the Grand-son shall succeed in the Lands by force of the Devise rather then the Devise shall remain ineffectuall notwithstanding that in other Donations it is otherwise m Id. ib. 35. If I devile Lands to my Son after the death of my Wife although I doe not expresly give it to my Wife yet our Law â—elpes her by a favourable Construction n Id. ib. Pl. 414. Bro. Exec. 175. 13. H. 7. fol. 17. 36. I devise a Fee-simple to A. for a 100. yeares upon this condition if that he shall pay ten pound yearly to B. the remainder of the said Lands to C. and his Heirs In this case although A. shall break his Condition yet the Remainder as to C. is not hurt although the Law be contrary in Contracts made amongst those who are living o Perk. 504. 565 566 567 568 569. 37. A man deviseth all his Lands to A. upon condition that he give a 100. pound And in case the Condition be infringed then to his owne Family In this case our Law determineth this Devise to belong to him who is next of Kinne to the Testator by blood p Fulb. 46. 38. A man deviseth to another all the Grain which he hath in such a Barn And after the Will is made hee puts more Grain into the said Barne In this case the generality of the words is restrained to that which was there at the time when he made his VVil for that the Law presumes the Testator to have meant only of that q Id. fol. 41. Plow 341. 39. A. after many Legacies in his VVill deviseth the Remainder and residue of all his Goods to his VVife E. in these words The residue of all my goods I bequeath unto my deare wife E. whom also I doe ordaine full and sole Executrix of this my last will and Testament to be disposed of by her for the good of my soule and the payment of my debts E. takes upon her the Office of Execution and payes all Debts and Legacies Afterwards she entermarryeth with B. who getting possession of the said Goods having made his VVill and ordained his Executors dyes before E. Here the question is whether the Goods which E. brought to her second Husband shall revert to her Or whether they belong to the Executors of B. And it was determined that they should revert to E. because the residue of the Goods were destined to certain uses and not left to her disposing r Dyer fol. 331. n. 21. 40. A. being possessed to the value of 100. pound and indebted 20. pound divides his Estate by his Will One moity to B. his Wife the other moity to his Executors The question was whether B. shall have 50 pound or 40 pound and it was resolved that the might claim 50. pound But if the Executors had aliened any of the Goods in Specie that then she could not challenge any of those which were alienated because they were alienated s Dyer fol. 164. n. 57. 41. Devises and Legacies are to be sued for in the Ecclesiasticall Court t Glan l. 7. c. 7. Yet some restrain this assertion only to Chattels reall and personall u Perk. 570. for that the Ordinary cannot take Cognisance of Fees or Freehold w Id. 576 577 578 579. devised But a Prohibition will lye if any Judg of any Spiritual Court shall cyte one before him in case of such a Devise as intrencheth upon the Common Law x Dr. Stu. l. 2. c. 55. Of the taking away or translating Devises TIT. XXI WHereas the Civil Law doth ipso facto null the Will for default of an Heir a L. 10. â— de jure codillorum Ours doth not presently suffer Devises to become void for want of an Executor or for default of an Executors undertaking the Office but appoints Administration of the Goods to be committed to another according to the Judgment of the Ordinary who obligeth the Administrator to the payment of Legacies at least as farre as the Estate will reach b Bro. Executors 1. Lands Tenements and other Hereditaments whatsoever devised by a Testator If they shall happen afterwards to be alienated by him and are again redeemed They are equally due to the Legaree as if they had never been alienated c Id. Devise 8. Of that Law which the Romans called Lex Falcidia TIT. XXII THe first duty of an Executor taking upon him the Office is to satisfie the Debts of the Testator and therefore it wil not be amisse to consider what Antiquity hath adjudged in these cases If there be Debts owing to many saith Bracton a L. 2. c. 26. Glan l. 7. c. 5. Flet. l. 2. c. 57. one may be preferred before another The King is first and it shall be lawfull for the Sheriffe or any of the Kings Bailiffs shewing the Kings Letters Patents De summonitionibus scaccarij to take an Inventory of such Goods and Chattels as they shall finde in the Lay-fee of the party deceased and to attach them to the value of the Debt which is coming unto the K. per visum legalium hominum as we call it so that nothing be removed or taken thence untill such a Debt as shall appear due be payed and the residue of the Chattells to be left to the Executors To the acquitting of which Debts or any other the Wife of the party deceased is not to contribute any thing out of her Joynture for that the Wives Joynture ought to be free b F. N. B. fo 151 a. which holds true except where the Husband is indebted to the King before the Title of Joynture In the second place are to be deducted debts due to others such as are clear and acknowledged amongst which are to be reckoned services and Servants wages provided they be certain But if they be incertain although they depend upon courtesy Yet if their stipends shall be set by the Will of the Testator or his Friends they shall be deducted out of the Goods of the deceased so shall Funerall Charges The Wife also shall have her necessaries even her lodging in her Husbands cheife Mansion house for 40. dayes unlesse her Dower be sooner assigned 1. But that the Estate of the Party deceased may the better appear the Executors or Administrators with the privity and by the assistance of two at the least of the Creditors or Legatees Or if they refuse then two of the next of Kinne provided they be unconcerned of the Deceased Or
of Patronage in reâ—pect of the Fee which we possess and these 〈◊〉 tearmed the Lords of the Fee a Prat â—i lexicon verb. Patronus And theâ—â— are very few Infants that succed to good Estates who escape their Wardship and Câ—stody For as there is none with us except 〈◊〉 Crown who are seised of their Estates anâ— Tenements in a freer or larger Title thâ—â— Fee so is there scarce any Fee less worth But that it is bound to the Lord or a Patroâ— by Knights Service now those things whicâ— are proper to this Service are Gard Maâ—â—age and Releife b Lit. l. 2. c. 4 1. An Infant Heir who succeeds his Aâ—cestors c F. B. 262. Fletl 1. c. 11. Dyer 362. Gla. l. 7. c. 9. Bract. l. 2. c. 32. Brit. c. 66. Lit. l. 2. c. 4. in Knights Service remaines under the Guard and Custody of his Lord uâ—till he come to perfect age For before thâ—â— age he is not adjudged capable of those warâ—ick accomplishments requisite for a Knight â—nd due to his Lord by reason of his Teâ—ure notwithstanding that it falls out someâ—imes that age being dispensed with some are elected into the order of Knighthood before â—hey be compleat one and twenty years old But our Law supposeth these to be able to do those Offices due to the Lord of the Fee wherefore they are out of the custody though Infants d Brook tit Gard. 42. 72 Fulbeck in paral f. 29. Plow 267. 2. And this right of custody springs from â—his reason that since he who holds by Knights Service is obliged according to the â—greement at the first investing of the Estate â—o follow his Lord as a Knight in the Kings Wars It is presumed that no man will be more carefull in training up the Infant in â—eats of Armes then the Lord himself e Fort. c. 44. Polid. Virg. l. 16. 3. But if such an Heir be female she remaines in custody according to the Ancients f Bract. l. 2. c. 37. n. 3. but till fifteen and according to our moderns no longer then sixteen years of age g Lit. l. 2. c. 4 â—or no sooner doe they come to that age but they are immediately presumed to be able to govern their house and to marry such a Husband that shall be capable of doing the Service due to the Lord of the Fee h Bract. Lit. ibid. But if shee be compleat fourteen years old at the death of her Ancestor neither her Body or Land shall fall under the Custody of the Lord. i Lit. l. 2. c. 4. Mert. c. 6. West 1. c 22. Instit Jur. Com. c. 24. Br. tit Gard. 7. 4. But if in this case it come in question whether the Heir be an infant or not he shal remain in custody untill it be determined k Brac. l. 2. c. 37. Brit. c. 66 fol. 167. b. 5. If a Knights Fee discend to an Heir 〈◊〉 the Mothers side the Father living shalâ— have the Guard of his Body and the Lord of the Land for it is a Maxim that no one as to his Person shall fall into the custody of the Lord his Father living l Lit. l. 2. c. 4. 6. If Lands discend to a Wife who after Issue had by her Husband dieth So that the Husband for default of having possession 〈◊〉 the Lands in the life of his Wife cannot be Tenant by the courtesie of England In this case the Issue unlesse it be Heir to the Fatheâ— as being his eldest Son shall be in custody And if such Issue be a female and an Infant at the death of her Mother she shall remain If her Father have a Son living in custody notwithstanding her Father be alivâ— l F. B. fol. 143. 7. Lord of a Knights Fee may transfer the gard of his Tenant to another From whence there ariseth this distinction of Guardian iâ— Law and Guardian in Tail Guardian iâ— Law is the Lord himself Guardian in Tail is he to whom the Lord hath granted the the Custody of his Heir n Bract. l. 2. c. 37. n. 3. Lit. l. 2. c. 4. 8. There is also a Guardian simply and originally so called and a Guardian by accident from the cause of custody Originally is he who in right of his Fee hath the custody of his Tenant Causarily is he who for that he hath the custody of his own Tenant being yet an Infant hath upon that score the custody of another who is Tenant to his Ward o F. B. fol. 139. d. Dyer 123 n. 38. For an Infant cannot be Guardiâ—â— of an Infant p Flet. l. 1. c. 11. â— When there is an Heir male or female â—ho hath many capitall Lords they cannot 〈◊〉 have the custody of the Heir and thereâ—â—re one must be preferred before the rest â—nd that is he who first infeoffed the Tenant 〈◊〉 Knights Service the rest shall only be â—â—rmitted the custody of the Lands which â—â—e holden of their Fee q Bract. l. 2. c. 37. n. 4 c. Stamf. Prerog c. 2. 10. But if any Heir hold of the King in â—â—pite by Knights Service whether he hath â—â—her Lords or not the King shall be preferâ—â—d before the rest to the custody of the â—eir and that notwithstanding Priority or â—osteriority of infeoffing For that the King â—ath no equall or superiour in his Realme r Glan l. 7. c. 10. Bract. Stam. ut sup 11. A Ward who is once freed from the â—â—stody of his Guardian as by marrying or â—ontracting Matrimony with his consent â—â—all not return again into the custody And â—â—at notwithstanding he be under fourteen â—ears of age or afterwards that he shall marâ—y before 21. s Bract. l. 2. c. 38. n. 1. Lit. l. 2. c 4. 12. If there shall be many Daughters Coâ—cites who hold by Knights Service They â—hall be all under the custody of the capitall â—ord and none under the custody of the Mother t Bract. l. 2. c. 37. n. 6. Of the Legall Guardianship of Parents TIT. XVIII THE Father is preferred before all others to the custody of his eldest Soâ— For if an Inheritance fall to such an Infaâ—â— who hath a Father living notwithstanding that the Lands if they be holden in Knight Service be in the custody of the Lord of the Fee Yet the Body of the Heir shall remaiâ— with his Father a Lit. l. 2. c. 4 Cook l. 3. Case Rat. fo .. 37. 1. So also the Mother of an Infant 〈◊〉 holds in Socage shall have the Custody 〈◊〉 the Body and Lands of the Heire before aâ—â— kindred either of the Fathers side or Mothâ—â— side Of Fiduciary Guardianships TIT. XIX THat Tutela Fiduciaria which the Romanâ— imposed upon the male children theiâ— Parents being dead and upon the Childreâ— of Patrons our Ancestors seem wholly 〈◊〉 have neglected Concerning the first Weâ— have nothing determined save that which we mentioned before of the legall Guardianship
feodaâ—â— for he is the first of a new Family who yeiâ—â— Homage and Fealty c Lit. l. 2. c. 7 ancient Fee is who the Feodary and his Ancestors time out 〈◊〉 mind have held such a Fee and here the Fâ—â—dists d Id. ib. new terms tit Hom. Auncest place a Medium between these two 〈◊〉 paternal Fee which comes by four degreese Discent and they define that to be the aâ—cient which discends from more e Duar. com in cons feod c. 4. n. 10. 10. Fiftly Fee is divided into ecclesiasâ—â—â—â— and Laick or Seculer Ecclesiastick is thâ— which is possessed either by Ecclesiastick persons or which belongs to Churches 〈◊〉 that which is held by Lay persons and cannâ—â— be possessed by Ecclesiastick and indeed 〈◊〉 Fees as with us laick unless they become â—â—ther by some speciall grant from the King which we call giving to Mortmain f Mag. Char. c. 36. 18 E 3. Stat. 3. c. 3. 15 R. 2. c. 5. Pol. Virg. l. 17. Eng. Hist 11. Sixthly Fee is distinguished 〈◊〉 Masculine and Feminine Masculine is thâ— which is given to the Feodary and the Heiâ— Males of his Body and of this kind 〈◊〉 those of Dukes Marquesses Earles Viscounts 〈◊〉 Barons for the most part Which 〈◊〉 defect of Heirs Males are extinguished 〈◊〉 return into the supremacy from whence â—â—ey Issued but these are at this day rather â—itles of Honour then Fees in regard they â—re for the most part conferred without 〈◊〉 â—emenine is that which may discend to â—â—e â—â—male Issue as when it is given indefinitely 〈◊〉 the Feodary and his Heires and so that or default of Heires males it may come to â—he females and their Issue g Bract. l. 2. c. 34. l. 1 c. 8. n. 4. 12. Lastly Fee is either pure or simple or â—onditionall Simple is that which is held 〈◊〉 a simple and perpetuall Right to the Feoâ—ary and his Heires for ever Conditionall 〈◊〉 that which is granted to the Feodary and â—uch or such Heirs for default of which it reâ—urns to the Donor and his Heirs and thereâ—ore he that hath Lands given to him and his Wife and to his Heires begotten of her in â—ase she dy without Issue before him is called â—enant in tail after hope or possibility of Issue â—xtinct For this kind of Fee with us is called Fee-tail comming from the French word Tallier to cut part or divide as if we should say a Fee by some means severed or diminished h Lit. l. r. c. 1 1 Instit Jur. com c. 11. 13 13. And this kinde of Fee is double viz. Taile generall and Taile speciall Generall Taile is where a Fee is given to the Feodary and the Heirs of him lawfully begotten or to be begotten for in this case the Children of either Wife whether first second or third shall inherit speciall Taile is where a Fee is given to the Feodary and his Wife and to the Heirs of either of them l Lit. ib. Inst Jur. c. 12. West 2. c. 1. or according to some when it is given to him and his Wife and one Heir of their Bodys lawfully to be begotten and one Heir of that Heâ—â— only m Perk. 171 but this whether it be properly to be stiled a Fee for want of perpetuity may 〈◊〉 be doubted 14. Now a Fee is not limited to one Fâ—odary but may be possessed by more so thaâ— they are called Partners Joynt-Tenants 〈◊〉 Tenants in Common n Lit. l. 3. c. 3 Inst Jur. com c. 15. Partners are either by Law or custome by Law are Sisters Co-heires because the Heires Males being dead they equally succeed their Parents in the Fee o Id. c. 1. 3 by custome are Brothers in maâ—â— Counties especially in Kent from the Custome of Gavâ—lkind called so from the equality of apportioning the Inheritance p Id. c. 2. Joynt-Tenants are they which hold Lanâ—â— or Tenements by one and the same Title but not hereditary Tenants in common 〈◊〉 those which possess Lands or Tenements 〈◊〉 indiviso by divers Titles as in case one Co-Heire sells her part to a stranger he is not Joynt-Tenant with the other Partners but is called-Tenant in common q Id. c. 4. Inst Jur. com c. 15. 15. A Fee with us is not only of Corporall things but incorporall also for the custody of a Forrest r Vid. N. b. f. 6. Dyer f. 30. n. 209. Prison s Id. f. 41. or County t 28 Ed. 1. Stat. 3. c. 8. may be granted to one in Fee and the same may be said of an annuall Rent u Vid. N. B. foâ— 8. and of an advowson severed and not appertaining to any Mannor which we call an Advowson in gross w Lit. l. 1. c. 1. Bro. tit Tenures 105. now there are many services pertaining to a Fee which we shall mention in the next Chapter 16. There are belonging even as it were to the very nature of Fees Fee farm free farm and free Tenement Fee farm is a Tenure of Lands and Tenements granted to any one and his Heirs for a yearly Rent which equals the third x F. N. b. fol. 210. b. or at the least the fourth part y Old Tenure ver Fee farm of the true value without any other Services then what are expressed in a Charter of Feoffment z West part 1. symb 463. some affirm that a Fee farm can only be granted for the life of the Farmer and some will have it Fealty although not expressed a New terms of the Law in the Feoffment and others that reasonable releife b Bract. l. 2. c. 39. n. 9. is due of right from the Fee-Farmer to the Donor but the condition of this Tenure is such that if Rent be not paid by the Tenant for the space of two years then the Lord or Feoffer may recover the Lands to him and his Heires upon his action 17. Britton makes free farm where Lands and Tenements are so given that the nature of Fee by Feoffment is changed from Knights service to certain annuall Service so that there is neither Marriage nor Releife requirable nor any other service expressed in the Feoffment c Brit. c. 66. but I do not remember that I have read this in any other Author 18. Free Tenement or free-hold is where Lands and Tenements are held only for life of the Tenant and such a Tenant is said to hold In Dominico suo ut de libero Tenemento d Dyer f. 221. n. 19. f. 153. n. 10. But if it shall be said that Fee is naturally a Free-hold I shall not deny it only must add that it is also somewhat more because perpetuall e Inst Jur. com c. 10. Lit. l. 1. c. 6. Bract. l. 4 tr 1. c. 37. but of that Free-hold which is meant here there are two kinds One which is for tearm of life even by the very custome and Law the
and some Donations are free and pure some under conditions and suspended n 3. Brit. c. 35. F. N. B. fo 205. d. Plow fo 30. and. 32. some absolute and large some strict and limited to certain Heires and some excluding Succession o Bract. l. 2. c. 7. Brit. c. 35. Doct. Stu. l. 1. c. 24. l. 2. c. 6. Lit. l. 1. c. 23. Flet. l. 3. c. 3. So also some Donations are by writing some without p Dr. Stu. l. 1. c. 16. Bract. l. 2. c. 16. Brit. c. 39. Flet. l. 3. c. 9. 4. Wherefore we are to see who can give and who not and it is generally to be understood that every one who by Law and Right are not prohibited may give r Bract. cod n. 4. Flet. l. 3. c. 3. now all those are prohibited who have not a generall and free administration of what they have as Wards who are under tuition and pupillage not being able to govern themselves yet they may receive and render their condition better but they cannot give either with or without the authority of their Guardians So neither one that is deafe and wholly deprived of his hearing but it is otherwise if he can hear though with much difficulty the same is also to be understood of one that is dumb and cannot speak Yet according to the opinion of some they may consent by signes nods but it is generally held that he who is dumb can not make a gift because he cannot consent to it so neither can a mad man work that is not Compos mentis unlesse he injoy any Lucida intervalla s Id. eod Brit. c. 34. but the Church executes in the stead of a Ward t Bract. eod Brit. c. 54. Flet. l. 3. c. 3. 5. He cannot make a gift who is a Captive so long as he is in the custody and under the power of his Enemies because he cannot possess who is possst by others not make a Gift effectually seeing he possesseth nothing u Bract. l. 2. c. 8 n. 4. Dr. St. l. 2. c. 43. the same also for the very same reason may be said of a Servant for that he possesseth nothing so long as himself is in the possession of others w Bract. l. 2. c. 16. yet it seemes he may give any such thing whereof his Lord hath not as yet taken possession or Scisin x Lit. c. Vall. 6. Formerly a Leaper could not make a Gift as being put out of the society of men y Bract. l. 2. c. 5. Brit. c. 34. nor hath a Bastard any Heirs to whom he may give effectually under that notion unless it be those who are lawfully begotten of his own Body z Bract. and Brit. ib. Perk. tit Grant 48. 7. He that is attainted of Treason or convicted of any other capitall offence cannot make a gift after the Felony committed if so be he be afterwards iudicially convict and condemned by sentence a Bract. l. 2. c. 13. Brit. c. 34 Stanf. Pla. co l. 3. c. 32. Flet. l. 3. c 7. and l. 3. c. 10. Fulbeck Seigniories f. 26. Perkins Grants 29. yet in some cases he may before conviction make a gift of Chattells b Vid. next Chapter 8. Nor can any one give who hath not Seisin of the thing given except the King only c Dyer fo 108. n. 28. 29. 30. which according to the ancients is true also notwithstanding that he have Dominion and receives Services d Eract c. 5. Spec. Just l. 2. c. de contractes Flet. l. 5. c. 15. 9. Nor are gifts made between man and wife worth any thing for a man cannot give to his wife nor e converso during coverture Because such gifts between such persons are prohibited But if they be made before marriage or after Divorce they are valid provided they be not upon the score of subsequent marriage yet a man may by his last Will and Testament give a Fee simple to his wife and the reason of the difference is because a will is not of force before the death of the Testator e Lit. l. 2. c. 10. lib. Assis pla 60 and then the Husband and wife cease to be one and the same person f Bro. devise 34 10. Nor can any man effectually give that which is anothers g Bract. l. 2. c. 24. Plow fol. 528. nor can one who is beyond Sea according to some h Glan l. 7. c. 1 make a gift but others maintain the contrary which is the better opinion i Bract. c. 5. n. 8 The wife cannot make a gift without the Husband nor can the Husband without the wife of such lands as are the Wives k Brit. c. 34. F. n. b. f. 163. A. B. C. D. 11. Moreover the Statutes of this Common-Wealth have set such bounds to Donations and Gifts that they permit not any man to make gifts to the defrauding of his creditors beyond his limits l 13 Eliz. c. 5. 27 Eliz. c. 4 12. There are also some who cannot make Gifts without the consent of others as Arch-Bishopps Bishops Abbots and Priors Cannot give Lands without the consent of the King or some other of their Lords Because the consent of all them whom the thing may any way concern is necessary and requisite m Bract. d. c. 5. n. 7. Brit. d. c. 34. F. n. b. fol. 194. 195. whence it is that they who hold of the King cannot make a gift of their Lands without his consent n Flet. l. 3. c. 3. nor can the Parsons of Churches because they hold nothing but in right of the Church Wherefore they cannot make a Gift alienation or change without the consent of the Bishop and Patron unlesse it be so that the condition of the Church be bettered thereby Yet these want not some who affirm them uncapable of doing that without the aforesaid consent o Bract. l. 2. c. 11. Flet. l. 3. c. 4 13. All are capable of receiving Donations unless prohibited by any express Law or custome nor only single persons but eveâ— many together p Bract. l. 2. c. 5. n. 6. c. 11 Brit. d. c. 34. now these are Femes Coverts incapable to receive the Gift of their Husbands or otherwise during coverture q Mag. Ch. c. 36 Fl. l. 3. c. 5. Religious persons r 7 E. 1. c. 2. 34 E. 1. c. 4. 18. E. 3. Sta. 3. c. 3. all Ecclesiasticks in the name and right of their Church s 15. R. 2. c. 5. F. N. B. fo 221. Q. Bodies politick t 15. â— 2. c. 5. for those Immoveables which are without lawfull permission given to bodies politick are forfeited sometimes to the King and somtimes to the next cheif Lord u Bract. l. 2. c. 5. n. 6. so neither can Jewes w Brac. ib. nor any who are not under the Allegiance of the Supremacy x Bract. l. 5. tr
5 c. 25. Flet. l. 6. c. 48. Dier fo 224. n. 29. but in regard the thing taken is also received the acquisition is not to themselves but to the King as we have said nor finally can persons uncertain as the Heirs of one that is living y Perk. grants 52. Plow 345. Or the first-born of any one who at the time of the gift hath not Children z Perk. ib. n. 54. Dier fo 274. n. 43. but a possession to A. the remainder to his Heirs though uncertain is good a Coo. l. 1. Arâ—bors Case f. 66. he also who is wholy unfit and unable to execute an office in any of the Courts of Justice is uncapable of receiving the said Office b Dyer fol. 151. n. 1. 14. Now all things whatsoever may be given save those things which can no way be possessed those are things sacred and Religious or as it were Sacred and those are a Free-man and that which appertains to the Kings Treasury which make the very Crowne and belong to the Publique profit c Brac. l. 2. c. 5. n. 8. 13 14. Brit. d c. 34. Flet. l. 3. c. 6. To which also some adde the Walls and Gates of Cities d Flet. ib. But at this day there scarce seems to be any liberty appertaining to the Crowne or Pâ—erogative in the Supremacy which may not by Charter be granted to a Subject e Kitch fol. 30. b. 15. I cannot give the Right which I have in a thing which is in the possession of another to a third person Yet I may â—emit it or as we say release it to the Possessor by my writing f Perk. ib. 85 86. Nor can any one give an action which he hath to any thing as we have said before g Sup. cod except the King h Dyer fol. 30. n. 208. or to the K. i Bro. chose in Action 4. yet one may give it to the party obliged k Perk. ib. 85 86. A man cannot give the reversion of an Office Eo Nomine nor can any but the King give under the name of the Office l Dier fol. 259. n. 18. 16. Now that a Donation may be valid there are other things required It ought to be free and not compulsatory nor extorted by force or feare m Brac. l. 2. c. 5. n. 8. 13. Brit. d. c. 34. There ought also to be certainty in a Gift for that there can be no Donation of a thing uncertain unlesse it may be some meanes be reduced to Certainty n Perk. ib. 81 86. Plow fol. 6 7. 12 13. There ought also certain words to intervene to a congruous Gift o Brac. ib. n. 12. as to a Bargain p Id. ib. Dier fo 71. n. 10 11 and that there be a joynt consent as well of the Donee as of the Donor q Brac. ib. n. 12. Dr. Stu. l. 2. c. 33. And that there may be no Error in the thing given r Brac. l. 2. c. 5. n. 12. Flet. l. 3. c. 7. nor fraud s Id. ib. not prejudice to a third person t 13. Eliz. c. 9. Yet a false or pretended cause adjoyned to a Gift doth not vitiate or injure it u Flet. l. 3. c. 6. 17. And here also there ariseth a difference amongst Donations for that some may be by word some not without Writing or Deed as we commonly speak w Brac. l. 2. c. 5. n. 3. all Chattells for the most part either reall or personall may be given by word x Per. grants 7. unlesse they be given by a Body politick whose Seale iâ— necessary in every Alienation y Id. â—od 64. If any one in Knights service be Guardian of Body and Lands he may grant the Custody of the Lands or the profits by word only which some affirme also as to the body or person of the Heir z Id. ib. 60. though it be denyed by others for this reason That the transferring of the Body doth not consist properly in the delivering possession a Id. ib. No man can grant Lands which one hath in possession to another either for life or for ever without a Writing but for yeares he may b Id. eod 61. Corn which is but growing may be granted by a Nude parolâ— and that by Tenant in Tail although he dye before the Doâ—ee hath severed it from the land c Id. eod 57. which notwithstanding is otherwise in fruits of Trees growing upon the Land d Id. eod 59. And the reason of the differenceit may be is because Corn cannot grow without the industry of man but trees by nature but Tenant in Fee-simple may give even such Trees by his word only e Id. eod 58. because he hath a larger power then Tenant in Taile And lastly Lands and Tenements may be given amongst those who are living by word only f Id. cod 62. But in case of Death not without a Will in writing g Seetit of wills c. 18. Incorporall Rights are hardly given without Deeds as wee call them such as yearly Rents h Dier fol. 139. n. 57. Dr. Stu. l 2. c. 16. fol. 80. Common of Pasture an Advowson villain in grosse or the reversion of Lands after the death of the present Possessor i Perk. gr 61 Plow fol. 150. Of which nature also are Tithes according to the opinion of some k Perk. ib. 62. Plow 233. but a Rectory with it's Tithes may l Bro lease fol. 15. 20. to which may be added the Right of Guard and Marriage m Dier fol. 370. n. 57. 19. If a Gift be in all things compleat it ought to be confirmed by Livery or something parallel n Brac. l. 2. c. 5. n. 12. 17 18. Inst com c. 21. Lit. l. 1. c. 7. Flet. l. 3. c. 2. 9. Dier f. 49. fol. 91. Now how Livery and Seifin is to be we have spoken else-where 20. There are three kinds or species of Donations in case of Death One which is made meerly upon the thoughts of Death when there is no feare or danger of Death â—igh Another when the party being moved with the imminent feare of present Death so gives that the Gift immediately becomes the Donees The third when one being prickt with the danger gives out so that the gift is forth-with the Donees but after his deceale o Brac. l. 2. c. 26. Flet. l. 2. c. 57. What persons may alienate and what not TIT. VIII THis Chapter is so near the other that we must necessarily repeate many things which we mentioned there But the word â—â—lienating being more generall then giving those things which we shall set downe heâ— have a more universall use It happens sometimes that he that is Oâ—ner of an Estate cannot alienate it The King cannot alienate the ancient Mannâ—â— annext to the Crown but every King is â—â—liged to revoke the alienations of the
upon their denyall then of any two honest men who are obliged to take true and faithfull Inventory of all the Goods and Chattels Moveables Immoveables which the Party deceased had at the time of his death and to write all and singular the said Goods justly apprized in 2. Charters or Tables indented The one to be reserved to themselves the other to be delivered to the Ordinary But if the Testator had appointed any of his lands or Tenements to be sold the money or profits thence arising are not to be put into the Inventory c 21. H. 8. c. 5. Swinb part 6. Sect. 9. 2. But the Heirs are obliged to satisfie the Debts of their Ancestors which the Chattels will not suffice to doe d Glan Brac. ubi sup Yet if the whole Estate of the Testator would not suffice to pay Debts then the Kings Prerogative excepted there used in former times to be a defalcation every where e Brac. ib. 3. And even at this instant the Law is that Legacies are not to be paid before debts be satisfied for in such cases the Executor is bound to pay the Creditors out of his own Estate f Dr. Stu. l. 2. c. 11. Bro. Execut. 116. Perk. 488. yet is hee not tyed to pay every one that demands a Debt but those only against whom the Testator had he lived could not have waged his Law g Bro. ib. 79. 87. 127. 163. 172. Dr. Stu l. 2. c. 11. Plo. 181. Dyer fol. 23. n. 144 145 fol. 80. n. 53 54 55. 4. The ancient Law seems to be somewhat changed as to the priviledg of Creditors Yet even now it seems that the Executor may in the first place allow moderat Funeral charges and then satisfie Creditors according as the Law prescribes and of those the King is first by his Prerogative h Mag. Char. c. 18. Next him those to whom the Testator was obliged by Statute-Merchant or Recognisance In the third place those who have Judgments against the Testator i Swinb part 6. Sect. 16. Fourthly penall Obligations k Bro. ib. n. 88. 172. And of these those have priority whose dayes for payment are lapsed l Dyer fo 80. n. 54. and of those if there be many they who sue first But if they commence their suits together Or that dayes of payment be not yet come then it is in the power of the Executor to gratifie whom he pleaseth Next to penall Obligations follow simple Bills m Swinb ubi super as wee call them And lastly Contracts without writing against which the Testator could not wage his Law As Servants Sallaries and Rent of Lands or Houses whereof the Testator was Lessee for years or life and the like n Bro ib. n. 33. 87. 127. 163. But as for made Contracts Executors are not obliged to pay them o Id. ib. Yet according to the opinion of some these have their remedy in an Action upon the case upon a promise of the Testator p Termes v. Execut. 5. If a Creditor be made Executor hee may in the first place satisfie himselfe after which he is bound to pay the other Creditors out of the residue q Plow fol. 185. 6. If after Debts paid there remaines enough to satisfie Legacies every Legatee may of right claime his whole Legacy Otherwise only according to the proportion of the Estate and the quantity of all the Legacies Yet so that the Executor may first deduct charges bonafide expended and desperate Debts But under the notion of lex falcidia we have not any thing nor is there any thing in that nature required from the Office of a Judge But as to those Goods which are not devised they are convertible to the use of the Executor r Perk. 525. 7. Executors of Executors are obliged to the payment of the first Testators Debts unlesse his Goods appeare to be fully administred by their Testator s Dyer fo 174. n. 21 22. 25. Ed. 3. Stat. 5. c. 5. Of those Trustees which the Romanâ— called Fidei Commissarii Haeredes ad sanatusconsultum trebellianum TIT. XXIII THese Inheritances are out of use with us yet those Trusts are something parallell to them by which wee are used to give our Lands to Strangers to the use of us and our Heirs or to private persons to the use and profit of a Body politick But those inventions of Uses being injurious to the Prince and to the Lord of the Mannor a Coo. l. 1. Shudleys case fol. 123. are by Acts of Parliament either wholly taken away or at least for the most part altered b 1. R. 3. c. 1. 4 H. 7. c. 7. 27. H. 8. c. 10. Of things left Per fidei commissum TIT. XXIV OF those things which were by the Romans termed Fidei commissa excepting those which are appointed to the next Title we have no mention in our Law they being left wholly to the Civill Lawes definitions Of Codicills TIT. XXV THe terme Codicillus is seldome used with us wherefore in this we only follow that which we borrow from the Civill and Common Law unlesse it containe either a Fee or a Free-hold In which cases they are to be proved only before an Ecclesiasticall Judge and to receive their Interpretation according to the Lawes of the Land The End of the Second Booke THE Third Book of the Institutes of the Lawes of ENGLAND Of Inheritances which are conveighed from such as dye even Intestate TIT. I. THERE is also another way of gaining Dominion which is by Succession and which happens to all Heirs of such things whereof their Ancestors dyed seised in Fee or whereof they were at any time seised as of Fee by Right of Inheritance without having alienated them And this Discent ought to be to the next Heirs Males or Females in a direct or transverse line Wherefore Right like all heavy things falls downwards direâ—â—ly or transversely nor doth it ever ascend 〈◊〉 same way by which by the death of the â—ncestor it discends yet doth it collaterally â—scend sometimes for want of Heirs to whom 〈◊〉 may discend a Glan l. 7. c. 1. Brac. l. 2. c. 29. n. 1. Dr. and Stu. l. 1. c. 7. Flet. l. 6. c. 1. and c. 2. 1. A Right discends to the Heir whereâ—â—ever born whether in the womb or beyond 〈◊〉 on this side the Sea and that whether within or without the Dominions of the King Provided his Parents be the Kings Leige People and that the Mother went over Sea with her Husbands leave nor can any man create to himself an Heir because God only makes them and because Haeres is not ab Haereditate but Haereditas ab Herede 2. Now Inheritance is a Succession to the whole right which the Ancestor deceased had in Fee upon what cause soever whether by Acquisition or Succession with Seisin or without and if by Seisin then at whatsoever he was
seised either in his life time or at his death namely upon the day on which he died and if the right discend to more Heires successively and without Seisin yet the Heir hath the same Seisin appertaining to him as the Ancestor had in the time of his life or at his death And where there is a participation or meeting of Propriety with the Seisin the Heir hath immediately Ipso facto a Free-hold b Glan and. Bract. ib. 25. E. 3. Stat. 2. and 42. E. 3. c. 10. Flet. l. 6. c. 1. 3. Our Authors do not make in the case of Heirs a like division some distinguish them into nere and more Remote c Glan l. 7. c. 3 and some into neer and more neer remote and more remote d Bract. l. 20. c. 30. n. 1 Brit. c. 118. Flet. l. 6. c. 1. and 2. 4. If one have many Sonns they are all neer Heirs those that were last born and those that were born before them e Bract. ib. and so are Daughters when Sons faile f Glan ib. The next Heir is he who was born first g Bract. ib. unlesse the custome of the place hinder h Glan ib. or that he be a stranger and the younger Brother a Denizen i Dr. and Stu. l. 1. c. 7. and c. 20. 6. An Heir remote is where one hath many Sons and Daughters the Sons are neer heirs and the Daughters remote this holding alwaies for a Rule that the males shall be preferred before the females of the same degree k Bract. l. 2. c. 30. n. 3. 7. If there be many Sons and no Daughters but Grandsons the Sons shall be neere Heires and the Grandsons remote l Id. ib. if there be many Daughters and no Sons they shall be all next Heirs m Glan ib. 8. So may they be tearmed more remote in respect of the Inheritance being more remote as the lineall Nephew or Neices Son his Grand-son his great Grand-son his great great Grand-son c. In the direct line or if there want of that line then in the transverse Ad infinitum n Bract. l. 2. c. 20. 9. It is the ancient custome of England that the eldest Son should succeed as Heir to his Father but where there is no Son but Daughters then all the Daughters shall be Co-heirs o Dr. and. Stu. ib. Glan ib. Flc. l. 6. c. 1. which is also true in Nephews their Children where males are wanting 10. And this was alwaies a Maxime that a Fee-simple could never ascend from a Son â—o a Father or Mother or any other Ancestor â—n a direct line p Coo. l. 3. fo 40. Ratlifes case Dr. and. Stu. ib. Bract. l. 2. c. 29. Lit. l. 1. c. 1. Brit. c. 119. nor can any one in a â—ransverse line succeed so long as there is an Heir to whom it may discend in the direct q Bract. l. 2. c. 31. n. 1. Flet. l. 6. c. 2. 11. That Issue which is born before marriage is by our Law a Bastard nor can it succeed in an Inheritance nor can a Bastard have any Heir save of his own Body r Dr. and Stu. ib. 20. H. 3. c. 4. Perk. 49. 50. 12. Chattells neither personall nor reall come unto the Heir but by the custome of the Kingdome to the Executors or from an Intestate to the Ordinary and from him to the Administrators whom hee shall appoint s Glan l. 7. c. 16. Perk. 48. or if no body will administer then ought the Ordinary to sequester them upon his own perill t 13. E. 1. c. 19. 31. E. 3. c. 1â— 21. H. 8. c. 5. Flet. l. 2. c. 57. Dier fo 277. n. 57. 13. The Lord of the Mannor is in stead of Heir when either through defect or in case of Felony the blood is extinguished u Flet. l. 6. c. 1. yet at this day this is not without distinction Of the legall Succession on the Fathers side TIT. II. IN the transverse or collaterall line the Rule is that those are Heirs who partake of the whole Blood with the party deceased For example A. hath Issue B. a Son and C. a Daughter by one Venter and D. a Son by a second Venter and dies B. succeeds him and dies without Issue in this case C. the Sister shall succeed and not D. a Lit. l. 1. c. 1. Brit. c. 119. n. 7. Flet. l. 6. c. 1. 1. So also A. having a Brother B. and two Sons viz. C. by one Venter and D. by another dieth to whom C. succeeds and dies without Issue in this case B. the uncle who is of whole-blood shall succeed and not D. the Brother b Lit. ib. Coo. l. 3. Rat. case fo 40. but if B. dy without Issue then D. shall succeed being of intire blood with him both by the Grandfathers side and Grandmothers And therefore if B. had not been Brother to A. both by Fathers side and Mothers side it should have been otherwise 2. The collaterall line is double one descending by the Brother to his Children the other ascending by the uncle but none succeed on the ascending line but for default of Heirs on the descending c Bract. l. 2. c. 30. n. 1. Brit. c. 119. 3. He is Heir in the collaterall discending line who is neerest in degree and if this line fail then he who is next to the party deceased in the ascending collaterall line d Bract. ib. Flc. l. 6. c. 2. 4. If there be two in the same degree and both males the elder is to be preferred but if they be male and female the male is Heir as in the direct and right line e Brit ib. n. 1. 2. and 7. 5. Where an Estate comes by the Mothers side there the Son dying without Issue the next of kinn on the Mothers side is Heir and not the Brother of the Father f Id. ib. but where the Son purchaseth an Estate with his own Mony and dyeth without Issue there the next of kinn on the Fathers side shall succeed and not on the Mothers side unlesse for defect of Heirs on the Fathers side g Lit. l. 1. c. 1. Coo. l. 3. Rat. case fo 39. but the Heir on the mothers side shall succeed rather then the Land shall escheat to the Lord. h Plow 444. 6. A. hath two Sons B. and C. B. in his Fathers life time commits Felony and is punished with Death after which A. dies the question is whether the Fee whereof A. died seised shall escheat to the Lord or discend to C. the second Son And here it is to be considered whether B. dyed without Issue for then it discends to C. otherwise it shall escheat i Dier fo 48. n. 15. but if B. had been condemned living his Father and survived him In this case notwithstanding his dying without Issue the estate should have escheated and not discended to C. k
Lit. l. 3. c. 4. unlesse the Donees be a Body Politick and receive under that notion or at least one of them in which case they are tenants in Common g Id. ibid. 3. Partners and joint-tenants differ two wayes the former being joyned by necessity and are called Partners meerly in respect of their inheritance Joint-tenants have their name either from purchase or Gift and are joyned together by their own Wills and not by necessity h See the former quotations 4. Thereare also some who are Joint-tenants only for life and yet have severall inheritances as where Lands are given to two men or two women and to the Heirs of their bodies in this Cafe so long as they live they are called Joint-tenants for one of them having Issue and dying his fellow shall have the whole during his life who also if he shall leave Issue and die his Heir with the Heir of him that died before shall hold the said Lands in common i Iâ—st c. 15. and if one of the Donees die without Heire his part for defect of an Heire shall after the death of his fellow revert to the Donor k Littl. l. 3. c. 3. 5. Tenants in common are they who hold the same thing as Lands or Tenements Chattells personall or reall jointly but by severall Titles l Id. ibid. c. 4. for if one parcener alienate or give his Right to a stranger the stranger and the rest are Tenants in Common though the rest amongst themselves enioy their former appellation 6. Wherefore Tenants in Common differ from partners in this that these do not possesse any thing in Common by Right of inheritance as do the others nor are they ioyned by any necessity and from Joint-tenant in that they hold a thing in Common by divers Titles or at least the Tenants are naturally so unequall that they cannot admit of any coniunction such are bodies politick among themselves or with single persons m Id. ibid. 7. First for partners these though they die before Partition transmit and leave their part to their children if they have any otherwise to the rest of their fellows n Id. ibid. c. 2. Inst c. 14. 8. Partition may be made either by mutuall consent o Dier fo 179. or if some refuse by the power of the Judge for he who desireth to have his part divided may have a Writ of Partition by which he shall compell the rest to divide p F. n. b. 61. K. 259. C. 260. B 261. C. but if one woman Partner entermarry and having Issue dieth the Husband being Tenant by the courtesie may compell them to a Partition if it be not already made q Littl. l. 3. c. 2. 9. Littleton doth very fully describe the manner of making Partition both by consent and compulsion but this is rather matter of fact then of Law that onely is observable that if Partition be made by consent one or more of the Partners being under age it may afterwards be corrected wheâ— they come to full age provided they do not confirm it when they come of age by receiving the profits r Id ib. and if it be a Fee-Tail although all be at age at the time of the Partition made yet their Heirs may disagree to 〈◊〉 s id ib. so also if an unequall Partition be made by the Husband of co-Heirs after Marrimony is dissolved either of them may disagree t Id. ib. F. n. b. 62 E. 10. If after Partition any part of either oâ— the Partners Estate lye evicted by Law He or she whose part it was may compell the rest to a new Partition and recover a lawfull part in those Lands which the rest hold u Little ib. c. 2. 11. If there be an Advowson in the inheritance and the Partners will not consent in the Presentation of a Clerk then the eldest shall present in the first vacancy and the rest according to their Case and to this they may be compelled if they refuse to agree and every one hath therr lawfull remedy if they be hindred from presenting in their turn w F. n. b. 34 T and 36 C. 12. If there be two Joint-tenants of a Fee simple withi a Burrough where Lands and Tenemenrs are divisible by Will and one of them devises his Right to a stranger and dies this Devise is void and the reason is because that part which by the Law at his death comes unto the other by the Right of â—â—crease and out of Descent cannot any way 〈◊〉 conveighed to another by a Will which â—â—es not its Operation till the Death 〈◊〉 the Testator from him that claims the â—â—ole x Littl l 3 c 3 13. Two take a Lease joyntly for years â—â—th this condition agreed to between the â—â—ssor and them that if the Lessees die beâ—â—â—e the Terme ended the Lease shall be â—â—id The Lessees make Division and one 〈◊〉 them alienateth his part and dies the 〈◊〉 Lessor cannot reassume the part of him â—â—at died but the Alience shall hold it duâ—ing the life of him that surviveth nor hath â—ccupation in this Case any force but it two â—â—ke a Lease for theit lives and make parâ—â—tion either of them dying his part immeâ—iately reverts to the Lessor y Dier fo 67. c 18 14. Two are Joint-tenants for life one of which lets out his part by Indenture to a third person for years reserving a Rent from it to him and his Heirs and dies the question is whether by his death the ritle did wholly vanish or whether the surviving Joint-tenant ought to hold the whole for his life if he ought then whether he were left to his own libertty notwitstanding the Lease of his fellow or to take onely the Rent reserved upon that moity and it was adiudged by the Justices that the surviver ought to hold the whole Lands for life and that free and disobliged from the others Lease z Id fo 178 n 5 15. And this is the difference between Joint-tenants in Fee and Partners that neither of the Donees can charge his Lands whiâ—â— he holds pro Indiviso with any Rent longâ—â— then for life but a Partner may and the râ—â—son is it cannot preiudice his fellow or 〈◊〉 Heir who derives his Right not from hiâ— but from the Donor but Partners succeedinâ— one the other for defect of Heires may froâ— one anotherr derive their Right a Littl. ib. c. 3. 16. Which notwitstanding in letting 〈◊〉 clearly otherwise for if one of the Doneeâ— who holds pro Indiviso to him and his Heiâ—â— let out his Right for a compleat Term 〈◊〉 dies the Lessee after his death may retain 〈◊〉 during the Term nay he may enter into tâ—â— Lands although they were not delivered unto him in the Lessors life time or anâ— wayes possessed by him b Id. ib. and the reason 〈◊〉 diversity between a Rent Charge and a Lease is iudiciously given by Littleton