childe in his vnderstanding cannot make a Testament 3 He that hath lost his memorie cannot make a Testament §. v. ALbeit †olde age alone doeth not depriue a man of authoritie and power of making a testament a) L. senium C. qui testa fac poss for a man may freely make his Testament how olde soeuer he be for it is not the integritie of the bodie but of the minde that is requisite in testaments b) d. L. senium yet †if a man in his olde age do become a very childe againe in his vnderstanding c) Simo de Praetis de inter vlt. vol. lib. 2. dub 1. solue 4. n. 22. which thing doeth happen to diuers persons being as it were worne away with extreame age and depriued not onely of the vse of reason but of sence also almost such a person can no more make a testament then a childe d) Ibidem So it is †if a man either by reason of age or some other infirmitie become so forgetful that he hath forgotteÌ„ his own name e) L. fin C. de haered Inst which thing also hath happened to diuers wise and learned men because for any acte which is to bee performed with discretion he is no more fit then a foole or an idiote f) Bald. in d. L. fin Mantic. de coniect. vlt. vol. lib. 2. tit 15. n. 16 of whom we haue spoken already Of him that is drunke 1 Whether he that is drunke may make a testament §. vj. HEe †that is ouercome with drinke during the time of his drunkennesse is compared to a madde man and therefore if hee make his testament at that time it is voide in lawe a) Vasq de success crea lib. ◠§. 13. requis 7. n. 8 Simo de Praetis de inter vlt. vol. lib. 2. dub 1. soluc 4. n. 22. which is to bee vnderstood when hee is so excessiuely drunke that he is vtterly depriued of the vse of reason and vnderstanding Otherwise if hee bee not cleane spent albeit his vnderstanding be obscured and his memorie troubled yet may he make his testament being in that case b) ijdem Vasq Simo de Praetis vbi supra Of slaues and villeines 1 Of all men the slaue is in greatest subiection 2 What is a slaue 3 A slaue hath neither landes nor goods for both are his lordes 4 Whether the children of bonde parentes be subiect to seruitude 5 By the ciuill lawe the childe is free if the mother be free notwithstanding the bondage of the father 6 By the lawes of this realme the childe is freeborne whose father is free though the mother be a bonde woman 7 No bastard is borne a slaue though the father bee a bond-man 8 A bond-man cannot make a testament 9 Of the difference betwixt a bond-slaue and a villeine 10 A villeine like vnto him which is called in the ciuill lawe Ascriptitius Glebae 11 Whether a villeine may make a testament 12 The Lord may take from his villeine whatsoeuer he hath life excepted 13 The testament of the villeine is not voide but voidable 14 Sometimes the Lord can not make voide the testament of his villeine 15 The Prince may at any time make voide the alienation or gifte of his villeine and consequentlie his testament 16 What manner villeines be here ment 17 A villeine executor may make a testament 18 A villeine executor may maintain action against his Lord. 19 The reason of the former conclusion §. vij OF all †men which be destitute of libertie or freedome the slaue is in greatest subiectioÌ„ for a †slaue is that person which is in seruitude or bondage to an other euen against nature a) §. Seruitus Instit de iure personaruÌ„ Et dicitur latinè seruus non à seruiendo sed a seruaÌ„do propterea quòd seruandi non orieÌ„di sunt à dominis Nam cùm antiquitùs multi sçuijssent in captiuos eósque necassent prohibitum id fuit constitutúmque vt potiùs venderentur quà m occiderentur Et inde à seruando nomé mutu arunt serui §. serui autem Instit de iure personarum Neither †hath he any thing of his owne but whatsoeuer he possesseth all is his Lordes (b) §. in potestate Instit de his qui sui vel alie iur Not onely landes goodes and cattelles and generallie whatsoeuer he getteth either by his owne industrie or by the gifte of other or by any other meanes (c) §. iterum Instit per quas personas But †euen his children also are infected with the Leprosie of his fathers bondage d) Bracton de legib consu Ang. lib. 1. c. 6. principall grounds fol. 44. And although by †the ciuill lawe the wife being a free woman the children are likewise free Quia partus sequitur ventrem e) §. sed etsi Instit de ingenuis in so much that if the mother be free either at the conception or at the birth of the child or in the meane time by the same ciuill lawe that child shall be free notwithstandinge the bondage of the father f) Eod. â— sed etsi Yet it †is otherwise by the lawes of the realme for the childe dooth follow the state condition of the father and therefore in England the father being a bondman the child shal be in bondage without distinction whether the mother be bond or free g) Bracton de legib cons Ang. lib. 1. c. 6. So that the childe be begotten or borne in lawfull matrimonye But †a bastarde shall not be bound though the father were a bond-slaue h) Btacton vbi supr principall grounds fol. 44. because the lawe dooth not acknowledge any father in this case for by the lawe a bastard is sometimes called filius nullius the sonne of no man sometimes filius vulgi the sonne of euery man i) Cui pater est populê° pater est sibi nullus omnis Cui pater est populus non habet ipse patrem gloss in §. pen. Inst de nuptijs But howsoeuer the ciuill lawe and the laws of this realme differ in this whether the bondage of the father or of the mother doo make the childe bonde Yet in †this they doo agree that a bond-man can not make a testament k) L. liber de petic haered L. seruus CommÌ„ de success C. Vasq de sucsess progress lib. 1. §. j. vbi multis ampl hanc propositionem ornat A villeine †howsoeuer he may seeme like vnto a slaue yet his bondage is not so great for whatsoeuer a bond-slaue getteth by and by it is his Lords albeit ignoraunt and vnwillinge l) §. Item nobis Instit per quas personas not onely in respect of property but also in respect of possession for whatsoeuer a bond-slaue dooth possesse he doth also possesse it for his Lord m) Eod. §. Item ibi
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 souldier p) Zas in d. L miles n. 5 Neither is it the long gown nor the graue beard nor the stately gesture which make a good lawyer q) Cucullus 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 lawyers r) Zas 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 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 men s) DD. in L. miles L. centurio ff de re iud Michael Grass Thesau com op §. testmÌ„ q. 5. nu 5. but †with this restriction that as 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 vocation t) Grass 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 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 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 §. xv THe second kinde of priuileged testaments is testamentum inter liberos a testament amongst children a) Mantic. de coniect. vlt. vol. lib. 1. tit 7. in fin that is to say †wherin the father nameth his lawfull and naturall children his executors giuing to them the residue of his goodes b) L. ex hac consultissima §. ex imperfecto C. de testa ibi DD. vnto which kinde of testament diuers priuileges doe appertaine c) d. §. 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 of the children d) Bar. in L. j. §. j. de bon poss secuduÌ„ 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 other e) L. 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 testamentes f) L. quaerebatur de testa mil. ff Bar. in d. L. j. §. j. de bon poss secundum tab ff Another priuilege is this the †testament made in fauour of children is not so easily reuoked as other testaments are g) Auth. hoc inter liberos C. de testa gloss ibidem for whereas in other testaments the former is reuoked or infringed by the latter and that ipso iure h) § 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 speciall i) Infr. part 7. §. 14. certaine causes excepted Yet †by the ciuill lawe if the 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 former k) d. Auth. hoc inter liberos Alex. Ias Sichar ibidem quorum opinio communis est contra Angel vt inquit Grass Thesaur com op §. testmÌ„ q. 86. n. 11. so †that it is not sufficient 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 children l) Mantic. 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 m) â—as in d. Auth. hoc 〈◊〉 Or else some great displeasure or enmity haue happened betwixt the father and the children n) Grass Thesaur com op § testmÌ„ q. 8â— 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 o) 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 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 other p) Bald. Paul de castr Ias in Auth. quod sine C. de testa Howbeit I doo suppose that by †the generall custome of this realme of England those two priuileges be not proper or 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
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 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 §. ix VNderstand therefore that by generall custome obserued within the prouince of Yorke a) De qua consuetudine apertissimè per indubitatae fidei acta instrumenta antiqua in archiuis Archiepiscopi Eâ—oâ—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 portion b) Fatâ—or quidem nostratium liberos ab illa prima potestate ferè solutos quasi emancipâ—tos esse vt refert D. Smith in suo tract de repub Angl. Quâ—â— tamen haec consuetudo quae vel praecipuè in partibus borealibus viget summa nitatur aequitate ratione negari non potest Quis enim diligentiùs de pupilli rebus cogitat quà m 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 tuâ—ores siue defensores for within that prouince children haue their filial portions of their fathers goods according to the ciuill lawe (c) Et quidem debetur eadem prorsus quantitas nam vt quandoque triens quandoque semis competit auth nouissimo C. de inoffic testoÌ„ pro numero liberorum ita iure quo nos vtimur media pars debetur liberis nulla relicta vxâ—re quà superstite certia pars bonorum ijs competere dignoscitur infr ead part §. 16. except he be heire or aduaunced in the life time of his father d) Vide infr ead part §. 16. which testament and assignation is to be confirmed by the ordinarie e) Id 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 testament f) Infr. 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 confirmed g) Confirmatur 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 him h) L. 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 confirmed i) d. 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-man l) De 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 administratioÌ„s where anie dieth intestate (m) Nam 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 declared (n) Infr. ead part §. xj Who maie be appointed Tutor 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 §. x. ANie person maie bee assigned tutor which is not forbiddeÌ„ a) Quando excipiuntur aliqui reliqui proculdubio admittuntur Nam firmat exceptio regulam in non exceptis Dec. Cagnol in L. 1. de reg iui ff who is forbiddeÌ„ may appeare by that which is herafter spoken of an executor b) Infr. part 5. for hee that can not be an executor can not be tutor c) L. 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 d) § furiosus Instit qui tut testa dari poss By the ciuill lawe a woman the mother and grand-mother excepted can not bee assigned tutrix e) L. 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 husbands f) Vt per acta instrumeÌ„ta d. scacarij Archiepiscopi Ebor. To vvhom a tutor maie be appointed 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 10 All infantes wards are not subiect to like conditions 11 Who shal be 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 §. xj 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 accoÌ„plished the age of 14. yeeres and to a wench vntil she haue accomplished the age of twelue yeeres a) L. 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 b) §. Item inuiti Instit de curator L. diuus §. curatores ff qui
parte the child or children an other parte and the third part which is called the deathes part remaineth to the testator by him to be giuen or bequeathed to whoÌ„ he thinketh good h) Lind. Bract. Fitzh in locis praed And here note that where the wife or children ought to haue a ratable parte of the goods of the deceased be it a third parte or halfe as the case yeeldeth there also they ought to haue a like parte of the debtes due vnto the testator after they be recouered by the executor or administrator for then they are numbred or accompted amongest the goodes of the testator but not before i) Brook Abridg. tit exec n. 112. Siquidem si ista ex coÌ„suetudiue tantum debentur hac non probâ—ta sine difficultate illud procedet quod est iuri recepto magis consonum But of leases the wife and children can not haue anie ratable parte within the prouince of Yorke or other places where they haue beene accustomed to haue their ratable parte of the moueable goodes and debtes recouered vnlesse the saide wife or children demaunding their ratable parts of leases do proue that by speciall custome of that place namelie of that citie countie deanrie or parishe where the testator dwelled and had such leases the wiues and children were accustomed to haue their ratable parte as well of the leases as of the mooueable goodes of the testator which speciall custome being prooued they maie recouer their ratable part as before k) Fitzh in Br. de rationab part in quo Breui fit mentio non solùm bonorum sed etiam cattallorum Atque huc facit quod habemus in Mag. Chart. c. 18. The fourth case is when there is no suche custome of deuiding the goodes of the testator into two partes or into three partes as is before mentioned in which case albeit some were of this opinion that euen by the coÌ„mon lawes of this realme the cleere mooue-able goodes were to be deuided into three parts or into two partes as before whereof the wife and children were to haue their partes l) In hac sententia stetit Glandeuile antiquus huius regni iurisconsultus motus per stat de Magna Chart. c. 18. vt refert Fitzh in d. Breui de rationab part bon Brook Et per de rationab part bo sic enim post multaÌ„ disputationem inquit Et fuit dit pue ley M. 31. Henr. 8. que ceo ad estre mise en vre come vn comÌ„en ley nunque demurr ideo videtur que ceo est le comÌ„en ley and consequentlie that the testator could not dispose anie more thereof then the halfe or third being the deathes part Neuerthelesse others whose opinion hath preuailed doo holde the contrarie to wit that there is no such deuision to bee made by force of the common lawes of this lande but onelie by force of custome m) Fitzh d. Br. de rationab part bonor Brac. de legib coÌ„suet Ang. lib. 2. 26. Tract de repub Angl. lib. 3. c. 6. and coÌ„sequentlie that it is lawfull for the testator by the lawes of this realme except in those places where the custome aforesaid is obserued to dispose all the whole residue of his goodes his funeralles and debtes deducted at his likinge and that the wife or childe can claime no more thereof but accordinge as the testator shall deuise by his testament And in the opinion of some the lawe of this lande which leaueth all the residue to the disposition of the testator funeralles and debts deducted seemeth to haue better grounde in reason then the custome whereby he is forced either to leaue two partes of three or at leaste the one halfe to his wife and children n) Bracton d. lib. 2. c. 26 For what if the sonne be an vnthrifte or naughtie person what if the wife be not onelie a sharpe shrowe but perhaps of worse conditions Is it not harde that the testator must leaue either the one halfe of his goods to that wife or child or more for the which also peraduenture hee had labored full sore all his life were it not more reason that it should be in the libertie of the father or husband to dispose thereof at his owne pleasure which when the wife and children vnderstood it might be a meanes whereby they might become more obedient liue more vertuouslie and contend with good desert to winne the good will and fauour of the testator o) Hisce rationibus vtitur Bracton in desensionem â—uâ— is huius regni d c. 26. cui adde Rebuff in L obuenire de verb. signif ff fol. 682. These reasons make for the testator and for the equitie of the common law which leaueth the whole residue to his disposition But the custome whereby the libertie of the testator is restrained is not without reason also Forwhere it is asked what if the child be an vnthrifte the wife worse then a shrowe So it maie be demaunded with like facilitie what if the childe be no vnthrifte but frugall and vertuous what if the wife be an honest and modest woman which thing is the rather to be presumed p) c. dudum c. vltim de praesump extr Mas card tract de probae conclus 222. But if it be not amisse to feare the worst then on the contrarie what if the testator be an vnnaturall father or vnkinde husband perhaps also greatly inriched by his wife wheras before he was but poore standeth it not with as great reason that such a wife and children should be prouided for and that it shoulde not be in the power of such a testator to giue all from them or to bestowe it vpon such as had not so well deserued it and by that meanes set his wife children a begging surelie the custome hath as good ground in reason against lewd husbands and vnkinde fathers as hath the lawe in meeting with disobedient wiues and vnthrifty children q) Mediam viam elegit Iustinianus tà m quoad vxorem quà m quoad liberos Nam quod ad vxorem attinet inbet imperator illa bona restitui quae marito vel ab ipsa vxore vel ab alio nuptiarum causa nempe ad sustinenda matrimonij oneradonata suere L. 2. fol. matr ff Bar. in Rub. solu mâ—iom ff n. 21. quod autem attinet ad liberos iure ciuili Assis nunc triens id est tertia pars totius patrimonij nunc semis seu dimidium assis pro legitima debetur Auth. nouissimo C. de inoffic testa quae quidem legitima gratis tantum liberis deberi intelligitur nam ingratis nihil habet parens pro legitima â—â—linquere Claud. Battandier tract de legitima c. 13. If the testator doo bequeath more then he maie which legacie is to bee preferred or what other course is to bee followed 1 If the testator bequeath more then the deaths parte whether one legacie is to be preferred before an
vlt. vol. l.b. 11. tit 8. in prin the which if it doo not appeare then it seemeth by the lawes of this realme that hee is reputed not to haue died without issue but as if he had got it himselfe because by the same lawes i) Bract. vbi supr Fitzh Abridg. tit bastardy n. 1. 4. Brook eod tit n. 43. in sin Tract de repub Ang. lib. 3 c. 6. it is prouided †that if a man take to wife a woman which is great with childe by another that was not her husband and after the childe is borne within espousalles or mariage he which maried the woman shall bee saide to bee the father of the childe and not hee which did beget the same although the childe were borne the next day after the mariage soleÌ„nized k) Iuxta illud pater est quem nuptiae demonstrant for whose the cow is as it is coÌ„monly said his is the calfe also l) Quod tamen non est simpliciter verumin viduis vt per Termes of lawe verb. bastardy etinfr d. §. Much more †if after the mariage an other man haue carnal coniunction with his wife shal the husbaÌ„d be deemed the father of that child which is not onely borne but begotten during mariage for then by al lawes the husband is presumed to haue begotten the childe himselfe and not the adulterer m) L. filium de his qui sunt sui vel alien iur L. miles §. defunct de adul ff ibi Legistae c. Michael de sil praesbit c. per tuas de probac. ext ibi Canonistae Bract. de leg consuetud Angl. lib. 2. c. 29. albeit another had to do with her besides her husbaÌ„d Which †conclusion because it is in fauour of matrimonie and tendeth to the benefite of children is diuersly extended First therefore although the mother doo cohabite with the adulterer yet if the husbande haue free accesse vnto her he is presumed to be the father and not the adulterer n) Bald in L. si à matre C. de suis legit Abb. in c. accedens de purg cano ext Mascard de probac. verb. filius concl 788. For albeit it bee likelie that the adulterer did begette the childe yet seeing it is possible that the husband did beget it Honest possibilitie is preferred before that other possibilitie which is linked with dishonestie o) Bald. in d. L. filium de his qui sui vel alien iur ff Palaeotus de Noth spur c. 24. Secondly albeit the wife were as common as the Cart-waie making an open profession of her filthinesse yet the husband if she be not altogether out of his guard shall be iudged the onely father p) Cyn. post Iac. de Butr. in L. si minus C. de nup. Gab. lib r. tit de praesump concl 14. n. 9. Mascar de ê“bac d. concl 788. n. 39. Thirdly albeit the mother had beene barren a long time beefore yet the childe is presumed to haue beene begotten by the husbande and not by the adulterer q) Ab. in c. per tuas de ê“bac ext Alcia de praesump reg 3. praesump 37. Gabr. d. coÌ„cl 14. n. 8 Fourthly albeit the mother doo confesse that the adulterer did beget the childe yet her sole confession dooth not hurt the childe r) Abb. in c. officij de poeniten extr quod procedit etiam si patris confessio accederet Palaeot de Noth Spur. c. 24. n. 2. Alciat de praesump reg 3. praesump 37. n 6. Petr. Duen Tract reg fal verb. filius reg 344. contra Bald. Anch Alex. de quibus Gabr. d. concl 14. n. 13. Fifthly albeit the childe be borne blind or lame yet is the husbande presumed to haue begotten the same and not the adulterer s) Couar epitom de sponsal 2. part c. 8. §. 3. n. 8. Mascard d. concl 788. n. 18. Petr. Duen d. reg 334. limit 2. In which case neuerthelesse some haue beene of this opinion that this childe was begotten in adulterie t) Barba in c. praesentia de probac. extr in cons 68. in prin vol. 4. Alex. cons 157. vol. 5. Dec. consi 183. Hyppol Sing 530. vbi alios citat huius opin Authores quamplures Quibê° si placeat adde Ed. FeÌ„toÌ„ AngluÌ„ Tract de mirabil secret naturae c 5. being so borne as they imagined by Gods prouidence and iustice because of the sinne of the parentes whose rash opinion is by others refelled as erronious and blinde v) Couar de spons c. 8. §. 3. n. 8. 2. part Duen d. reg 344. in fin hauing no better grounde then had their conceipt who asked of our Sauiour Christ as he passed by a blinde man who had sinned he or his parentes that he was borne blind x) Euangel S. Iohan. c. 9. in prin To which demaunde our Sauiour answered neither he nor his parents but that the power of God might be made manifest y) eod c. 9. vers 3. Sixtly albeit †the childe bee verie like the adulterer yet shall the husbande bee deemed the father z) Bald. in L. Gallus de lib. posthu ff n. 13. Paul de Castr consil 257. vol. 3. Alciat d. praesump 37. n. 3. Wherein diuerse I confesse of no small aucthoritie haue contended mightilie that this childe is to bee adiudged the adulterers a) Alberic in L. 7. ff de stat hom Paris consil 10. vol. 2. n. 59. Bald. cons 390 vol. 2. Fulgos consil 212. col 3. Coras L 2. Miscel c. 22. n. 5. fortifiyng their assertion with this reason especially because in other creatures nature hath so prouided that each thing dooth beget that which is like vnto it selfe b) Paris Coras alij vbi supr Tiraquel de leg Conub leg 7. Masc de ê“bac concl 79â— n. 2. yet contrariwise their opinion hath preuailed as being armed with arguments of the inuincible truth who defende that the husbande ought to bee iudged the father of that childe which is so like the adulterer and so vnlike himselfe c) Bar. Ias communiter DD. in L. Gallus ff de lib. posth quaÌ„ sententiam propiùs ad veritatem accedere resert Mascard de probac. d. conclus 792. n. 7. Neither is that other reason of such force as is pretended because †this forme or similitude maie happen to the infant by the mothers serious cogitation or firme imagination at the time of the conception d) Alciat d. praesump 37. post Bald. in d. L. Gallus vnde mulieres simulachra saepissime statuasque in delicijs habuisse legitur similesque ijs partus enixas Coras d. c. 22. n. 2. For proofe whereof we may read in the holie Scriptures howe by Iacobs deuice of the spotted stickes being laide before Labans sheepe at the ramming time the lambs became spotted e) Genes c. 30. Famous also is that accident registred in the bookes of sundrie writers
f) Ias in L. Gallus ff de lib. posthu a 69. Coras lib. 2. Miscel c. 22. Fenton de secretis naturae c. 5. of a beautifull ladie who hauing a husband of a faire and white complexion was deliuered of a childe as blacke as pitch like vnto a Moore or Ethiopian and hereupon being accused of adulterie shee was acquited and absolued for that by the opinion of the best learned in phisicke and philosophie the same did so come to passe by reason of the picture of a black boie or litle Nigro which did hang in the bedchamber at the time of the coÌ„ceptioÌ„ Like vnto this is that credible historie of another woman in the time of Charles the fourth Emperour and king of Boemia who because she had too much regard to the picture of Saint Iohn clothed in a Camels skinne which did hang at the beds feete during the conception shee brought foorth a childe all rough couered with haire like vnto a Beare g) Coras in annotac super quodam Arresto Tholoss fol. 31. Fenton vbi supra The histories are full of these kinde of accidents I shal coÌ„tent my selfe with one more which did befall in the time of the Emperour Maximilian in a towne in Brabant h) Coras in d. annotac eod fol. 31. Ludouic Viues in 12. lib. Augus de ciuitat Dei There in a publike plaie or spectacle a certaine man whose part was to plaie a dauncing deuill assoone as the plaie was ended ranne home to his wife in his deuils attire and being moued in spirit catched his wife hastilie in his armes and muste needes c. in that habite saying he would beget a deuill and so it came to passe that at her childes birth shee was deliuered of a deuillish monster which as soone as it was borne began to leape and daunce like to the father Which examples with diuerse other like experiments being made notorious manie women that they might bring foorth beautifull children haue gotten beautifull pictures and fixed the same nigh to their beddes and haue in deede oftentimes brought foorth children like vnto those pictures in the sight whereof they were formerlie most delighted i) Plutarch de placitis philos lib. 5. c. 12. Coras in d. c. 22. n. 2. lib. 2. Miscel Seeing then the conceite or imagination of the woman is of such force in the act of generation that whose forme or similitude is then in their minde the same is not seldome represented in the childe k) Gloss in L. quaeret aliquis de verb. sig in L. non sunt de stat hom ff What maruel theÌ„ if the child which is begotten by the adulterer bee like vnto the husband when the adulteresse fearing to be interrupted by his returne who woulde take but small pleasure at such sporte cannot but still haue an eye to that doore vntil the peril be past l) Alciat de praesump reg 3. praesump 37. Ias alij in d. L. Gallus ff de lib. posthu And wherfore theÌ„ also shoulde we wonder that the childe which is begotten by the husband shoulde bee like to the adulterer m) Bald. in d. L. Gallus Mascard de probac. verb. filius concl 792. vpon whose face and fauour her minde is fullie fixed who in the middest of her delights imagineth the stolne water to bee the sweeter n) Prouerb Salom. c. 9. vers 17. Nay rather it is to be maruailed that it should bee otherwise but that the almightie dooth still reserue his prerogatiue besides and contrarie to the course of nature bestoweth what formes it best liketh him vpon euery creature Other extensions there bee of this rule o) de quibus Mascard de probac. d. concl 788. Petr. Duen Tract reg fal reg 344. Alciat de praesuÌ„p 37. Menoch de Arb. Iud. sent 89. Gabriel de praesump concl 14. but let vs returne to the limitations The first limitation is this †when the husband was not within the foure seas at such time as the childe was conceiued q) Bract. de leg cons Angl. lib. 1. c. 9. in fin lib. 2. c. 29. n. 3. 4. Kitchin tit discent fol. 108. Brook tit bastardy n. 4. or at the least was so farre absent from his wife or imprisoned the same time that thereby it was impossible for him to haue begotten the same childe r) c. ex tenore de testib extr Panor ibid. Paris consil 64. vol. 3. n. 6. 7. consil 10. vol. 2. n. 36. 78. Mascard de probac concl 788. n. 40. Petr. Duen d. reg 344. lim 3. Brook Abridg. tit bastardy n. 4. Which time of conception when it was may best bee knowne by relation to the birth of the childe For a woman cannot bring forth a perfect childe before the beginninge of the 7 month s) L. septimo de stat hom ff ex sententia Hyppocratis lib. de partu septimestri à quo non dissentiunt Aristotel lib. 1. de natura animal Plutarch lib. 5. de placit philos c. 18. Plin. lib. 11. natural histo c. 31. neither can shee beare a childe in her wombe after the ende of the tenth moneth from the time of the conception at least by presumption of law t) L. intestato §. vlt. ff de suis legit §. vlt. Tiraquel in rep L. si vnquam C. de reuoc don verb. susceperit vbi multa scitu non indigna de partu septimestri decimestri ex Hyppocrate Aristotele alijs tùm Medicis tùm Philosophis deprompta videre licet Sed prae caeteris Legistis praeclarissimè copiosissimè de nascendi tempore scripsit Gentilis noster except it be for one two or three daies more at the verie fardest v) Accurs in d. §. vlt. Auth. de restit eaquae parit c. Salmo in L. Gallus de lib. posthu ff Menoch de Aâ—b iud quest lib. 2. cal 89. n. 41. So that if the husband did depart from his wife aboue tenne monethes with those fewe daies added thereunto nor retuned vntill within sixe monethes next before her deliuerie it is impossible for him to be the father of this childe being otherwise a perfect childe Secondly if the husband were not able to beget a childe at such time as his wife did conceiue hee is not to be deemed the father of that childe x) L. filium ff de his qui sunt sui vel al. iur DD. ibidem Gabr. lib. 1. com concl tit de praesump concl 14. n. 19. Pract. Andr. Gail lib. 2. obseru 97. n. 15. For seeing law is but an arte of righte and good y) L. 1. ff de Instit iur by imitation of nature z) §. minorem Inst de adop Paris coÌ„sil 10. vol. 2. it were against all right and reason that he should be iudged the father of that childe by fiction of lawe which he could not beget by possibilitie of nature
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 husbaÌ„d for that perhapps she is deliuered within eight or nine monethes after the death of her former husbande yet not before the seuenth moneth next after her second mariage then the question is much more doubtful y) De 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 disputations z) Si 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 father a) Multos in hac sententia stetisse refert Coras in annotac ad Arrestum quoddam Tholoss fol. 33. some that the seconde husbande b) Anto. Vacca in L. 7 ff de stat hom post Imol in d. L. Gallus Others that both c) Angel in L. duo de haered instituend ff and others againe that neither d) Iac. de Beluis in d. disputac is to bee deemed the father of the issue Some say that the mother is to bee credited e) Alciat 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 choose f) Alex. in d. L. Gallus n. 14. vers hoc tameÌ„ 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 benefite g) Dec. 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 bodie h) Coras 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 astrologie i) Apostil ad Alex. in d. L. Gallus vbi Astrologi longè praeponuÌ„tur medicis is to decide the controuersie (k) Bar. 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 realme at least in cases of succession of lande it seemeth that the second husband shal be the father of this child l) Tract 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 father m) Apostil ad Bar. in d. L. Gallus and to whom it is to be imputed that hee aduentured so soone vpon an other mans widow n) Anto. Vac in L. 7. de stat hom ff When the issue is both naturall and lawfull but †dieth before the father In this case the father is saide to die without issue o) L. 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 legacy p) d. §. 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 issue q) Bar. in d. L. haeredibê° Zas in d. L. in substitutione Mantic. in d. tit 6 Grass Thesau com op §. fideicommiss q 35. Indeede †if the testator make 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 legacie r) Iac. 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 death s) Mantic. vbi supr Zas in d. L. in substitutione n. 15. which meaning is said to appeare sometimes by this word then t) L. si his §. si ita de cond demon ff Zas in d. L. in substitutione n 15. fol. 3. 0. 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 time v) d. §. si ita vnlesse euen then hee had issue when his testament shoulde tak effect which it can not doo so long as the testator liueth x) Mantic. post Bar. Alex. d. lib. 11. de coÌ„iec vlt. vol tit 6. n. 5. 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 death y) L. si quis praegnanteÌ„ de reg iur ff L. iubemê° Â§. si quis autem C. ad Trebel yet that rule ought to take place when it tendeth to the benefite of the childe z) L. qui in vtero ff de stat hom not when it tendeth to the preiudice of the childe or onely benefite of another a) d. L. qui in vtero Mantic. de coniect.
before such vnlawfull copulation and cōception of the childe This kind of fornication is tearmed Stuprum (e) L. inter liberos L. stuprum ff de adul and this kinde of bastarde seemeth to be in the same case as if he had bene begotten in adulterie If the mother were an harlot before the conception of the child howsoeuer by the ciuil law such a bastard is not incapable of any testamētarie benefit (f) Couar de sponsal 2. part c. 8. §. 5. n. 15. 16 17. yet forasmuch as by the lawes ecclesiasticall (g) c. Nemo 32. q. 4. Panor in Rub. de adul extra and statutes of this realme (h) Stat. Eliz. an 18. c. 13. such copulation is condemned as vnlawfull and to be punished as vngodly I suppose that this kinde of bastarde is no more capable of an executorship or legacie then if the mother had bene honest before i) Videas Couar in d. §. 5. especiallie if the mother were a common harlot the testator neuertheles esteeming hir to be cleare from pollution with anie other and himselfe onely to be the vndoubted father of the childe whom hee dooth make his executor or to whom he dooth bequeath anie legacie by the name of his childe when as indeede he is not the certaine father of the childe the mother hauing prostituted hir self to the filthinesse of others also For in this case euen by the ciuill lawe the Bastarde cannot be executor nor obtaine the legacie k) Bald. in L. quisquis ad L. Iul. C. de adult Grass Thesaur com op §. Institutio q. 7. n. 10. infr part 7. §. 5. if not by occasion of the fathers crime yet by reason of the testators errour and follie who of all likelihood woulde neuer haue made that childe executor nor haue shewed himselfe so good a father if hee had knowen the bad conditions of the mother Where it is saide that the parentes maie bequeath so much to their bastardes as will suffice for their alimentation or reliefe what kinde of Bastardes soeuer they bee without distinction It maie bee demaunded not impertinently nor vnprofitablie What if the testator doo simplie bequeath a summe of money or some other thing to his vnlawfull childe not making any mention that hee dooth bequeath the same for the childes reliefe or alimentation Whether in this case is it to bee presumed that the father did meane it for the childes alimentation or no but if hee did so meane the legacie is good otherwise it is voide Briefly howsoeuer in this matter al men are not of one minde I doo rather subscribe to their opinion who do hold the affirmatiue l) Aymo Grauetta cōsil 219. n. 8. Of an vnlavvfull Colledge 1 An vnlawfull Colledge cannot be executor 2 What is vnderstoode by an vnlawfull Colledge 3 Whether the Churchwardens may sue for a legacie left vnto the Church 4 Particular persons of an vnlawfull Colledge may be appointed executors §. ix AN vnlawfull Colledge cannot bee executor a) L. collegium C. de haered instit By an vnlawfull Colledge in this place I meane al companies societies fraternities and other assemblies whatsoeuer not confirmed nor allowed for a lawfull corporation by auctoritie of the prince or of som other by whom they ought to bee confirmed or allowed b) d. L. collegium Bar. in L. cum senatus de reb dub ff Abbas in c. dilecta de excess praela extr Notwithstanding if the testator bequeath anie goods or money to the parishiōers of any parish to the vse of the Church such a bequest is good c) Lambert Tract de offic gardianorum fol. 43 Brook tit corporation n. 55. 73. 77. 84. tit done n. 17. 50. contra Fitzh tit done n. 1. and the legacie maie be recouered by the Churchwardēs who albeit in euerie respect they bee not a lawfull corporation yet in this respect they bee accounted a lawfull corporation I meane in fauour of the Church d) Lambert vbi supr or if the seuerall and particular persons of an vnlawfull Colledge bee appointed executors they are not to be repelled e) Paul de Castro in L cum senatus ff de reb dub Of a libeller §. x. HE that is condemned for a famous libell is intestable both actiuely and passiuely that is to say he can neither make a testament nor receiue anie benefite by a testament a) L. is cui §. vlt. ff de testam Vasq de succes progress lib. 1. §. 2. n. 18. Of vsurers Sodomites and others 1 Manifest vsurers Sodomites can neither make a testament nor reape any benefite by anothers testament 2 Whosoeuer is forbidden to make a testament by reason of some crime the same person is incapable of anie benefite by the testament of another §. xi AS manifest vsurers Sodomites and other criminous persons are forbidden to make testaments themselues or to dispose their goods by their last willes as is before at large declared a) Supr part 2. §§ 15. 16. 17. 18. so are they forbidden to reape any such benefite by the testament of others for this is a commō receiued conclusion that hee that cannot make a testament or last will by reason of some crime by him cōmitted the same person is incapable of any legacie of goodes disposed by the testament or last will of another b) Gloss in L. is cui ff de testa Soarez lib. rec Sen. verb. testm̄ n. 82. referens hanc op esse com Idem Iul. Clar. §. testm̄ q. 43. n. 2. Of an vncertaine person 1 If the testator make Iohn at Stile his executor and there be two persons of that name neither of them is to be admitted §. xij AN vncertaine person cannot bee executor nor legatarie a) §. incertis Instit de lega Io. And. Gem. Franc. in c. si pater de testam 6. For example the testator dooth make Thomas Lante his executor to whom also he giueth all his goodes and there be two persons either of them being called Thomas Lante In this case neither is to be admitted b) Minsing in d. §. incertis per L. si quis §. si inter de lega 2. Diuers other examples of vncertaintie with diuers declarations of euerie example doo appeare in the last parte of this booke where the reader maie bee more fullie satisfied c) Infr. part 7. §. 6. cum seq in what sorte this former conclusion is to be admitted THE SIXTE PART OF THIS TESTAMENTARIE TREATISE WHEREIN IS DESCRIBED THE office of an Executor The Paragraphes or Chapters of the sixt part OF the office of an executor § 1. Of accepting or refusing the executorship And first whether the executor may be compelled to accept the same § 2. What is to be considered of the executor desirous to be resolued whether it were better to accept or to refuse the executorship § 3. Of the time which the executor hath to deliberate whether he will
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 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 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 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 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
peradueÌ„ture if the testator had knowen that it had been an other maÌ„s he wold not haue bequeathed the same d) d. §. non soluÌ„ Instit de lega yet neuertheles both by the laws ecclesiastical e) c. 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 realm f) Plowd in cas inter Bransby Grantham huc etiam pertinent quae superiùs scribuntur in initio huius §. de coemptore seu condomino disponente no maÌ„ 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 vse g) Plowd 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 thereof h) Couar 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 mans i) Si enim ignorasset reÌ„ 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 due k) L. 1. ff de regul CatoÌ„ but in some fewe cases l) Repertor 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 legatarie and so the deuise is good m) Plowd 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 passe n) Plowd 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 voide o) Bar. Paul de Castr alâ—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 deliuered p) Infr. part 7. §. x. Of Assigning tutors and disposinge of childrens portions during their minorities generallie considered 1 Manie questions about the tuition of children 2 The matter of tuitions both large and vncertaine §. vij IF I should vndertake to speake fullie of the assignement or appointinge of tutors to children and custodie 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 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 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 §. viii ALbeit neither within this Realm of England nor within anie realme christian anie parents haue the like power ouer their childreÌ„ as had the Romans a) §. Ius auteÌ„ Instit de tutelis ibi glossa in qua enumeraÌ„tur septeÌ„ aut octo in quibus ius patriae potestatis consistit to whoÌ„ alone that patria potestas was proper and particular b) Eod. §. nec non tract de repub Angl lib. 3. c. 7. Intellige tamen vt in gloss in d. §. ius auteÌ„ 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 lawe c) L. 1. ff de testa tutel §. permissum Instit de tutel yet in diuers places within this realme and namelie throughout the prouince of Yorke 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 wils d) Vt 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
he die t) L. Cuius bonis C. de curator furios or is absent being taken of the enemie v) L. 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 x) § 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 determined y) VideaÌ„t Iustinianistae Vigelij methodum iuris ciuilis vbi perplures traduntur causae finiendi tutelam Of the quantitie of landes deuiseable by will 1 Of landes tenementes and hereditamentes sometimes all sometimes but two partes of three is deuiseable §. xv NOwe that I haue shewed what kinde of thinges maie be deuised by will it remaineth to shew how much is deuiseable 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 tenure a) Supâ— 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 cheefe b) Eod. § 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 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 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 §. xvj COncerning the quaÌ„titie 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 discharged a) Bracton de legib coÌ„s 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 neÌ„pe legatarij de lucro captando creditores autem de damno vitaÌ„do contendunt d. L. scimus Et licet haeres qui inueÌ„tario 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 purse b) Fitzherb Abridg. tit deuise n 1. Brook tit admÌ„str n. 37. Perkins tit deuise fol. 109. as one that had otherwise wasted the goodes of the testator c) Doc. Stud. lib. 2. c. 11. quam conclusioneÌ„ facile admitterem coÌ„scio 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 goodes and cattelles the funeralles and debtes first deducted for funeral expeÌ„ces are to be deducted foorth of the whole goods both by the ciuill lawe d) L. scimus §. in computatione C. de iure delib and by the lawes of this realme e) Fitzh 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 pleasure f) Lindw in c. statut de testam lib. 3. ê“uincial 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 childreÌ„ 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 custome g) Lindw 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 goods h) Act. 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 ought to haue one
the legacie in the meane time i) d. L. cum tale L. pater §. socrus ff de cond demon as for example the testator maketh his wife executrix or giueth her a hundred pouÌ„d 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 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 restitution k) d. L. cum tale gloss in d. L. Mutianae 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 before l) d. 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 lands m) L. 4. §. idem Iulianê° 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 condition n) DD. 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 o) d. L. Mutianae Simo de Praetis de interp vlt. vol. lib. 5. Interp. 2. dub 1. n. 23. 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 performed p) d. 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 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 disposition q) Bar. 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 dispositioÌ„ had been simple r) Idem Paul de Castr in d. L. Mutianae d. §. sin autem Nowe †that wee haue seene in what cases 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 s) L. cùm filius §. qui Mutianam ff de leg 2. the bonde is to bee made by the executor vnto the substitute t) Bald. 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 obserued v) Bald. in d. Auth. and if there be no such substitute then to the executor x) Idem Bald. ibid. and if there be no executor then to the ordinarie because he dooth as it were succeede where anie dieth intestate y) Stat. 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 ordinarie z) Bald. in d. Auth. cui relictum C. de Indict vid. there neede no suretie neither for anie thing immoueable nor for a thing mooueable vnlesse the party be not fit or sufficient a) d. Auth. cui relictum Whether it be sufficient that the condition was once accomplished though the same doo not continue 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 conditioÌ„ 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 14 An answer to an obiection 15 Diuers limitations of the former coÌ„clusion whereunto the author of this booke did subscribe §. x. MAnie †cases there be wherein it is sufficient for the performaunce of the condition that the same was oÌ„ce accoÌ„plished albeit the same do not still endure in the same estate a) Ias 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 performance b) Ias in L. in substitutione ff de vulg pupil sub vbi regulaÌ„ tradidit sex fallentijs exornatam But because it woulde growe to an infinite matter to recite euerie particular case c)
Eand reg tradit Vigelius in sua methodo exactissima iuâ—is ciuilis part 4. lib. 14. c. 3. cuÌ„ decem exceptionibus Et licèt idem Vigelius postea existimet contrarium iure nouo coÌ„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 coÌ„ op asserens conditioneÌ„ qua in totum prohibetur matrimonium in virgine turpem contra bonos more 's atque 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 simple d) L. quoties L. sed si §. fin L. cum tale §. Meuiae de cond demoÌ„ ff L. 2. C. de indict vid. 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 wealth e) Mantic. 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 it were not written f) L. 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 second g) Istiusmodi siquidem conditio si permanserit vidua vel castè vixerit in ijs noÌ„ reijcitur in alijs secus Auth. cui relictum C. de indict vid. Couar EpitoÌ„ de sponsal c. 2. §. 9. n. 11. Grass Thesau com op §. legatum q. 50. quaÌ„uis eam non modo duraÌ„ 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 executed (h) L. Gallus §. quid si is de lib. posthu L. vel negare quemad testa app ff yet the common wealth hath a greater interest that it should bee throughly peopled and therfore mariage not to be prohibited i) L. 1. sol matr L. cùm ratio §. si plures de boÌ„ 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 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 vnlawfull k) L. 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 expressed l) d. §. 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 ê‘mittitur conditio viduitatis quod etiam alijs placet vt Grass d. §. legatum q. 50. n. 10. The †reason of the vnlawfulnesse of this 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 parties m) Quam 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 same n) L. quoties de cond demon ff Mantic. de coniect. vlt. vol. lib. 11. tit 19. n. 4. Grass Thesaur com op §. legatuÌ„ 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 did marrie o) Peckius de testa coÌ„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 The first limitation therefore is when †the condition is not perpetuall but temporall p) L. 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 performed q) Ias 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 coÌ„tinue a maide during that space that her mariage should bee greatly hindered the condition is reiected as being made in fraude of mariage r) Ias 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. 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 vnlawfull s) L. 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 much that †if thou shouldest mary
n. 18. But if a legacie bee giuen vppon condition if the legatarie marie then it is the common opinion of the writers that the legatarie must be married within three yeeres or else the condition is saide to bee deficient and so is the legacie lost l) Bar. Ias Dec. Sichar alij in d. L. 2. quorum opinio communis est inquit Grass Thesaur com op §. legatum q. 46. n. 18. And albeit the other opinion is said to be truer that the condition is sufficiently accomplished by marying after three yeeres m) Mantic. de coniect. vlt. vol. lib. 11. tit 18. n. 23. Grass vbi supr yet the iudge may not easilie depart from the common opinion for whatsoeuer is affirmed for the truth of the singular opinion yet that is presumed to be the truer opinion which is more commonly receiued n) Corasius Trac com op lib. 2. cas 14. The reasō of the difference wherefore the legatarie is excluded rather then the executor if he doo not marrie within three yeeres as is before shewed namely for that the executor otherwise is subiect to more perill then the legatarie o) Vt supra in pluribus Of the vnderstanding of this condition viz. If he die without issue 1 Manifolde questions by occasion of this condition if he die without issue 2 Whether he be said to die without issue whose issue is naturall but not lawfull 3 What if the father and mother doo afterwards marie together 4 When the issue is lawfull not naturall whether he be saide to die without issue 5 What if the childe were got by another man before marriage 6 If another haue to do with the wife besides her husband yet the child shall be deemed the husbands 7 Diuers extensions of this conclusion 8 What if the childe be like the adulterer 9 How commes it to passe that the childe is sometimes like vnto another then him which did beget it 10 In some cases the husband shall not bee iudged the father of the child begotten during mariage 11 Whether shall the childe be the former or the seconde husbandes when it is vncertaine whether of them did beget him 12 Whether hee bee saide to die without issue who had children but not at his death 13 Difference betwixt this condition If hee die without issue and this If he haue no issue 14 Whether that father is to be deemed to die without issue whose child is vnborne when he dieth 15 Whether he be deemed to haue died without issue whose child dieth so soone as it is borne 16 If the childe be heard to crie the father shall be tenant by the curtesie 17 What if the childe were not heard to crie 18 What if the issue be borne dead or dieth as it is borne 19 VVhat if a monster be borne whethr shall the parents be iudged to haue died without issue 20 VVhat if the childe in the mothers wombe being made executor she be deliuered of diuers children at one birth whether shall euerie of them bee executors 21 VVhat is to be obserued in legacies where moe are borne at one birth §. xv AS there †is no cōdition more vsual then this If he die without issue so there is none that dooth minister moe questions although some of them be not altogither so difficult which thing that it may the better appeare let vs first suppose that the testator doth make thee his executor or dooth bequeath vnto thee an hundred pound if he die without issue This case dooth minister all these questions What if the testator haue issue naturall but not lawfull Or what if he haue issue lawfull but not naturall What if he haue issue both naturall and lawfull but the same dieth before the father Or what if hee beget his wife with childe and then die before the childe be borne Or what if the child die before it be borne Whether shall the testator bee iudged to die without isse yea or no All these and manie moe like questions may be demaunded by reason of that cōdition If he die without issue whereunto I shall answere in order as they bee propounded presupposing that to haue issue is to haue a childe or children and to die without issue is to die with out any childe When †the issue is naturall but not lawfull if the will and meaning of the testator do not appeare the testator is deemed to haue died without issue a) L. in conditionibus de cond demon L. ex facto §. si quis rogatus ad Trebel L. vulgo de statu hom ff Mantic de coniect. vlt. vol. lib. 11. tit 9. in prin Sichard in L. generaliter §. cum autem C. de Instit sub Bract. de leg consue Angl lib. 5. c. 30. n. 10. in sin for it is not likelie that an honest person speaking of children did meane of bastards but of lawfull children b) Ripa in d. L. ex fact §. si rogatus ad Trebel ff n. 16. Grass Thesaur com op § fideicommis q. 37. n. 6. Insomuch †that if the testator do beget a childe and after the birth of the childe marie the mother yet in this case I am of this opinion that by the lawes of this realme he shall be iudged to haue died without issue For thou shalt vnderstande that in the time of King Henrie the thirde c) Merton c. 9. an 20. H. 3. this question being propounded in the Parliament Whether one borne before matrimonie might inherite as one borne after matrimonie All the Bishops answered and saide that it was against the common order of the Church that such shoulde not inherite d) Per c. 1. c. tanta qui filij sunt le git extr §. vlt. Instit de nuptijs c. nullum 3. q. 5. and they all instanted the Lordes temporal and Barons then assembled in Parliament that they woulde consent that all they that were borne before matrimonie should bee legitimate as well as they that were borne within matrimonie concerning the succession of inheritaunce for as much as the Church accepted such as legitimate But they all with one voice answered that they woulde not chaunge the lawes of this realme which hitherto had beene vsed and obserued e) Merton c. 9. an 20. H. 3. When †the issue is lawfull not naturall By lawfull issue in this place I vnderstande that childe which is begotten of a married woman by another then her husband f) Bracton de consuet Angl lib. 2. c. 29. n. 4. verb. licet for of adoptiō arrogation or any other meanes to make children lawfull except marriage wee haue no vse here in England g) Tract de repub Ang. lib. 3. c. 7. In this case first of all the meaning of the testator is to bee regarded h) d. §. si quis rogatus L. vlt. C. de his qui vaen aetat imp L. Sancimus de nuptijs C. Mantic. de coniect.
a) Paris d. consil 10. consil 29. vol. 2. Bar. in L. si is qui ff de vsucap n. 22. whether he were disabled by grieuous sickenesse b) L 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 affected c) Menoch de Arb. iud quaest cas 89. n. 53. Paris d. cons 29. n. 80. or it were by reason of olde age d) Mascard 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 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 childe e) De 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 (f) 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 quà m 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 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 impossible g) d. 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 true h) Bar. 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 arte i) Bar. 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 afflicted k) Afflictio 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 impossibilitie l) Nam cùm par militet in vtroque 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 quà m absentiam Attamen probatâ hac impotentia eadem tunc prorsus manet hinc ac indè ratio the defect is not in lawe but in proofe m) L. duo sunt Titij ff de testa tutel which proofe is saide to be the chariot wherein the Iudge doth ride towards his sentence n) Mantic. 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 realme (o) Immo 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 it is not likelie that hee did meane of such issue which is not aswell naturall as lawfull p) Mantic. 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 obserued q) L. 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 adulterer r) Quas videre est apud Gabr. lib. 1. com concl 14. Mascard de probac. con 788. namely when the wife doth make an elopemēt from her hushand s) Brook 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 accordingly v) Mantic. 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 husbande x) DD. in L. Gallus ff de lib. posthu Terms of law verb. bastardy Kitchin in tit
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 legacie b) Mantic. 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 excluded c) L. iubemus §. pen. C. ad Trebel ibi Paul de Castr 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 by possibilitie of nature it might haue liued longer as in the vii ix or x. moneth d) L. 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 were once heard to crie e) Mantic. 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 England f) Litleton tit curtesie d'engleterr But †if the childe which he had by his wife were not heard to crie it is thought that he cannot be tenaÌ„t by the curtesie g) Bract. 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 aucthoritie *) Dyer 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 moue h) L. quod dicitur ff de lib. posthu L. 2. 3. C. de posthu Felin in c sicut de homicid exâ—r Mascard Tract de probac. verb. natus conclus 1088. sub fineÌ„ for what if the childe were borne dumbe i) d. 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 issue if the childe did but breath and though it did not nor coulde not crie but died in the handes of the midwife k) d. L. 3. C. de posthu for crying is not an onely proofe of life l) L. quod certatum C. de posthu ibi Sichar n. 4. Mascard de ê“bac conclus 1088 n. 10. since it may be prooued by other meanes as by motioÌ„ breathing and such like m) L. si magister C. de Instit sub Mascard d. concl 1088. sub fineÌ„ Sichard in d. L. quod certatum In deede †if the childe be borne deade n) L. qui mortui ff de verb. signif or being halfe borne aliue yet dieth before it be wholy borne o) Alciat 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 issue p) d. 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 moue q) L. 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 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 children r) L. 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 man s) Bald. in d L. noÌ„ 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 the ordinarie course of nature alloweth as hauing sixe fingers on either hand t) DD. 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 foote v) Bald. 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 Iudge x) Sichard in d. L. 3. C. de postu n. 5. verb. cum autem And albeit the writers seeme rather to encline to this opinion
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 and so to be admitted in case the sonne cannot or will not be executor h) Gloss 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 alike i) Quippe 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 executors k) L. 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 l) 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 expressed m) Infr. 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 onely n) Io. 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 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 executor o) c. religiosa §. sane de testa lib. 6. the second is whē he will not vndertake the executorship p) d. §. 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 the impediment of the coexecutor q) d. §. sane ibidem Franc. et alij vnlesse the testator did will expresly that the one should not execute without the other r) Eod. §. sane in sin otherwise if †two be appointed executors and 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 will s) d. §. sane et ibi gloss nor in suits or actions t) Brook 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 same v) Brook tit executor n. 99. In so much that if the †executor suruiuing 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 suruiuing x) Brook 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 testator y) eod n. 149. And †if the executor of the executor who 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 wrong z) Brook Abridg. tit exec n. 29. 99. If the †impediment be not perpetuall but temporall then we are to consider whether the 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 distant a) Io. 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 executors b) Vt infr part 5. §. 1. then the other executor is to bee admitted in the meane time c) d. §. 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 perfourmed d) Franc. 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 executorship e) Idem Francus post Io. And. in d. §. sane 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 executor f) d. c. religiosa §. sane de testa lib. 6. which conclusion is true if the executor refusing do still perseuer in his vnwillingnesse 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 will g) Brook 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 refused h) Brook 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 namely †when no exception is made against the proceedings by the partie i) Io. 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 goods k) Brook Abridg. tit exec n. 66. Furthermore it is to be noted that when the
Of an vnlawfull colledge § 9. Of a libeller § 10. Of vsurers Sodomites and other vicious persons § 11. Of an vncertaine person § 12. â—HAT PERSON â—AIE BE EXECVTOR OF 〈◊〉 TESTAMENT OR IS CApable of a legacie The fifth part Euery one may be executor which is not forbidden The testator may omit or exclude his owne childe and make others executors The testator may make executors either bonde men or free Not onely lay men but Clearkes also may bee made executors Women as well as men may be executors Infants as well as those of full age may be made executors The testator may make his executors either knowne or vnknowne persons The testator may appoint executors either one person or many §. j. IN the fift principall part of this Testamentarie treatise is declared what persons may bee appointed executors and are capable of a legacie and what persons are incapable of an executorship or legacie Wherein forasmuch as the lawe dooth giue libertie to the testator to appoint whom he will to bee his executor a) Tit. de haered instit lib. 2. Instituc in princ Benedict de Capra Tract regul fal verb. executor and likewise to giue legacies to whom he will certaine persons excepted b) §. legari Instit de lega This may be deliuered for a rule that euerie person may be an executor and is capable of a legacie sauing such as are forbidden c) Minsing in d. tit de haered instit in prin pract Petr. de Ferrar. in forma libelli ad reddend ration Tutel §. an â—â—ecutores n. 1. Now what persons these be which are forbidden shal streight way bee shewed after the view of the greatnes of the testators libertie in appointing his executors First it is to be vnderstood that this libertie of the testator is so large ample that albeit the testator haue children of his owne naturally and lawfully begotten yet by the lawes customes of this realme he maie appoint others to be his executors secretly omitting or openly excluding his owne children d) Bract de consuetud leg Angl. lib. 2. c. 26. Tract de repub Angl. lib. 3. c. 7. vnde perspicuum est nullum ferè vsum apud nos manere huiusmodi titulorum iuris ciuilis viz. de exhaeredac liberorum lib. 2. Instituc de lib. posthu haered instituend vel exhaeredand ff de in offic test ff Instit C. vnà cum pluribus alijs eiusdem farinae cùm titulis tuÌ„ legibus Secondly the testator hath libertie to appoint executors not onely those which be free but also bondmen or villeines e) Lib. 2. Instit tit de haered instituend in prin Litleton tit villenage fol. â—0 Brook Abridg tit villein n. 68. Et licèt iure ciuili seruus institui quidem potest non executor vt per Bald. in L. id quod C. de episcopis cler n. 3. Tamen iure quo nos vtimur institui possunt serui nostrates executores vt per Litleton Brook vbi supra Quinimo eodem iure ciuili seruus constitui potest nudus executor Io. de Canib Tract de exec vlt. volunt part 1. q. 3. n. 47. either his owne villeine or the villeine of another f) d. tit de haered instit in prin And if the testator do make his owne villeine executor he doth manumit or deliuer his villeine from bondage g) Io. de Platea in d. tit in prin And if anothers villeine bee made executor such villeine may as executor haue action against his owne Lorde in case he were indebted to the testator h) LitletoÌ„ tit villenage fol. 40. Brook tit villein n. 68. because hee shall not recouer the debt to his owne vse but to the vse of the testator i) Litleton vbi supra sic nota quod noÌ„ obtinet ius ciuile quo seruus alienus institutus acquirat domino §. alienus Instit de haered instit Thirdly the testator hath libertie to appoint his executors not onely laymen but Clearkes also k) Imo etiam religiosos obtenta licentia Fitzh tit execut n. 47. Brook eod tit n. 63. 77. Fourthly the testator may make executors not onelie men but also women l) Couar in c. tua de testa extr Et est communis opinio Peckius de testa coniâ—g lib. 1 c. 20. either single or maried m) Peckius d. c. 20. Fitzh Brook d. tit executor Fiftly the testator hath power to appoint executors not onely persons of ful age but also infants (n) Brook Abridg. tit executor n. 115. tit couerture n. 56. and the act done by the infant as executor as the releasing of the debt due to the testator or the selling or distributing of the testators goods is saide to be sufficient (o) Brook vbi supra sic non recipitur iuris ciuilis disciplina quâ minor 17. annis non admittitur executor in law And here note by the lawes of this realme euery one is accounted infant vntill he be xxi yeares old (p) Doct. Stud. lib. 1. c. 21. lib. 2. c. 28. But if the infant be so yong that he hath no discretion for it is not onely lawfull to make such an one executor but also the childe in the mothers wombe and vnborne at the death of the testator (q) L. placet ff de lib. posthu quae lex etsi loquatur de haeredis institutione idem tamen iuris vel in executoris coÌ„stitutione passim ab Anglis obseruari notoriè coÌ„stat quicquid dixerit ius ciuile In that case the ordinarie or other to whom the approbation of the testament appertaineth after the birth of the childe dooth commit the execution of the will to the tutor of the childe for the childes behoofe vntill hee be able to execute the same himselfe the which tutor hath authoritie to deale as executor vntill the childe bee able to vndertake the executorship r) Quod sine vlla contradictione saepissimè obseruatur salteÌ„ infra prouinciam Eborac Sixtly it is lawfull for the testator not onelie to appoint his knowne friendes and acquaintance his executors but also straungers and such persons as he did neuer see s) §. fin Instit de haered instituend L. extraneum C. de testa vide infra ead part §. vlt. intellige vt ibi Finally the testator may appoint one person alone or manie t) §. vnum Instit de haered instituend manie I say seueral or manie representing one bodie as a Colledge a Citie an vniuersitie v) L. haereditatis C. de haered instit Minsing in d. §. vnum Grass Thesaur com op §. Institutio q. 20. After this view of the greatnesse of the power of the testator in making executors let vs returne to the restraint of the testators libertie and shewe what persons are forbidden to be executors or to reape any commoditie by a testament or last
will Of an Heretike 1 An Heretike cannot be executor 2 Whether an Heretike may be executor in a militarie testament 3 What if the Heretike do reclaime his heresie §. ij AN Heretike can not bee executor neither is he capable of a legacie a) L. Ariani C. de haeretic Sichard in Rub. de haered instit C. n. 5. Minsing in tit de haered instit lib. 2. Instiâ—uc in prin and so odious is the crime of heresie that albeit the partie bee not yet condemned of heresie neuerthelesse perseuering in his heresie hee is not to bee admitted b) Vasq de success progress lib. 1. §. 2. n. 20. no not in a militarie testament c) L. vlt. C. de haereticis howsoeuer a souldier hath more libertie in making an executor then another d) Supra 1. part §. 14. And albeit he that is named executor doo repent and reclaime his heresie yet being an heretike either at the time of the making of the testament or at the time of the death of the testator or at the time when hee vndertaketh the executorship he is excluded e) §. in extraneis Instit de haered qual differentia For this is perpetuall that if any person be incapable either when the testament is made or when the testator dieth or when hee taketh vpon him the executorship it is as if he were alwaies incapable f) d. §. in extraneis L. si alienum §. 1. ff de haered instituend Sichar in Rub. de testa C. in fin Grass Thesaur coÌ„ op §. Institutio q. 28. but it hindereth not if he be not incapable at other times g) d. § in extraneis L. sed si §. solemus ff de haered instit neither dooth it hinder the legatarie though he be incapable of the legacy at the making of the testameÌ„t so that he be capable thereof at the time of the testators death h) Bar. in L. non oportet ff de leg 2. Peckius Tract de testa coniug lib. 4. c. 31. Grass Thesaur com op §. Institutio q. 28. as appeareth more at large hereafter i) Infr. part 7. §. 19. the reason of the difference is because the legacie dependeth of another acte that is to say of the testament from whence it receiueth his power and vertue but the testament or appointment of the executor dooth not depende of an other acte whereby it may receiue either life or strength k) Peckius d. c. â—1 Of an Apostata §. iij. AN Apostata also is incapable of an executorship or legacie a) L. hi qui secundum C. de Aposta what an Apostata is and how manie kindes of Apostacy there be I haue else where declared b) Supra §. 2. §. 15. That which is heere spoken is ment of Apostasie properly so called that is to say of back-starting from the Christian faith c) Bar. in Rub. de Aposta C. to whome I might ioine also Anabaptistes for they are also incapable of executorships and legacies d) L. vlt. de sacr baptis reit C. Minsin in d. tit de haered instit lib. 2. Instit in prin Of traitors and felons §. iiii WHosoeuer is coÌ„uicted of treason or felonie as he cannot make a testament or last will as is before confirmed a) Supra §§ 12. 13. part 2. no more is he capable of anie thing disposed by testament or last will b) Nam cùm sit damnatus ad mortem naturalem mortuo aequiparatur sic non potest institui Bar. in L. qui vltimo ff de paenis est com op Grass §. Institutio q. 5. Vasq de success ê“gress lib. 1. §. 2. n. 13. Of him that is outlavved §. v. HE that is outlawed is out of the protection of the prince all his goods are forfeited and is destitute of all the aide of the lawes of this realme a) Supra part 2. §. 21. And therefore so long as hee standeth in that case he is not to be admitted to the executorship nor can sue for his legacie b) Fitzh Abridg. tit admÌ„str n. 3. Sed non existimo vtlegatum penitus incapacem reddi vtpote quem relegato verius quà m deportato comparandum putem nam relegati bona quandoque publicantur sed quia non habet personam standi in iudicio vtlegatus noÌ„ est audiendus in iudicio durante vtlegatione except it be in such cases as he may make his testament whereof mention is made before c) Supra d. part 2. §. 21. Of an excommunicate person §. vi ALbeit an excommunicate person may be appointed executor and is capable of a legacie a) Phil. Franc. in Rub. de testa lib. 6. n. 32. quae sententia communiter approbatur ait Grass Thesaur com op §. Institutio q. 4. Bald. in L. id quod pauperibus C. de episcopis cler n. 6 yet so long as he standeth in the sentence of excommunication he is not to be admitted by the ordinarie nor can commence anie suite for his legacie b) c. intelleximus de iudic c. post cessioneÌ„ de probac. extr Of Bastards 1 Three sortes of Bastardes 2 Incestuous and adulterous Bastardes are incapable of all testamentarie benefite 3 Diuerse extensions of this former conclusion 4 Diuerse limitations of the same conclusion 5 Difference betwixt the lawes Ecclesiasticall and the ciuill lawe about the alimentation or nourishment of children begotten in adulterie and incest 6 Of the lawes and statutes of this realme concerning Bastards 7 Of Bastardes begotten betwixt single persons 8 Whether the legacie left vnto the Bastard be presumed to be left for his alimentation or reliefe §. vij OF Bastards or children begotten out of matrimonie there be diuers sorts some are begotten and borne in simple fornication that is to say of carnall copulation betwixt single persons such as at the time of the conception or birth of the childe may be married together a) Couar Tract de matrimonio 2. part c. 8. §. 4. Iul. Clar. lib. 5. §. fornicatio Some are begotten in adultery that is to say of such parents as both or the one of them being maried to some other at the time of the birth and conception of the child cannot then marie together themselues b) Couar in d. c. 8. §. 5. Iul. Clar. §. adulterium Some againe are begotten in incest that is to say betwixt such persons as are prohibited to marrie by reason of Consanguinitie or Affinitie c) Couar in d. c. 8. §. 5. 6. Iul. Clar §. incestê° Bastards begotten and borne in adulterie or incest are not capable of any benefite by the testameÌ„t or last wil of their incestuous or adulterous parents c) Auth. ex complexu C. de incest nup. DD ibid. Couar de sponsal 2. part c. 8. §. â— Grass Thesaur com op §. Institutio q. 7. which conclusioÌ„ is accompaÌ„ied with no smal
c. in praesentia de probac. extr n. 39. Gabr. vbi supra n. 5. quae opinio communis est contra Bald. in d. Auth. ex complexu issue also is made capable of so much as is sufficient for needfull and conuenient sustentation hath preuailed against the rigour of the ciuill lawe and is to be obserued especially in the ecclesiasticall Court h) Idem iuris est in terris imperij gloss Panor in d. c. cùm haberet Bar. in â— Auth. ex complexu Decis Neap 164. n. 2. Dec. vbi supra Duen verb. filius reg 367. as more agreeable to nature equitie and humanitie And in this respect the lawes and statutes of this realme in prouiding aswell for the conuenient reliefe and keeping of poore and miserable children begotten born out of lawful matrimonie at the charges of the reputed father or mother i) Stat. Eliz. an 18. c. 3. without distinctioÌ„ whether such infantes were begotten in incest and adulterie or fornication k) Vbi enim lex non distinguit nec nos distinguere debemus L. de precio ff de pub in rem action as for the punishment of the mother and reputed father of such vnlawfull issue are worthily commended although in respect of the next limitation following they may seeme not altogether so worthie commendation The fourth limitation is grounded in the lawes of this realme which doo permit euerie man both by deede made and executed during their liues l) Perkins tit graunts fol. 11. Bract. lib. 2. c. 7. and also by their last willes and testaments to be executed after their deathes m) Perkins tit deuise fol. 98. to giue to deuise vnto anie their bastards without distinction all their lands tenements or hereditaments without restraint at the least more then wil suffice for their sustentation and much more then they are worthie of Which thing cannot but redounde to the great preiudice of right heires considering the daunger whereunto lawfull children are subiect and which they doo manie times sustaine through forcible â—latteries of vile dissembling harlots no lesse voide of all modestie then full fraught with all kinde of subtiltie with whose sweete poison and pleasant sting manie men are so charmed and inchaunted n) Videas c. 5. Prouerb Salom. that they haue neither power to hearken to the iust petitions of a vertuous wife praying and crauing for her children nor grace to denie the vniust demaunds of a vicious and a shamelesse whoore prating and grating for her bastardes neuer remembring that when Sara said to Abraham Cast out this bonde woman and her sonne for the sonne of this bond woman shall not be heire with my sonne Isaak Abraham by the commaundement of God hearkened to the voice of Sara o) Gen. c. 19. neuer once regarding that which diuers haue diligently noted that the brood of bastardes are commonly infected with the leprosie of the Sires disease p) c. si gens Anglorum ibi praepos distinct 56. Hinc est ait Peckius quod SodomitaruÌ„ vnà cum parentibus paruulos etiam coelesti igne consumpsit Dominus nempe quòd prospexerat paruulos hos idem flagitium admissuros Pec. in c. non decet de reg iur 6. and being encouraged with the example and patterne of their fathers filthinesse they are not onely prone to follow their sinfull steppes q) Mali corâ—â— maluÌ„ ouum metueÌ„da sunt paterni criminis exeÌ„pla L. quisquis C. ad L. Iul. maiest §. 1. but do sometimes exceede both them and others in all kinde of wickednesse The fift limitation is in the bastardes of kings and princes for a king may ex plenitudine potestatis make his vnlawfull issue capable of whatsoeuer by will deuisable hee dooth giue or bequeath vnto him r) Boer Decis 127 n. 17. Duen d. reg 366. lim 7. The sixt limitation is this the adulterous grandfather may bequeath anie thing to the lawfull children of his owne vnlawful sons or daughters or make them his executors s) Ias in L. haereditas C. de his quibus vt indig n 7. 8. Cui opinioni locum concedereÌ„ etiamsi hic Auê° habeat legitimos filios Cùm apud nos nulla sit necessitas instituendi suos vt supra ead part §. 1 but so cannot the incestuous grandfather t) Bald. in L. si quis incestus C. de incest nup. Couar in d c. 8. de spoÌ„sal 2. part §. 5. n. 13. The seuenth limitation is this that the testator may bequeath vnto his incestuous or adulterous daughter a competent portion for her dowrie or preferment in mariage for this is accounted all one as if he did bequeath it vnto hir for hir alimentation v) Panor in d. c. cuÌ„ haberet n. 5. Bar. in d. Auth. ex complexu quae conclusio ampliatur per Petr. Duen verb. filius reg 367. ampl 3. The eight limitation is this that an executor may make the testators bastard his executor x) Bar. in L. si his ff de vulg sub Bald. in L. eaÌ„ qua C. de fidei commis n. 4. Clar. § testium q. 31. Intellige tamen nisi coniecturae interuenerint ex quibus fraus praesumatur Grass §. Institutio q. 7. n. 13. The ninth limitation is when the adulterous parents doo solemnize lawful matrimonie together before the birth of the childe y) Praepos in c. tanta vis Qui filij sunt legitimi extra n. 10. Card. eod c n. 7. Melch. Kling Tract de caus inrÌ„ion fol. 85. 86. for example A married man doth beget a single woman with childe for this is adulterie by the laws ecclesiastical of this realme z) Card. praepos alij in d. c tanta vis Kling vbi supra c. nemo 32 q. 4. Panor in c. transmissae de eo qui cog consang vx extra Clar. §. adulterium n. 2. although by the ciuill lawe it is but fornication a) L. 1. C. de adul L. inter liberos ff ead Clar. vbi supra immediatelie after his wife dieth after whose death he marieth the woman for so he maie b) Nisi praeter copulam mortis machinatio interuenisset vel fides data fuisset quia tunc non valet inter eos matrimonium iure caÌ„ c. super hoc c. significasti de eo qui dux in matr quam poll per adul extr sed an dissolui possint hodie nuptiae huiusmodi multum dubito occasione statuti H. 8. an 32. c. 38. after the mariage the child is borne In this case the childe is not onely capable of anie testamentarie benefite but is reputed a lawfull childe and not a bastarde c) d. c. tanta vis DD. ibidem as heeretofore hath beene disputed more fullie d) Supr part 4. §. 15. Concerning those bastards which are begotten of single persons such I meane as may lawfullie marrie together then in case the mother were a maide or an honest widdow immediatelie
peculiar to the fathers testament amongst his children 29 Priuiledges of a testament ad pias causas what they be 30 Priuiledges belonging to a military testament or amōgst children whether they belong to a testament ad pias causas 31 Priuiledged testaments being soūd without date which is presumed to be later 31 A Prisoner whether hee may make a testament 46 Probation of testaments belongeth to the Bishop of the dioces where the testator dwelleth 221 Probation of testamentes sometime belongeth to other then to the Bishop 221 Probation of testaments to be made by the executor 222 Probation of the testaments to be made after the death of the testator not before 223 Prodigall persons whether they be intestable 60 Prochein Amie accomptable to the warde after his full age 99 Prohibition of the first mariage more odious then the second 150 Prohibition of alienation sometimes to be obserued as lawfull sometimes not 154 Prohibition with a cause lawfull 154 Proofe of making the testament to be made either by witnesses or by writing 185 Proofe requisite in making an accompt 234 Protestation of feare by the testator whether it be a sufficient proofe of feare or not 242 A Pure appointment of an executor what it is 114 Q Of the Quantitie of lands deuisable 103 Of the Quantitie of goods and cattels deuisable 104 What Quantitie of goods is due to the wife and children 104 A Quantitie bequeathed first to one and afterwards to an other whether this be an ademption or translation of the former legacy 285 Whether a Queene may make her testament 48 Questions about the tuition of children 95 Questions about conditions 126 Questions about accepting or refusing of the executorship 208 Questions about the making of an Inuentary 217 Questions about the probation of testaments 221 Questions about the paiment of debts and legacies 228 Questions about accompts 232 Questions about clauses derogatory 265 R Rare is that definition which can not be ouerthrowne 4 Of Reason destitute cannot make a testament 8 Reasons tending to this purpose that a King may by his testament make away his kingdome 66 A Resonable part whether it be due to the wife and children when there is no custome 105 The Reason of the lawe which leaueth all to the disposition of the testator 106 The Reason of the custome whereby the libertie of the testator is restrained 106 Reasons wherefore executors are accomptable 232 Referring of the testators will to an others will sometimes lawfull 148 By Refusal before the ordinary whether the coexecutor be excluded 183 By Refusall of the executorship the ordinary hath power to commit administration 208 By Refusall of the executorship whether the executor loose his legacy 208 After Refusall whether the executor may meddle as executor 216 Regular persons 64 Religious persons cōpared to dead men 64 Religious persons compared to bond mē 64 What Remedie the creditors legataries haue during the suspence of the condition of the executorship 169 Rentes whether they may be recouered by the executor 211 The Residue of the testators goods whether the executor may conuert to his owne vse 214 Residue of the testators goods to bee distributed 235 Resolued to refuse the executorship must not meddle as executor 236 Of Reuocations some be generall some speciall some singular 266 Reuocation generall what it worketh 266 Reuocation special what it worketh 266 Reuocation singular what it worketh 267 Reuoked by what means may that testament be wherein is a speciall clause derogatorie circūscribed with certein limits 267 Reuoke his testamēt may euery one 268 Reuocation of a mans testament is not presumed 268 Reuocation sometimes presumed 269 Rigor of the Ciuill lawe concerning testaments 17 The Rigor of the Ciuill lawe iustly reformed 17 S Secular clarkes 64 Sentence what it signifieth 7 Sentences iudiciall of two sortes 9 Sentence how it differeth from this word disposition 11 A simple legacy beginneth to be due at the death of the testator 289 Seuerall sortes of sentences haue seueral effects 7 How a testament differeth from other Sentences 10 A Slaue what he is 43 A Slaue cannot make a testament 43 A Slaue hath nothing of his owne 43 A Sodomite who 58 A Sodomite cannot make a testament 58 He that hath sworne not to make a testament whether hee may make a testament 60 Solemne testamentes not vsed in England 17 What Solemnities are requisite in our English testaments 6 Souldiers wherefore they enioy so great priuiledges about their testaments 25 Soldiers wherin are they priuiledged cōcerning their testaments 25 Souldiers priuiledged not onely in respect of their owne persons but others also 26 Souldiers priuiledged in respect of solemnities testamentary 26 Souldiers priuiledged in respect of the substance or forme of a testament 26 Three sortes of Souldiers 26 Souldiers armed 26 Souldier during minoritie whether he may make a testament 35 A Ship being bequeathed the same afterwards altered and renewed the legacy is extinguished 278 Studie practise of the law profitable to the common wealth 27 A Stranger whether he may appoint a tutor to an others child 97 Substitutions of diuers kindes 177 Substitutions haue sundry effects 177 The Substitute executor is not to be admitted so long as he which is instituted in the first degree may bee executor 178 The first Substitute being repelled whether the rest be repelled likewise 178 The Substitute is not alwaies excluded by the admission of the executor first instituted 178 The Substitute ought to succeede in that part and quantity which was assigned to the former executor 179 Sufficiency of goods whether it be presumed 221 T Testament and last will haue diuers definitions 2 This word Testament is sometimes taken in a generall signification sometimes in a speciall 2 This word Testament taken generally doth not differ from a last will 3 A Testament taken specially or according to definition is but one kinde of last will 3 A Testament what it is 3 Testaments must be iust 5 Testaments must be perfect 6 What maketh a Testament to differ from other kinds of last willes 7 The Testament not to be referred to an others will 10 The Testament of no force vntill the testator be dead 10 Testaments amongst children vnperfect yet properly testaments 20 Testaments whē they be properly so called 21 Testaments fauourably expounded 24 Testaments amongst children what it is 29 Testaments amongst children presumed to be last 29 Two Testamentes appearing and no proofe which is first or last both are void 29 Testament ad pias causas what it is 30 Two Testaments priuiledged found without date which is presumed to be the later 31 Testament may be made by any person which is not forbidden 34 Testament made in minority whether it be good if the testator liue vntill hee come to lawfull age 35 Testament made during the time of madnes whether it be good when the testator is come to himselfe 36 Testament made by a lunatike person whether it be presumed to haue bene