Jurisdictions, Part 112
Ward.
For that that in the ſecond Article is inquired, if Tenant of the Lord dies, if his Heir ſhall be in ward or not, and for that let us ſee where the Lord ſhall have the Ward of the heir of his Tenant within age, which holds of him by Knights ſervice, and where not.
ANd note where the Heir of Lands held by Knights ſervice, ſhall be ſaid in by diſcent, to be in Ward, and where not: If the father deviſes his Land held in Knights ſervice to his Son and Heir in fee and dies, hie Heir within age, he ſhall be adjudged in by diſcent, and ſhall be in Ward; But if it were deviſed to his Son and Heir, and to the Heires of his body, the remainder to another in fee; and dies the Son within age, he ſhall not be in Ward, for he is in as purchaſor, 3 H. 6. fol. 47.
Where the Heir recovers Land held in Knight-ſervice, in formedon in diſcendor, he ſhall be adjudged in by diſcent, and if he were within age ſhall be in ward, 2 R. 3. fol. 14. and 11 H. 7. fol. 12. Inquire, if he recover in Dum non fuit compos mentis. See Fitzh. fol. 114.
If the Heir enter for the condition broken, in lands held by Knights ſervice, he ſhall be adjudged in by diſcent, and ſhall be in ward, if he be within age when he enters, 11 H. 7. f. 12. 7 H. 4. f. 13. and 6 H. 4. f. the ſame.
If the Father and the Son purchaſe land held by Knights ſervice, to them, and to the heires of the father, and the father dies, though the ſon within age, he ſhall not be ſaid in by diſcent to be in ward, 43 Ed. 3. fol. 36. But by 32 H. 8. ch. 1. If they be held of the King by Knights ſervice, the King ſhall hauehave the ward of them.
Where two or more hold joyntly lands held of the King by Knights ſervice, to them and to the heires of one of them, and he which hath the Inheritance dies, his heir within age, the King ſhall have the ward of the body of the infant, though that the other which hath the Free-hold be alive. See the Stat. of Wills 32 H. 8. chap. 1.
If an Infant in the life of his Father be made Knight, Raſtall, Wills 23.and his Father dies, he ſhall be in ward; but otherwiſe it is where an Infant in ward is made a Knight, there he ſhall be out of ward, 2 Ed. 6. Tit. Ward 42. Magna Charta, chap. 3.
Where Reverſion diſcends to the Iſſue within age, he ſhall be in ward; but where he hath a remainder by purchaſe, is otherwiſe; and where he in remainder dies, his heir within age ſhall be in ward, Stamf. fol. 6. and 7. the ſame. See the Comment.
35 H. 8. tit. 119. A perſon twice in ward, where a woman was young with child, as a man dies ſeiſed of land held in Knights ſervice, his brother and heir within age, the Lord ſeiſes the Ward, the wife of the Tenant being young with child with a Son, and after the wife is delivered, the brother is out of Ward, But if the Infant die, the brother yet within age, there the brother ſhall be in Ward again; the ſame law where a Daughter is in Ward, and after the Son is born.
28 H. 8. Tit Ward 86. If the King hath an Heir in ward which is a woman, and ſhe marry to one before ſhe be of the age of 14 years, there ſhe ſhall be in ward but to the age of 14 yeares, and then may ſue Livery; for the two years to make 16 years, are not given but to tender marriage, and for that ſhe ſhall be out of ward at 14 years.
The husband ſeiſed in fee of Lands held in Knights ſervice, enfeoffs diverſe at this day to the uſe of himſelfe and his Wife, and the heires of their two bodies begotten, and for default of ſuch Iſſue, to the uſe of the right heires of the Husband, and the Husband and the VVife have Iſſue within age, and the Husband dyes, though the VVife live and hath the Land, the Iſſue ſhall be in VVard of the body, as it is ſayd: The ſame Law, where a man ſeiſed in Fee of Lands held by Knights ſervice, makes a gift in taile to J. S. the remainder to his right heires, and dyes, his Iſſue within age, he ſhall be in ward of the body, though Tenant in taile have the Land.
If a Reverſion of an Eſtate for life, or for yeares, be in my Father, and that diſcends to me, I ſhall be in ward, but otherwiſe it is of a Remainder; but if a Remainder of an Eſtate for life be in my Father, and that diſcends to me, and after Tenant for life dyes, I ſhall be in ward, 11 H. 7. fol. 19. 33 H. 6. fol. 6. 8 Edw. 3. tit. 23. and 33 Edw. 3. tit. 8.
By Choke, If Infant be Tenant for life, and the Reverſion diſcends to him, he ſhall not be in VVard, 9 Ed. 4. fol. 19.
Where an Eſtate is to an Husband and his VVife, and to the heires of the body of the Husband, the remainder to the right heires of the Husband, the Husband hath Iſſue within age and dyes, the VVife is▪ Tenant to the Lord, and for that the Iſſue ſhall not be in ward.
And if Lands be let to one for life, the remainder to the right heires of J. S. the ſame J.S. dyes, and Tenant for life dyes, T. S. being right heire of J. S. and within age, ſhall not be in ward, for he is a purchaſor, 15 Ed. 4. fol. 10.
Tenant for life, the remainder to another in taile, he in remainder dyes, his Iſſue within age, the Iſſue ſhall be in VVard, if Tenant for life be dead, 33 H. 6. fol. 6.
Tenant for life, the remainder in Fee, dyes, his heir ſhal not be in VVard, for Tenant for life is Tenant.
Lord and Tenant, the Tenant is diſſeiſed and dyes, his Iſſue within age, he ſhall be in VVard, Fitzh. fol. 142. B. C. D. Stamf. fol. 8. the ſame. 3 H. 4. fol. 16. the ſame. Littleton, fol. 87. the ſame.
Lord and Tenant, the Tenant hath a Daughter within age, being his heire, and he marries that Daughter to a Husband of full age, and dyes, the Lord ſhall not have VVard of the body; but if he marry his Daughter to a Husband within age, ſhee ſhall be in VVard, Natura brevium, fol. 98.
Tenant for life, the remainder in taile to the Husband and his VVife, the remainder to the right Heires of the Husband; the Husband and the Wife dye, his heire within age, living the Tenant for life, the heire ſhall not be in ward, Fitzh. 143. A.
A man makes a Feoffment before the Statute of Uſes, to the uſe of himſelfe for life, the remainder to W.S. in taile, the remainder to the right Heires of the Feoffor, the Feoffor dyes; and W.S. dies without Iſſue, the right heire of the Feoffor being within age ſhall be in ward, for he is in by diſcent, for the Fee was not out of the Feoffor: But where one makes a Feoffment in Fee, upon condition, to re-enfeoffe him, and the Feoffee gives to the Feoffor for life, the remainder to another in taile, the remainder to the right heires of the Feoffor, and the Feoffor dyes, and he in remainder in taile alſo dyes without Iſſue, the heire of the Feoffor within age, he ſhall not be in ward, 32 H. 8. tit. Ward, 93.
Eſtate is made to one for life, the remainder to the Husband and Wife in taile, the remainder to the right heires of the Tenant for life; the Husband and the Wife have Iſſue a Son, which hath Iſſue two Daughters, and after the Son and the Wife dyes, and after the Son dyes, and after the Tenant for life dyes, the two Daughters within age ſhall be in Ward, 28 Ed. 3. tit. 48.
Marlebridge, chap. 6. Gives the Lord remedy, where his Tenant aliens by Colluſion, to defraud the Lord.
Marlebridge, chap. 16. Gives Mortdanceſter for the heire in Ward againſt the Lord, unleſſe he may have his Land at full age.
Prerog. chap. 6. If a Woman before the death of her Anceſtors which holds of the King in cheife, before the yeares of marriage, be marryed, then the King ſhall have the Cuſtody of her body, till the age that ſhee may conſent, and then let her chooſe, &c.
If an Infant be marryed before the yeares of marriage, in the life of her Father, and the Father dyes, and the Wife dyes, before the dayes of marriage of an Infant, yet the Infant ſhall be in VVard, and ſhall be marryed againe by the Lord, Stamf. fol. 27. 5 Mar. tit. Ward, 124. it is held, That marriage is as nothing, for ſhee may marry another, without Divorce, within the yeares of marriage.
A gift is made to one in taile, the remainder to the right heires of J. S. which was dead, T. S. hath that as right heire; but if he be within age, he ſhall not be in VVard, for he is in as purchaſor, 12 Ed. 4. fol. 2. 7 H. 4. fol. 5. 11 H. 4. fol. 72. & 15 Ed. 4. fol. 13. the ſame.
A VVoman of the age of fifteen yeares, at the time of the death of her Anceſtor, ſhall not be in VVard, for the Lord ſhall not have VVard there till ſixteen, 35 H. 6. fol. 48. & 28 H. 8. tit. 86. If the King hath a woman in VVard, and ſhee marry before fourteen, ſhee ſhall be in VVard but to fourteen, for the two yeares are given to tender marriage, and ſhee is marryed: See Weſtminſt. 1. chap. 22.
Merton, chap. 6. Gives raviſhment of VVard and double value: And Merton, chap. 7. gives the value of the marriage, Weſt. 2. chap. 12. Magna Charta, chap. 6. The heires ſhall be marryed without diſparagement.
Merton, chap. 7. Of Lords which marry thoſe that they have in their cuſtody, to Villaines or others, as Burgers, where they are diſparaged: If ſuch an heire were within fourteen yeares, and of ſuch yeares that ſhee cannot conſent to the marriage, then if the Parents complaine of that Lord, the Lord ſhall looſe the cuſtody, till the age of the heire, &c. But if ſhee were of fourteen yeares and more, and agreed to ſuch marriage, no puniſhment follows, Littleton 21. See what are diſparagements, and what not.
Now let us ſee where your Lord ſhall looſe the ward, for that that he holds part in cheife, and what hee ſhall looſe by that.
THe Lord the King ſhall have the Cuſtody of all the Lands of thoſe, which of him hold in cheife, by Knights ſervice, of which the ſayd Tenants were ſeiſed in their Demeſne as of Fee, the day that they dyed, of whomſoever they held, by the like ſervices, &c. Prerogative, chap. 1.
If any hold of Us by Fee farme, or by Socage, or Burgage, and of another holds Land by Knights ſervice, We ſhall not have the cuſtody of the Heire, nor of the Land which is of anothers Fee, by the reaſon of Fee farme, or Socage, or Burgage, Magna Charta, chap. 27.
11 H. 7. fol. 18. If one hold of the King in cheife, and dyes, his heire within age, and hath Lands diſcended from another Anceſtor, the King ſhall not have the Lands in VVard which diſcended from another Anceſtor: And it ſeemes if a Remainder be in my Father, and that diſcends to me, I ſhall be in VVard of the body, living the Tenant for life, otherwiſe it is of a Reverſion, for Reverſion is a Tenement and held; but if a Reverſion diſcend, and the Tenant for life living, I ſhall not be in VVard; but if hee dye firſt, otherwiſe it is: And if my Father dye ſeiſed of a Remainder, and the Tenant for life after dye ſeiſed, during the time that I am within age, I ſhall be in VVard.
32 H. 8. tit. Ward. 97. Where a man holds certaine Land of the King in Socage in cheife, the King ſhall not have Livery of more then of the Land in Socage: The ſame Law where he holds in Knights ſervice of the King, Raſtall, Ward 13.and not in cheife, the King ſhall not have more in Ward, but onelyonly that which is held of him immediately.
If one hold of the King in cheife, the King ſhall have all his Land in Ward, as well held of him as of others: But otherwiſe it is, if he hold of the King, only by Knights Service, Stam. fol. 6.
Though that the Tenant of the King be in poſſeſſion of Lands held of others, the King ſhall have them in ward by his Prerogative, Stamford fol. 7. Where the Tenant of the King doth not hold of the King in cheife, the King ſhall not have the ward of Lands held of other Lords, Stamford, fol. 10.
Grand-Father, Father, and Son Infant, the Grand-Father is ſeiſed of a Mannor held of J.S. and the Father of another Mannor held of the King, in cheife, the Father dies, the King ſhall have the ward of that Mannor, and after the Grand-Father dyes, the King ſhall not have the Ward of his Mannor; the Statute of Prerog. is, That the King ſhall have the cuſtody of all the Lands, &c. of which the Tenants themſelves were ſeiſed of in fee, the day that they dyed, and for that, that the Father was not ſeiſed of that, the King ſhall not have it in ward, 15 Ed. 4. f. 10.
If any hold of the King in fee Farm, Socage, or Burgage, and holds alſo of another in Knights Service, the King ſhall not have the Lands, held of another in Ward, by reaſon of thoſe, Magna Charta, chap. 17.
Where a man holds certain Lands of the King, Raſtall, Ward 3.in Socage in cheif, of theſe he ſhall not have Livery of more then the Land in Socage, 32 H. 8. Tit. 97. Alſo where one holds of the King by Knights Service, and not in cheife, the King ſhal not have more in ward, but that only which is held of him immediately, during the time that the Lands are ſeiſed in the Kings hands in Ward; otherwiſe Lords ſhall looſe their Rents, that is to ſay, that they cannot diſtraine during that time, Stam. f. 9.
Where one holds part of his Land of the King in cheife, and part of another Lord, and dies, his heire within age, and the King ſeiſes the Ward of all, it ſeems that the Rent of another Lord, and Service is but ſuſpended, for the time that it is in the hands of the King, 26 H. 8. fol. 9.
The Signiorie of another Lord, in the caſe next before is ſuſpended, but from the diſtreſſe, during the poſſeſſion of the King, 13 H. 7. f. 15.
If a man holds part of the King, and part of anotherLord, and dies his Heire within age, which intrudes at his full age, and paies the Rent to the other Lord, this is a good Seiſin, and ſhall binde him after he hath ſued his Livery, for the Signiorie was not ſuſpended by the poſſeſſion of the King, but only the diſtreſſe, for after Livery the other Lord may diſtrain for the Arrearages due before, ſee now, 34 H. 8. Tit. Seiſin 48.2 Ed. 6. chap. 8. That the Lords ſhall have their Rents during the minority, at the hands of the Kings Officers.
26 H. 8. Tit. ward 85. If the Kings Tenant alien in fee without licenſe, and dies, his Heire within age, the King ſhall not have ward, for that, that there is nothing diſcended to him, for the alienation is good; ſaving the treſpaſſe to the King, which is but Fine by Seiſor.
1 H. 7. f. 5. If the Heire intrude upon the poſſeſſion of the King, and levy a Fine; this is void by the Statute of Prerog. chap. 13. Which is where one intrudes, there ariſeth unto him no Free-hold, but if the Heire levy Fine without intruſion that ſhall binde him and his Heires.
Time of H. 8. Tit. alienation 22. Tenant of the King in cheife cannot alien for tearm of life without licenſe, for he alters the Free-hold.
Magna charta, chap. 4. If a Guardian by the Kings Grant, makes deſtruction or waſte, he ſhall looſe his Guardianſhip, &c.
Magna charta, chap. 5. The Guardian ſhall keep up the Houſes, Parkes, Warrens, Stanks, Mills, &c. Weſt. 1. chap. 11.
Where a Tenant lets for yeares and dies, the Lord by Knights Service in time paſt might have outed a Farmor, during the Nonage; but it is not ſo at this day.
IF the Tenant let for yeares and dies, his Heire within age, the Guardian ſhall out the Farmor, yet he ſhall have Covenant againſt the Heire at his full age, for this Tearm which the Guardian hath during his Nonage, 34 Ed. 1. Title 120
Guardian may out the Farmor, and yet at full age the Leſſee ſhall have his Tearm again, Britton fol. 163
It is held that a Guardian may out the Farmor for yeares, but not the Farmor for life, 5 H. 7. f. 37. Fitzh. f. 142. C. the ſame, 33 H. 6. f. 47. the ſame, and 14 H. 7. fol. 24.
Guardian cannot out Tenant by Elegit, but he may out the Farmor, Statham, 1 Ed. 3. Tit. 13. 1 Ed. 3. fol. 103 by Sharde.
A Guardian may out the Farmor, and ſo may out him which hath execution by a Statute Merchant, inquire of Tenant by Elegit, 33 H. 6. fol. 47. and 36 Ed. 3. Tit. That Guardian may out Tenant by Statute Merchant.
Guardian in Knights Service cannot out the Termor, 36 H. 8 Leaſe 58. 35 H. 8. Tit. 85. the ſame.
It is granted by all the juſtices, that the King ſhall not out the Farmor of his Tenant, by reaſon that the heire of his Tenant is in ward, nor he which hath execution upon the Statute, nor Rent charge granted by his Tenant, nor grant of next Advowſon, Time of, H. 8. Tit. Ward 44.
Now if the Tearm be not found in the Office for the King, yet the Farmor ſhall injoy his Tearm, 2 Ed. 6. chap. 8.
Where there is Lord and Tenant, Raſtall, Eſcheat, 15.and the Tenant grants a Rent charge and dies; his Iſſue within age, the Lord being Guardian, ſhall hold this Land charged, 3 Book of Aſs. 1.