The Principal Laws of England, Treatise · Part 14
Of perceners.
Hitherunto I hauehave made a compendious and short declaracyon of estates of al sortes. But where I sayde that among susters there is no prerogatyue or preminence concernyng the inheriting of theyr auncestoures landes, but that they shall be al togither inheritours, and make as it were but one heyre: it is expedient to make a further processe in this behalfe, and to shew howe & in what maner this partition shall be made.
But ye shall vnderstande that there be besyde parceners at the common lawe, whyche be onelye susters, also parciners by custome, whiche is amonges brothers contrarye to the course of the common lawe, and this custome is in Kent, and in other places where landes and tenemētes be of the tenure of Gauel kynde.
Ye shall thefore knowe y• whan a mā is seised of landes in fee simple or see tayle, and hath no issue but doughters, and die, and the doughters do enter in to the landes thus descēded vntounto them, nowe they be called parceners, or coheyres, & by a wryt called, De ꝑtitione facienda brought by on of them agaynst the others, they shal be constrayned by the lawe to suffre an egall particion to be made of the landes bytwene them.
Nowe partycion maye be made in sundrye wayes. One waye is whā they them selues do make particion bytwene them of the hole herytage and do agree vntounto the same and entre eueryevery one in to her parte so alotted vntounto her.
An other is whan by all theyre agremente an consente one common frende do make the particion. In whych case the eldest syster shal hauehave the fyrst election, and after her the seconde suster, and so forth. But if they agree that theldest suster shall make the particion, and she maketh it, then theldest shal not chuse fyrst, but shall suffer all her susters to chose before her, as it is thought.
There is also an other forme of particion, whiche is egally to diuide the landes into so manye partes as there be coheires or parciners, and to wryte eueryevery parte so diuided in a seuerall scroule of paper, and to putte the sayde scroulles in to a bonette, or to enclose them seuerally in balles of waxe, and than the eldeste suster to chuse whyche balle she wyt, or to put her hande in to the bonet and to take a scroule, & to holde her to her chaūce and allotment, and so consequentlye eueryevery suster after other.
And ye shall note, that particion by agrement maye as well be made by nude and bare wordes wythout wrytynge as by wrytynge.
That yf any of the parceners wil not suffre any particion to be made than may the other that wolde hauehave partition, purchase a write called De partitione facienda agaynste them that refuse partition, to compell the same to suffer partition to be made accordyngly, and than by the iudgement of the courte the sheryfe by the seremente of twelue men shall make particion bytwene them, and shal assigne to eche suster her porcion, as he shall thynke good, wythout gyuyng anye election to the eldeste.
And if two Manours of meeses descende to two susters, and the maners be not of egall value, than may she, to whom the lesse maner is allotted, hauehave assigned vntounto her a rente proportionably out of the others maner.
Finally, ye shall vnderstande, that if a man be seased of landes in fee semple, & hath issue two daughters, and giueth wyth one of his daughters to an other man that is to mary her the thirde or fourth parte of his lande in franke mariage, and dyeth, if in thys case the daughter that is in this wise auaunced, wyll hauehave her porcyon of her fathers heritage, she muste putte her lande gyuen vntounto her in francke mariage in hochepot newe agayne. I meane she must be contēted to suffer her sayde landes to be commixte and mengled wyth the other landes of whyche her father dyed seased in fee simple, so that an equall diuision maye be made of the hole, or elles she shall hauehave no parte of those landes, of which her father died seased. But if her father had made vntounto her but a common gifte in taile, or a feffemēt in fee, she shulde not nede to put her landes in hochepot, but may retayne them styl, & also hauehave as good a part of the rest of the landes of which her father dyed seased, as her other sister or sisters. For a gyfte in francke maryage, is accompted the moste free or moste liberall gyfte that can be, and that whyche the lawe iudgethe to be onelye for the aduauncement and be stowynge of the daughter, where as feffementes in fee and also common giftes in taile be accustomably for other causes, and for the aduauntage rather of the gyuour, or feffour then of the taker.