Jurisdictions, Part 102
Diſcent.
THen for that, that the ſecond Article, is to inquire who is Tenant, and what advantage the Lord ſhall have by the death of his Tenant: It behoveth to know, who is in by diſcent to be your Tenant, that you may know of whom to have releife, and who to be in Ward, and who not, and who ſhall be ſayd in by diſcent, and where by purchaſe, and where hee ſhall not be in by diſcent.
Gift to one in taile, remainder to the right heires of J. S. which was dead. T. S. hath that as right heire, and is in by purchaſe, and ſhall not pay releife, nor be in ward, 40 Ed. 3.9. & 32 Ed. 3. Fitzh. Diſcent 8.
Lord and Tenant, the Tenant aliens in Mortmain, and the Alience is diſſeiſed and the Diſſeiſor dyeth ſeiſed, his Heire is in by diſcent yet the Lord may enter within the yeare for he hath only a Title to enter and cannot have an action, but contrary of him that hath right of entry and may have action, 1 Ed. 6. Tit. Mortmaine 6. Bro.
Leaſe for life, the remainder to the right Heires of J.S. the Tenant for life dies, living J.S. the remainder is void and J.S. nor his Heires ſhall not be ſaid in by diſcent to pay releife, nor otherwiſe ſhall have the Land as purchaſor, 9 H. 6. f. 24. Perkins f. 12. the ſame.
Leaſe for life the remainder to the right Heires of J.S. and J.S. dies, Tenant for life hath aid of T.S. Son and Heire of J.S. and though he were within age, he ſhall not have his age, and ſhall not pay releife nor be in ward if they hold by Knight ſervice and be within age, for that he is in as a Purchaſor, 11 H. 4. f. 74.
Leaſe for life the remainder to another in taile, which dies his Iſſue within age, and after the Tenant for life dies, the Iſſue is in by diſcent, and if he be within age and hold by Knight ſervice, he ſhall be in ward to the Donor, 33 H. 6. f. 5.
And for that, that in the ſaid ſecond Article of Charge, you ought to inquire if any Tenant be dead, who is his next Heire. Let us now ſee where a Woman is with child at the time of the death of her Husband Tenant, and by whom ſhe ſhall be Judged with child, and who ſhall be ſaid in after the death of the Husband as Heire, and ſhall be Tenant to the Lord, and who not.
IF the Husband Tenant dye ſeiſed, and his Wife with Child, and a Brother of the Husband enter as Heire as he may, and after Iſſue is born, this Iſſue is Heire to the Husband, and Tenant to the Lord, and not the Brother, though he were Tenant and Heire before the Iſſue was borne, 41 Ed. 3. fol. 11.
A man Tenant hath a Daughter, his Wife with child with a Son, and makes a Feoffment upon condition and dies, and the Daughter enters for the condition, &c. and after the Son is born, this Son ſhall not be Heire nor Tenant of this Land, the ſame Law is where there is a Leaſe for life, the remainder to the right Heires of J.S. Tenant for life dies, the Daughter enters, and after the Son is born, he ſhall not be Heire and Tenant of that Land, 9 H. 7. f. 25. Plow. f 56.
Daughter enters after the Death of her Father Tenant, and takes profits, and after the Son with which the Wife was with child, is borne, he may enter and have that as Heire, and ſhall be in by diſcent and Tenant, but hath no remedy for the profits taken by the Daughter before he was born, 9 H. 6 fol. 26.
If a Woman Tenant ſeiſed in Fee hath a Daughter, and being with Child with a Son, the Husband dies, and after the Wife is raviſhed, and conſents to the Raviſhor, and the Daughter enters by the Statute as next of blood, as ſhe may, and after the Son is born he cannot enter upon the Daughter and be Heire, and Tenant to the Lord, Plowd. Com. f. 56. 5. Ed. 4. f. 6.
By Tearmes of the Law thirty, and Wilby, if a man Tenant ſeiſed of Land in Fee, dies ſeiſed, his Wife privily being with Child with a Son, and another man marryes her, and after the Son is born, he ſhall be adiudged the Son of the ſecond Husband and not of the firſt Husband, and ſhall be Tenant to the Lord, of the Land of the ſecond Husband, and Berrey Juſtice ſaid, that the Infant might chooſe which he would for his Father, 21 Ed. 3. f. 39. Otherwiſe it is, if ſhe had been great with Childe.
If a Woman be with Child by her Husband Tenant, or by another, it ſhall not be tryed, but if ſhe be with Child at the time of the death of her Husband or not, ſhall be in Iſſue, for by, 1 H. 6. f. 3. If the Wife of J.S. go away with an Adulterer, and hath Iſſue, if J.S. her Husband be within the foure Seas, the Iſſue is Heire of J.S. for by whom the Woman is with Child it cannot be tried, and for that it ſhall be intended by J.S. 41 Ed. 3. f. 11. and 7. H. 4. f. 9. the ſame.
If a man marry a Wife which is great with Child by another man, and within three daies after Marriage ſhe is delivered, and the Husband dies the Iſſue is lawfull, and Heire and Tenant to the Lord, and no Baſtard, 18. E. 4. f. 30. a.
24 H. 8. Br. Title Baſtardy 44. it was ſaid if a man marry his Cozen within the degrees of Marryage, and have Iſſue and are divorced in their lives, and by that the Marriage is avoided, and the Iſſue is Baſtard, contrary if one dye before the Divorce.
21 H. 7. f. 41. If a Deacon takes a Wife and hath Iſſue, this Iſſue is no Baſtard; otherwiſe it is of a Marriage between a Fryer and a Nunn if they have Iſſue.
11 H. 4. fol. 76. Sayd by our Law, if one marry his Cozen, their Iſſue is no Baſtard, till they are divorced, but ſhall take by Diſcent.
42 Ed. 3. fol. 11. If a man marry a Wife, and living that VVife, marry another, and hath Iſſue by the ſecond, this Iſſue is a Baſtard, notwithſtanding that the firſt VVife after dies, and ſhall not take by Diſcent.
For that, that in the ſame ſecond Article of Charge, it is inquired if any Tenant of the Lord be dead, who is Heire and Tenant to the Lord, let us now ſee where the halfe blood is impediment, and where not.
TEnant gives Land to the Father for life, remainder to Rich. his Son in taile. The remainder to the right Heire of the Father, the Father dies, Rich. enters and dies without Iſſue of his Body, his Brother of the halfe blood ſhal have the Land and not the Uncle of Rich. and ſhall be Tenant, and the halfe blood is no impediment, 39 E. 3. tit. 5.
A man Tenant had Iſſue by two ſeverall Bellyes and dies, the eldeſt Son enters and endowes his Mother, the Heire dies without Iſſue, the Tenant in Dower dies, the youngeſt Son of the halfe blood ſhall inherit it, and ſhall be Tenant, 7 H. 5. f. 2. 58. Aſſiſes 6. accordingly.
Father ſeiſed of an Advowſon in groſſe hath a Son and Daughter by one Belly, and a Son by another and dies, and the eldeſt dies before preſentment, the youngeſt Son ſhall be Heir, and the half blood is no impediment, 3 H. 7. f. 5. Fitzh. f. 36. O.
If the Father Tenant hath a Son and a Daughter by one Belly, and a Son by another, and lets to one for life and dies, and the Reverſion is diſcended to his eldeſt Son, which dies before the Tenant for life, this is no poſſeſſion, that the Daughter ſhall have the Land, but the Son of the halfe blood ſhall be Tenant to the Lord, but if reverſion of tearm of yeares were in the eldeſt Son which dies before the Tearm ended, the Daughter ſhall have the Land, and ſhall be Tenant to the Lord, and not the Son for halfe blood is impediment, 5 Ed. 4. f. 9.
But in the caſe next before, where there is a Rent reſerved upon the Eſtate for life by the Father, and the eldeſt hath the reverſion and Rent and dies, the Daughter there ſhall inherit, and the halfe blood is an impediment to the Son to be Heire and Tenent, yet if the Father dies, and the eldeſt Son dies before payment of Rent, there it is otherwiſe, 35 Book of Aſs. 2.
If a man Tenant hath Iſſue two Daughters by ſeverall Bellies and dies, and they enter and make diviſion betwixt them, if one dye without Heire generall or ſpeciall her part ſhall eſcheate to the Lord, and not diſcend to the Siſter of the halfe blood, but if that Siſter hath an Uncle it ought to diſcend to him, and if he enter and dies without Iſſue, it ſhall diſcend to the Siſter of the halfe blood, ſee, Littleton fol. 3. Natura brevium fol. 10.
If a man Tenant hath three Daughters by on Belly, and a Daughter by another and dies, and the foure Daughters enter, and two of them by the firſt Belly dye, now the third of the whole blood ſhall have three parts, and ſhall be Tenant of that to the Lord, 10 Ed. 3. Tit. 13. and 10 Aſs. 27. accordingly.
Note that the poſſeſſion of a Brother to make the Siſter inheritor, and not the Son of the halfe blood, is only of fee, and not of fee taile, 32 Ed. 3. Tit. 8.37 Book of Aſs. 15. accordingly.
If the Donee in taile have a Son and a Daughter by one Belly, and a Son by another and dies, and the Son of the firſt Belly enter, and dies ſeiſed without Iſſue, the Son of the ſecond Belly ſhall be Heire and Tenant to the Donor, and not … the Daughter, Natura brevium, fol. 147.
If a man hath a Son and a Daughter by one Belly, and a Daughter by another, and Lands are given to the Father for life, the remainder to the Son in taile, the remainder to the right Heires of the Father, the Father dies and the Son enters and dies without Iſſue, the two Daughters ſhall be Heires and Tenants to the Lord, for the Son was not actually ſeiſed of the Fee, 5 Ed. 1. Tit: 14.32 Ed. 3. Tit. 9.24. Ed. 3. fol. 24. and 37. Book of Aſs. 4. accordingly.
The poſſeſſion of the Brother, of Lands held by Knights ſervice, there the poſſeſſion of the Guardian, if the Son dyes in Ward, is poſſeſſion of the heire to make the Siſter inherite, and to be Tenant to the Lord, and not the Son of the halfe blood, 8 Ed. 3. tit. 12. and 8 Booke of Aſs. 6. accordingly.
Lands diſcends to two Coparceners, which are by ſeverall bellies, and one dye before entry into the Land, the other ſhall have Mortdanceſter, as heire of her Father of the whole Land, for that, that the other was never ſeiſed, 34 Book of Aſſiſes 10.