The Orphans Legacy, Part 1

The Orphans Legacy · Part 1

p. 1THE ORPHANS LEGACY. The FIRST PART. OF Teſtaments and Laſt VVills.

CHAP. I. What a Teſtament, a last Will, and Codicil is: And how they differ.

A Teſtament is a Juſt Sentence of our Will, touching what we would have done after our death, with the appointment of an Executor. aaL. 1. ff. de teſta.Exchange the words [Juſt Sentence] into the words [Lawful Diſpoſing] and then it defines a Laſt Will. bbMant. de con. ult. vol. lib. 1. tit. 4. n. 10.And if inſtead of [with &c.] you ſay without the appointment of an Executor, you give the definition of a Codicil. ccIbid. tit. 8.But an Executor and a Laſt Will or Teſtament are ſuch Relatives as the one cannot be without the other. ddl. 10. ff. de jur. Cod. Plow. Com. 185. in Woodward & Darcyes Caſe.Inſomuch, that although much be written in the name of a Will, many Legacies bequeathed, and many things appointed to be done; yet if no Executor be named, expreſſed or implyed, it is no Laſt Will or Teſtament. eeInſt. de haered. l. 1. l. 2. ff. de Vulg. Subſtit. l. haered. palam. ff. de Teſtam. & Broo. tit. Execut. 20.Thus a Teſtament is a Juſt Sentence of our Will touching what we would have done after our death. A Laſt Will is a Lawful Diſpoſing touching what we would have done after our death. And a Codicil is a Juſt Sentence of our Will touching what we would have done after our death, without the appointing of an Executor.

p. 2From the ſaid Definition of a Teſtament, the Legal Inferences are ſix, viz. 1. That a Teſtator in his Will may not command Six Inferences from the definition of a Teſtament.or order any thing againſt Juſtice, Piety, Equity or Honeſty. 2. That it be full and perfect without defect or imperfections, either in reſpect of Solemnity, or in reſpect of Will and meaning. 3. That it ought to be adviſedly and deliberately made, and not abſ que animo Teſtandi. 4. That the Teſtator ought to be ſui juris, in reſpect of what he diſpoſeth in his Will. 5. That his Will be independent, not ſuffering the leaſt coaction or dependence on the will or pleaſure of any other. 6. That the Teſtament receives life by the Teſtators death, and is of no force till his deceaſe.

A Teſtament is frequently called a Will or Laſt Will; for theſe Such a Teſtament as whereto the appointment of an Executor is eſſential, doth properly refer to Goods and Chattels; for Lands by vertue of the Statute may be deviſed by a Will in writing where no Executor is named.words are commonly Synonymous and promiſcuouſly uſed: yet ſome are of Opinion, that they underſtand it moſt properly, who limit a Will only to Land, and a Teſtament only to Chattels requiring Executors, which a Will only for Land doth not require: For it ſeems that by the Common Law where Lands or Tenements are only deviſed by writing, albeit there be no Executor named, yet that is properly called a Laſt Will; and where it concerns only Chattels, a Teſtament. ffSheph. Epit. cap. 155.The truth is, a Teſtament taken ſtrictly according to the ſaid definition differeth from a Laſt Will, ggD. D. poſt gloſ. in dict. l. 1. ff. de teſta.yet not as oppoſite thereto, but only as the Special differeth from the General; for every Teſtament is a Laſt Will, but every Laſt Will is not a Teſtament. In a word, a Laſt Will is a general word, and agrees with each ſeveral kind of Laſt Wills or Teſtaments. hhMantic. ubi ſup. tit. 5.But a Teſtament properly ſo called, is only that kind of Laſt Will wherein an Executor is named or appointed.

Plowden in his Commentaries doth define a Teſtament to be the Witneſs of the mind, and to be compounded of theſe two words, viz. Teſtatio and Mentis: But this is no adequate definition of a Teſtament; neither is it a compound word, iiAul. Gel. lib. 6, c. …2. to Serv. Sulp.but a ſingle word, ſuch as is Calceamentum, Paludamentum, and the like. And if it be demanded whether a Teſtament may be good in Law without a Seal, it is Anſwered in the Affirmative; for a Seal is Sealing not abſolutely neceſſary to a Will.not abſolutely neceſſary to a Teſtament, though it may be fit and expedient. kkOffic. ex cap. 2.For a Will not being properly and legally a Deed, may be good enough without a Seal, which is one eſſential part of a Deed; yet hath a Will the force and effect of a Deed.llIbid.

p. 3CHAP. II. Of the ſeveral Diſtinctions or kinds of Teſtaments.

A Teſtament is either Solemn aaL. hac conſult. C. de Teſta.or Ʋnſolemn. bbl. 1. ff. de iniuſt. rupt. & irrit. teſta.This though the firſt and greateſt diſtinction of Teſtaments, yet of leaſt force or uſe with us now in England. 2. Teſtaments are either written or Nuncupative. ccMynſ. Inſt. de teſta. ordin. §. fin.3. They are either priviledged or unpriviledged. ddMant. ubi ſup. l. 1. tit. 57.Of Priviledged Teſtaments there are three ſorts, whereof ſome are called Militarie Teſtaments; others are called Teſtaments only among the Teſtators own Children; and others are Teſtaments to Charitable and Pious uſes. But if no Executor be named or appointed, then it hath not the name of a Teſtament, yet it ſhall retain the name of a Laſt Will, and comprehends one of theſe three, viz. either a Codicil, or a Legacy and Deviſe, or a Gift in regard or by reaſon of death.

CHAP. III. Of Teſtaments Solemn and Ʋnſolemn.

IN Solemn Teſtaments are comprehended the Solemnities of the Civil Law; as the preſence of ſeven Witneſſes, their ſubſcription or ſubſignation; the making or expediting the act of the Will it ſelf at one and the ſame time; with divers other Solemnities neceſſarily required by the Civil Law as Eſſential to a Teſtament, whereof we have no uſe here in England, being not obliged to ſuch Ceremonies.aaTract. de Rep. Angl. lib. 3. cap. 7. & Lynw. Conſt. in cap. Stat. verb. probatis, tit. de teſta. lib. 3. & Bract. de Leg. & Conſuet. Angl. l. 2. c. 25.

In Ʋnſolemn Teſtaments the ſaid Ceremonies are omitted; and ſuch are our Teſtaments here in England, wherein we are no further obliged than to the obſervation of ſuch Requiſites as are neceſſary Jure Gentium, which requires but two Witneſſes: bbMant. ubi ſup. lib. 6. tit. 3. nu. 9. in fine.And ſaving in a Deviſe of Land, wherein Writing is alſo neceſſary, and that it be made in the Teſtators life time. ccSt. H. 8. an. 32. cap. 1.The Teſtator (if he pleaſe) may make uſe of more than two witneſſes, and procure their ſubſcription, yea for prevention of Forgery to every page of the Teſtament, but no obligation hereto.

p. 4CHAP. IV. Of Teſtaments Written and Nuncupative.

1. Teſtament Written, what?

2. Difference between Deviſe of Lands and Bequeſt of Goods.

3. Lands of Burgage tenure and by Cuſtome deviſeable, may paſs Nuncupatively.

4. Naming Executor not neceſſary in a Will, only for deviſe of Lands.

5. Notes taken in writing-ſufficient for deviſe of Lands.

6. Teſtament Nuncupative, what?

7. The Will whether Nuncupative or Written, in caſe the Executors Name be omitted out of the writing?

8. Law Caſes relating to this ſubject.

§. 1. A Written Teſtament is ſuch as at the time of making thereof is committed to writing. aaMynſ. Inſt. de teſta. ord. §. Sed cum paulat.By which words are excluded ſuch Teſtaments as are afterwards put into writing. For being firſt made by word of mouth they ſtill remain Nuncupative, notwithſtanding the reducing thereof into writing after the Teſtators death. bbMynſ. ibid. §. fin.Among other advantages that a Teſtator hath by a written Will this is one; that he may conceal the Contents thereof from the Witneſſes, ccL. hac conſult. Cod. de Teſta. & gloſ. ibid.which in a Nuncupative Will he cannot do. And it is ſufficient, if taking his Will in his hand he ſay unto the Witneſſes, This is my Laſt Will and Teſtament, or herein is contained my Laſt Will; or other words to the like effect.ddAuth. & non obſervato. Cod. de Teſta. & DD. ibid.

2. As touching the diſpoſition of Land of Inheritance by Will, if it be not fully written before the Teſtators death, ſo far at leaſt as concerns the diſpoſition of the ſaid Land, it may not be for that part made good by reducing it to writing after the Teſtators death; but as touching Goods and Chattels it may. eeOffic. Exec. cap. 2.Nevertheleſs if it be written before the Teſtators death, though it be never brought nor read to him after the writing thereof, yet is it good enough, and that not only for Land, but alſo for Goods and Chattels, provided that there be an Executor named. ff6 H. 6. Dyer. 32.And this ſhall be a Will in writing and not verbal only, yea though it want the ſubſcription of the Teſtators Name. ggOffic. Exec. ubi ſupra.For many cannot write at all, and ſome want hands: Nor is the ſubſcribing the name of the Maker any eſſential part of a Deed, much leſs of a Will, which needs not ſealing as a Deed doth.

3. Lands and Tenements deviſeable by Cuſtome may paſs by p. 5a Nuncupative Will for any time whatſoever; for in a Deviſe of Lands, Tenements and Hereditaments held in Burgage-tenure, it is not neceſſary that the ſame ſhould be written, becauſe ſuch may paſs ſufficiently by Will Nuncupative, hhSwinb. part. 1. §. 11. n. 5.becauſe ſuch Lands were deviſeable before the making of the Statute of H. 8. enabling to deviſe Lands, Tenements and Hereditaments by Will in writing in the Teſtators life-time, which cannot paſs by a Nuncupative Teſtament or Will without writing: iiStat. H. 8. an. 32. c. 1.So that Lands of Burgage-tenure, and by Cuſtome deviſeable may paſs Nuncupatively, though Lands of other tenures are not deviſeable but by Will in writing.

4. Though the naming or appointing of an Executor be eſſential to conſtitute a Teſtament or Laſt Will, yet this properly refers only as to Goods and Chattels; for a man may by his Laſt Will in writing deviſe his Lands, Tenements and Hereditaments, though he make no Executors, becauſe an Executor hath nothing to do with the freehold of Land.

5. If the Writer doth only take Notes from the mouth of the Teſtator of his Laſt Will, for the deviſe of Lands, Tenements and Hereditaments, and afterwards write the ſame, but the Teſtator dies before it be ſhewed unto him; yet this is ſufficient for a Will in writing for the coveying of Lands, Tenements and Hereditaments. kkDyer i… Ca… inter Sack vile & Browne.Likewiſe it is ſufficient if Notes or Articles be made and read to the Teſtator; though the ſame be not ingroſſed at large or in form of Law until after the Teſtators death.llIbid. ſup. ult vol. cujuſdam Hanton.

6. Teſtaments are called Nuncupative, when the Teſtator without any writing doth declare his Will before a ſufficient number of Witneſſes; mmInſt. de teſt. ordinan. §. fin. & l. heredes. ff. de teſta.and ſuch Nuncupative Will is of as great force and efficacy (except for Lands, Tenements and Hereditaments) as any written Teſtament. nnl. hac Conſultat. §. per nuncupat. C. de teſta.Yea this verbal, oral, or Nuncupative Will, being after the Teſtators death reduced to writing, and having the Court Seal affixed thereunto, is of as good validity touching the diſpoſal of Goods and Chattels, as if it had been written in the Teſtators life-time.ooStat. 14 H. 6. 5. & 5 H. 5. & … M. 15. & …6 Eliz.

7. Although many Legacies be made and written in a Will, and many things expreſſed to be done, yet if no Executor be named in the writing, only A. and B. by word of mouth appointed to be Executors; this ſhall not amount to a Will in writing, but to a Nuncupative will only; ppOffic. Exec, ubi ſup.becauſe one eſſential part of the Will, (viz. the appointing of an Executor) is omitted out of the writing. Nay, the appointing of him Executor, who is named in ſuch a Note left with C. D. is no ſufficient making of an Executor at all. qqSum. Silv. tit. de teſta. fol. 443. 6.Nor is the appointing of any one by a doubtfull and uncertain Name a ſufficient making either of an Executor or Legatary, rrInſt. de Legatis. §. incertis.unleſs ſome other ſufficient circumſtance p. 6doth make it plainly appear whom the Teſtator meant; ſo tender and cautious is the Law of fixing the intereſt of any upon meer doubts and uncertainties.

8. A man took Notes of a Will of one who lay ſick, and afterwards he drew up the Will in writing, but the ſick perſon dyed before it was ſhewed to him. Yet it was the opinion of the whole Court, that the ſame was a good Will within the Statute of 32 H. 8. to convey Socage Land. Trin. 6 E. 6. Dyer, 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Caſe, where Articles were read to the Deviſor concerning the diſpoſition of his Lands, and the Articles were written and engroſſed after his death; and yet it Hugh. Abridg. verb. Wills and Teſtaments.was a good Will within the ſaid Statute of 32 H. 8.

A man intended Land to J. S. for life, the remainder to J. D. and before the remainder was written the Deviſor dyed. It was the opinion of the Court, that the ſame was a void Deviſe for the whole Lands within the Statute of 32 H. 8. becauſe that the one did depend upon the other: But in that caſe it was holden, that if a man ſeiſed of two Acres, intends one of them to J. S. and the other to J. D. and the Deviſe to one is written, but the Deviſor Trin. 11 Jac. in C. B. Caeſar and Lakes Caſe. Adjudged acc. Hugh. Abridg. Ibid.dyeth before the Deviſe of the other Acre to the other is written; It is a good Deviſe for the Acre which is written, but not for the other Acre.

B. Brought Writ of Entry in nature of an Aſſize againſt his Fathers Wife. The Caſe upon Evidence was this, viz. H. B. the Brown and Browns Caſe. Mich. 4 & 5 P. & M. Anderſ. Rep. Caſ. 85.Mic 4Plaintiffs Father, and Husband of the ſaid Wife, being ſick at London ſends for A. deſiring him to write the Laſt Will and Teſtament of his Lands. A. deſires B. to declare what he would have his Laſt Will and Teſtament to be, and who to be his Executors, whereupon A. wrote ſhort Notes of his Laſt Will, and every Legacy, and who ſhould be his Executors, then return'd to his own Houſe, there wrote the ſaid Will in Order and Form, and therewith returning to the Houſe of H. B. within half an hour after 12, intending to have read the ſame unto him, was then told that the ſaid H. B. dyed at twelve of the clock juſt before. Whereupon A. delivered the ſame to the Executors that were therein named. The Wife enters on the Teſtators Tenements, and what was Deviſed to her, the Son enters upon her, the Wife re-enters, whereupon the Plaintiff brought his Writ. The Opinion of all the Juſtices was, That it was a good Will in writing, according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given; whereupon it paſſed for the Wife, and ſhe enjoy'd the Land.

p. 7CHAP. V. Of Teſtaments Priviledged and Unpriviledged.

1. Teſtaments Priviledged what, and how many kinds thereof.

2. Military Teſtaments, their priviledges.

3. Teſtaments made in favour of the Teſtators Children, their priviledges.

4. Teſtaments made for good and pious uſes, their priviledges.

5. Teſtaments Ʋnpriviledged, what?

§. 1. TEſtaments Priviledged are ſuch as are qualified by ſome ſpecial freedome or benefit contrary to the common courſe of Law, aaMant. ubi ſup. lib. 1. tit. 57. in ſin.or by ſome ſpecial freedome are diſcharged from the uſual Requiſites and Obſervations of Common and General Law; whereof there are (as in the ſecond Chapter) chiefly theſe three kinds, viz. 1. Military Teſtaments. 2. Teſtaments made in favour of the Teſtators Children. 3. Teſtaments for good and pious uſes.

2. The priviledges of Military Teſtaments, or of a Teſtament made by a Souldier are many, but chiefly theſe Four; viz. 1. A Souldier is not diſabled from making his Teſtament by any of thoſe impediments which diſable others, unleſs for want of Reaſon, or other like grand cauſes whereby he is diſabled Jure Gentium. bbMynſ. de Milit Teſt. in pr.2. Whereas divers perſons are prohibited from being Executors or Legataries to other perſons, yet the Law doth not ſo prohibite them from being Executors or Legataries to a Souldier, ſave in ſome very few Caſes ſpecially limited in the Law. ccBart. in dict. tit.3. Souldiers are clearly acquitted from the obſervation of the Solemnities of the Civil Law in making of Teſtaments. ddl. Divus. ff. de mil teſt. §. plane. Inſt. eod.4. Whereas no other perſon can dye with two valid Teſtaments, yet a Souldier may, and both Teſtaments ſhall ſtand good according to the intent or meaning of the Teſtator. eel. querebatur. ff. eod.Other priviledges there are peculiar to Souldiers in making their Teſtaments, but they being many, ffVaſq. de ſucceſ. reſol. lib 2. §. 20. ubi enumerat 70 Privilegia militibus indulta.it would not anſwer the deſign of a Compendium to make a ſpecification thereof. Only let it not here eſcape our Obſervation, that theſe Priviledges belong only to ſuch Souldiers as are in expedition or actual Service of war, ggl. pen. C. de teſt. mil. & Mant. ubi ſup. l. 6. tit. 1. nu. 32. §. ſed hactenus. Inſt. de mil. teſt. & Gail. Obſ. 118.and not to ſuch as lye ſafely and ſecurely in ſome Caſtle, Garriſon, or other like place of defence.hhMynſ. §. illis autem. Inſt. de mil. teſt. & Jul. clar. §. teſtam. q. 15. in fin.

3. The priviledges of Teſtaments made in favour of the Teſtators p. 8Children, are chiefly theſe three, viz. 1. If two Teſtaments be found after the Teſtators death of divers tenures, and it appear not which of them is the latter Teſtament; In this Caſe that ſhall be preſumed the latter, and ſo prevail, which is made in favour of the Teſtators Children. iiBart. in l. 1. §. 1. de bon. poſſ. ſecund. Tab. ff. Clar. §. teſta. q. 100.2. The Teſtament made in favour of the Teſtators Children, is not ſo eaſily revoked as poſſibly other Teſtaments may be. kkAuth. hoc int. Liberos, eod. de Teſta. & Gloſ. ibid.3. A Fathers Teſtament among his Children ſhall take effect, though there be no Witneſſes to prove the ſame, being written or ſubſcribed by the Teſtators hand, or by him procured to be written by ſome other. llBald. Paul. de Caſtro. & Jaſ. in Auth. Quod ſine C. de Teſta.Howbeit theſe two laſt Priviledges by the Cuſtome of England, the latter of them eſpecially, are common to all Engliſh mens Teſtaments; ſo alſo are all other priviledges which the Law doth indulge to ſuch Teſtaments inter Liberos.

4. The Priviledges of Teſtaments made for good and pious uſes (being ſuch as are made to Orphans, Widows, Strangers, Priſoners, Lame and Diſeaſed perſons being poor and indigent, to Hoſpitals, Schooles, Colledges, alſo for the redemption of Captives, repairing of City-Walls, Bridges, and ſuch like) are chiefly theſe four; viz. 1. This kind of Teſtaments may be written with ſtrange and unaccuſtomed Characters, yet ſhall be good and effectual. mmMant. ubi ſup. l. 6. tit. 3. n. 3. & Tyraq. de Privil. piae Cauſ. c. 12.2. If the Teſtament ad pios uſus be found Cancelled, and it be not known whether the Teſtator did willingly cancel the ſame, the Law preſumes it to be unadviſedly cancelled, whereas in other Teſtaments the contrary is preſumed; but in this kind of Teſtaments ad pios uſus, if it be not certainly known that the Teſtator did wittingly cancel the ſame, it ſhall be in effect as if it had not been cancelled at all. nnCo…ar. in Rub. de teſt. part. 3. nu. 19. & Mant. ubi ſup. l. 12. tit. 2. n. 32.3. In this kind of Teſtaments it is ſufficient that the condition (if any be) be obſerved and accompliſhed by other means than according to the preciſe form of the condition. ooTyraq. ubi ſup.Whereas in other Teſtaments or Legacies, it is not ſufficient unleſs the condition be preciſely obſerved. ppl. Maevius. & l. qui haered. ff. de Cond. & dem.4. The Teſtament ad pios uſus is not void in reſpect of uncertainty, as other Teſtaments are. qqBart. & Jaſon. in l. 1. C. de Sacroſ. Eccl. & Graſ. Theſ. Com. Opin §. Inſtit. q. 12.And generally moſt Priviledges that do belong to other priviledged Teſtaments, do belong alſo unto this Teſtament ad pios uſus.

5. Teſtaments Ʋnpriviledged are ſuch as have not any benefit or freedom above, or contrary to the common courſe of ordinary Law, but are generally obliged to the obſervation of ſuch Requiſites as the Law regularly appoints for all Teſtaments.

p. 9CHAP. VI. Of Codicils.

1. The etymon, and original of the word.

2. The definiti… of a Codicil.

3. Codicil may be made with or without writing, before or after the Teſtament.

4. Who may make a Codicil; and whether more Codicils than one may conſiſt together?

1. A Codicil in the Etymologie thereof, doth ſignifie a little Book, Codicillus being but the diminitive of Codex: you may if you pleaſe call a Teſtament a great Book, and a Codicil a little Book or writing. The Original of theſe Codicils was meerly occaſional; for when by reaſon of the multiplicity of legal Solemnities requiſite to a Teſtament, which are not ſo to a Codicil, the Teſtator failing of ſufficient opportunity to make a Teſtament Solemn, was enforced to fly to the refuge of a Codicil for declaration of his Will to be performed poſt mortem: Or otherwiſe as additional to the Teſtament, touching ſomething therein omitted; or explanatory to it, touching ſomething therein ambiguous; or derogatory to it, touching ſomething therefrom to be detracted.

2. Every man that writes of this Subject abounds in his own ſence touching the definition of a Codicil; but he will be found leaſt in errour who defines a Codicil to be the juſt Sentence of our Will, touching that which we would have done after our death, without the appointing of an Executor. aaMantic. l. 1. tit. 8.Yet here obſerve, that the word [Juſt] is not ſo comprehenſive in this caſe as in the definition of a Teſtament; for here it doth not ſignifie thoſe Solemnities and ritual Formalities which are Teſtamentary, but only an excluſion of illegalities, and incluſion of ſuch perfections as are conſiſtent with the nature of a Codicil; ſo that we may not improperly infer, That a Codicil is a kind of an unſolemn Laſt Will.bbGraſ. Theſ. Com. Op. §. Codicil. in prin.

3. A Codicil may in effect be made either in writing or without it, ccGloſs. in Rub. c. de Codicil. & Minſing. in dict. Rub. Inſtit. & Weſemb. in ff. de jure Codicill.provided you do not call it a Nuncupative Codicil, that being an abuſe of words; for if a Codicil may, as aforeſaid, be called a Little Book or Writing, it is improper to call it Nuncupative; therefore although all the power and force of a Codicil may be made without writing, yet being ſo made it may not otherwiſe than improperly and abuſivè be termed a Codicil, but rather ſomething Loco Codicilli, and which hath the full force and effect of a Codicil. Alſo a Codicil may be made as well by him p. 10who dieth Inteſtate as by him who dieth Teſtate. ddl. conficiuntur in prin. ff. de jure Cod. & §. non aute n. Inſt. de Codicil.Neither is it material whether it be made before or after the Teſtament; eel. confic. ibid.for in both caſes it ſhall be reputed as part and parcel of the Teſtament, ffVigel. meth. jur. Civil. part. 4. l. 9. c. 23.and to have equal force with it; unleſs being made before the Teſtament it be revoked in the Teſtament, or be contrary to what is contained therein.ggMynſing. poſt gloſs. in §. non tantum. Inſt. de Codicil.

4. Perſons capable or incapable of making Teſtaments are even ſuch alſo as to Codicils hhBart. & alii in l. 2. de Legib. 1. & Graſ. Theſ. Com. Op. §. Cod. nu. 2.Yet a man may die with divers Codicils, and the latter ſhall not (as in divers Teſtaments) null the former, ſo as the one be not contrary to the other. iil. cum proponat. Cod. de Codicil.And if in ſuch Codicils (it not appearing which was firſt or laſt) one and the ſame thing be given to one perſon in the one, and to another perſon in the other, the Codicils are not void, but the perſons therein named ought to divide the thing equally betwixt them.kkGloſ. & DD. in dict. l. cum proponat. & Graſ. Theſ. Com. Op. §. Codic.

CHAP. VII. What Perſons are incapable of making Teſtaments or Laſt Wills.

REgularly every perſon hath full Power and Liberty to make a Teſtament or Laſt Will, aaInſtit. quib. non eſt perm. fac. teſt. in prin. & gloſs. ibid.and therein may diſpoſe of his Goods and Chattels, bbRoland. de Codic. n. 6.except ſuch perſons as are prohibited by Law or Cuſtome, ccGloſ. Inſt. ubi ſup. §. 1. & Graſ. Theſ. Com. Op. q. 26. nu. 1.whereof ſome are prohibited becauſe they want Diſcretion; ſuch are Children, Mad Folks, Ideots, Old Perſons grown Childiſh, and ſuch as are drunk: Others, becauſe they want Freedome and Liberty; ſuch are Villains, Captives, and Women Covert: Others, becauſe they want ſome of their principal Senſes; ſuch are the Deaf, and Dumb, and Blind: Others, becauſe they are Criminous; ſuch are Traytors, Felons, wilfull Self-murtherers, and the like. Others, becauſe of certain Legal impediments; ſuch are Out-lawed Perſons, men at the point of Death, Alien Enemies, and ſuch others. But here Note that all the ſaid perſons are not in all caſes abſolutely and utterly inteſtable; for that ſome of them are inteſtable, but in ſome Caſes only, as will more diſtinctly appear hereafter. Note alſo, that the King, his Heirs and Succeſſors may lawfully make their Teſtaments, and that Execution ſhall be done of the ſame. ddCook. Inſt. part. 4. cap. 74. Cur. Prerog. ubi Citat. Rot. Par. 16. R. 2. nu. 10. & Rot. Par. 1 H. 5. n. 13.The Lord Cook makes mention of the Teſtament of King H. 4. and his Executors refuſing, the Arch-Biſhop of Canterbury was to grant Adminiſtration with the Teſtament annexed.eeCook. ibid. See 1 H. 6. n. 18.

p. 11CHAP. VIII. Of perſons Inteſtable by reaſon of the want of Diſcretion.

1. Of Children in Minority.

2. Of Mad Perſons; and proof of Inſanity.

3. Of Ideots or Natural Fools.

4. Of Perſons grown Childiſh by reaſon of Old Age.

5. Of ſuch as are Drunk.

6. Law-Caſes relating to the third Paragraph of this Chapter.

1. AN Infant-Male at the Age of fourteen years, and Female at the Age of twelve years, may make a Teſtament touching Goods and Chattels; aal. qua aetate. ff. qui Teſta. fac. poſſint. & §. preteria. & Inſt. quib. non eſt permiſs. & l. ſi frater. C. qui teſta fac. poſs. & Cowel. Inſt. lib. 2. tit. 12.although both Sexes in conſtruction of Law are Minors or Infants untill the Age of twenty one years, bbDr. & Stud. l. 1. c. 21. & lib. 12. c. 28.till which Age neither of them can make any Conveyance of Land good in Law. ccStat. 34 H. 8. c. 5.And before the ſaid reſpective Ages of twelve and fourteen years neither of them can make any Teſtament at all, no, though it be ad pios uſus: ddJaſ. in dict. l. ſi frater.But at the accompliſhment of the ſaid reſpective Ages each of them may, even without the conſent of his or her Guardian eeJaſ. ibid.or Parent, if they have any Goods in their own right, make a Teſtament thereof, ffPerk. tit. deviſe. fol. 97.though not of Lands of Inheritance, ggStat. 34 H. 8. c. 5.unleſs the Cuſtome of the place doth enable them for it. hhPerk. ib. fol. 504.But before the ſaid reſpective Ages neither of their Teſtaments is good, though made by the approbation and with the conſent of their Guardians; iiJaſ. ubi ſupra.yea, though they afterwards attain to the ſaid Ages, and then neglect to ratifie them: kkl. preteria. Inſt. quib. non eſt permiſ. fa. teſt.But if he or ſhe hath attained to the laſt day of the ſaid Ages of twelve or fourteen years, the Teſtament ſo made by him in the very laſt day of the Age of fourteen years, or by her in the very laſt day of the Age of twelve years is as good and lawful, as if the ſaid day were then already expired; lldict. l. qua aetate. & ibi Bart.or if after the accompliſhment of the ſaid Ages reſpectively, he or ſhe doth expreſly approve and ratifie the Teſtament made during their minority, then is the ſame made good and effectual by this new declaration thereof.mmPaul. de Caſt. & alii in l. ſi frater. C. qui teſta. fac. poſs.

2. Such as are Mad perſons can make no Teſtament during the time of their inſanity of mind, nnl. furioſum. C. qui teſta. fac. poſs.no, not ſo much as ad pios uſus. ooBart. in l. 1. C. de Sacroſ. Eccl. n. 16.Nay, the Teſtament made at ſuch a time ſhall not be good, though afterward the party recover his former underſtanding; ppdict. l. furioſum.howbeit if ſuch Lunatick perſons have any Lucida intervalla, or intermiſſions, then during the time of ſuch freedome from the Lunacy they may make their Teſtaments betwixt the fits. qqIbid. & dict. §. preteria. & DD. ibid.And here Note, that every perſon is preſumed to be of p. 12perfect mind and memory until the contrary be proved. rrBart. in l. nec Codicillos Cod. de Codicillis.So that he that objecteth Inſanity of mind muſt prove the ſame; ssBart. ibid.for which it is ſufficient if he prove, that the Teſtator was beſide himſelf, or had loſt his Reaſon but juſt before he made his Teſtament, though he prove not the Teſtators madneſs at the very time of making the ſame, ttGloſ. in c. fin. de Succeſ. ab Inteſtat.unleſs the contrary be proved, or circumſtances to induce a contrary preſumption. uuMantic. ubi ſupra. lib. 2. tit. 5.For it is a very tender and difficult point to prove a man not to have the uſe of his Reaſon and Underſtanding; therefore it is not ſufficient for the Witneſſes to depoſe that the perſon was mad, unleſs withall they render upon knowledge a ſufficient reaſon thereof. wwBald. in dict. l. furioſum. & Maſchard. de probat. ver. furioſus.Neither is one Witneſs ſufficient to prove a man mad, xxMaſch. ibid. & Conſ. 127. n. 9.nor two, in caſe the one depoſe of the Teſtators madneſs at one time, and the other of his madneſs at another time; yyIbid.but both agreeing in time, if then the one Witneſs depoſeth of one mad act, the other of another mad act at one and the ſame time, theſe ſufficiently prove that the Teſtator was then mad, though they do not both depoſe of one and the ſame mad act. zzMaſch. poſt Ruin. ubi ſupra.But in contrary depoſitions theſe Witneſſes are to be preferred, which depoſe that the Teſtator was ſound of memory. aaGabriel. l. 1. Com. Conſt. tit. de Teſt. Con. 4. nu. 19.And if he uſed to have ſome intervals of Reaſon, and it be not certainly known whether the Teſtament were made in or out of his fits of Lunacy; in this caſe, if no argument of frenzie or folly can be collected by the Teſtament, it ſhall be preſumed to be made during the intermiſſions of the Lunacy, and ſo adjudged to be good; bbGraſ. Theſ. Com. Opin. verb. Teſta. q. 21. & Vaſq. de Succeſs. l. 1. §. 2. nu. 20.yea, though it cannot be proved that the Teſtator uſed to have any clear and calm intermiſſions at all, provided the ſame Teſtament be wiſely and orderly made, ccGraſ. 25. n. 4. & Boer. q. 23. n. 88. & Ludo. Deciſ. 1. nu. 13.otherwiſe not. ddBald. &. Angel. in dict. L. furioſum.For in this caſe, the leaſt word ſounding to folly is ſufficient to induce a preſumption that the Lunatick perſon had no intermiſſion of perfect Reaſon and ſound Memory at the making of ſuch Teſtament; for one fooliſh word in that caſe may fruſtrate the validity of the whole. eeAngel. ibid.But if a man who is of good and perfect Memory, maketh his Will, and afterwards by the viſitation of God, he becomes of unſound Memory (as every man for the moſt part before his death is) this Act of God ſhall not be a Revocation of his Will, which he made when he was of good and perfect memory. Cook. 4. part 124. Beverlyes Caſe.

3. Ideots are likewiſe excluded from making Teſtaments, nor may they diſpoſe either of their Lands, ffSt. H. 8. an. 34. c. 5.or of their Goods; ggSi hard. in Rub. C. qui teſt. ſac. poſ. nu. 16.But he that only is of a mean capacity or underſtanding, or one who is as it were betwixt a man of ordinary capacity and a fool, ſuch an one is not prohibited from making a Teſtament, hhSino. de Pret. de interp. …lt. vol. l. 2. dub. …o. 4provided that he hath underſtanding enough to conceive what is the nature of a Teſtament or Laſt Will, being well informed p. 13thereof; otherwiſe he being deſtitute of ſuch underſtanding is not fit to make a Will. iiCook lib. 6. in Caſu Paulet. le Marq. de Wincheſt.Here Note, that by the Laws of this Land, he that can meaſure a yard of cloth, or rightly name the dayes of the week, or beget a Child, ſhall not be accounted an Ideot or a Natural Fool; kkTerm of Law verb. Ideot. & Stamford. de Prerogat. Regis.yet it will not be indiſputably granted, that an Act ſo Natural as the begetting of a Child can ſo qualifie a Natural Fool as to render him in the charitableſt conſtruction of Law Teſtable. For if he be ſuch a Natural Fool, as that though of Lawful Age, yet cannot declare of about what Age he is, nor number twenty, nor knoweth his Natural Parents by their ſeveral names and Relations, or the like eaſie queſtions, ſuch an Ideot is undoubtedly inteſtable. ll3 Eliz. Dy. 203, 204.Notwithſtanding all which, if it may appear by ſufficient circumſtances and conjectures, that ſuch Ideots had the uſe of Reaſon and Underſtanding at ſuch time as they did make their Teſtaments, then are ſuch Teſtaments, good in Law.mmFranc. in dict. L. Furioſum. & Mant. lib. 2. cap. 15.

4. Perſons grown Childiſh by reaſon of old Age can no more make their Teſtaments then Children; nnSimo. de Praetis. de interpretat. ult. vol. lib. 2. Dub. 1. Sol. 4. nu. 22.yet old Age alone doth never deprive a man of the power of making his Teſtament: ool. Senium. C. qui teſta. fac. poſs.But when a man, by reaſon of extream old Age, is become even a Child again in his Underſtanding, or rather in the want thereof, or by reaſon of extreme old Age, or other infirmity is become ſo forgetful, that he now knoweth not his own Name, he is then no more fit to make a Teſtament then is a Natural Fool, or Child, or Lunatick perſon.ppl. ſin. C. de h…red. inſtit.

5. Such as are Drunk, during the time of their being Drunk can make no Teſtament that ſhall be good in Law: qqVaſq. de Succeſ. crea. l. 2. §. 13. Requiſ 7. nu. 8. & S…mo. de Praetis. ubi ſupra. l. 2. Dub. 1. Sol. 4. nu. 22.yet underſtand this, as only when he is ſo exceſſively drunk, that he is altogether deprived for the time of the uſe of Reaſon and Underſtanding, being, according to the Flaggon-phraſe, as it were dead-drunk; for if he be but ſo drunk, that his Underſtanding is but ſomewhat clouded and obſcured, and his Memory but troubled, he may in that caſe make his Teſtament, and it may be good in Law.rrIdem Vaſq. & Simo. de Praet ubi ſupra.

6. A. Executor of J. S. brought an Account againſt B. as Receiver of the monies of the ſaid J. S. upon Ne un que Receiver pleaded: It was found for the Plaintiff, and Judgment given, that he ſhould Account; and being in Cuſtody upon a Capias ad Computandum; he was found in Arrearages, and his body taken in Execution. Afterwards the Will was made void in the Eccleſiaſtical Court, for that the ſaid J. S. was an Ideot from his birth; which being certified by Writ into the Chancery, and thence by Mittimus into B. R. an Audita Querela was brought by B. ſetting forth all the ſaid matter, whereupon the Court demurr'd. 20203 Eliz. Dyer. 203. vid. Cook. 8. part. 147. in Dr. Drurie's Caſe. in H… Abridgment, verb. Wills and Teſtaments.It was ſaid by Cook, That in 35 H. 8. It had been Adjudged, That in that Caſe the Audita Querela did well Lie.

p. 14The Marqueſs of Wincheſter, by his Will in writing (as ſuppoſed) Deviſed divers Mannors to his Reputed Sons, Deviſing further, that they ſhould ſell divers Mannors, and alſo bequeathed Plate, and other Legacies to them. This Will was aſſayed to be Proved in the Prerogative Court; but it appearing by circumſtances, the ſaid Marqueſs to be Non compos mentis at the time when the ſuppoſed Will was made, it was moved for a Prohibition in B. R. becauſe a Will touching Lands, and a Will concerning Goods were both mixt together; and that in Caſe they ſhould there proceed as to the Goods, the ſame would prevent the Tryal in the Kings Bench, where a Will for Land ſhall be Tryed; for which Reaſon a Prohibition in that Caſe was generally (21) Trin. 31. Eliz. in B. R. Cook. 6. part. 23. The Marqueſs of Wincheſters Caſe in Hughs Abridgment. ibid.awarded. 2. In that Caſe it was reſolved, That a Teſtator at the making of his Will ought to be of a memory, not only to anſwer to ordinary and familiar queſtions, but alſo to have a diſpoſing memory, ſo as to be able to make a diſpoſition of his Lands with Reaſon and Underſtanding; and that That is ſuch a memory, which the Law calls Sanae Memoriae.

CHAP. IX. Of Perſons Inteſtable for want of Freedom or Liberty.

1. Of Villaines.

2. Of Captives.

3. Of Priſoners.

1. VIllaines are Inteſtable, if their Lord by Entry and Seizing take and enjoy all their Lands and Goods, aaBroo. Abridg. tit. Villen. & Perk. tit. Grants. fol. 6.otherwiſe their Wills are not void, but by ſuch Entry and Seizing before Probate they become voidable; bbDr. & Stu. l. 2. c. 42.Except of ſuch Goods, whereof ſuch Villains were Executors to others; for of ſuch Goods they may not only make their Wills, ccBroo. ibid. nu. 73.but alſo maintain actions even againſt their Lords, in caſe they ſhould take from them ſuch goods as they have by Executorſhip. ddIbid. nu. 68.But of this there is little or no uſe with us now here in England, as in former times.

2. A Captive, during the time of his Captivity, cannot make a Teſtament, eel. ejus qui ff. de Teſta. & Brac. lib. 2. §. 16. n. 5.yea, though he afterwards make an eſcape, yet the Teſtament made during the Captivity is void; ffDict. L. eius qui.but if it were made before his Captivity, then after his eſcape or enlargement it ſhall be as good in Law as if he had not been Captive at all. ggl. ratio. ff. de Capti…. & Graſ…. Theſ. Com Opin. §. teſta. q. 25.Likewiſe he that is alive and in Captivity (for the upholding of his Will which he made in his Liberty) is feigned by a Legal fiction to p. 15be dead the hour before he became Captive; ſo that if he dye in Captivity, yet is his Teſtament ſo made before his Captivity allowed, and his Executor ſhall have all his Goods as if he had died the day before his Captivity. hhl. lege Cornel. ff. de Teſta.Likewiſe if any perſon be taken by a Pirate, Turk, Infidel, or Chriſtian, with whom open War is not proclaimed, he ſo taken remaineth a Freeman in conſtruction of Law as to Teſtability notwithſtanding ſuch Capture, and therefore his Teſtament made during ſuch reſtraint ſhall be good.iil. qui a Latronib. ff. de Teſta.

3. Perſons condemn'd to perpetual Impriſonment cannot make a Teſtament; kkPanor. in Rub. …tra. de Teſta. & Graſ. Theſ. Com. Opin. §. Teſta. q. 28.But a perſon impriſoned only for debt, or the like, is not thereby diſabled to make his Teſtament, llBald. in l. 1. Cod. Si quis aliq. teſt. prohib. nu. 5.or is his Teſtament void, except it be made in the favour of him at whoſe Suit the Teſtator is impriſoned, on purpoſe to extort the ſame from him.mml. qui carcerem. ff. quod metus cauſa. & Mant. ſup. l. 1. tit. 7. n. 2.

CHAP. X. Of Women Covert.

1. Women Covert Inteſtable as to Lands.

2. They are Inteſtable as to Goods without the Husbands Licenſe.

3. They are Teſtable as to Chattels by Executrixſhip.

4. They are Teſtable as to things meerly in action, whereof they were not poſſeſſed during Coverture.

5. Whether they may accept Executrixſhip without their Husbands conſent, or the Husband Adminiſter in caſe of their refuſal thereof.

6. Caſes in the Law concerning this Subject.

1. THat Women Covert are Inteſtable for want of Freedome is not ſuch a general Rule in Law as to exclude all exceptions. It is true, a married woman cannot make her Teſtament of any Lands, Tenements, or Hereditaments, aaStat. 34 H. 8. c. 5.ſpecially ſhe cannot deviſe the ſame to her Husband, bb…ook. Abridg. tit. Deviſe. nu. 32, 34.though ſhe were not thereto conſtrain'd by him, but would do it of her own accord freely and voluntarily, and though ſuch Teſtament were made before her Marriage with ſuch Legatary-husband. ccArg. §. alio▪ Inſt. quib. mod. teſta. infir.And albeit the Wife ſurvive the Husband, yet the Teſtament made during Coverture is not good. ddc. non firmatur. de …. jer. 6. l. 1. §. 1. de Legat. 3.But yet if after her Husbands death ſhe approve and confirm ſuch Teſtament, made under Coverture, then this new Conſent or new Declaration of her Will makes the Deviſe good. eel. 1. §. 1. ff. de Legib.Alſo, if the Teſtament were made before Marriage, p. 16and ſhe out-live her Husband, it ſhall be good. ffPlowd. in Caſ. inter Brett & Rigden. f. 343.Alſo, where power of ſelling the Teſtators Land is given to a Wife-Executrix, there ſhe may ſell even to her own Husband, ggStat. 10. H. 7. c. 20.or to whom ſhe pleaſe.

2. Of Goods and Chattels the Wife cannot make her Teſtament without her Husbands Licenſe; hhBract. de leg. & Conſ. Angl. l. 1. c. 20. & Broo. tit. Deviſe nu. 34.for all the Goods and Chattels which the Wife had at the time of marriage, iiTract. de Rep. Angl. l. 3. c. 6. & Dr. & Stud. l. 1. c. 7.and all the Chattels real (if he ſurvive the Wife) belong unto the Husband by vertue of the ſaid marriage. kkDr. & Stud. ibid.Yet by the Husbands Licenſe ſhe may make her Teſtament even of his Goods, llLynwood. c. Statutum. verb. de Teſta. l. 3. & Bract. l. 2. c. 26. & Broo. tit. Deviſe. nu. 34.yea, though the Husband underſtand not of his Wifes Will, yet if after Probate thereof made by the Executors he deliver them the Goods therein Deviſed, he thereby ratifies the Teſtament, though he were not privy to the making thereof; mmPerk. tit. Deviſe. cap. 8. fol. 97.for the Goods being once delivered by him according to the tenour of the Will, it is then too late for him to revoke the ſame; nnIbid.Otherwiſe notwithſtanding his Licenſe given her to make a Will of his Goods, he may revoke the ſame at any time before the Probate thereof. ooBrook. ubi ſupra.Or otherwiſe having made her Will by her Husbands Licenſe, he may chuſe whether he will ſuffer it to be Proved; for his Conſent is neceſſary as well to the Approbation as to the firſt making thereof. And this extends alſo to the Goods which ſhe had in her own right before marriage, for thereby immediately all Chattels perſonal, and Goods moveable are ſo deveſted out of her into her Husband, that although ſhe ſurvive him, yet they return not to her again, but go to her Husbands Executor or Adminiſtrator.

3. Touching Goods which ſhe hath as Executrix to another the Caſe is otherwiſe, for ſuch do (whether ſhe or her Husband live or die) ſtill remain in and to her only, whereof ſhe may make her Will without her Husbands conſent, ppFitzh. Abridg. tit. Exec. nu. 20. & Brook eod. tit. nu. 11. & Perkins. tit. Deviſe. c. 8. fo 97. & Stat. 12. H. 7. cap. 24.and him (if ſhe pleaſe) Executor, for otherwiſe he may not have them after his Wifes deceaſe, qqOffle. of Exec. cap. 7. &. Coſ. Apol. par. 1. c. 3.becauſe of ſuch goods (the Wife dying without will) the next of Kin to the Wifes Teſtator may take the Adminiſtration, as de bonis non Adminiſtratis. rrOffi. Exec. ubi ſupra.And here Note, that though the Wife being Executrix to another, may without her Husbands Licenſe make her Teſtament of ſuch Teſtators Goods, yet ſhe may not bequeath them by Legacy without making an Executor. ssPlowd. int. Grimsby & Grantham. fo. 525.But if the Wife be made as well Legatary as Executrix, and ſhe accept of the Teſtators Goods, not as Executrix but as Legatary, in this caſe ſhe cannot diſpoſe of the ſaid Goods by Will or otherwiſe without the Husbands conſent; for by accepting them as Legatary ſhe makes them her own, and conſequently her Husbands. ttTract. de Rep. Angl. l. 3. c. 6.And Note further, that although the Wife being Executrix, may without her Husbands Licenſe p. 17make her Teſtament of ſuch Goods whereof ſhe is poſſeſſed as Executrix, yet the fruit and profit ariſing (during the Marriage) out of ſuch Goods ſhall accrew to her Husband, and not unto her ſelf as Executrix; ſo that without her Husbands approbation ſhe can make no Teſtament of ſuch fruits and profits ſo ariſing. uuSwinb. part. 2. §. 9. nu. 21. & part. 3. §. 6. n. 17.And if it doth not appear whether the Wife accepted the ſame as Executrix or as Legatary, ſhe ſhall by the Laws of this Land, (herein not agreeable to the Civil Law) be deemed and preſumed to have accepted the ſame as Executrix. wwPlowd. in Caſ. inter Paramor & Yardly & Dyer, fol. 277. An. Eliz. 10.Q. The ground or reaſon of ſuch preſumption.

4. A Wife without her Husbands Licence or Conſent may make her Teſtament of ſuch Goods and Chattels whereof ſhe was not poſſeſſed during marriage, and as to ſuch things ſhe may make her Husband Executor if ſhe pleaſe. xxBroo. Abr. tit. Teſt. n. 11. & Fitzh. Abr. tit. Execut. n. 109.And the Husband cannot by Will bequeath or make an Executor of an Obligation which he hath in right of his Wife, nor of any other thing meerly in Action. yyLe Abr. dez Caſes. edit. 1599. incerto Authore. q. 1. & 7 H. 6. fol. 2.For debts or things in Action are not deveſted out of the Woman into the Husband by marriage, yet ſhe cannot make an Executor thereof without her Husbands aſſent; zzOffic. Execut. cap. 17. Sect. 1.for during her life he may receive them or releaſe them, though after her death he ſhall not be entitled to them, unleſs his Wife make him Executor thereof, or after her death he take the Adminiſtration of her Goods, whereby he then becomes lyable for her debts out of the ſame when he ſhall have received them. aaIbid. & 12 H. 7. fol. 22.And thus alſo Chattels real are not ſo deveſted out of the Woman into the Husband by marriage, but that ſhe ſurviving him, and no alteration made of the property in her life-time by her Husband (who had then power to diſpoſe thereof though not by Will) they continue to her and remain in her as before marriage; bbIbid. Offic. Exec.yet ſuch a Woman in her Husbands life-time could not without his conſent make her Will touching ſuch Real Chattels, but he ſurviving her they would by the operation of Law accrew unto him.ccIbid.

5. As without the Husbands conſent the Wife may not make her Will, ſo likewiſe without his conſent ſhe may not take upon her the Office of an Executrix: ddIbid. cap. 16. Sect. 1.But if once the Will be proved, and the Execution thereof committed to the Wife, though againſt the Husbands mind and conſent, probably it may ſtand good. Alſo the Wives Adminiſtring without the Husbands privity, though no Will be proved, will probably barr the Husband as well as her ſelf from pleading in any Suit commenced againſt them, That ſhe neither was Executrix, nor ever Adminiſtred as Executrix. On the other ſide, if a married Woman named Executrix refuſe the Execution of the Will againſt her Husbands mind and deſire, it is ſuppoſed the Law will not fix the Executrixſhip p. 18upon her againſt her Will; yet the Husband may Adminiſter and Prove the Will for his Wife. ee33 H. 6. c. 31.Alſo if the Husband (no Will being Proved) doth Adminiſter in his Wifes right but againſt her Will, This notwithſtanding her diſſent will ſo bind her, that during her Husbands life ſhe can hardly decline the Executrixſhip, for that by the Law of the Land ſhe cannot be ſued alone as Executrix, and being ſued with her Husband ſhe muſt joyn in Plea with him, whereby the Adminiſtration by her Husband will conclude her alſo, ff3 H. Rot. 112.but not ſo after his death, for then ſhe may refuſe.gg1 Eliz. Dyer. 166.

6. If a Feme Sole make a Will, and after take a Husband, the ſame is a Revocation thereof: For the making of a Will is but the inchoation or inception thereof, which hath no effect till the Teſtators death, Becauſe, Omne Teſtamentum morte conſummatum eſt, & voluntas eſt ambulatoria uſ que ad extremum vitae exitum: And Cook. 4. Part. 61. in Forſe and Hemblings Caſe. Hughs Abridg. Verb. Wills and Teſtaments.therefore it being no perfect Will when ſhe takes a Husband; and after marriage, her Will being her Husbands, and ſubject to it by her taking a Husband, ſhe hath wholly revoked the Will formerly made by her.

Debt upon an Obligation, the Condition was, Whereas the Defendant had taken A. S. to Wife, who was a Widow, being poſſeſs'd of divers Goods; if he would permit his ſaid Wife to make a Will, and to diſpoſe in Legacies ſo much as ſhe would, not exceeding fifty pound, and perform what ſhe appointed, That then, &c. The Defendant pleaded, that ſhe did not make a Will; whereupon Iſſue was joyned; it was found, that ſhe made a Will, and thereby diſpoſed of divers Legacies, not exceeding fifty pound, but that ſhe was a Feme Covert at the time of the making of the Will: In this Caſe it was adjudged for the Plaintiff. For, although ſhe being a Feme Covert, could not in Law be permitted to make a Will to diſpoſe of any Goods without the Husbands aſſent; yet it is a Will within the intent of the Condition; for it Mich. 5 Car. in B. R. Mariot and Kingman's Caſe. Croo. 1. Part. 159. and Hughs Abridg. Verb. W…s and Teſtaments.Mic 5was in the intent of the Condition, That ſhe ſhould make a Will to that purpoſe, notwithſtanding the Coverture; and it is but her appointment, which the Husband by his Obligation is bound to perform; and the finding that ſhe was a Feme Covert, was not in this Caſe material.

If a Feme Covert make a Teſtament, and Deviſe Goods to another, 26 Ed. 3. 71. Rolles Abridg. tit. Deviſe G.and the Husband after her death deliver the Goods to the Deviſee accordingly, it will bind him.

A Defendant Covenanted by Indenture with the Plaintiff, That Paſch. 26 Eliz. C. B. Eſton verſ. Wood. Cro. par. 3. … 9.whereas he intended to marry E. S. a Widow, That he would pay all the Legacies which ſhe by her Laſt Will in writing, bearing date 1 May 20 Eliz. did give and bequeath, and was bound by Obligation to perform the Covenants in the Indenture. In p. 19Debt upon the Obligation the Defendant pleaded, that after the making of the Will and the Obligation, he intermarried with the ſaid E. S. which marriage continued till her death; ſo the Will and Deviſe of E. S. was void, and demanded Judgement, &c. And it was adjudged that the Plaintiff ſhall recover. For notwithſtanding it was not a Will to all intents and purpoſes, yet the Indenture referreth to that which did bear the name of a Will; And although it was not a Will indeed, it was not material.

A Feme Covert Executrix may without her Husbands conſent Mich. 8 Jac. B. Graunt's Caſe, per Curiam. Roll. Abridg. tit Deviſe.make an Executor of thoſe Goods ſhe hath as Executrix. Likewiſe ſhe may make an Executor of the Things in Action due to her.

A Woman Covert may make a Teſtament if her Husband agree Ibid. Roll. Abr. tit. Deviſe.to it after her death. And ſuch, albeit ſhe be an Executrix, cannot Deviſe any of the Goods ſhe hath as Executrix, without her Husbands conſent or his agreement to it afterwards; yet ſhe may make an Executor thereof without his conſent. Likewiſe a Feme Covert cannot Deviſe things in Action which ſhe hath, without the conſent and agreement of her ſaid Husband.

If a Woman Covert die Inteſtate, Adminiſtration may be committed Roll. Abridg. tit. Executor. E.of her Goods, for poſſibly ſhe had things in Action, which are not given by the Law to her Husband. D. 8 Eliz. 251. 90. Admitt.

CHAP. XI. Of Perſons Inteſtable by reaſon or for want of their Principal Senſes.

HE that is both Deaf and Dumb by Nature can make no Teſtament or Laſt Will, aaL. diſcretis. C. qui teſta. fac. poſſ. & §. item Surdus. Inſt. quib. non eſt permiſ. fac. teſt.except it may appear upon good and ſufficient ground that he doth underſtand what a Teſtament means, and alſo that he hath Animum Teſtandi; for if ſo, then he may by plain ſignificative tokens and ſigns declare his Teſtament. bbDecius in dict. l. diſcretis. & Tyraq. de Privil. piae Cauſ. c. 9.But in caſe he be Deaf and Dumb only by accident, he may (if he be able) write his Teſtament with his own hands; ccDict. §. item Surdus. Inſt. quib. non eſt permiſſ. fac. teſta.or otherwiſe, not being able to write, yet having underſtanding, he may, as the other, make his Will by ſigns, elſe not at all. ddDec. & Tyr. ubi ſupra.Such as are only Deaf and not Dumb may make their Teſtaments. eeMynſing. in dict. §. item Sordus.Alſo ſuch as are Dumb and not Deaf may write their own Teſtaments if they can, otherwiſe they may make them by good and ſufficient ſigns well known to the Witneſſes then preſent. ffDD. in dict. l. diſcretis.Alſo a Blind man may make a Nuncupative Teſtament p. 20before a ſufficient number of Witneſſes, but not a Written Teſtament, unleſs the ſame being read to him before Witneſſes he in their preſence acknowledge the ſame for his Laſt Will and Teſtament; So that the bare acknowledging thereof to be his Laſt Will, without hearing the ſame read unto him, is not ſufficient.ggDD. in l. conſultiſſi na Cod. qui teſta. fac. poſſ.

CHAP. XII. Of Perſons Inteſtable by reaſon of ſome Criminal Convictions.

1. Traytors Inteſtable from the time of the Crime committed.Before the world was gone too far from its Primitive State of prudent frugality, and when debauehery was no vertue, nor prodigals, nor infamous libellers were Teſtable, as to the making or proving of a Will. l. is cui. & Gloſs. ibid. ff. qui teſt. fac. poſſ. If a man criminally indicted, die before he be condemned, his Teſtament is good. Pendente proceſſu capitali, non impeditur quis facere Teſtamentum.—Rub. in l. ſi quis. ff. qui teſt. fac. poſſ. Where no property in goods or lands, there no ability to Deviſe.

2. Felons not Inteſtable before Conviction.

3. Hereticks Inteſtable till they reclaim their Hereſie.

4. Apoſtates Inteſtable.

5. Inceſtuous Inteſtable, ſaving to their Parents and Children.

6. Sodomites are Inteſtable.

7. Self-murderers Inteſtable under Limitations.

8. Out-Laws and Excommunicates not abſolutely Inteſtable.

9. Outlawry in an Inteſtate no good Plea in Bar to a Creditors Action againſt his Adminiſtrator.

1. TRaytors are Inteſtable, for they loſe both their Lives, Lands and Goods, whereof they were poſſeſſed at the time of the Treaſon committed, or at any time after. aaStat. 5 Ed. 6. cap. 11.Inſomuch that Traytors are Inteſtable, not only from the time of their Conviction, but alſo from the time of the Crime committed; So that the Teſtament before made doth by reaſon of the conviction become void both in reſpect of Goods, and alſo of Lands, Tenements and Hereditaments. bbStat. ibid. & DD. in l. nemo. de legib. & l. quiſquis l. 1. c. ad leg. Jul. Majeſt. & l. ſi quis de injuſt. Teſt. & Stat. 1 R. 3. cap. 3.Howbeit a Traytor that is pardoned and reſtored may make his Teſtament. ccL. ſi quis §. quatenus ff. de injuſt. rupt. & irrit. teſtamentis.Neither ſhall ſuch Goods as the Traytor hath as Executor to another be forfeited; whence it follows, that of ſuch Goods he may make his Teſtament; which alſo extends to perſons Out-law'd for Debt, alſo to perſons attainted or convicted of Felony.ddStat. 32 H. 6. cap. 34.

2. Felons are likewiſe inteſtable being lawfully convicted, for the Law hath otherwiſe diſpoſed of their Lands and Goods: eeEliz. An. 5. cap. 14. and terms of Law. verb. robbery.But if a man be only Indicted of Felony, and die before his Conviction or Attainder, he may make his Teſtament both of Goods and Lands: ffStat. 1 Rich. 3. c. 3.Or being Indicted, and thereon Arraigned ſtands Mute and Dumb, and will not Anſwer, in this Caſe he forfeits only his Goods, ggDr. & Stud. lib. 2. (a). 41.and therefore may make a Teſtament of his Lands. hhQuia non prohibetur quod non condemnatur.And here Note, that in reſpect of a Felons Lands the p. 21time of the Fact committed is to be reſpected, but in reſpect of his goods the time of his Judgement: iiPerk. tit. Grants. fol. 6.So that he loſeth his Lands from the time of committing the Fact, but his Goods only from the time of Conviction; inſomuch, that at any time before his Conviction he may bequeath, ſell, or otherwiſe alienate his Goods and Chattels. kkBrook, Forfeitures 5. 28. 65. 89. 103, 113, 117. & Cowels Inſtit. jur. Ang. lib. 2. tit. 12. §. 3.Howbeit if he make his Teſtament before his Condemnation, it will be fruſtrated and prevented by his Judgement. llPanorm. in Rub. de Teſt. Extr. & Jul. cla. §. teſta.So that the Teſtament of a Felon convicted is void, though he be never Executed; void even by force of the Condemnation, mmIb. & Graſ. §. teſta. q. 26. & Vaſq. de Succeſſ. lib. 1. §. 6. n. 18.unleſs he afterwards doth obtain his pardon.nndict. l. ſi quis. §. quantus.

3. Hereticks, if they be Convicted, or publickly Excommunicated, cannot make a Teſtament of their Goods and Chattels: ooAuth. Credentes C. de Haeret. & Lynwood. c. 1. de Haeret. & Vaſq. Bart. & alii. in dict. Auth. Credentes.But if they reclaim their Hereſie, they are not Inteſtable.

4. Apoſtates, or they who do wholly renounce the Chriſtian Faith which once they did profeſs, and do become Jews, Turks, or Infidels, are worthily excluded by the Law from being capable of making a Laſt Will or Teſtament.ppl. 1, 2, 3. C. de Apoſt & Sum. Hoſt. tit. de Apoſt. §. qualiter.

5. Inceſtuous perſons are prohibited to diſpoſe of any Goods or Chattels by Will, ſaving to their Children begotten in marriage, that is, in lawful marriage; or to their Parents, Brothers, Siſters, Unkles or Aunts. qql. ſi quis C. de inceſt. nuptiis.Where by Parents underſtand all of each Sex in the right Line aſcending, and by Children all of each Sex in the ſame Line deſcending.rrAccurſ. Bald. & alii in dict. L. ſi quis.

6. Sodomites, or ſuch as are guilty of that wicked and abominable ſin againſt Nature, mentioned in the Holy Scripture, ssGen. cap. 19.Gen 19are inteſtable, and prohibited to bequeath their Goods or Chattels.ttSpec. de Inſt. edit. §. Compendioſo. nu. 5.

7. Self-murderers, or ſuch as wilfully deſtroy themſelves are inteſtable; uul. ſi quis filio. §. ejus. ff. de teſt. & L. 2. C. qui teſt. fac. poſſ.nor can they make any bequeſt of their Goods, for they are all Confiſcate. wwVaſq. de Succeſ. Reſol. l. 1. §. 3. nu. 31. & Bract. L. 3. tract. 1. c. 31.Yet there are Thoſe who diſtinguiſh between the kinds, or rather the occaſions of Self-murther; viz. 1. That which is occaſioned through the fear of Execution of a Judgement of Condemnation. 2. That which is occaſioned through a tired ſenſe of a long, tedious and irkſome life. 3. That which is occaſioned through the pain and violence of ſome Diſeaſe. In the firſt caſe it is ſaid they loſe like other Felons both Lands and Chattels; in the ſecond, Chattels only; in the third, neither Lands nor Chattels.xxFleta. c. 36. in princip.

8. Out-lawed perſons, though out-lawed but in an Action perſonal, forfeit all their Goods and Chattels, yyDr. & Stud. l. 2. c. 3. and terms of Law. verb. utlegare.and therefore cannot make any Teſtament thereof. zzJul. Clar. §. teſta. q 19. Dr. & Stu. l. 1. c. 16.But the Out-lawed for Felony, forfeiting their Lands as well as their Goods and Chattels, cannot make any Teſtament of either. aaTerms of law, verb. utlegat…Though the Out-lawed only in an Action perſonal may make his Teſtament of his Lands; p. 22yet not ſo of his Goods and Chattels. And as for Excommunicate perſons, if they be excommunicated for Hereſie, or other cauſe which renders them in it ſelf legally inteſtable, in ſuch cauſe they cannot make a Teſtament, otherwiſe it is for the moſt part held they may.bbSwinb. part. 2. §. 22.

9. An Action of Debt was brought againſt J. S. as Adminiſtrator of J. D. The Defendant pleaded that the Inteſtate was Out-lawed at the Suit of J. N. after judgement; and ſo being Out-lawed died Inteſtate. It was reſolved, That the Plea was not good; for it is but a Plea by Implication, that he hath not any Goods; and ſo but Argumentative. ccVid. 37 H. 6. 27. by Priſoit. acc.And Trin. 37 Eliz. in C. B. Rott. 2954. Wolley and Bradwells Caſe was vouched to be adjudged accordingly; and therefore the Court upon the view of the Record in Wolleys Caſe gave judgement, that in the Principal Caſe it was no Plea.ddMich. 20 Jac. in C. B. Bullen & Gervis Caſe. Hutton. 53.

If Debt be brought againſt an Executor, and he pleadeth, that his Teſtator was and died Out-lawed; it was holden in that caſe, that this doth not prove a Nullity of the Will, for then he might have pleaded, that he was never Executor; but it tends only to this, that no Goods did come to his hands for ſatisfaction of the Teſtators Debt, by reaſon of the Out-lawry.eeVid. 49 E. 3. 5. 29. Aſſ. 63. 33 H. 6. 27. acc. In Hughs Abridg. Verb. Wills and Teſtaments. Mich. 43, 44. Eliz. B. R. inter Shaw & Cuttereſſe per curiam. Roll. Abridg. tit. Execut. N. Co. 5. Marſhes Caſe 111. Roll. ib.

A man Out-lawed to a perſonal Action may make Executors; for he may have Debts upon Contract, which are not forfeited to the King. Conſequently for the ſame reaſon Adminiſtration of ſuch a mans Goods may be granted.

If an Exigent for Felony be awarded againſt a man, whereby he loſes all his Goods, yet he may make Executors to reverſe it, for there he is not attainted: So Adminiſtration of ſuch a mans Goods may be alſo granted.

CHAP. XIII. Of Conditional Teſtaments.

1. When a Teſtament may be ſaid to be Conditional.

2. What words ſufficient to expreſs or imply a Conditon.

3. The difference between Conditio and Modus.

1. THe Teſtament may then be ſaid to be Conditional, when the Executor is therein Conditionally aſſigned and appointed, for the aſſignation of the Executor is the Life and Soul of the Teſtament. Now the aſſignation of the Executor is conditional, when ſuch a ſuſpenſive quality is added thereto, as thereby the p. 23effect of the diſpoſition is for the time impeded, and dependeth on ſome future event.aaSichard. in Rub. de Inſt. & Subſt. C. nu. 1. & Graſſ. Theſ. Com. Op. §. Legatum. q. 46.

2. Many and divers are the words which do expreſs or imply a condition in a Laſt Will or Teſtament, whereby the Teſtament it ſelf, or the diſpoſition of the Teſtator therein becomes conditional. Such are the words following; viz. [if, when, whiles, which, what perſon, who, whoſoever, and ſometimes the Ablative caſe abſolute.] Alſo theſe words following, viz. [except, unleſs, otherwiſe, until, whenſoever, as much as, in as much as, for as much as, ſeeing that, to which end, to the end that, for this purpoſe, ſo far as, ſo long as;] alſo prepoſitions, when they ſerve to, or govern the Accuſative Caſe, as [By and To] yea and when they govern the Ablative Caſe, as [With] if it ſo appears to be the Teſtators meaning. And in a word, every part of Speech whatſoever it be, that ſuſpendeth the diſpoſition of the Teſtator in expectation of ſome future event, doth either expreſs or imply a Condition.bbBart. in L. 1. ff. de condition ib. & Demonſtrat. & Mant. de Conject. ult. vol. lib. 10. tit. 5. & Sichard. ubi ſupra. C. nu. 4. & Vaſq. de Succeſſ. progreſſ. lib. 3. §. 29. nu. 3. in fine. & Bart. in L. ſi Titio. ff. quando dies Legat. cedit. & L. ſi ita Scriptum ff. de legat. 20 & Ripa in l. Centurio. ff. de vulg. & pupil. Subſt. nu. 160, 161. & Dyer fol. 74. nu. 16. & Alex. Conſil. 185. lib. 2.

3. Conditio is an annexed Quality, which ſo long as it dependeth unperformed, hindereth the effect of the diſpoſition. ccBald. & Sichard in Rub. C. de Inſtit. & Subſt.And Modus is a moderation whereby a charge or burden is impoſed by the Teſtator in reſpect of ſome commodity, which hinders not the effect of the diſpoſition in ſo ſtrict and exact a manner as Conditio doth. And as Conditio is commonly known by the word [if] ſo Modus for the moſt part is known by the word [that]ddBart. in l. quib. dieb. §. Termilius ff. de Cond. & Demon.

CHAP. XIV. Of the ſeveral kinds of Conditions incident to Teſtaments.

1. The diſtinction of Conditions.

2. The Law of Poſſible Conditions.

3. The Law of Arbitrary, Caſual, and mixt Conditions.

4. The Law of Affirmative and Negative Conditions.

5. Conditions Impoſſible, Unlawful and Captious, are ineffectual.

6. Neceſſary Conditions, of no force in Law.

1. AS many and various are the words and expreſſions which are as the ſigns and landmarks of a condition: ſo no leſs manifold are the diviſions and ſubdiviſions in the Law of Conditions themſelves; but as to our purpoſe we ſhall content our ſelves with a few, and reduce them all to theſe following; p. 24viz. Conditions are either, 1. Poſſible, and they are either Caſual, Arbitrary, or mixt; which conſiſt either in Chancing, Giving, or Doing, and are either Affirmative or Negative. Or 2^dly Impoſſible either in reſpect of Nature, of Law, of Perſons, or of Contrariety. Or 3^dly Neceſſary, and that in reſpect either of Fact or of Law. And thus all Conditions relating to this ſubject may be reduced to one of theſe Three Heads, viz. either Poſſible, Impoſſible, or Neceſſary. aaSichard. in dict. Rub.As for Captious and Ʋnlawful Conditions, they fall in conſtruction of Law under the ſecond head of this diſtinction.

2. Poſſible Conditions muſt firſt be accompliſhed before the effect can take place, bbl. qui heredes. ff. de Condit. & demonſt.unleſs it ſticks not with, nor may be imputed to the party on whom the Condition lies, wherefore ſuch Condition is not performed; for in ſuch Caſe the Condition will be accounted as accompliſhed, ſpecially if the Condition be Arbitrary, and the party not in Mora nor Culpa why the ſame is not indeed accompliſhed. And here Note, that every Poſſible Condition ought to be preciſely obſerved or performed; neither is it ſufficient, ſave in ſome caſes, to accompliſh the ſame by any other means, or in any other manner than is preſcribed; ccGloſs. & DD. in l. ſi quis haered. C. de Inſt. & Subſ.unleſs it may appear that the Teſtator did more reſpect the end than the means; ddMantic. de conject. ult. vol. lib. 10. tit. 16. n 3.or unleſs the party in whoſe favour ſuch Condition was made doth conſent unto other means; eeSimo. de Praetis. de interpret. ult. vol. l. 1. ſol. ult. nu. 34.or unleſs the Condition be when ſomething is diſpoſed in pios uſus, or unleſs the Law allows other means than the preciſe form which is preſcribed. And whereas it is true in Law what hath been ſaid, That when it doth not ſtand by him to whom the Condition appertaineth, wherefore the Condition is not performed, it ought to be for the moſt part accounted as accompliſhed, ffl. cum non Stat. &c. imputari. de Reg. jur.though indeed and in truth it remains unaccompliſhed; and whereas this is generally true when the Condition is meerly Arbitrary, ggl. que ſub Condit. §. 1. ff. de Condit. Inſtit.and the party to whom the Condition was injoyn'd not in fault, wherefore the Condition is not accompliſhed; ſo as that an impediment ſhall be ſaid to excuſe a man from delay in the matter of performance of Conditions; hhDD. in l. quod te ff. ſi cert. pet.yet notwithſtanding all this, when the impediment may be foreſeen and prevented, ſuch impediment ſhall not excuſe him who doth not avoid the ſame. iiGloſſ. & DD. ibid. & Zaſ. in l. continuus. §. illud. ff. de verb. Obligat.But when the impediment of performing a Condition doth proceed from the Teſtator himſelf, then the Condition is reputed for compleat though not accompliſhed; and in that caſe it ſhall prejudice neither the Executor nor the Legatary. kkDD. in l. milites. §. ult. ad …eg Jul. de …dal.In like manner when the impediment doth proceed from a third perſon, the Condition is to be accounted in Law for accompliſhed, llBart. in l. in teſt. ff. de Cond. & De …on.unleſs ſuch third perſon were ignorant of the Teſtators Will. mmMaatic. l. 11. tit. 16. nu. 22.But when the performance of a Condition is hindered by the Will and Providence of God, there the Law doth not allow any feigned performance, nnIbid. nu. 23.except it be in favour of p. 25Liberty from Bondage ool. libertatem. ff. de Manum.or Alimentation, or ad pias cauſas, ppTyraq. de Privil. piae Cae. c. 57.or except the Qualification be not Conditional but only Modal.qqGraſs. Theſ. Com. Op. §. Legat. q. 58.

3. Arbitrary Conditions, that is, ſuch as conſiſt in his Power on whom they are impoſed, ought not to be performed till after the Teſtators death, rrl. 2. ff. de Cond. & demon. & l. ſi quis heredem. C. de Inſtit. & Subſtit.unleſs the Condition be ſuch as cannot be iterated, for in that caſe it is ſufficient that the ſame was performed in the Teſtators life-time, even before the making of the Teſtament; ssl. ſi jam facta. & l. haec conditio. ff. ibid.or unleſs the Condition be referred to the time paſt. ttl. talis. ff. ibid.Alſo an Arbitrary Condition impoſed upon an Executor may be performed at any time during the Executors life, and he meanwhiles enjoy the Executorſhip. uul. ſi quis inſtituatur. §. 1. ff. de haered. inſtit.This holds true, unleſs the Judge aſſign a certain competent time for the performance thereof; upon default whereof Adminiſtration may be committed as of one dying Inteſtate, till the Condition be performed: wwBart. Bald. & Paul. de Caſtro. in dict. l. ſi quis. & dict. §. 1.But if ſuch Condition doth appertain to a Legatary, then it muſt be performed ſo ſoon as conveniently he may, or elſe the Legacy is loſt, xxl. haec conditio. ff. de Cond. & demon.unleſs the Legatary were ignorant of ſuch Condition or Legacy; for in that caſe no prejudice ſhall accrew to him by reaſon of ſuch ignorance. yyBald. in l. 1. C. de Inſt. & Subſt. nu. 20.And it is ſufficient for the obtaining the effect of a Condition, that the ſaid Condition was once accompliſhed, though it doth not continue ſo. zzBart. in l. Subſtit. ff. de vulg. Subſtit.And although Arbitrary Conditions (as aforeſaid) are not regularly performable till after the Teſtators death, yet Conditions not Arbitrary but Caſual or Mixt are accounted as accompliſhed, though performed before the making of the Teſtament, Provided the Teſtator were ignorant thereof: aal. ſi jam facta. ff. de Condit. & l. ſi quis haered. C. de Inſtit. & Subſtit.But if the Teſtator were not ignorant thereof at the making of the Teſtament, then it is otherwiſe, and the Condition remains to be performed. bbl. ſi ita Scriptum ff. de Legib.For when the Condition is meerly Caſual, the ſame is neither accounted for accompliſhed nor extant in preſumption or fiction of Law, neither for unaccompliſhed or deficient, untill the actual event of the ſame Condition doth firſt come to paſs. ccl. unica. §. ſin autem. C. de Cad. tol.Indeed an Arbitrary Condition is divers times accounted for accompliſhed in Law though not in Fact: but a Caſual Condition is not accounted for accompliſhed or extant in Law, unleſs the ſame be accompliſhed in fact alſo. ddIbidem.And ſuch muſt be accompliſhed before a Legacy can be due: And in caſe the Legatary happen to die before the accompliſhment of ſuch Caſual Conditions, the Legacy is quite loſt and cannot be tranſmitted to the Executors or Adminiſtrators of ſuch Legatary. eel. liber. §. ſi ita. ff. de haered. inſtituend.And in Mixt Conditions it is in this caſe as in Conditions that are meerly Caſual.ffDict. l. ſi quis haeredem. C. de Inſtit. & Subſtit.

4. Again, of the Poſſible Conditions ſome be Affirmative, ſome Negative; when the Condition is Affirmative, the Executor or Legatary cannot obtain the Executorſhip or Legacy ſo long as Affirmative Condition dependeth unfulfilled, though they ſhould put p. 26in ſufficient bond to make reſtitution in caſe the Condition ſhould be deficient, ggl. Mutian. ff. de Cond. & dem.unleſs ſuch Affirmative Condition doth ſecretly imply or contain a Negative, hhl. pater. §. Socrus. ff. ibid.which conſiſteth in Doing or Giving; or when the Diſpoſition is not made ſub Conditione but ſub Modo only: iil. r. c. de his quae ſub modo &c.But when the Condition is Negative, the Party on whom the Condition lies may be admitted to the effect of the Condition in the mean time, or during the dependance of ſuch Negative Condition, he firſt entring into Bond or Caution to make reſtitution in caſe the Condition be not performed. kkl. Mutian. ff. de Condit. & demon.For if the Condition be Negative, conſiſting in not Doing of ſome thing, and cannot be performed ſo long as the perſon liveth, on whom it was impoſed, then may he obtain the Legacy by giving in caution to accompliſh the Condition, or not to do that which by the Condition was prohibited; otherwiſe in default thereof to make full reſtitution. llIbidem.But if the Negative Condition be ſuch as may be performed during his life on whom it is impoſed, then is not ſuch caution to be given. mml. cum tali. §. 1. ff. ibid. & l. pater. §. Socrus. ff. ibid.And if ever a Negative Condition be reduced to an impoſſibility, it is then accounted as accompliſhed, nnGloſs. & DD. in dict. l. Mutianae.becauſe it is then brought into ſuch a ſtate as that it is not capable of being infringed. Alſo if the Negative Condition conſiſt in not Chancing, then likewiſe is the foreſaid caution not to be admitted. ooIbidem.Laſtly, when the Condition is Affirmative, then it is to be underſtood of the firſt Act of performance only; but when the Condition is Negative, then not only the Firſt Act, but alſo Second, Third, and every other Act is perpetually forbidden.ppl. hoc genus. ff. de Cond. & Demon.

5. Impoſſible Conditions, be it in either of the four former reſpects, viz. either in reſpect of Nature, of Law, of Perſons, or of Contrariety or Repugnancy, are in themſelves void, and work nothing as to any hinderance either of Executorſhip or of Legacy; But the Condition which was not impoſſible at firſt, yet becoming impoſſible afterwards, is not void in it ſelf, yet maketh void the diſpoſition whereto it is annexed. qqMantic. de Conject. ult. vol. lib. 11. tit. 16. n. 23.Alſo under this head fall all unlawful Conditions, and ſuch as are contrary to good manners; for what is unlawful to be done, the Law will have us to underſtand as impoſſible to be done; and not only Conditions ſimply unlawful, but alſo all Captious Conditions; for when the Condition is repugnant to the nature of the diſpoſition it ſelf, it is then a Captious Condition, and is of no force; for all Captious Conditions are void; ſo are all Captious Wills and Teſtaments; as when the Teſtators will dependeth on the Will of another, it is a Captious Will, and of no validity, rrl. illa. ff. de haered. inſtit.unleſs it be in favour of Liberty, or ad pios uſus.ssl. fidei commiſſ. ff. de fidei commiſſ.

6. Neceſſary Conditions are all of no force, whether they be neceſſary in reſpect of fact, or ſuch as cannot but come to paſs, or p. 27whether they be neceſſary in reſpect of Law; for in vain doth the Teſtator annex that as a Condition to the diſpoſition, which the Law requires without: for as in conſtruction of Law, that is deemed as impoſſible which the Law prohibits; ſo likewiſe is that deemed as neceſſary which the Law abſolutely requires; therefore when the Condition is in either extream, that is, either neceſſary or impoſſible, ſuch hindereth not as to any ſuſpenſion of the effect, but it is as if any ſuch Condition had not been at all expreſſed.ttl. ſi pupillus. §. qui ſub Conditione. De Novat.

CHAP. XV. Of Teſtamentary Conditions in reference to Marriage.

1. Conditions againſt the Liberty of Marriage, Ʋnlawful.

2. Condition of Marrying with the Conſent of another how far Lawful, or not.

1. ALl Conditions againſt the Liberty of Marriage are unlawfull; aaVigel. Method. jur. Civil. part. 4. l. 14. c. 3.but if the Conditions are only ſuch, as whereby Marriage is not abſolutely prohibited, but only in part reſtrained, as in reſpect of time, place or perſon, then ſuch Conditions are not utterly to be rejected. bbl. cum ita. & l. hoc modo. & l. ſed ſi. §. cum vit. ff. de Cond. & demon.Thus an Executor or a Legatary made on ſome Condition againſt the Liberty of Marriage, may notwithſtanding the non-performance of ſuch Condition obtain the Executorſhip or Legacy: ccl. quoties. ff. ibid. & l. 2. C. de Indict. vid.Yea if the Teſtator make one his Executor, or give him a Legacy upon condition that he marry with the conſent, and according to the good liking or appointment of ſome other perſon, this condition is unlawful. ddl. cum tale. §. ſi arbitratu. ff. ib. & Gravet. Conſil. 1. n. 3. & Mant. l. 11. tit. 18. nu. 8.Inſomuch, that if ſuch Executor or Legatary marry contrary to ſuch reſtraint or condition, he ſhall notwithſtanding be admitted to the Executorſhip, and receive the Legacy, as if no ſuch Condition had been expreſſed.eeGravet. & Mant. ibid. & Perkins de Teſt. Conjug. l. 1. c. 24. n. 6.

2. Notwithſtanding what hath been ſaid, the Condition holds good, if the Teſtator make one his Executor, or give him a Legacy if he marry not without the Counſel or Advice of another perſon; ſo that the Teſtator giving him a Legacy if he marry with the Counſel or Advice of another perſon, he is excluded from the Legacy, if he marry without ſuch Counſel or Advice; ffMantic. ubi ſupra.yet in this caſe he is not bound to follow ſuch counſel or advice, but only to requeſt the ſame. ggPaul. de Caſt Conſ. 300. vol. 1. & Felin. in c. 10. part. de Conſtit. Ext. Col. 2.Col 2Again, although the condition of marrying with the conſent of another is void, ſo as the party on whom ſuch condition is impoſed, may obtain the Legacy p. 28without ſuch conſent, yet marry he muſt, or he cannot obtain the Legacy; for although the condition of ſuch Conſent be unlawful, yet muſt he marry before he can pretend to the Legacy, becauſe that part of the Condition is not unlawful.hhMant. de Conject. ult. vol. l. …1. tit. 18. nu. 8.

CHAP. XVI. Of the manner of Proceeding during the ſuſpence of the Conditions.

1. The Condition depending, Adminiſtration may be committed to the Conditional Executor.

2. The Law what, in caſe the Condition be not performable by the Executor, on whom it is impoſed.

1. THat Creditors and Legataries may have Remedy during the ſuſpence of the Condition of the Executorſhip or Legacy, it is lawful for the Judge to commit Adminiſtration to him that is conditionally aſſigned Executor, yet only for ſo long time as the Condition dependeth and is not extant or elſe deficient; aal. ſi quis inſtituatur. §. 1, 2. ff. de haered. inſtituend.and when the Condition is extant, he may Prove the Will and detain the Goods of the deceaſed, as Executor to the Will; but if the Condition be infringed or utterly deficient, then ought he to make reſtitution to the next of Kin to the deceaſed, or to thoſe to whom belong the Adminiſtration of his Goods; bbl. 2. §. ſi ſub Conditione. ff. de bonor. poſſeſſ.for by breach or defect of the Condition the deceaſed is reputed to have died inteſtate, or as if he had never made an Executor; ccl. haeres. ff. de acquir. haeredit.And the former Adminiſtration being forfeited, a new may be committed: ddl. ſi quis inſtituatur. ff. de haered. inſtituen.But if the Conditional Executor will not meddle with the Adminiſtration of the deceaſed's Goods when the Condition is performable, then may the Judge aſſign the Conditional Executor a competent time for the accompliſhment of the Condition, within which time if it be not performed by him, and if it be within his power, it may be imputed for infringed or deficient, Provided that other time for the performance of the Condition be not aſſigned in the Condition it ſelf. eeBart. Bald. & Paul de Caſtr. in ff. de haered. inſti…uend.And in caſe of ſuch infringement or deficiency Adminiſtration may be committed according to the Statute as of one dying inteſtate. ffStat. 21 H. 8. c. 5.But if the Judge knowing of this Will doth commit Adminiſtration to ſome other without the Executors knowledge, or without appointing him ſome competent time for the accompliſhment of the Condition, then is the Adminiſtrator in hazzard of being ſued by the Executor in an Action of Treſpaſs, unleſs the Executor did formerly refuſe.ggAbridg. dez Caſ. Edit. Anno 1599. tit. Adminiſt, fol. 183. n. 1.

p. 292. If the Condition be ſuch as that it doth not lie in the power of the Executor to perform the ſame, then may the Judge at the Petition of the Creditors aſſign a time to ſuch conditional Executor to undertake the Adminiſtration of the Goods, which if he neglect or refuſe, then may the Judge after ſuch time elapſed commit the Adminiſtration to ſuch as have Intereſt, untill ſuch time as the Condition be either extant or deficient; or elſe (as ſome think) the Judge may grant a Letter ad Colligendum to ſome other perſon than the conditional Executor. But then Note, that ſuch perſon as hath ſuch Letter ad Colligendum, not being Adminiſtrator, the Actions which otherwiſe might be brought againſt the Adminiſtrator, may now lie againſt the Judge. hhTerms of Law. verb. Adminiſt. & Broo. Abridg. tit. Ordinarii. nu. 13. & Abridg. dez Caſes, fol. 176. nu. 12.And though the Judge may grant his Letter ad Colligendum, yet he hath not power to give Authority to ſell any of the ſaid Goods though periſhable. iiDyer. fo. 256. & Abridg. ibid.And if ſuch perſon to whom ſuch Letter ad Colligendum is granted, ſhould by vertue of ſuch Power ſell any of ſuch the ſaid Goods, he is ſuable as Executor to his own wrong.kkDyer. ubi ſupra.

CHAP. XVII. Of Teſtaments void.

1. By what means Teſtaments are void Originally.

2. By what means they become void afterwards.

3. Law-Caſes pertinent to this matter.

1. A Teſtament may be Originally void or voidable wholly or in part through ſome original defect: as thus; Firſt, becauſe the Teſtator is ſuch a perſon as cannot make a Teſtament. aaSupra, cap. 7.Secondly, becauſe the things bequeathed are not deviſeable by Will. bbSt. 27 H. 8. c. 20. & Dr. & Stu. l. 1. c. 8. & Perk. tit. deviſe 102.Thirdly, becauſe the manner of the diſpoſition is unlawful. ccSupra, cap. 14. §. 5, 6.Fourthly, becauſe the perſon made Executor is uncapable thereof. ddInfra, lib. 22. cap. 6.Fifthly, becauſe the Teſtator was compelled by fear, eeBart. in l. fin. ff. ſi quis aliq. teſtari prohibetur.or circumvented by fraud, or overcome by immoderate flattery, ffOldend. de Actionib. claſ. 5. fol. 518.or induced by ſome other unlawful means to make his Will. Sixthly, becauſe of errour, uncertainty or imperfection. Seventhly, becauſe the Teſtator had not Animum Teſtandi.ggl. Lucius. & l. Divus. ff. de Milit. Teſta.

2. A Teſtament, though free from all Original fault, may yet afterwards become void. As firſt, by making of a later Teſtament. hh§. poſteriori. Inſt. quib. mod. teſta. infirm.Secondly, by cancelling or revoking that which is made. iil. 1. ff. de his qui teſt. del.Thirdly, by ſome alteration of the ſtate of the Teſtator. p. 30kk§. alio. Inſt. quib. mod. teſta. infirm.Fourthly, by forbidding or hindering the Teſtator from making another Teſtament, or from correcting the former. lll. 1. & 2. ff. ſi quis aliq. teſtari prohibetur.Fifthly, by unwillingneſs or inability of him that is appointed Executor, when he will not or cannot officiate as Executor. Sixthly, when the Executor cannot be certainly known, there being divers men of that name and no diſtinction made; this A man maketh a Teſtament without naming any Executor. This is good for Land, but not for goods. Dyers Read. in Stat. of Wills. Sect. 2. §. 3.uncertainty of the Executor maketh void the Will. Seventhly, when the Teſtator doth err in the perſon of the Executor; but in an errour of the Name only, and not of the Perſon it is otherwiſe, ſave in certain Caſes hereafter limited. Thus a Teſtament, though free from all Original fault, may yet afterwards become void; but a Teſtament originally void, can never afterwards be made good.Trin. 36. & Mich. 36, & 37 Eliz. Downhall verſ. Catesby. Moo. Rep. nu. 483.

3. Errour upon a Judgment given againſt the Plaintiff in C. B. on a Formedon in Remainder, upon ſpecial Verdict, and found that D. gave inſtructions for the writing of his Will, to give his Lands to one of his Sons for life, and the Scrivener by miſtake wrote an Eſtate in Fee; and the Court agreed that the Will was utterly void, becauſe it was not the Will of the Teſtator. Yet it ſeem'd to Fenner Juſtice, that for ſo much as it may be, it ſhould be; that is, for an Eſtate for life, which was his Will: but all the other Juſtices were againſt him.

In the Court of Wards between the Co-heirs of Sir William Rider, The Caſe of the Coheirs of Sir William Rider, in the Court of Wards. Moo. Rep. nu. 1222.it was declared by Coke Chief Juſtice of the C. B. and Tanfield Chief Baron, That if one make his Will in writing, and then ſayes, I will alter it, or add to it; that is not his Will, becauſe it is not compleat, or finiſh'd, nor publiſh'd for his Will, but is deferr'd or delayed till the Alteration or Addition be made to it. And if the party die before ſuch Alteration or Addition, and without publiſhing it to be his Will, that Will is not his Will. But if he make his Will, and publiſh it, and after it come to his mind to alter or add to it, and he ſay that he will alter it, or add to it, but dies before he make any Alteration or Addition, then the former ſhall be his Will.

p. 31CHAP. XVIII. Of Teſtamentary Revocations.

1. The ſeveral kinds of Revocations.

2. Revocations by Marriage.

3. Where two Wills are found, and it be not known which was made Firſt or Laſt, which ſhall be preſumed the Latter Will.

4. In what caſes the former Will ſtands unrevoked, notwithſtanding the making of a Latter Will.

5. Caſes in Law touching Revocations.

1. REvocations may be either of Executorſhip or of Legacies, and that either in whole or in part; and this may be either by Word or by Deed, or by Act and Operation of Law, or by Marriage. The Teſtator at any time before his death hath power to revoke or alter his Will at his pleaſure. aaBald. in l. Sancimus. C. de Teſta. & Mant. de Conject. ult. vol. l. 2. t. 15.And as a Will may be made by word only, ſo even a written Will may by word alone be revoked and annulled. bbOffic. Exec. §. de Revocat.For by making a Nuncupative or Verbal Will one may revoke a written Will; yea one may by word only expreſs the alteration of his mind thus far, That the Will by him formerly made, ſhall not ſtand but be revoked and annulled; and this ſhall ſtand and be effectual; ccIbid.So that if he then die without making a new Will or new publication or re-affirmance of the former, he dieth inteſtate. But a Will adviſedly made ſhall not be nullified by doubtful ſpeeches of the Teſtator without clear and perſpicuous Revocation, or words which tant amount. ddCrok. Rep. Caſ. Eyres erſ. Eyres in C. B.Nor can there be a Revocation of Legacies among Children without preciſe mentioning the firſt Will, and the Legacies thereby given to the Children. The Law is the ſame, when the Teſtator having no Children deviſeth Legacies to his Brothers. eeIbid.And as a Will may be wholly revoked, ſo alſo in part only. Alſo the Executorſhip of one or more of the Executors may wholly or in part be revoked, and yet the Will may ſtand good in all the other parts, ſo as there be any one or more Executors left unrevoked; but if all the Executors be revoked, then the whole Will is revoked. And this revocation (as aforeſaid) may be by word only without being expreſſed in the Will, or any other writing. ffBald. Paul. de Caſtr. Mantic. Alex. Jaſon. Dyn. cum multis aliis.Likewiſe Revocations may be by Act and operation of Law as well as by Fact or by any direct and expreſs terms; as thus, when the Teſtator maketh a Feoffment to one man of the ſame Land by Deed, which he had formerly deviſed or bequeathed to another by Will. gg6. Ed. 6. Dyer. & Goldsb. Rep. in Caſ. Gibſon verſ. Platloſs. & Crok. Rep. in caſ. Hodghinſon verſ. Whood. in C. B.Alſo if one bequeath his black horſe by Will, yet afterwards ſelleth or giveth him away, and buyeth p. 32another black one; this latter black horſe ſhall not paſs by the Will, becauſe the Teſtator had him not at the time of making the Will, as alſo becauſe ſuch his ſale or gift of the former black horſe was an actual revocation of his Bequeſt or Legacy thereof. bbOffic. Exec. ubi ſupra.The like of Corn in the Barn, or other thing whereof the Teſtator makes any Act of Alienation contrary to the diſpoſition thereof in his Will. Laſtly, although a Teſtator may by word revoke a Will made in writing that is good, yet he cannot by word affirm a Will made in writing that in it ſelf is void.

2. There are likewiſe Revocations by Marriage; as thus, If a Woman Sole make a Will, and afterwards take a Husband; this without any more ſhall work a Revocation or Annullation. iiIbid.But in caſe the Husband be Bound or Covenanted to make good or perform the Womans Will, which if he afterwards refuſe to do, his Bond or Covenant ſtands good againſt him, and is alſo Suable. kkM. 25, 26 Eliz.Yet a married Woman cannot by word countermand and revoke her Will formerly made when ſhe was Sole and unmarried, by reaſon of the Coverture taking away the freedom of her Will. And if the Husband doth give his Wife Licence to make a Will of his Goods, yet he may revoke the ſame, not only at the making of the Will, but alſo after her deceaſe, at leaſt before the Will be Proved.llSupra, cap. 10. §. 2.

3. No man can properly be ſaid to die with two Teſtaments, except a Field-Souldier in actual Service: mml. quaerelatur. ff. de militari Teſta.yet a man may make two Teſtaments, and both ſtand good, and both be proved, provided they be of and as touching diſtinct and ſeveral things, and the Executors thereof limited accordingly, and the one no way derogatory to the other; nnOffic. Exec.But of the ſame things there can be but one Will, for the Laſt reſcinds all former Wills. ool. poſteriore. Inſt. quib. mod. Teſta. infir.Yet a man may die with divers Codicils, and the latter doth not infringe the former, ſo long as they be not contrary the one to the other. ppl. cum proponat. C. de Codicil.But if two Teſtaments be found, and it appear not which was the latter, both are Null and Void: qql. ult. & ibi DD. C. de Edict. Divi Adrian.yet if one of them be made inter Liberos, or ad Pios Ʋſus, that ſhall be preſumed to be the latter, and ſo take place; yea, or if one of them be made in favour of ſuch as ought to have had the Adminiſtration in caſe of inteſtation. rrSichard. in dict. l. ult. & Mant. l. 2. t. 15. n. 17.But if one of them be in favour of the Teſtators Children, or of them that ought to have had the Adminiſtration, and the other be ad pios uſus, In this caſe if they that ſhould have had the Adminiſtration be the Teſtators Children, then that ſhall take place; ssMant. lib. 6. tit. 3. nu. 48.yet that ad pios uſus ſhall have priority of a Teſtament of the ſame date made in favour only of collateral Kindred. ttIdem per l. Sancimus. c. de Sacroſanct. Eccl.But if two Codicils be found, not appearing which was made Firſt or Laſt, and one and the ſame thing be given to one perſon in one Codicil, and to another p. 33perſon in the other Codicil, in this Caſe the Codicils are not void; but the perſons therein made Legataries ought to divide the bequeſt equally betwixt them.uuGloſſ. & DD. in l. cum propenat. C. de Codicil. & Graſſ. Theſ. Com. Op. §. Codicillus.

4. The former Will ſhall ſtand good and unrevoked notwithſtanding a later Will, in caſe the later Will be voidable by any wayes or means whereby Wills become void, and the former be without any ſuch juſt exception; ww§. ex eo. Inſt. quib. mod. Teſte. infirm. & l. Sancimus. C. de Teſt.or in caſe it be juſtly ſuſpected that the Teſtator was circumvented by fraud, or compelled by violence to make that later Teſtament: xxSimo de Praetis. de interpretat. ult. vol. lib. 4. fol. 226. nu. 46.Or in caſe in the former Will there be inſerted a clauſe derogatory of not making any other Teſtament, and ſufficient mention, or expreſs revocation thereof be omitted in the later; yyGloſſ. in l. ſi mihi & tibi. ff. de Legibus.For if in the former Teſtament there be a clauſe derogatory of Wills and Teſtaments afterwards to be made; as if the Teſtator ſayes, Whatſoever Teſtament I ſhall hereafter make, I will the ſame to be void and of no force: In this caſe it is not infringed by a later Teſtament, unleſs in that later there be mention thereof ſufficiently made to amount unto a legal revocation of that former Teſtament or clauſe derogatory.zzIbid. & Jaſon in l. Horatius. ff. de Liber. & poſthum. Mich. 38, 39 Eliz. B. R. per Popham. Roll. Abridg. tit. Deviſe. P.

5. If a man ſaith, that he will revoke his Will hereafter which he hath made, that is not any revocation, without the doing of ſome other Act. Likewiſe, if one ſaith that he will make a Feoffment thereof to another, that is no revocation before it be done: But if a man Deviſe Land to another by his Will in writing, and after Deviſe it unto another per paroll, albeit that is void as a Will, yet it is a revocation of the former Will.

If a Deviſor alien the Land Deviſed, and afterwards repurchaſe Roll. ibid. R.the ſame Land, yet the Will is revoked as to that Land. 44 Ed. 3. 33. 44. Aſſ. D. 3, 4 P. M. 143. 55. Contra. 2 R. 3. 3. b.

Treſpaſs upon evidence, where one hath made his Will in writing, Paſch. 4 Jac. B. R. Sympſon verſ. Kirton. Cro. Rep. par. 2. Pl. 2.and deviſed his Land to A. and her heirs; and afterwards being ſick and lying upon his death-bed (becauſe A. did not come to viſit him) affirmed that A. ſhould not have any part of his Lands or Goods. It was held by all the Court, that it was not any revocation of his Will, being but by way of diſcourſe, and not mentioning his Will. But the revocation ought to be by expreſs words, that he did revoke his Will, and that ſhe ſhould not have his Lands given unto her by his Will, or ſuch like words which might ſhew his intent to make an expreſs revocation thereof.

Ejectione Firmae. Upon evidence to a Jury it was reſolved by Mich. 16 Jac. B. R. Fitzhugh Cranuel verſ. Saunders. Cro. Rep. par. 2. Pl. 3.the Court, and ſo delivered to the Jury, that if one makes his Will in writing, of Land, and afterwards upon Communication ſaith, That he hath made his Will but it ſhall not ſtand; or, I will alter my Will, &c. Theſe words are not any revocation of the p. 34Will, for they are words but in futuro, and a declaration what he intends to do; but if he ſaith, I do revoke it, and bear witneſs thereof; he doth hereby abſolutely declare his purpoſe to revoke it in praeſenti, and it is then a revocation: Alſo Mountague ſaid to the Jury, and it was not denied by any other of the Juſtices, That as one ought to be of a good and ſane memorie at the diſpoſing, ſo ought he to be of as good and ſane memory when he revokes it; And as he ought to make a Will by his own Directions, and not by Queſtions; ſo ought he to revoke it of himſelf, and not by Queſtions.

CHAP. XIX. Of a Reviver of a Will Revoked.

1. How a Will Revoked may be Revived.

2. How an Executor Revoked may be Revived.

3. How one may dye both Teſtate and Inteſtate.

1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will; alſo a Will revoked may without making a New Will be revived and ſet on foot again by annexing a Codicil thereunto, aaTract. de Offic. Exec. §. de …o… Publicat.or by adding any thing to the Will; or by making a new Executor; or by expreſs ſpeech and word, that it ſhall ſtand good and be his Will, yea, and ſometimes without either of theſe; as thus, A man makes his Will, many years after he makes another, then in his ſickneſs both theſe Wills are put into his hands, and being demanded which of theſe Two he will have to ſtand for his Laſt Will and Teſtament, and being required to deliver back that which he will have to ſtand, and to detain the other in his hands, he delivers back the Will he firſt made poſſibly many years before the later; In this caſe the former Will, though once made void by the later, is now revived again, and ſhall ſtand as the parties Laſt Will and Teſtament.bbIbid. & 44 Ed. 3. ſol. 33.

2. If one of the Executors Names be ſtricken out of the Will, and afterwards a [ſtet] be written over it by the Teſtator, or by his appointment, he is then a revived Executor; but then Note, that if the [ſtet] ſhall ſtand good, the Executors Name over which it is written, ought not to be ſo blotted out but that it may be read and diſcerned, otherwiſe the [ſtet] is over nothing at all. Or if the Teſtator expreſs by word in the preſence of witneſſes, that the party put out ſhall yet be Executor, he is then alſo a revived Executor. Laſtly, if the verbal re-affirmance renew the p. 35Executorſhip, then is the Will partly in Writing partly Nuncupative, his Name not being to be found in the written Will; for the appointing of the Executor doth create the Will, though it hath not life till the Teſtators death; which is Divinity as well as Law.ccHeb. 9. 16, 17.Heb 9:16Heb 9:17

3. If a man ſeized of Lands in Fee-ſimple, diſpoſe of the ſame, or part thereof by his Will in writing, it ſhall ſtand good for the whole or part according to the difference of Tenure, though no Executor be named or appointed; ddRatio eſt Stat. 32 H. 8. c. 1.ſo that the party ſhall die Inteſtate as touching his Goods, whereof Adminiſtration is to be committed, eeSt. 31 Ed. 3. c. 11.yet ſhall have a Will as touching his Lands, becauſe Land is not properly Teſtamentary. ffOffic. Exec. c. 1. §. 1.And ſo a Will may be good in part only. ggGoldsb. Rep. in Caſ. Gibſon verſ. Platloſs.But where the ſtrictneſs of the Civil Law is obſerved, there a man cannot die partly Teſtate and partly Inteſtate; hhDec. Cognol. & Hier. Fran. in l. jus noſtrum. ff. de Reg. jur.though here in England where that Ceremonial ſtrictneſs is not obſerved, but all immunities enjoyed, being not obliged to any other obſervance in making of Teſtaments than what is Juris Gentium; iiTract. de Rep. Angl. lib. 3. c. 7.a man may thus and ſeveral other wayes die partly Teſtate and partly Inteſtate.kkBroo. Abrid. tit. Exec. & Plow. in caſu inter Greisb. & Fox. & Socin. Reg. & Fallen. Reg. 495. ubi 22 Caſus in quib. pot. quis decedere pro parte Teſt. & pro parte Inteſtatus.

CHAP. XX. Of the Probate of Teſtaments.

1. Where, and before whom the Will is to be proved.

2. By whom, and at whoſe inſtance the Will is to be proved.

3. When is the Will to be proved.

4. How and in what manner is a Will to be proved.

5. What are the Fees upon Probate of a Teſtament.

6. Touching refuſal to prove the Will.

1. EVery Laſt Will and Teſtament after the Teſtators death ought to be duly Proved before a Competent Judge in the Eccleſiaſtical Juriſdiction. A Teſtament or Laſt Will is to be Proved before the Biſhop of that Dioceſs within which the Teſtator had his Domicil or Habitation, or before his Official; unleſs by Cuſtome or Preſcription within certain Lordſhips or Mannors it appertains to the Chief Lord; aaFitzh. tit. Teſtam. nu. 2. & Dr. & Stu. l. 2. c. 28.or unleſs the Teſtator died within ſome peculiar Juriſdiction, in which caſe the Probation of the Teſtament may be Preſcription or Compoſition belong to the Judge of the peculiar; bbJo. de Atho. in Legatin. Libertat. de Execut. Teſta. verb. Ordinario.or unleſs the Teſtament be ſuch as wherein only Lands, Tenements, and Hereditaments and no Goods be deviſed; or unleſs the Teſtator had Bona Notabilia at his death p. 36in divers Dioceſſes; in which Caſe the Probation of the Teſtament appertains to that Arch-Biſhop within whoſe Province ſuch Bona Notabilia are; ccLinw. in c. Statut. verb. ad quos pertinet. & Perk. tit. Teſtam. fol. 94. & Fitzh. Abridg. tit. Adm. n. 7. & Brook. cod. tit. tit. 48.Or unleſs by Cuſtome it appertains to the Major of ſome Borough; for ordinarily and regularly though Wills and Teſtaments are to be Proved before the Judge of that Juriſdiction within which the Teſtator died, or rather within which he had his uſual habitation and made his laſt aboad, ddDr. & Stu. ubi ſupra. & Perkins ubi ſupra. & Tract. de Rep. Anglicana. l. 3. c. 7. & 21 H. 8. c. 5.yet ſome Teſtaments may be Proved in ſome Boroughs before the Major thereof by Cuſtome; where it ſhall be underſtood to be only in reſpect of the Burgages within ſuch places deviſeable, but in reſpect of their Goods they ſhall be Proved according to the Law Communi Formā; eeOffic. Exec. c. 4. §. 1.and there only where the Lands are bequeathed; which is nothing ſtrange, when as aforeſaid in ſome Mannors by Preſcription Teſtaments may be Proved before the Stewards thereof, yea though no Lands be bequeathed therein.ff2 R. 3. Fitz. 4. Coke lib. 9. fol. 43.

The Probate of Teſtaments did belong to Ordinaries but of later Times, de Conſuetudine Angliae & non de Communi Jure: and the power to grant Adminiſtration was granted to the Ordinary, by the Stat. of 31 Ed. 3. cap. 11. And before that time, the King was accuſtomed to ſeize the Goods of the Inteſtate, to the intent they might be beſtowed for the burial of the dead, and the payment of the Inteſtates Debts, and the advancement of his Wife and Children; and the Ordinary himſelf hath not power to ſell the Goods of the Inteſtate, though they be in danger of periſhing, nor releaſe a Debt due to the Inteſtate; by the Stat. of 31 Ed. Co. 9. part, Henſ… Caſe.3. The Commiſſary of the Biſhop of the Dioceſs granted Letters ad colligendum & ad vendendum ea quae peritura eſſent, & inde computum reddere; the Grantee ſold Goods which would not keep, but periſhed; and an action of Debt was brought againſt him as Executor in his own wrong, and it was adjudged maintainable, becauſe the Ordinary himſelf had not ſuch power; and therefore he could not give it to another, 7 Eliz. Dyer, 256. Again, the practice hath been when Teſtaments have been Proved before other than ſuch as are mentioned in the Premiſes, as appears by this Caſe. A Teſtament is diſproved in the Eccleſiaſtical Court, and the party appeals to the Metropolitan, and it is there diſproved, and afterwards there is an Appeal to the Court of Delegates, and it is there diſproved alſo; and at laſt the party appealed to the Queen in Chancery, by the Stat. 25 H. 8. and there alſo it was diſproved before the Commiſſioners: And if the Queen ex Authoritate ſua Regali might grant Letters of Adminiſtration, was the Queſtion. The Opinion of the Juſtices of the Common Pleas, was, That ſhe might, becauſe the ſaid Court of Chancery is the Higheſt Court; and the matter being once there it cannot be determined p. 37in any Inferiour Court: and then the party may ſhew in his Declaration generally the matter, and that Adminiſtration was granted to him by the Queen Ex ſua Regali Authoritate, under the Seal of the Court of Delegates. Mich. 24 Eliz. in C. B. See Godbolt.after, 10 Jae. in B. R. Stephenſon's Contrary, That the Court of Delegates cannot grant Letters of Adminiſtration.

A Leſſee for years of Lands, by his Laſt Will Deviſed his Term to one whom he made his Executor and died; the Deviſee entered before any Probate of the Will, and held the Land for a year and more without any Probate, and then died. The Queſtion was; Mich. 22 Eliz. Dyer 367. Hughs Abridgm. verb. Wills and Teſtaments.whether his Executor or Adminiſtrator ſhould have the Term, or that the Ordinary ſhould commit Adminiſtration of the Goods of the firſt Teſtator? It was the Opinion of the Court, That the property of the Term was lawfully in the Executor by his Entry, and the Deviſe well executed without any Probate.

In Debt againſt Executors, it was Reſolved, That if any of the Exccutors refuſe before the Ordinary, yet he that refuſed may Adminiſter the Teſtators Goods at his pleaſure, and Prove the Will; but if all the Exccutors do refuſe before the Ordinary, there Adminiſtration ſhall be granted, and they cannot after Adminiſter. 2. That in Debt brought againſt an Executor, it is a good Plea, That the Teſtator made him and another Executor, who is alive not named, without ſaying that the Teſtament is Proved. 3. Reſolved, That the Lords of Mannors in former times had the Probate of Wills in their Courts; and in ancient time when a man died Inteſtate, and had made no diſpoſition of his Goods, the truſt of them was committed to the King, who was and is Parens Patriae. And the Ordinary was Conſtituted by the King in loco Parentis, and his Power was given to him by the Stat. of 31 E. 3. Vid. Cook. 9. Part. 37, 38. in Henſloes Caſe. vid. Hugh's Abridgment. verb. Probate of &c.cap. 11. 4. Reſolved, that although the Ordinary had the Power given to him as before, yet no Power thereby is given to the Ordinary to ſell or diſpoſe of the Goods either to his own uſe, or to the uſe of any other; and that he hath not any abſolute property in the Goods, but a property only ſecundum quid.

2. The Teſtament is to be Proved by the Executor ggPerk. tit. Teſt. fol. 93.whom the competent Judge either ex Officio, or at the inſtance of the intereſſed may call before him to Prove the ſame, and to declare his acceptance or refuſal of the Execution thereof; hh21. H. 8. c. 5. & l. 1. ff. quemadmodum teſta. approba. & ibi Bart. Bald. & Ang. in dict. l. ….yea ſome think it may be done at the inſtance of ſuch as have no intereſt, to the intent that thereby they may be certified whether the Teſtator left them a Legacy. iiGloſ. & Bald. in l. 2. ff. ibid. in princip.And becauſe it often happens that a Laſt Will or Teſtament is left in the Cuſtody of ſome other Friend than the Executor, the Law hath provided, that in whoſe hands ſoever it remains, he is compellable to produce the ſame, and to exhibite ſuch Teſtament. kkl. …. in prin. & §. hoc interd. ff. de Tab. ex…il.And if he once had it, the Law preſumes p. 38him to have it ſtill, untill he prove the contrary by good evidence, or by his own oath at leaſt. llAlex. in l. 2. C. de Teſt. nu. 3. verb. Tamen.Alſo an Executor dying before he hath Proved his Teſtators Will, his Executor (that is) the Executors Executor may not Prove both the Wills, and ſo become Executor to both the Teſtators; but in caſe the Goods of the firſt Teſtator were after Debts paid bequeathed to the firſt Executor, then may his Executor take Adminiſtration of the firſt Teſtators Goods with the Will annexed.

3. The time when the Will is to be Proved is ſomewhat uncertain, and left to the diſcretion of the Judge, according to the diſtance of the place, the weight of the Will, the quality of the Executors, the abſence of the Witneſſes, the importunity of Creditors and Legataries, and other circumſtances incident hereunto. mml. 2. §. utrum. ff. quemadmod. Teſtam. approb.Yet regularly Teſtaments ought to be inſinuated to the Official or Commiſſary of the Biſhop of the Dioceſs within four months next after the Teſtators death. nnFulb. Par. par. 3. Diolog. 3. fol. 32.And the Ordinary may ſequeſter the Goods of the deceaſed untill the Executors have Proved the Teſtament; ſo may the Metropolitan if the Goods be in divers Dioceſſes. oo9 Ed. 4. 33.Alſo the Ordinary may compell the Executor to Prove the Will, and to accept or refuſe the Adminiſtration: if the Executor refuſe, or if there be a Will made and no Executor appointed, the Ordinary muſt commit Adminiſtration cum Teſtamento annexo to whom he ſhall think fit, and take Bond of the Adminiſtrator to perform the Will. If no Will be made, he muſt grant Adminiſtration to the next of Kin; if they refuſe it, then to whom ſhall deſire it; and if no body take the Adminiſtration the Ordinary may grant Letters ad colligendum bona Defuncti, and thereby take the deceaſed's Goods into his own hands, wherewith he is to pay the Debts and Legacies ſo far as the Goods will reach; pp31 Ed. 3. c. 11. & 13 Ed. 1. c. 19. & 21 H. 8. cap. 5.for which himſelf becomes liable in Law like other Executors or Adminiſtrators.

4. A Teſtament after the Teſtators death and not before may be Proved either in Common Form; as when the Executor preſenting the Teſtament before the Judge, without citing the intereſſed, doth depoſe the ſame to be the true, whole, and Laſt Will and Teſtament of the deceaſed, and whereupon the Judge doth annex his Probate and Seal thereunto: Or in form of Law, as when the Widow or next of Kin to the deceaſed are cited to be preſent, in whoſe preſence the Will is exhibited before the Judge, whereupon Witneſſes being produced, received, ſworn, examined, and their depoſitions publiſhed, the Judge in caſe of ſufficient proof doth pronounce for the validity of the Teſtament. qqBal. in l. 2. c. de Teſta. nu. 2. & Sichard. ibid. & Alex. & Paul. de Caſt. & alii in eand. leg.Now he that Proves but in Common Form, may be compelled to Prove the ſame again in form of Law; but being once ſo Proved the Executor is not compellable to Prove it any more; rrPaul. de Caſt. Conſil. 96. vol. 1. & Simo de Praetis de Interp. ult. vol. l. 2. dub. 2. Sol. 3.but being Proved only p. 39in Common Form, it may be queſtioned at any time within thirty years next after, ssCowell. Interpret. verb. Probat.by common Opinion before it work preſcription, which is otherwiſe in caſe it be Proved in Form of Law, or per Teſtes. There is another kind or Form of Proving Teſtaments, which in the Civil Law is called Apertura Teſtamenti, but this ſavours too much of Ceremony to be of any uſe with us. Let it therefore ſuffice to be farther Noted, that be the Teſtament Proved in what manner ſoever, yet the Executor before the Office-Seal be affixed thereto, is to be obliged by his Oath, yea and by Bond if need ſo require, to render a juſt account of the Execution of the Teſtament when be ſhall be thereunto lawfully called. ttStat. §. & poſtquam. de Teſt. l. 3. Provin. Conſt. Cant.Laſtly, the Probate of every Biſhops Teſtament, or the granting Adminiſtration of his Goods, although he had not Goods but within his own Juriſdiction, does belong to the Arch-Biſhop of the ſame Province.uuCoke Inſt. Part. 4. verb. Praerog. Court. cap. 74.

5. Touching the Fees for Probate of Teſtaments, for Regiſtring, Sealing, Writing, Preiſing, making of Inventories, giving Acquittances, Fines, and all other things concerning the ſame; as alſo for granting Adminiſtrations, the Reader is here referred to the Statute of 21 H. 8. cap. 5. Enacted in that behalf, where the penalty Stat. 21 H. 8. c. 5.is Ten Pounds for taking more than is there appointed. If the Executor requeſt any to engroſs the Teſtament, he muſt agree with him that he doth ſo requeſt, wwCoke Ibid.or bring one ready ingroſſed with him, which for prevention of paying more Fees than is due by the Statute, is adviſed as a ſafe and ready way. Note, that by the ſaid Statute, neither the money raiſed of Lands appointed by Will to be ſold, nor the profits thereof, are to be accounted as any of the Teſtators Goods or Chattels. The Will is to be brought with Wax thereunto ready to be Sealed, and proof to be made thereof. And the Executor at the making of the Inventory is to call or take to him two of the Teſtators Creditors or Legatees, or in their abſence or refuſal two honeſt perſons of the Teſtators next of Kin, or for default of them two other indifferent perſons; which Inventory being indented is to be atteſted for the truth thereof by the Executors Oath, and one part thereof to be left with the Ordinary, the other part thereof to remain with the Executor.

6. If on Proceſs or Summons from the Judge the Executors appear not to Prove the Will, they are puniſhable for contempt; if they appear, but refuſe to Prove the Will, the Judge may grant Adminiſtration to the Widow or next of Kin. xxDict. Stat. 21 H. 8. c. 5. & 9 Ed. 4. c. 33. & Plowd. 184. ….Now Refuſal cannot be by word only, but it muſt be Entered and Recorded in Court, and therefore it muſt be done before a Competent Judge, and not before Neighbours in the Countrey. But where an Executor hath once Adminiſtred, there he cannot afterwards refuſe p. 40to Prove the Will and take on him the Executorſhip, becauſe by once Adminiſtring he hath accepted the Executorſhip by interpretation of Law, and ſo determined his Election; and in that Caſe the Ordinary ought not to accept of ſuch refuſal, but to compel him to Prove the Will, and take upon him the Executorſhip. yy9 Ed. 4. 47. Dyer in Caſ. Greisbrook & Fox. Plow. Com. 280. b. Paſch. 7 Eliz.Yet in caſe the Judge doth admit one to refuſe notwithſtanding his former having Adminiſtred, it ſhall ſtand good. zz26 H. 6. fol. 78.But after refuſal and Adminiſtration committed to another the Executor may not recede from it, and go back to Prove the Will, and to aſſume the Executorſhip; indeed if only upon the Executors making default of appearance upon Proceſs or Summons to Prove the Will, Adminiſtration be inſtanter committed to another, in this caſe the Executor may yet at any time after come in and Prove the Will, and ſo undo the Adminiſtration. aaMich. 27, 28 Eliz.But if after refuſal it appear to the Judge that the Executor had Adminiſtred before ſuch refuſal, he may revoke the Adminiſtration, and enforce the Executor to proceed to the Proving of the Will: As if A. being Executor ſhall Adminiſter, and yet refuſe to Prove the Will, ſo that Adminiſtration is committed to B; if B. being afterwards ſued for Debt ſhall plead the matter ſupra, it ſhall be found a good Plea. bbOffic. Exec. cap. 3. §. 2. An Executor before Probate of the Will may releaſe, but not bring an Action. Harriſons Caſe. Cook. 5. part. 28. vid. Hugh's Abridg. verb. Probate of Wills and Teſtaments.Alſo an Executor may be ſued for the Debts of the Teſtator in ſome Caſes even before the Will is Proved, for he may not by his own act of delaying to accept or refuſe the Probate of the Will keep off Suits, except he will refuſe in due manner, that ſo Adminiſtration being granted there may be ſome one ſuable by the Teſtators Creditors for the Debts owing by him.ccIbid. vide lib. 2. c.

CHAP. XXI. Of Proof requiſite to a Will.

1. What Teſtimony ſufficient to Prove a Will.

2. Proof requiſite to a Will written by the Teſtators own hand.

3. What Witneſſes are incompetent to Prove a Will.

4. Legataries how far they may be competent Witneſſes.

5. Animus Teſtandi, how it may be proved.

1. WHere there is no controverſie or diſpute touching the Will, there the ſingle Oath of the Executor alone is ſufficient for the Probate thereof in Common Form; and where other proof is requiſite, there it lies much in the breaſt of the Judge duly regulated by Law what proof to admit for the number of Witneſſes, p. 41for the quality of them, and for the nature of the Proof according to the circumſtances and ſtrength of oppoſition made againſt the Will. But regularly by the Laws and Cuſtomes of England, Two Witneſſes without exception are requiſite for the due Proof of a Teſtament, and Two ſuch are ſufficient; aaJus Civile exigit ſeptem. §. ſed cum. & §. fin. Inſt. de Teſtam. Ordin.So that it is not neceſſary to have any more than Two, bbIn c. Statut. verb. probatis. l. 3. Provin. Conſt.and it may be in vain to have no more but One; ccJaſ. in l. Cunctos. C. de Summa Trinit.for a Nuncupative Teſtament muſt be proved by at leaſt Two Witneſſes without exception. But

2. A Teſtament written by the Teſtators own hand Proves it ſelf without the help of ſuch Witneſſes; yea, though it hath not his Name ſubſcribed to it, nor his Seal affixed to it, nor witneſſes preſent to it; Provided it be undoubtedly known to be his writing, or can be ſufficiently proved ſo to be; yet ſhall it have the more Authority if ſo be it be ſubſcribed by himſelf and Witneſſes, and Sealed. Nor is it neceſſary to the Proof of a written Will that the Witneſſes hear it read or ſubſcribe it, ſo as they can depoſe that the Teſtator declared before them, that the ſelf-ſame writing now produced, is, was, or ſhould be his Laſt Will and Teſtament. For in a written Will or Teſtament it is not neceſſary that there be any Teſtimony of Witneſſes where it is certain and undoubted that the Teſtament is written or ſubſcribed with the Teſtators own hand; ddAuth. quod ſine. C. de Teſt.or that the Teſtator cauſed the ſame to be written by another; but if theſe be doubtful, then the teſtimony of Witneſſes is neceſſary. eeBart. in l. ſi ita Script. ff. de Cond. & Demon.Alſo the Witneſſes ought to prove the very identity of the writing, that is, that the writing now ſhewed is the very ſame writing which the Teſtator in his life-time affirmed before them to be his Laſt Will, or to contain his Will, or other words full to this purpoſe; ffDD. in l. hac Conſultiſſ. & in Auth. in non obſervato. C. de Teſtam.ſo that it is not ſufficient for the Witneſſes to ſay, this is the Teſtators own hand, for or becauſe we know his hand; ggBart. & alii in l. …ita ſcripſero. ff. de Cond. & demon.neither is it ſufficient by comparing other writings of the Teſtators own hand with the Teſtament, hhSichard. in ff. Auth. Quod. ſine.for hands may be counterfeited, therefore proof by ſimilitude of hands is not full proof, iiBart. & alii in l. Admonendi. ff. de jurejurand.except where the ſtyle and practice of the Court runs otherwiſe. kkVeſtr. Prac. lib. 6. c. 1.Nevertheleſs if the Witneſſes depoſe that they ſaw the Teſtator write or ſubſcribe the Teſtament, and know the ſame to be his Teſtament and Hand; llSichard. ubi ſupra.or that they had heard the Teſtator to confeſs that he had made his Teſtament, and that the ſame was in ſuch a mans Cuſtody; mmBart. & alii l. ſiita ſcripſero. ff. de Cond. & Demon.or if the Teſtament were found in the Teſtators Cheſt among other his writings, in theſe Caſes the proof made by comparing of hands is a full and ſufficient proof; nnGraſ. Theſ. Com. Op. §. Teſt. q. 16.yea, though there appear not any of thoſe helps by probable circumſtances, yet if there be no ſuſpicion of fraud, nor fear of ſubornation, proof made by comparing of hands may be allowed for p. 42full and ſufficient proof. Likewiſe if it be proved that the Teſtator in his life-time did acknowledge that his Teſtament was contained in a writing left in ſuch a mans hands or cuſtody, and that man produce a writing, depoſing it to be the ſame which the Teſtator left in his cuſtody; ſuch proof is ſufficient without any further comparing of hands. ooAlex. Conſ. 167. vol. 5. nu. 1.But if the Teſtator did alſo acknowledge that his Teſtament contained in ſuch a writing left in the cuſtody of ſuch a perſon, was written with his own hand, then ſuch proof is not ſufficient without comparing of hands, whereby it may appear to have been written by the Teſtator himſelf.ppAſtr…us in l. heredes palam. ff. de Teſta. nu. 2.

3. Regularly all perſons are held competent Witneſſes to prove a Controverted Will, ſave ſuch as the Law holds incompetent; ſuch are ſuch as are parties intereſſed, or preſumed in Law to be byaſſed in affection, or the like; alſo infamous perſons, as perjured, or the like; alſo ſuch as for want of judgement and underſtanding the Law rejects. And if it cannot be proved whether it be a Teſtament or a Codicil, the circumſtances being ſo indifferent to either, then is it moſt ſafe in regard of the Statute to commit the Adminiſtration to the Widow or next of Kin demanding the fame, to avoid the forfeiture of Ten pounds, qqStat. 28 H. 8. c. 5.in caſe the Judge before whom ſuch penalty is demandable ſhould adjudge the party to have died Inteſtate or without a Will.

4. A Legatary may be a competent witneſs for the proof of a Will in all parts thereof, ſaving for what concerns the Legacy therein bequeathed to himſelf. rr§. Legatariis. Inſt. de Teſta. Ordin. & Portius ibidem.So that ſuppoſe never ſo many Witneſſes to a Will, wherein each of them hath a Legacy, they cannot ſufficiently prove the Will as to their own Legacies, ssBart. in l. omnibus. C. de Teſtib.but for the reſt of the Will they may.ttAlbert. de Teſtib. c. 4. nu. 57.

5. It is very obſervable, that the moſt conſiderable Requiſite the Law aimes at to the conſtituting of an Executor and making of a Teſtament, is to be proved more by Circumſtances than by Witneſſes; and that is Animus Teſtandi, or the intent or purpoſe of the Teſtator to make his Will. uuGloſſ. in l. plane. Inſt. de Teſta. Milit.For it is the mind, purpoſe and intent of the Teſtator more than his words that giveth life and being to the Teſtament. wwMant. de Conject. ult. vol. lib. 2. tit. 15. & l. ex feod. ff. de haered. inſtit.The circumſtances, that prove the intent or purpoſe, muſt alſo themſelves be proved by Witneſſes. Theſe Circumſtances proving ſuch a purpoſe in the Teſtator are many; as when the Teſtator is in any more than ordinary danger of death; xxGloſſ. in l. Divus. ff. de Milit. Teſtam.or that he orderly compoſeth himſelf for ſuch a work; yyGloſſ. in dict. l. plane.or that he required the Witneſſes to bear witneſs thereof; zzGloſſ. in dict. l. Divus.with many other the like circumſtances, as to the perſon, time, place, occaſion, manner of ſpeech, deportment, and in whoſe preſence. All which the circumſpect Judge is to take into conſideration; for ſince the mind and intention of the Teſtator is the eſſential qualification of every Teſtament, and not capable p. 43of a Being otherwiſe than by ſuch intention, and the mind and intention of man not ſo much as conjecturable otherwiſe than by outward circumſtances, it is moſt neceſſary that they fall under a due proof by ſufficient Witneſſes.

CHAP. XXII. Bona Notabilia.

1. What ſhall be accounted as Bona Notabilia.

2. Where the Will is to be Proved in caſe there be Bona Notabilia.

3. How or when Debts and Bonds may make Bona Notabilia.

4. Law-Caſes touching this Subject.

1. IT is agreed by all, that Five Pounds is the ſumm or value of Bona Notabilia; provided that where by compoſition or cuſtome in any County Bona Notabilia are rated at a greater ſumm, the ſame is to continue unaltered; as in the Dioceſs of London it is Ten Pounds by compoſition; aaCoke part. 4. Inſtit. cap. 74. verb. Prerogat. Court.Provided alſo that if any man die in itinere or in a journey, the Goods that he hath then about him or with him ſhall not be as Bona Notabilia to cauſe Adminiſtration to be committed, or the Will to be Proved in the Prerogative. bbOffic. Exec. c. 4. §. 2.Nor is it neceſſary that the party muſt have five pounds in each and every of the ſeveral Counties where his Goods are diſperſed, but it is ſufficient if the party deceaſed were poſſeſſed of Goods and Chattels in ſome other County than that wherein he lived and died to the full value of five pounds beſides thoſe Goods extant in the County where he died. So that although the deceaſed's Goods and Chattels do amount to Ten Pounds or more, yet if the Goods and Chattels extant in ſome other County do not extend to Five Pounds at the leaſt, the deceaſed is not to be accounted to have Bona Notabilia.

2. Regularly the Will is, as hath been ſaid, to be Proved in the Eccleſiaſtical Court of the ſame County where the Teſtator is an Inhabitant, or wherein he made his moſt uſual reſidence and aboad for the latter years before his death, and not in the Eccleſiaſtical Court of that County wherein he made his Will, or wherein he died, but where his laſt place of habitation was; but if the Teſtator died poſſeſſed of Goods to the value of Five Pounds, called Bona Notabilia, in divers Counties, then the Will is to be Proved in the Prerogative Court, to which alſo Appeals from any other inferiour Juriſdiction: So that the Prerogative Court of the Arch-Biſhop p. 44of Canterbury is the Court wherein all Teſtaments are to be Proved, and all Adminiſtrations to be granted, where the party dying within his Province hath Bona Notabilia in ſome other Dioceſs than that wherein he died, which regularly is to be to the value of Five Pounds, ſave where by cuſtome or compoſition it is at any greater ſumm, as aforeſaid. Alſo if any Teſtator die not poſſeſſed as aforeſaid, and the Executor notwithſtanding Prove the Will in the Prerogative, ſuch Probate ſhall ſtand good: But it is otherwiſe if the Will be Proved in the Inferiour Juriſdiction when the Teſtator dies poſſeſſed, as aforeſaid, of Bona Notabilia; for in ſuch caſe it is again to be Proved in the Prerogative. And if a man hath Goods in divers Dioceſſes or Provinces, and make his Executor of his Goods in one of the Provinces, and die Inteſtate as to his other Goods: And if the Ordinary do commit Adminiſtration of the Goods which are in the other Province unto the ſaid Executor, then is he both Executor and Adminiſtrator, and the party died both Teſtate and Inteſtate. cc35 H. 6. 36.And if a man died Inteſtate having Bona Notabilia in divers Dioceſſes, the Judge uſed to Aſſeſs a convenient ſumm to be imployed in pios uſus, but with and under certain limitations, ddCoke ubi ſupra.or legal reſtrictions.

3. Debts owing to the Teſtator are held Bona Notabilia as well as Goods in poſſeſſion, their value being anſwerable; yet if the penal ſumm of a Bond be but Five Pounds for the payment of a leſs ſumm, although the Bond be forfeited, yet that is not underſtood as Bona Notabilia, although in Law the whole penal ſumm be a Duty. eeOffic. Exec. ubi ſupra.And thoſe Debts are ſaid to be Bona Notabilia, where the Bonds or other Specialties are, and not where the Debtors inhabit; ſo that if the Bonds be in the County where the Teſtator died, and the Debtors in another County, in this caſe the Will is not to be Proved in the Prerogative Court; but in caſe the Debts are only by Contract without Specialty, they are then to be eſteemed Bona Notabilia there and in that place where the Debtor is. But in caſe Lands be by Will given to be Sold for payment of Debts and Legacies, this is not to be accounted as Bona Notabilia, though it be Aſſets; ffIbid.for where Land is bequeathed to be ſold for ſuch uſes, there neither the money raiſed thereby, nor the profits thereof ſhall be accounted as any of the Teſtators Goods or Chattels.

4. One had Goods ſolely in an Inferiour Dioceſs; and the Metropolitan of the Province pretending that he had Bona Notabilia in divers Dioceſſes, committed the Adminiſtration of the Goods. It was reſolved, that ſuch Adminiſtration granted by the Metropolitan, was not void, but voidable by Sentence, becauſe the Metropolitan hath Juriſdiction of all places within his Province. But if the Ordinary of one Dioceſs committeth Adminiſtration of p. 45Goods when the party hath Bona Notabilia in divers Dioceſſes, the Adminiſtration is void as well for his Goods within the Dioceſs, as without.gg22 Eliz. in C. B. Vere and Jefferys Caſe. Co. 5. part. 29.

In an Action of Debt brought by an Adminiſtratrix upon an Adminiſtration brought by the Biſhop of R. the Defendant pleaded an Adminiſtration committed to him by the Dean and Chapter of Canterbury ſede vacante, becauſe the Inteſtate had Bona Notabilia. The Plaintiff Replyed, that the ſaid Adminiſtration was Repealed; and it was adjudged for the Plaintiff: 1. Becauſe the Defendant did not ſhew what Bona Notabilia the Inteſtate had in certain; and it ſhall be intended he had not Bona Notabilia, and ſuch Adminiſtration is but voidable. 2. Becauſe before the Repeal of the Adminiſtration committed by the Metropolitan, the Inferiour Ordinary may commit Adminiſtration; and when the Defendants Adminiſtration is Repealed, it is void ab initio; and in the Principal Caſe, it was alſo reſolved, that whereas the Adminiſtration was committed to the Obligor, that the Debt was not extinct, becauſe it is in another right: otherwiſe it is, if the Obligee himſelf made the Obligor his Executor.hh8 Jac. Coo. 8. part. Sir John Needhams Caſe, fol. 135.

In Debt brought upon an Obligation, the Caſe was, the Inteſtate died in Lancaſhire: The Obligation upon which the Action was brought was in London at the time of his death. The Biſhop of Cheſter in whoſe Dioceſs the Inteſtate died, grants Adminiſtration to J. S. who releaſed to the Defendant: The Arch-Biſhop of Canterbury granted Letters of Adminiſtration to the Plaintiff, and in Debt brought by him the Releaſe was pleaded in Bar. In this Caſe, it was holden by the Juſtices, where one dieth who hath Goods in divers Dioceſſes, Canterbury ſhall have the Prerogative; and it was holden, that if Canterbury hath not any Prerogative in York, yet that this Bond ought to be Sued in and committed Adminiſtration of, within the Court of Canterbury, and committed by the Biſhop of that Dioceſs.iiHill. 38 Eliz. C. B. Byron and Byrons Caſe. Cro. 3 part. 472. and Hugh's Abridgm. vol. 3. tit. Adminiſtrator.

If a man dies Inteſtate, having Goods in divers Counties, the Metropolitan ſhall grant the Adminiſtration; 14 H. 6. 21. 10 H. 7. 18. 35 H. 6. 43. If he hath Bona Notabilia to the value of one hundred ſhillings in divers Dioceſſes, the Metropolitan ſhall grant the Adminiſtration; 10 H. 7. 16. b. Or if a man dies beyond the Rolles Abridgm. tit. Execut. lit. F.Seas Inteſtate, the Arch-Biſhop ſhall grant the Adminiſtration; P. 11 Jac. B. per Co. to be adjudged in 42 Eliz.

If a man dies Inteſtate having Bona Notabilia in England and Dyer. 14 Eliz. 305. Roll. ibid. ….Ireland ſeveral Adminiſtrations ſhall be granted, viz. by the Arch-Biſhop of Canterbury for the Goods in his Province, and by the Arch-Biſhop of Dublin for the Goods in his.

It is Ordained by a Canon, 1 Jac. cap. 92. That if a man dies in a Journey, the Goods which he had at that time with him, ſhall p. 46not cauſe his Teſtament or Adminiſtration to be liable to the Prerogative Court.

If a man hath Goods to the value of Five Pound in one Dioceſs, Rolles Abridg. tit. Execut. lit. H.and a Leaſe for years of the ſame value in another Dioceſs, they are Bona Notabilia, whereby the Arch-Biſhop ſhall grant the Adminiſtration, although the Leaſe for years be not a thing moveable, nor properly Bonum, but it is a Chattel according to Pleadings.

If a man becomes bound in an Obligation at London, and dies Inteſtate in Devon, and there hath the Obligation at the time Trin. 14 Car. inter Lunn & Dodſon, per Curiam. Roll. ibid. lit. G.of his death with him, Adminiſtration ought to be granted by the Biſhop of Exon, where the Obligation was at the time of his death, and not by the Biſhop of London where the Obligation was made; for the Debt ſhall be accounted Goods, as to the granting of Letters of Adminiſtration, where the Bond was at his death, and not where it was made.

To make Bona Notabilia, a Debt without ſpecialty ſhall be accounted Hill. 37 Eliz. B. & Trin. 17 Jac. inter Trowbridge and Taylor, per Cur. Roll. ibid.Goods where the Debtor lives, and not where the Teſtator lived. Likewiſe if a man dies Inteſtate, having divers Debts or Obligations in ſeveral Dioceſſes, the Debts are ſaid to be Bona Notabilia where the Bonds or Obligations are, and not where the Debtors or Debtees are.

If a man hath Goods to the value of Five Pound in one Dioceſs, and a Bond or Obligation to a greater value in another Dioceſs, Dyer. 14 Eliz. 305. 58.the Obligation being there alſo made, they are Bona Notabilia, for which reaſon the Arch-Biſhop ſhall grant Adminiſtration.

Anciently if a man died Inteſtate, having Goods to the value of Forty Shillings in two Dioceſſes, it ſhould make the Goods to be Bona Notabilia, whereby Adminiſtration ſhould be granted by the Perkins. §. 489. Roll. ibid. lit. 1.Arch-Biſhop. But by a Canon 1 Jac. cap. 93. It is Ordained, that Bona Notabilia ſhall be accounted to be Five Pound at leaſt, and that none ſhall be ſaid to have Bona Notabilia unleſs he hath Goods in divers Dioceſſes to the value of Five Pound, and ſo that Canon hath changed the Law, if it were otherwiſe before. Likewiſe in the ſaid Canon there is an Exception of ſuch Dioceſſes where by Cuſtome or Compoſition Bona Notabilia are rated at a greater ſumm than Five Pound.