The Orphans Legacy, Part 3 · Chapter 2
CHAP. II. Of Deviſors and Deviſees or Legataries.
1. Who may be a Deviſor or Deviſee or Legatary.
2. What perſons are incapable of being Legataries.
3. Whether an Infant in the Womb may be a Legatary; or a Feme Covert to her own Husband.
4. Whether Baſtards may be Legataries.
1. REgularly, every one that is qualified to make a Teſtament may make a Deviſe of the ſame thing, whereof he may make ſuch Teſtament; and whoſoever is diſabled to the one, is diſabled to the other alſo. And therefore Infants under the age of 21. years may not be Deviſors of Land; nor of Goods under the age of 14. as to the Male, or under the age of 12. Years as to the Female. aL. qua aetate ff. de Teſt §. praeteria. Inſt. quibus non eſt permiſſ. fac. Teſta. l. ſi frat. C. qui teſta. fac. poſſ & l. ult. C. de Teſta. Mil. & Perk. tit. Deviſe fo. 97.Nor may a Woman under Covert Baron Deviſe her Lands to her own Husband, or to others with or without his Conſent. bCoke ſup. Lit. 112. 4. 61. Broo. Deviſe 32.Nor may any Eccleſiaſtical perſon or Member of a Body Corporate Deviſe the Lands or Goods which they have in right of the Church or Corporation. cPerk. Sect. 496.So that every Deviſor ought to be a perſon qualified to deviſe, and that both in reſpect of his Perſon and the thing Deviſed; he muſt alſo have at the ſame time Animum Teſtandi, and the thing Deviſed muſt be ſuch as is Deviſable. And as to the Deviſee or Legatary, all ſuch by the Civil Law as are uncapable of Inheritances and Goods are excluded from being Legataries or Deviſees, and indeed from being Executors. But every one by that Law that may be made an Heir or Executor, may alſo be a Legatary or Deviſee; and as to any others no Deviſe may be made: dCod. de Haered. inſtit. l. 1.Yet with this Difference, that the Executor muſt be a Perſon capable both when the Teſtament is made, and when the Teſtator dyes: eff. de Haered. inſt. l…ſi alien. §. de Extraneis & Inſt. de haer. qual. & diſtBut it is ſufficient for the Legatary that he be capable at the Teſtators death. fff. de donat. cauſ. mort. l. in mortis & de Cond. Et demon. l. eum qui & ff. de jur. Fiſci. l. non intelligitur §. quando.Indeed at the Common Law it is otherwiſe; for there a Deviſe or Legacy may be given to all perſons to whom a Grant may be made, ſave in ſome few Caſes; And the Deviſe ought to be good and ſufficient in Law at the time of the Teſtators death; Therefore if a Man Deviſe Lands to an Hoſpital, or the like, when there is none ſuch at the Teſtators death, though afterwards made or erected, ſuch Deviſe is Null and Void: The Reaſon is, Becauſe Deviſes at Common Law are Purchaſes, and he that taketh Lands by Purchaſe, muſt be capable to take the ſame when it falleth to him by the Purchaſe. gPerk. 97. Sect. 505. & 9. H. 6. 23. & 2. El. 119. Pl. 18. Dyer 13. Eliz. 303. Pl. 46. Dy. & 300. Pl. 39. & 5. f. 4. 6. per Bil.Thus by the Common Law the Deviſee ought to be capable at the time of the death of the Deviſor; which holds alſo True by the Civil Law: Hence it is, that though a Man may not grant nor give Lands to his Wife during the Coverture becauſe they both are but one Perſon in Law, yet by Cuſtom heretofore he might, and by Statute now he may Deviſe his Lands to his Wife to have in Fee-ſimple, or otherwiſe; becauſe ſuch Deviſe taketh not effect till the death of the Deviſor, and then they are not one perſon. hLit. lib. 2. c. 10. Sect. 8. 27. Aſſiſ. Pl. 60. 24. H. 8. Broo. Deviſe 34.So then, Regularly whoſoever may be a Grantee, may alſo be a Deviſee or Legatee.)iPerk. Sect. 505, 510.
2. For which Reaſon a Cominalty not Incorporate by the Kings Charter to Purchaſe Lands is Incapable; therefore if a Man Deviſe Lands Deviſable in Fee to A. for Life upon a certain Condition, the Remainder to certain Men of a Fraternity, upon the ſame Condition, not Incorporate by the Kings Charter, and enabled to Purchaſe, this Remainder is void. kPerk. 98. Sect. 510. 49. E. 3. 3.Therefore a Legacy given to an unlawful Colledge, is void; for by that is meant all Companies, Societies, Fraternities and other Aſſemblies not ſo Conſtituted by the Prince, and therefore incapable of being Legataries. But generally a Deviſe may be good to any Perſon or Perſons not ſpecially rendred incapable by Law; for by the Civil and Eccleſiaſtical Law, the Legacy is void if it be given to an Heretick, Apoſtate, Traytor, Felon, Perſons Excommunicate, outlawed Perſons, Baſtard, unlawful Colledge, as aforeſaid, Libeller ler, Sodomite, Manifeſt and Notorious Uſurer, except in ſome ſpecial Caſes. And yet it ſeems that a Deviſe of Lands to any ſuch Perſons is good within the Statute of Wills. lDyer. 303, 304. B. R. curia. Mich. 3. Jac.Likewiſe an uncertain Perſon can be no Competent Legatary, no more then he is of being an Executor; inſomuch that if a Man Bequeath any thing to a perſon by a certain Name, without other deſcription of his perſon, and there be more then one of the ſame Name known To the Teſtator, in this Caſe neither of them ſhall be Legatary by Reaſon of the uncertainty. m§. incertis. inſt. de Legat. Jo. An. Gem. & Franc. in c…ſi pater. de Teſt. 6.Hence it is that Deviſes made in theſe words, viz. To his beſt Friend, or to his beſt Friends; are void Deviſes. nCook 6. 68.Or to his Son A. B, when he hath two Sons of the ſame Name, unleſs you can help it by an Averment, which Son the Teſtator meant. but perſons named Alternatively or Disjunctively are not ſo uncertain, but may be admitted as Legataries; And therefore if the Teſtator Bequeath 10 l. to A. or B. or to ſuch or ſuch a perſon, both of them ſhall have the Legacy equally betwixt them. oL. cum quidam C. de Ver. ſign. & DD. ibidBecauſe this word [Or] is in favour of Teſtaments taken for [and] pL. cum quid. ibid.when it is ſo placed between two perſons, either as to the appointing of Executors, or to the making of Legataries; unleſs it can be well proved, That the Teſtator did bear more affection to the one then to the other; qRip. in c. inter caeteros de Reſcrip. Extr. nu. 54, Paris Conſ. 21, Vol. 3. Jul. clar §.. Teſt. q. 80, nu. 5Or that he gave Authority to ſome other perſon of making the Election which of the two ſhould be the Legatary, rL. ſi Titio aur Seio. de Leg 2, & l. u…r. §. cum quidam. ff. de Reb. dub..Or when one of the perſons is Incapable of being a Legatary for any of the Reaſons aforeſaid. And if the Deviſor doth Bequeath to his Brother or his Children ſuch a thing, ſaying, [I give to my Brother or his Children] in this Caſe upon the preſumption of Affection, the Brother ſhall enjoy the Legacy during his life, and after him the Children ſhall be the Legataries: sl. cum pater. §. …te. ff. de Leg. 2. Bald in c 1, de eo qui ſibi & haered. ſuis lib. feud. Jul. clar. q. 80. nu. 5.But if it be Deviſed to him and his Children, then are both the Parent and his Children equal and Joynt-Legataries. tPlowd. 345, Co. 1. 105, 155, Perk. §. 508.And whereas it is formerly hinted, That an Heretick may not be a Legatary or Deviſee, underſtand it of an Heretick that is ſuch at the time of the Deviſors death; for it doth not prejudice the Legatary that fie was an Heretick at the time of the making of the Teſtament, ſo as he be not one at the Teſtators death. uL. non oportet. ff. de Leg 2. Peck. de Teſt. coning. l. 4, c. 31, Graſſ. Theſ com. Op. § Inſtitut. q. 28.Add nnto this Anabaptiſts; for the Law Civil and Canon excludes them alſo as Incapable of being Legataries. wL. ult. de Sacr. Baptiſ. reit. c. Minſing in tit. de haer. inſt. in prin.But a perſon outlawed, though depending the Outlawry againſt him, he cannot Sue for his Legacy; xFitzh. A. bridg tit. Adminiſt. nu. 3.Yet he is not ſo properly ſaid to be altogether Incapable of being a Legatary, as of being Incapable of Suing for his Legacy; unleſs the Outlawry be Reverſed by ſome Error or diſcontinuance in the Suit, or unleſs the party Outlawed were beyond the Seas at the time of the Outlawry being pronounced; yTerms of Law. Verb. ut legat.Or unleſs there were ſome defect on omiſſion of the Three Proclamations in ſuch Caſes by the Stat. required; z31. Eliz. cap 3.Or unleſs his pardon be obtained, wherein the words of the Pardon ought diligently to be conſidered; aCo. Rep. lib, 5. fo. 49. in Wirralls Caſe.For by force of the Outlawry the Legacy is forfeited and confiſcate. Likewiſe a perſon Excommunitate is not ſo Incapable of being a Legatary, as unadmiſſable by the Ordinary to Commence any Suit for his Legacy during his perſiſtency under ſuch Sentence of Excommunication.bPhil. Franc. in Rub. de Teſta. lib. 6. nu. 32, & Graſſ. Theſ. Com. Opt. §. Inſtitutio. q. 4, & Bald. in l. id quod pauperib. c. de Epiſc. & Clerc. nu. 6.
3. If one Deviſe to an Infant in his Mothers Womb, it is a good Deviſe; otherwiſe it is by Feofment, Grant, or Gift; For in thoſe Caſes there ought to be one of ability to take preſently, or otherwiſe it is void. cTerms of Law. Verb. Deviſe.And if one Deviſe his Land to his Daughter and Heir Apparent in Fee-ſimple, and the Wife of the Deviſor be privily with child of a Son which is born after his death, Then is the Deviſe become good, for that now ſhe is not Heir to her Father. dFitzh. tit. Aſſize. 27.Alſo a Feme Covert may be a Competent Deviſee or Legatary to her own Husband. as to ſuch Lands, Goods or Chattels which he ſhall deviſe to her.eM. 19. Ja. cur. B. R. Crump. verſ. Bodie.
4. Whereas Baſtards, whether Baſtards in ſimple Fornication, in Adultery, or in Inceſt, are without diſtinction incapable by the Civil Law of being Legataries, fCovar. de ſponſ part. 2. c. 8, §. 5, n. 15, 16, 17. & Jul. clar. l. 5, §. fornicat. & §. Inceſt. & Auth. ex complex. c. de Inceſ. nupt. & DD. ibid.yet underſtand this only where they are made Executors or Legataries, to their own natural Parents, for to any othets they may be Executors or Legataries. gGloſ. in Auth. quib. mod. na. effic. ſui. §. fin. Clar. §. Teſt. q. 31. n. 4.Alſo by the Eccleſiaſtical Laws they are capable of being Legataries even to their Adulterous or Inceſtuous Parents ſo far as is needfull or neceſſary for their convenient ſuſtentation, or for their competent alimentation and relief. hC. cum haberet de co. qui dux. in ux. q. pol. per. Adult. & l. legatis ff. de aliment. & Decio. Neap. 164, n. 2.Therefore have the Laws and Statutes of this Realm provided for the ſame purpoſe; i18, Eliz. cap. 3which do alſo permit every Man as well by Deed executed in his life time, kPerk. tit. Grant. f. 11 & Bract. l. 2. c. 7.as by his laſt Will and Teſtament to be executed after his death lPerk. tit. Deviſe. f. 94.to give or deviſe to any of their Baſtards without diſtinction, all their Lands, Tenements, Hereditaments without reſtraint. And by the civil Law the lawful Children of Baſtards may be Legataries to the Adulterous Grandfather, mJaſ. in. l. haereditas c. his quib. ut indgn. n. 7, 8.but not to the Inceſtuous Grandfather.nBal. in l. ſi quis inceſtus c. de inceſt. nup.
oMich. 4. Ed. 6. Ander. Rep. Caſe. 82.If a man poſſeſſed of Goods deviſes the ſame to his Son when he ſhall attain to the Age of 21. Years, and in caſe the Son dye before that Age, then one of his Daughters to have the ſaid Goods, and the Son die before the ſaid Age. The Queſtion is, Whether the Daughter ſhall have the Goods immediately upon and after the Sons death, or whether ſhe ſhall ſtay till the time that the Son ſhould have been of that Age in caſe he had ſo long lived. The opinion of all the Juſtices was, That ſhe ſhall have the goods immediately upon the Sons death.
pHil. 4, Ed. 6, Moo. Rep. nu. 39.A Man had Iſſue a Baſtard, and after Intermarries with the ſame Woman by whom he had that Baſtard, and hath Iſſue Two Sons by her, and then Deviſed all his Goods to his Children. It is by every one ſuppoſed, That the Baſtard ſhall have nothing, for that he is Nullius Filius. In that caſe it is clear that a Baſtard ſhall not take by a Grant. But Q. as to a Deviſe. And if the Mother of the Baſtard make ſuch a Deviſe: It is clear, That the Baſtard ſhall take thereby, becauſe he is certainly known to be the Child of his Mother.