A BRIEF TREATISE OF TESTAMENTS AND LAST WILLS, Very profitable to be understood of all the Subjects of this Realm of England, (desirous to know, Whether, Whereof, and How, they may make their Testaments: and by what means the same may be effected or hindered,) and no less delightful, aswell for the rareness of the work, as for the easiness of the style, and method:  
Compiled of such laws Ecclesiastical and Civil, as be not repugnant to the laws, customs, or statutes of this Realm, nor derogatory to the Prerogative Royal.  
In which Treatise also are inserted divers Statutes of this land, together with mention of sundry customs, aswell General as Particular, not impertinent thereunto:  
Besides divers Marginal notes, and Quotations not to be neglected, especially of justinianists, or young Students of the Civil Law:  
With two Tables, the one analytical, describing the general order of the whole Treatise: The other Alphabetical, disclosing the particular contents thereof: That in the beginning; this in the end of the book.  
By the Industry of Henry Swinburn, bachelor of the Civil Law.  2. King's c. 20. Put thine house in order, for thou shalt die and not live. 
LONDON Printed by john Windet. 1590.   

TO THE MOST REVEREND FATHER IN GOD, JOHN, BY GOD'S PROVIDENCE Archbishop of York, Primate of England, and Metropolitan: H. S. wisheth true felicity now and ever.  
WHen I had finished this brief Testamentary treatise, bethinking with myself (most reverend Father,) unto whose patronage I might dedicate the same: In the end I did resolve to make an offer thereof unto your Grace: Being moved thereunto with the consideration, partly of mine own duty, partly of your Grace's interest. For being a member of your Grace's Courts Ecclesiastical, and having now received sundry good favours at your honour's hands: This I thought might fitly serve for a probable argument of my thankfulness in that behalf. And on the other side, forasmuch as before all others within this province of York, it appertaineth principally unto your grace, to provide that testaments lawfully made, be duly executed, being now by God's merciful providence Metropolitan & ordinary of that sea, I could not see a more worthy Patron for a testamentary work. Partly therefore by these former considerations, but especially I was encouraged thereunto with the contemplation of those divine graces of piety, learning, zeal, gravity, bounty, benignity, affability, and all manner not only sufficiency, but excellency of virtuous gifts, wherewith the giver of all goodness hath wonderfully enriched your honourable mind. Wherefore as hitherto your wisdom hath been accustomed to entertain with comfortable countenance, such as be studious to benefit either the Church, or the common wealth, though otherwise they be of small reputation: so now (most reverend) I am with all duty to crave the continuance of the same in mine own behalf, together with the favourable protection of these my labours, so far as they be agreeable to truth, right and equity: which thing I do so much the more humbly desire, by how much I may seem overmuch adventurous in making choice of so honourable a patron, for such a trifling treatise. The Lord of might and mercy multiply his spirit upon your grace, to the advancement of his own glory, and the good of his Church, with increase of many years in health and happiness.  
Your Grace's most ready at commandment, H. Swinburne.   

A Table of the first part, wherein is showed what a Testament or last will is: and how many kinds of Testaments there be.  

A Testament being understood in a general Sense doth not differ from a last will● §. 1. Wherein if 

An Executor be named, it is more properly called a Testament. § §. 1. 2. 10. which is either 

1. 

Solemn § 9  
or unsolemn. §. 10.    
2. 

written §. 11.  
or Nuncupative. §. 12.    
3. 

privileged §. 13.  
or unprivileged. §. 17 

Whereof some be 

1. Military testaments. §. 14.  
2. amongst the testators children. §. 15.  
3. to charitable or godly uses. §. 16.          
No Executor be named, them it still retaineth the name of a last will §. 4. And doth comprehend 

a 

1. Codicill. §. 5.  
2. Legacy or devise. §. 6.  
3. gift in regard, or because of death. §. 7.         

A Table of the second part, wherein is declared who may make a Testament, and who may not.  
Every person may make a Testament or last will, certain persons excepted. §. 1. Of whom some are prohibited by reason 

1. They want discretion, as 

Children. §. 2.  
Mad-folks. §. 3.  
idiots. §. 4.  
Oldmen childish. § 5.  
He that is drunk. §. 6.    
2. They want freedom, as 

Bondslaves and villeynes. §. 7.  
Captives and prisoners. §. 8.  
Women covert. §. 9    
3. They want some of their principal senses, as 

Dumb and deaf. §. 10.  
Blind. §. 11.    
4. They have committed some heinous crime, as 

Traitors. §. 12.  
Felons. §. 13.  
Heretics. §. 14.  
Apostates. §. 15.  
Manifest usurers. §. 16.  
Incestuous persons. §. 17.  
Sodomites. §. 18.  
Libelers. §. 19  
Wilful killers of themselves. §. 20.  
Outlawed persons. §. 21.  
Excommunicate persons. §. 22.    
5. Certain legal impediments, as 

Prodigal persons. §. 23.  
He that sweareth not to make a Testament. §. 24.  
He that is at the very point of death. §. 25.  
Ecclesiastical persons. §. 26. 

〈◊〉 kind of 〈◊〉 the grea●● part are not utterly intestable, but in some cases only.  
〈◊〉 second part 〈◊〉 Question also is briefly touched, viz.  
Whether a King may bequeath his kingdom to whom he will. §. 27.         

A Table of the third part describing what things, and how much may be disposed by will.  
If we would know, 

What things may be disposed by will. If we regard 

1. Lands, tenements, and hereditaments: they are not deviseable but in certain cases. §. 2. 

Whereof some are approved by 

1. Custom, viz. when the lands are holden in 

1. gavelkind. §. 2.  
2. Burgages tenure. §. 2.    
2. Statutes, viz. when the lands are holden in 

1. Socage tenure. §. 3.  
2. Knight's service. §. 3.        
2. Goods & cat●●●ey are 〈◊〉 ●le, ex●●● certain cases. §. 5. As when those things bequeathed are such, as 

1. The testator hath jointly with an other. §. 6.  
2. The testator hath as administrator. §. 6.  
3. The goods of the realm, viz. of the ancient Crown, and jewels. §. 6.  
4. Which belong to any 

College. §. 6.  
Hospital. §. 6.  
City. §. 6.  
Church. §. 6.    
5. Descend to the heir and not to the executor. §. 6.  
6. Belong not to the testator but to an other. §. 6.    
3 Committing of the ●●●●on of children especially within the province of York. Concerning which thing diverse questions are examined, viz. 

1. Who may appoint a tutor. §. 9  
2. To whom a tutor may be appointed. §. 10.  
3. Who may be appointed tutor. §. 11.  
4. In what manner a tutor may be appointed. §. 11.  
5. What is the 

office of a tutor. §. 13.  
authority of a tutor. §. 13.    
6. By what means the tutorship is ended. §. 14.      
How much may be disposed by will. If we respect 

1. Lands, tenements & hereditaments held 

in 

1. Socage tenure, all is deviseable. §. 15.  
2. Knight's service 2. parts of 3. is deviseable. §. 15.      
2. Goods, then in case the debts due by the testator, do 

1. Exceed his goods and cattles: The testator cannot bequeath any thing in prejudice of his creditors. §. 16.  
2. Not exceed his goods & cattles, but that somewhat doth remain clear the debts & funerals deducted. 

Of these clear goods if there be 

1. No custom, all is deviseable. §. 16.  
2. Any custom (as there is within the province of York & in diverse other places.) If the testator have 

1. wife & children the third part is ●●●●●●able §. ●.  
2. wife alone, or child, alone, the one half, is ●●●●●●able §. ●.  
3. neither wife nor child, all is ●●●●●●able §. ●.               

A Table of the fourth part, deciphering the forms of Testaments.  
1. General to all Testaments. §. 1. And of these some do appertain to the 

1. Essence thereof, as the naming of an Executor. §. 2. who may be appointed 

1 

Simply §. 4.  
or conditionally §. 5.    
2 

To a certain time §. 17  
or from a certain time    
3 

universally §. 18  
or particularly    
4 

In the first degree §. 19  
or in the 2. 3. etc.    
5 

Alone § 20  
or with others. 

Concerning every which kind or form of making an Executor divers things are considered, especially concerning the conditional assignation of an executor these things are examined viz. 

1. What it is, & what words do make the disposition to be conditional.  
2. How many kinds of conditions there be.  
3. What is the effect of a condition. §. 6.  
4. Whether every possible condition ought to be observed precisely. §. 7.  
5. Whether the condition be accounted for accomplished, when it doth not stand by the executor or legatary, wherefore the same is not accomplished. §. 8.  
6. Whether he that is executor or to whom any legacy is bequeathed conditionally, may in the mean time whiles the condition dependeth, be admitted to the executorship, or obtain the legacy by entering into bonds to perform the condition, or else to make restitution. §. 9  
7. Whether it be sufficient that the condition was once accomplished though the same do not continue. §. 10.  
8. How far those conditions whereby the liberty of making testaments is hindered, be lawful or unlawful. §. 11.  
9 How far those conditions are lawful or unlawful, whereby the liberty of marriage is hindered. §. 12.  
10. How far those conditions are lawful, which do prohibit alienation. §. 13.  
11. Within what time the condition may or aught to be performed, no certain time being limited by the will. §. 14.  
12. Of the understanding of this condition, If he die without out issue. §. 15.  
13. What order is to be taken concerning the administration of the goods of the deceased, whiles the condition of the executorship dependeth unaccomplished. §. 16.          
2. Appearance thereof, that is to say, due proof, which is to be made 

by 

witnesses §. 21.  
writing §. 21.        
2. particular or peculiar to some kind of Testaments. viz. 

Of a 

1 

Solemn testament. §. 23.  
unsolemn testament. §. 24.    
2 

Written testament. §. 25.  
unwritten testament. §. 26.         

Who may be Executor, and is capable of a Legacy.  
Every person may be Executor and is capable of a Legacy; certain persons excepted. §. 1. viz. 

Whosoever cannot make a Testament by reason of some crime by him committed. §. 2.  
A Bastard. §. 7.  
An unlawful College. §. 9  
An uncertain person▪ §. 10. 

Of which persons some are not utterly incapable, but in some cases only.       

A Table of the sixth part, viz. of the office of an Executor.  
The office of an executor testamentary is first to deliberate and resolve, either to accept or to refuse the executorship. §. 1. wherein for his better instruction, amongst other things (ut in. §. 2. 4) he is to consider the estate of 

1. the testator; and therein especially what goods and cattles did belong unto him, and what debts he did owe, and whether he were executor or administrator to an other. §. 3.  
2. Himself, namely whether for his skill, diligence & fidelity, he be able and fit to undertake the office. §. 3.  
3. Others with whom he is to deal chief of his coexecutor, if any be.   which things considered if he resolve to 

1. undertake the executorship: Then it doth belong to his office, to 

1. cause an inventary to be made: wherein these things are needful to be known, viz. 

1. whether it he of necessity that an Inventory be made. §. 6.  
2. what things are to be put into the Inventory. §. 7.  
3. within what time the Inventory is to be made. §. 8.  
4. what form is to be observed in making of the Jnuentary. §. 9  
5. what are the benefits and effects of an Inventory. §. 10    
2. Procure the will to be proved: wherein it behoveth the executor to know; 

1. Before whom the Testament is to be proved. § 11.  
2. By whom. §. 12.  
3. When. §. 13.  
4. In what form. §. 14.  
5. What fees are due in this behalf. §. 15.    
3. Pay debts, legacies, & Mortuaries. And here he is to learn 

1. How far the executor is bound to pay debts and legacies. §. 16.  
2. Which debts are first to be discharged: In case there be not sufficient to pay all. §. 16.  
3. How much is due for Mortuaries.    
4. Make an account And here he is to be advertised 

1. How needful it is. §. 17.  
2. To whom it ought to be made. § 18.  
3. When. §. 19  
4. In what manner. §. 20.  
5. What is the end and effect thereof. §. 21.      
2. Refuse the executorship: Then he must beware that he do not administer as Executor: viz. 

He must not do any act which is proper to an executor, as to receive the testators debts, or to give acquittances for the same, etc. But other acts of charity or humanity, as to dispose of the testators goods about the funerals, to feed his cattle lest they perish, to keep his goods lest they be stolen: These things may be done without danger.       

A Table of the last part, showing by what means Testaments or last wills become void.  
Sometimes the Testament 

1. even from the beginning is either void or voideable, wholly or in part, by reason 

1. The testator is such a person as cannot make a Testament. §. 1.  
2. The things bequeathed are not deviseable. §. 1.  
3. The form of the disposition is unlawful. §. 1.  
4. The executor or legatary is incapable of the executorship or Legacy. §. 1.  
5. Of fear. §. 2.  
6. Of fraud. §. 3.  
7. Of immoderate flattery. §. 4.  
8. Of Error. In which case we are to distinguish whether the Error do respect the 

person of the executor or legatary. §. 5.  
name of the executor or legatary. §. 5.  
quality of the executor or legatary. §. 5.  
name of the thing bequeathed. §. 5.  
substance of the thing bequeathed. §. 5.  
quantity of the thing bequeathed. §. 5.  
quality of the thing bequeathed. §. 5.    
9 Of uncertainty, wherein it is material whether this uncertainty, have relation to the 

1. Executor or legatary. §. 7. 8.  
2. The thing bequeathed. §. 10.  
3. Date of the testament. §. 11.    
10. Of imperfection, which is either in respect of 

1. solemnity. §. 12.  
or 2. will. §. 12.    
11. The testator hath no meaning to make his last will, as when he speaketh 

unadvisedly. §. 13.  
jestingly. §. 13.  
boastingly. §. 13.      
2. Being good at the beginning is afterwards made void, either in respect of 

1. The whole testament, as by 

1. a later testament. §. 14.  
2. revoking the testament made. §. 15. §. 16.  
3. canceling the testament made. §. 15. §. 16.  
4. alteration of the state of the testator. §. 17.  
5. forbidding or hindering the testator to make an other Testament. §. 18.  
6. refusal of the executorship, §. 19    
2. Particular legacies only: which thing doth happen by diverse means, whereof some have relation to 

1. the fact of the testator, as by 

1. ademption of legacies, §§. 20, 21.  
2. translation of legacies, §§. 20, 21.    
2. the fact of the legatary, as if the legatary 

1. become enemy to the testator. §. 22.  
2. accuse the testament of falsity. §. 22.  
3. refuse to perform the charge imposed in respect of the legacy. §. 22.  
4. apprehend the legacy of his own authority. §. 22.  
5. die before the legacy be due. §. 23.    
3. other occasions, especially if the thing bequeathed be destroyed. §. 24.          

To the Reader.  
GReat and wonderful is the number of the manifold writers of the Civil and Ecclesiastical laws, and so huge is the multitude of their sundry sorts of books; as lectures, counsels, tracts, decisions, questions, disputations, repetitions, cautels, clausules, common opinions, singulars, contradictions, concordances, methods, sums, practickes, tables, repertories, and books of other kinds (apparent monuments of their endless and invincible labours) that in my conceit, it is impossible for any one man to read over the hundred part of their works, though living an hundred years he did intend none other work. Wherefore by the publishing of this testamentary treatise, I may be thought to power water into the Sea, to carry owls to Athens, and to trouble the reader with a matter altogether needless and superfluous: But yet for all this, in case this one little book may serve in steed of many great volumes; then I hope that in the equal judgement of such as be indifferently affected, the same is rather to be admitted as commodious, then rejected as superfluous.  
And now, believe me, (gentle reader) I have desired earnestly and endeavoured carefully (according to the measure of such slender skill as God hath vouchsafed me, and as convenient leisure from other occasions of needful profit and healthful disport have permitted,) that this one little book which here I do present unto thy courteous hands, may stand in steed of many bigger books.  

The causes wherefore the Author of this book undertook this work.  For whereas by the supreme authority and inviolable power of the high court of Parliament, holden in the xxv. year 
a) Stat. H. 8. an. 25. c. 19  of the reign of the most renowned King of this land Henry the eight, of famous and happy memory: It was enacted and established (amongst other Statutes then made, and since that time revived in the first year of her majesties 
b) Stat. Eliz. an. 1. c. 1.  most gracious reign that now is) that such laws ecclesiastical being then already made, which be not hurtful or prejudicial to the prerogative royal, nor repugnant to the laws, statutes, and customs of this Realm, shall still be used and executed as they were before the making of that act, until such time as they were viewed, searched, or otherwise ordered or determined by two and thirty persons, or the more part of them, according to the tenor, form and effect of the said act: Which laws so established, revived, and confirmed, and not without good cause, and deep consideration (in diverse statutes, made during the reigns as well of the said most noble king Henry the eight 
c) Stat. H. 8. an. 27. c. 20. & an. 32. c. 7. , as of the most godly prince Edward the sixth 
d) Stat. Ed. 6. an. 2. c. 13. , are termed or entitled, for the more honourable account thereof, with the reverend and sacred name of the kings ecclesiastical laws: Like as in those countries and Churches of Germany, which have received the Gospel, the Canon law is admitted and observed so far forth, as it is not repugnant to the new Testament 
e) Schuediwinus tract de nuptijs. part. 4. tit. d diuort●●. n. 13 fol. 48. , and is at this day the Ecclesiastical law of their consistories.  
Whereas also the Civil law ever since the Ecclesiastical law was made, had been deemed and judged for part and parcel of the same Ecclesiastical law, in cases wherein it doth not differ from the same 
f) c. 1. de no. op. num. c. clerici. de iud. extra c. f●●n auditorium. dist. 10. §. si vero ecclesiasticum. in Auth. ut clerici apud. propr. Episcopo●. : For where these two laws be not contrary, the one is suppletorie of the other, and being mutually incorporated do both make one body 
g) Panor. in d. c. 1. de no. ●p. num. Valquius. de success. create. lib. 3. §. 26. n. 70. Benedict. Cap●a. Thesaur. come. op. verb. leges. fol. (mihi) 4●3. n. 23. , otherwise the Civil law being contradicted by the Ecclesiastical law, aught to be silent in the Ecclesiastical court 
h) d. c. 1. de no. op. nun. gloss. in c. 2. de arb. lib. 6. Arc. in d. c. clerici de iudic. extra. quae sensentia communiter approbatur, teste Benedict. Capra. ubi ●●pra .  
And forasmuch as these foresaid laws, have not as yet been viewed, searched, or otherwise ordered or determined by xxxij. persons, or the more part of them, according to the form and effect of the foresaid act of Parliament: which thing nevertheless hath been (I confess) attempted 
i) Vide licet, per Gualt. Haddon, legum Doctorem consul●●. (& omnium quos unquam tulit Anglia legistarum dis●●●simum. lib. de Reformatione legum ecclesiastic. , yet not so sully effected, but may be and that shortly if God vouchsafe prosperous success to that notable and profitable work of that grave and learned man Doctor Percy, now well towards accomplishment.) By occasion of which defect of the view, examination, order, or determination of the said two and thirty persons, those Civil and Ecclesiastical laws testamentary not repugnant to the laws, statutes and customs of this Realm, are yet (even as hither to they have been) scattered and dispersed here and there, and secretly hidden from the subjects of this realm in corners of many books of strange Countries, and foreign language, entangled also and encumbered with long discourses of far different argument, and no less number of laws utterly impertinent to the government of this common wealth: so that the knowledge thereof 〈…〉 few in comparison of the rest, whom otherwise I might happily benefit: Albeit I had once begun, and laid the foundation of the whole tract, in such terms as I found it delivered by others, preferring public commodity before particular utility, or mine own commendation (in case it be less commendable, rather to seek the benefit of the common wealth, then to hunt after private praise) I did easily alter my former purpose.  
That laws transformed from their natural shape, must needs in some sort be either damnified or disgraced, I do not think to be perpetually true: But if it be a thing so necessarily incident to all translations, that it cannot be avoided, it ought therefore to be the rather tolerated.  
Sufficeth it therefore these Latin justinianists, that those marginal notes especially proper to their studies, be left in Latin: The rest, because it belongeth to all, meet it is that it be written in such a language, as may be understood of all.  

Inter causam sinalem & impulsivam quid interest praeclare Tiraquellus in regulam cessant causa, etc. limitac. prima.  Thus (courteous reader) I have discoursed unto thee, the end wherefore I undertook this labour, the cause which moved me so to do, and wherefore I have published the same in the vulgar tongue. Now it resteth that I crave thy favourable acceptance of my good will, and endeavour, which if thou shalt vouchsafe to bestow, I shall not only think myself sufficiently recompensed but greatly enriched.  
Thine most willingly to his uttermost power, Henry Swinburne.   

The principal parts of this Book.  
BEing at last resolved (in regard of the benefit of this common wealth) to set forth this treatise of testaments in our vulgar tongue, I thought it meet that the method should be suitable to the style: that is to say, plain and familiar. Whereupon it seemed unto me most convenient, to distribute the whole treatise into these parts following.  

1 In the first part is showed what a testament or last will is: and how many kinds of testaments there be.  
2 In the second part is declared what persons may make a testament, and who may not.  
3 In the third part, what things, and how much may be disposed by will.  
4 In the fourth part, how or in what manner testaments or last wills are to be made.  
5 In the fift part, what persons may be appointed Executors, and who be incapable of an executorship or legacy.  
6 In the sixth part, is set down the office of an executor.  
7 In the last part is examined by what means testaments or last wills become void.    

THE FIRST part OF THIS TESTAMENTARY TREATISE. WHEREIN IS showed WHAT is a Testament or last Will, & how many kinds of Testaments there be.  

The Paragraphes, or Chapters of the first part of this Treatise.  
WHether a Testament, and a last will, be both one thing, and of the manifold signification of this word Testament §. 1.  
The definition of a Testament §. 2.  
An exposition of the same definition §. 3.  
The definition of a last will §. 4.  
The definition of a Codicill §. 5.  
The definition of a Legacy §. 6.  
The definition of a gift in regard, or because of death §. 7.  
The division of Testaments §. 8.  
Of a solemn Testament §. 9  
Of an unsolemn Testament §. 10.  
Of a written Testament §. 11.  
Of a nuncupative Testament §. 12.  
Of privileged Testaments §. 13.  
Of a military Testament §. 14.  
Of the father's Testament amongst his children §. 15.  
Of a Testament ad pias causas §. 16.  
Of unprivileged Testaments §. 17.   

A brief Treatise of Testaments, and last wills, etc. The first part of this treatise.  
Whether a Testament and last Will be both one thing, and of the manifold Acceptance of the word Testament.  
1 NO use of solemn testaments here in England.  
2 A testament and a last will have divers definitions.  
3 Testament, taken generally and specially.  
4 The general signification of this word Testament.  
5 Testament, taken generally, doth not differ from a last will.  
6 Last Will, is a general word, comprehending all kinds both of last wills and Testaments.  
7 A Testament, according to the definition thereof, is one kind of last will, viz. wherein an Executor is named.  
§. j  
IT may seem, that a testament and a last will be both one thing, and that there is no difference betwixt the one and the other, at least here in England; because we † have no necessary use 
(a) Tract. de repub. Ang. lib. 3. cap. 7. Lindewood in c. statutum verb. probatis. Tit. de Testam. lib. 3. provincial. constit. cant. Bracton, de legib. & consuetud. Angl. lib. 2. c. 26. verb. sieri autem. Haddon lib. de reforma. Legum ecclesiast. Angl. Tit. de Testa. ca 2. Peckius in c. privilegium de reg. iur. 6.  of those solemn testaments, in the making whereof, the presence of seven. witnesses, together with the observation of many more ceremonies, is necessarily requisite by the Civil law. 
(b) L. Hac. consultissima C. de Testa. §. sed cum paulatim Instit. de Testa. ordin. & infr. ead. part. §. ix.   
On the contrary, it seemeth that they are not both one; partly because they have diverse names, which doth import diversity of things; 
(c) L. si idem C. de Codicil.  especially because † they have different definitions: for it is received for an infallible Axiom, that the definitions being different, the things defined are diverse. 
(d) Euerar. & Olden. loco. a definitione.  As for the former reason, it may be thus answered. That albeit our Testaments be unsolemn; yet it doth not follow that therefore we have no testaments, or that our testaments are therefore mere last wills. For an unsolemn testament is a testament, and that properly or in strict interpretation, as hereafter shall be confirmed, when we shall speak of unsolemn testaments. 
(e) Infrae ead. part. §. x.  And so the conclusion seemeth rather necessary then probable, that a testament and a last will are not both one, but different. Notwithstanding, this conclusion is not simply or perpetually true, for in some respects they are both one, though in other respects they differ.  
Understand therefore, that † a testament may be taken two manner of ways; largely, and strictly. 
(f) Bar. in L j C. de saer sanc. ecclesiast. col. pen. Gloss. in L. j ff. de Test.  It is said † to be taken largely or generally, when the signification of the bare name or word Testament, (which in Latin is Testamentum) is had in consideration. 
(g) Gloss. & DD. in d. j ff. de Testa.  This word Testamentum, is as much as Testatio mentis, 
(h) Lib. 2. instit. Tit. de Testa. ord. princ.  that is to say, a testifying or witnessing of the mind. So writeth the worthy Emperor justinian, after Sulpitius, 
(i) Covar. in Rub. de Test. ord. j par. n. 1.  Which deduction others (without cause I confess, yet not without scoffs) do sharply reprehend. 
(k) Nempe Awl Gel. & Lau. Valla, acerrimus Latinae linguae assertor, qui hanc deductionem libero ore de●ident: ille li. 6. c. 12. hic li. eleg. 6. c. 3. Quòd (ut aiunt) non magis dicatur testamentum a ment, quam calc●amentū, quam salsa●ētum quam ornamentum etc.  As though forsooth, justinian or Sulpitius, had contended to deliver the very Etymology of the word Testament, and not a certain Allusion rather of the voice only. 
(l) Ita enim conantur hanc notam excusare. Alciatus in L. Tabernae ff. de verb. fig. Covar. in d. rub. de test. ex. j part. n. 2. Inter Etimologiam ve●o & allusionem hoc interest, quòd illa in verb● veritate radicata rem ipsam potius quam vocem interpretatur. Ista nuda quadam vocabuli similitudine contenta, vocem magis quam rem refert. Olden & Euerard. loco. ab Etimolog.  When this † word Testament is uttered in this general sense, it differeth not from a last will; 
(m) Bar. in l. j C. de sasan. eccle. col. pen. Bal. in L. omne verbum C. Com. de leg. & Lindw. in c. statutum verb. vlt. vol. de test. l. 3. Provincial. constit, cant.  and any last will, be it a Codicill, or other kind, may be so termed a Testament, that is to say, a testifying, or declaring of the mind. 
(n) Glos. in l. 2. de constitu. Pecu C. Bar. Bal. & Lind. ubi supr.  And hence it is that not only in our speech, but in our writings also, we use the terms of Testament and Last will, indifferently, or one for another.  
It is taken strictly, when it is accepted according to that definition invented by Vlpianus, 
(o) L. j ff. de Testam.  hereafter ensuing 
(p) §. Prox.  and being taken in that sense, it differeth from a last will, 
(q) DD post. glos. in d. l j ff. de testam.  yet not as opposite thereunto, but as the special differeth from the general, 
(r) DD. ubi. supr.  for every Testament is a last will, but every last will is not a Testament. To speak more plainly thus they differ, A † last will is a general word, and agreeth to every several kind of last will or testament: 
(s) Mantic. de conject. vlt. vol l. 1. tit. ●, ubi tradit quinque species vlt. vol quarum prima est testamentum. Simo de praet. de interp. vlt. vol lib. 2. dub. j sol. 9 & Phi●. Franc. in Rub. de test. lib. 6. qui lecis praedictis alias insuper species referunt.  But a testament † properly understood, is one kind of last will, even that wherein Executor is named. For by the naming of an Executor it differeth from the rest. 
(t) infr. §. 3. n. 19    

The definition of a Testament.  
1 What a Testament is.  
2 The definition of a Testament unworthily reprehended.  
§. ij.  
A Testament † is defined after this manner: Testamentum est voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri voluit. 
(a) L. j de Test. ff.  A testament is a just sentence of our will; touching that we would have done after our death.  
Some † there be, who do censure this excellent definition to be defective, 
(b) Accurs. & Paul. de eastr in d. l. j  though unworthily, 
(c) Quam viz. definitionem. utpote perfectissimam, nemini licere in controversiam revocare, refert Michael Grass. Thesaur. come. op §. Testam q j  (but nothing can content a curious head) whose error is detected, and the definition sustained in the exposition following. 
(d) of. § prox. n. 19    

A brief exposition of the former Definition.  
1 Definitions dangerous in Law.  
2 The cause of this danger.  
3 It is rare if the definition be so just that it cannot be overthrown.  
4 A just or perfect definition profitable to many purposes.  
5 The occasion of this exposition.  
6 just, hath divers significations.  
7 just, opposed to that which is wicked.  
8 The Testator may not command any thing against justice or equity, etc.  
9 just, taken for full, or perfect.  
10 The testament must not be unperfect.  
11 Imperfection testamentary twofold.  
12 Testament unperfect in respect of solemnity.  
13 What solemnities be requisite in making of Testaments.  
14 Testament unperfect in respect of will.  
15 Whether the testament being unperfect in respect of will; be void.  
16 A further meaning by the word just, being taken for perfect.  
17 Every perfect will is not a perfect Testament.  
18 Their error detected who reprehend this Definition.  
19 What maketh a testament to differ from other kinds of last wills.  
20 Of the manifold signification of this word Sentence.  
21 Testaments ought to be made with deliberation.  
22 Such as have not the use of reason, cannot make a Testament.  
23 Unadvised speeches make not a testament.  
24 How it may be proved that the Testator had animum testandi.  
25 Boasting words do not dispose.  
26 Two kinds of judicial sentences, Interlocutory and definitive.  
27 Contrary effects of these two sentences.  
28 Testaments compared sometimes to an interlocutory sentence, sometime to a Diffinitive.  
29 The will of the testator, the governor of the testament.  
30 The meaning of the testator is to be sought diligently, and kept faithfully.  
31 Meaning to be preferred before words.  
32 Fear and fraud make void the testament.  
33 The Testator must be sui juris.  
34 The testament not to be referred to another man's will.  
35 How a testament doth differ from other sentences.  
36 The Testament is of no force until the Testator be dead.  
§. iij.  
DEfinitions † are said to be dangerous in law, 
(a) L. omnis diffinitio de reg. iur. ff. ubi Accur. cum suis sequacibus, definitionem pro regula sumendam putavit. Sed probabilior mihi videtur Cagnoli, & aliorum opinio, quòd lex ista loquitur dedefinitione propriè & dialecticè sumptâ.  the cause † may be attributed to the multitude of different cases, 
(b) L. neque L. non possunt ff. de Legil us.  the penury of apt words, 
(c) L 4. de praef. ver. ff.  the weakness of our understanding, 
(d) L 2. C. de vet. in enucls. macagnanus. de communi opinion in prin.  and the contrariety of opinions. 
(e) c. quia diversitatem in prin. de conces. praeben. ex●r.  For happily amongst such abundant variety of things, either we cannot discern the true essence thereof, 
(f) Id quod ●emo non fatetur esse difficillimum Dec. Cagnol. & alij in d. L. omnis diffinitio.  or we do not aptly deliver what we conceive, 
(g) Quum plura sint negotia quam vocabula. l. ●. de praescrip. verb. F.  or else these perils being past, at least in our own opinions, yet are we still subject to the rigorous examination of all sorts of men, and must abide the doubtful verdict of the sharpest wits, and endure the dreadful sentence of the deepest judgements. 
(h) L. 1. §. j ff. de dolo. DD. in Rub Sol. matr. ff. Sane ut mirum sit videre, & ibi, & passim alibi, quomodo pugnant inter se hommes doctissimi in definiend s. tebus.  And † it is rare 
(i) Quod autem sic scribitur. (Parum est etc.) in d. l. omnis di●finitio. sic legitur a Budeo (Rarum est) quae lectio faciliùs suaderi potest, quum aliàs maneat sermo subobsentus.  if at the last; after long and superstitious revolution, one man at least among so many subtle heads, and captious conceits, do not espy some defect or excess in the definition, whereby the same may be subverted. 
(k) Mantic. de conject. vlt. vol. lib. j tit. 4. in fin.  Which thing if it come to pass, then like as when the captain is slain, the soldiers are in danger to be discomfited; or as the foundation being ruinous, the building is in peril of falling: So the definition being overthrown, all the arguments drawn from thence, and whatsoever else dependeth thereupon, is in peril to be overturned. 
(l) Quod si definitionem pro regula intelligendam sentias cum Accursio, unde quaeso illa magna periclitatio subversionis? Este enim tot quasi milites occidi quot patiatur exceptiones regula. At horum dux interim (nempe ipsa regula) non ideo prosternitur, immo firmat exceptio regulam in non exceptis, ita ut probè contra seipsum hac similitudine fretus disputat Accursius, dum admoneat ut quisque stet firmus regulae, velut Bononiensis Ca●o●io, licet aliqui capiantur de eius custodibus: Et sic licet aliqui casus a regula subtrahantur, respondeatur (inquit) hoc esse speciale, & sic regula erit firma in non exceptis. Haec ille in gloss. in d. L. omnis diffinitio. Quod nihil aliud est quam si dixisset, Regula laedi quidem potest, subverti non potest. Quare quum definitio de qua hic agitur, adeo sit subiecta periculo, ut omnino subverti possit, certè non magis erit regula, quàm illud nescio quod (Carolum Bononiense) est definitio.  No marvel then if definitions be reported to be dangerous.  
But if contrary to the common course, the definition be so just, so perfect, that it cannot be justly reproved, 
(m) Nempe quòd singulos complexa casus convertatur cum definito. Id quod vel necessarium esse ad constituendam legitimam definionem contendit acriter Cagnolus, contra communem, immo negans contrariam esse communem. in d. L omnis diffinitio.  this † definition, besides that it is not perilous, it is so profitable, and so necessary, that from thence as from the root, and fountain, every discourse ought take his beginning; 
(n) Cic. lib. j office quod tamen Cagnolus intelligit de definitione Nominis, non Rei. Cuius si vera sit opinio, & nos id ipsum obseruavimus, dum quid, & quot uplex sit haec vox Testamentum superiùs tradidimus.  the rather, for that thereby (amongst many other benefits issuing from the definition, 
(o)  argumentationes, quae saepissimè a definitione deducuntur, quarum quanta sit vis & utilitas, copiose & eleganter Olden. Topic. legal. loco a definitione.  the whole nature or substance of the thing defined, (which otherwise for the abundance of the matter thereto belonging may seem infinite) is plainly declared, and that in few words. 
(p) Gloss. & DD. maxim Cagnol. in d. L. omnis diffinitio. Euerard. loco a definitione.   
Now therefore † lest this notable and most absolute definition 
(q) Quam Alciatus substantialem appellat. li. 9 parergon. c. 2. perfectam Bartolus in ● j de de testa ff. immo perfectissimam, nec in controversiam reuocandam dicit Grass. d. §. testan. q. t.  of a testament above delivered, not being rightly understood, might seem either more dangerous, or less commodious than it deserveth; I thought it expedient to add this exposition following.  
First, whereas a testament is defined to be a Just Sentence, we are to consider that this † word Just, hath divers significations in the law. Sometimes † it is opposed to that which is wicked or repugnant to justice, equity, and to good and wholesome manners. 
(r Summa Hostiens. tit. de testa. §. quid sit. Sichar. in Rub. de testa. C. n. 2.  Being taken † in this sense, it giveth us to understand, that the testator cannot command any thing that is wicked, or against justice, piety, equity, honesty, etc. 
(s) L. Nemo de leg j L filius de cond. inst. ff. Bar. in d L. j de testa. n 3. de Rebuff. in L. justa. ff de verb. sig. fol. 888.  For things unlawful are also reputed impossible: and therefore if the testator should command any such thing in his testament, the same were not to be observed. 
(t) L. conditiones L. filius de cond. instit. ff. Summa Hostiens. d. tit. de testa §. quid sit & Rebus. in d. L. justa.  As if he should will any man to be murdered; for this is against the law of God: 
(v) Exod. c. 20.  or if he should command his body to be cast into the river, for this is against humanity; 
(x) Quidam ff. de cond. instit. Sichard. in Rub. de testa. n. 2. C.  or if he should command his goods to be burned, for this is against policy; 
y) Expedit enim Reipub. ne quis re sua malè utatur, §. sed & maior. instit. De his qui sui, vel all iu●.  or if he should command any ridiculous act, or prejudicial only to his own credit and dignity; as if he should will his burial or funerals to be solemnized with May-games, or Morris dances, for this were to manifest his folly, or at least to make question whether he were of sound mind and memory. 
(z) d. L. quidam & L. conditiones, el 1. & 2. ff de cond inst. Sichard. in d. Rub. de testa. C. Cast●ens. in L. Non oportet. C. de his quibus ut indig.  In these and the like cases the Executor in not performing the commandments or requests of the testator is not only holden excused, but is highly commended. 
a) d. l. quidam & ibi Ang. Paul. de castr. & alij, & videas etiam Mantic. de Conject. vlt. vol. li 2. tit. 5. n. 9   
Furthermore † this word Just, is sometimes taken for full or perfect: 
(b) Bar. in d. L. j ff. de testa Sichard. in Rub. de testa. C. Covar. in Rub. de testa ext prim. part.  So we say, when a woman hath gone her full time with child, (which is commonly nine months,) 
(c) Tiraquel. in Rep. L. si unquam. C. de revoc. dona. verb. susceperit. ubi non minus eleganter quam diligenter docet, quamdiu mulier uterum ferre valeat.  that she hath gone her just time. So we use to say just age for full and perfect age, 
(d) L. Filiusfamilias. de leg. 3. ff. Rebuss. in L justa. de verb sig.  and so, just weight, just measure, just number; for full and perfect weight, measure, number. 
(e) Covar. in Rub. de test. ext. pri. part. n. 4 ciusd. farinae estquod ibi dicitur, justus exercitus, justa classis, justa pugna, iustae stationes, justum volumen, justus error, etc. Add quod scribit Mincing. in Rub L. de testa. lib 2. institu. iur. Civil.  The † word just, being thus understood, that is to say, for full and perfect, all testamentary defects and imperfections, are thereby excluded. Wherefore the testament ought to be full complete and perfect; otherwise being an unperfect testament, it is said to be no testaments. 
(f) §. Ex eo instit. Quibus mod. test. infir.   
The † testament is said to be imperfect in two respects, uz. in respect of Solemnity, and in respect of Will or meaning. 
(g) Bar. & alij in L. hac consultissima. §. ex imperfecto. C, de testa. Boer. decis 240.  The † testament is imperfect in respect of solemnity, wherein some of the Legal requisites, necessary in the making of a testament, be wanting. 
(h) Sichard. in d. §. ex imperfecto.  Hereupon divers writers, have interpreted the word Just in this definition to signify Solemn, 
(i) Viglius in tit. de testa ord. n. 29. Mins. eod. n. 5. Sichard. in Rub. de testa. C. n. 2.  that is to say, furnished with such due rites and formalities, as the law requireth. Howbeit † all the superfluous solemnities of the Civil law, are vanished out of this kingdom of England. Only those solemnities remain which be juris Gentium. 
(k) Infr. ead part. §. 9  So that with us it is sufficient, to the effect of executing the testament, that the will and mind of the Testator do appear, by two sufficient witnesses 
(l) ● Lindw. in stat●●tum verb. proba. de testa. lib 3. provincial. constit. cant. : Saving where lands, tenements, and hereditaments are devised: for then the solemnity of writing is also necessary, and that to be done, in the life time of the testator. 
(m) Stat H. 8. an. 32. c. prim.  The † testament is said to be imperfect in respect of will, which the testator hath begun, but cannot finish as he would. 
(n) Bar. Sichard. & alij in L. Hac consultissima §. ex imperfecto. C de testa. L. si quis ita. ff. eod. tit. L. furios. C. qui testa. fac. pos.  If therefore † whiles the testator is in making his will, and whiles he yet intendeth to proceed further at that present, either by adding or diminishing any thing to or from his testament, or by altering any thing therein, (as commonly men do use to put in, put out, and change many things before they make an end,) 
(o) jul. Clar. §. testam. q. 7. in fin.  he be suddenly stricken with sickness, insanity of mind, or other impediment, whereby he cannot then finish, or perfect the same, as he would, and so die: This his testament, being imperfect in respect of will, is therefore void, even touching that which was done, which he did intend then to alter, before he had made an end 
(p) d L. si is qui, & L. iuriosun jas. & Sichard. in L. pen. de Inst. & sub. C. ; by reason of the defect of the testators consent, without which the testament is not of any value. 
(q) Sichard in d. L. hac consultissima. § ex imperfecto de testa. C. n. 2.  Nevertheless, not every testament which is termed imperfect in respect of will, is by and by wholly of no force, for in many cases, yea and for the most part, such testaments are effectual, for so much as is already done, as elsewhere more abundantly is confirmed. 
(r) Infr. part prim. § ●●.   
There is yet † also a further mystery, or secret meaning included in this word just, in that it doth signify full or perfect, which meaning is this: That the testament ought to be complete, not only in respect of solemnity, and of will, as is aforesaid: but also that it ought to be perfect in this respect especially, that theris no want of any thing, which is necessary to the constitution, and denomination of a testament 
(s) Bar. in L. j de testa. ff. Viglius & Mincing. in tit. de testa. ordin. in princ Alciatus in L. Tabernae de verb. sig. ff. Covar. in Rub. de test. extr. . For if † it do contain only a perfect declaration of the testators will, and want that which is requisite to make it a testament, it may well be termed a perfect will, (for a Codicill, a Legacy, a gift in respect of death, etc. they are all perfect in their kind:) 
(t) Paul. de castr. in d. L j de testa. ff. Nec ideo Musca dicitur imperfectum animal quod sit minor Elephante. inquit Covar. in Rub. de test. extr. j part. n 3.  But it cannot be termed a testament, much less a perfect testament. 
(v) Bar. in d. L j de testa. ff. Mincing. in d. tit. de testa. ord.  This † singular sense and signification of the word just because some interpreters did not perfectly apprehend, they did reprehend the definition, as not perfect nor convertible with a testament: that is to say, not agreeable to a testament alone, but common to every kind of last will: 
(x) Accurs. & Paul. de castr. in d. L. j de test. ff.  for that they also were perfect every of them in their several kind. 
(y) Paul. de casti. in d. L. pri.  Wherein nevertheless they were deceived, for the perfection that is here meant, is an absolute perfection, such as none other last will hath but only a testament, even that perfection that giveth both name, and nature to a testament. 
(z) Bar. (omnium Legistarum facillime princeps) Bald. Ange. Imol. Aretin. in d L. j de test. ff. Porcus Viglius Mincing Inst. de testa. ordi. Vasq. de success. crea. lib. j in prin. n. 26.  So that the defect was not in the definition, but in their understanding. To conculde therefore, this perfection specially being here understood by this word just, which is proper and peculiar to a testament, the definition remaineth irreprehensible, and is agreeable to a testament only; excluding both Codicil, Legacy, gift in regard of death, & every other kind of last will, 
(a) Bar. in d. L. prim. de testa ff. Viglius & Mincing in d. tit. de tes. a. ordin. Instit. Covar. in Rub. de testa. extr. part. prim.  having every thing, and wanting nothing, which appertaineth to the essence of a testament. 
(b) Mantic. de coniect. vlt vol. lib j tit. 4. n. 10, Grass. Thesaur. come. op. §. testa. q. j Covar. in Rub de testa extr n. 14. 3. & 4. sup. §. in sin.   
Now † if you will ask me what kind of perfection or what special thing this is, without the which the will how perfect soever otherwise, is no testament. I have told it before. 
c) Supr. §. j in sin.  It is the naming or appointing of an Executor 
d) L. pri. de haered. inst. L. pri. de vulg. & pup. sub. L. Haeredes pa●ā de test. L. quod per manus de Cod. cil. il. § ant institut. de Lega. Bracton. de leg. & cons●et. Ang. lib. 2 c. 26. Brook abridge tit. test. n. 20. Plowden in casu inter Greisbrook & Fox, & plenius inf. part. 4. § 2. . (Who in the civil Law is called Haeres heir) 
(e) d. § ant insti. de leg. Haddon de refor. leg ecclesiast. Angl. Doct. & Stud. lib. ●. c. 11 trac. de repub. Ang li. 3 c. 9 ita ut Executor testamentarius iure quo nos utimur non tàm re q nomine dissert ab eo quem ius civil nuncupat haereden infr. 6. par. . This is said to be the foundation, the substance, the head 
(f) d. § ant instit. de de lega.  and is in deed the true formal cause of the testament, 
g) Wesen. in paratit de test. ff.  without which a will is no proper testament, 
h) L. quod per manus ff. de Codicil. Brooke. Abridg. tit. testa. n. 20. Plowden in casu inter Greisbrook & Fox, fol. 276 Haddon. ubi supr.  and by the which only the will is made a testament 
(i) Vide infr. part. 4. §§ 1. 2. .  
Sentence, this word † sentence is a general word, and hath many significations, it is sometimes taken for a short pithy saying of a grave or wise man. 
(k) Cuius generis sunt sententiae Ciceronis, Proverbia Salomonis, & altorum hominum cùm Philosophorum, tùm Theologorum, dicta memorabilia.  It is sometimes taken for a decree pronounced by the judge, 
(l) Paul. de castr. Lancel. Doc. in L. j de testa. ff.  and in other places it is otherwise taken. 
(m) Veluti pro opinion, pro persuasione, Coratius de come. opin. in princ. Dictionar Calepin. verb. Sententia. Quandoque sumitur pro pa●na a iure inflicta. Franc. in c. s n. de constit. 6. in fin.  It is taken in this place, for an advised purpose, or destination of the testators mind, 
(n) justa sententia quid significet, brevissimè & elegantissimè (ut semper solet) ae quissimus ille iutis interpres johannes Oldendorpius, Hoc est (inquit) vera, ac omnibus modis absoluta animi destinatio, quam si ad alias in vita deliberationes conseras, longè excellit omnes. De action. class. ●. in princ.  which purpose or destination of mind being reduced into act, (otherwise retained within the compass of sole cogitation, it is no testament) 
(o) Quod fortassè fuit in causa, quòd Anglus quidam vertendo dictam definitionem à latino idiomate in vulgar nostrum sic transtulit, justam sententiam A true declaration. Terms of Law. Verb. Testament.  is termed a sentence by a certain excellency: 
(p) Covar. in Rub. de test. ext. j par. n. 4  because in † our testaments, we should show ourselves both wise and just; representing as it were the persons of grave men, and of just judges. And † certainly if all the actions of this life ought to be performed with wisdom, and constancy; if nothing aught to be attempted without careful consideration, and due premeditation 
q) Cic. lib. 1. office . How much more ought the last act of our life, our farewell to the world, the memorial of our immortality, 
r) Olden. de action. class. 5. in prin.  even our testaments and last wills, to be framed with deliberation, seasoned with discretion, & builded upon sound and constant determination: 
s) Add quod quae viu● facimus dicimusu●, ea aliquando non magni sunt momenti, & si quid displiceat obuia nobis sunt emendandi remedia & formulae; verùm quod in causam mortis destinamus, id ita proponimus, ut post hanc vitam nunquam mutari velimus. Old. ubi supr.  without the which it hath neither shape, nor savour, of a testament; nor is able to stand for a testament, when it shallbe tried or proved in the form of Law 
t) Consul Socin. jun. cons. 179. vol. 2. Hotto. cons. 5. vol. j Hyero. Franc. in L. quicquid de reg. iur. ff. .  
Seeing then every testament is a sentence, we may note divers things. First that † such person as have not the use of reason or understanding, as mad folks, or idiots, are justly excluded from making of testaments, 
v) Vide inf. part. 2. § §. 2 3. 4 5. & 6.  for their devices being full of folly, their deeds must needs be void of discretion, and their wits being senseless, their words are utterly unworthy the name of a sentence; howsoever sometimes, more by chance then by cunning, they may seem to speak wisely. 
x) jas. & Dec. in L suriosi C. de testa contra Io. Andr. Panor. & alios in c. ad nostram de consuetud. ext. cum temperament. tamen ut insi. 2. part, § 4.   
Secondly, † that albeit the testator be of perfect mind & memory, nevertheless if he speak any thing, either unadvisedly, or incidently, as if a man when he is in perfect health, being demanded who shall be his executor, or have his goods after his death; (which question is very common amongst familiars) and he forth with nameth some person, whom he saith he will make his executor, or to whom he will leave his goods after his death. This is not to be taken for a testament or last will, neither is that person named to be admitted Executor, nor to have his goods 
y) L. Lucius L. Diws de mil. testa. ff. § plane instit. de mil. testa. Soc. iun. consil, 179. vol. 2. quod videas velim & perlegas diligenter. : unless it be † proved, that the testator at the time when the words were spoken, had Animum Testandi, that is to say, a mind or purpose then and thereby to make his testament or last will. Which mind and purpose must be proved by circumstances 
z) Menoc. de Arb. iud. casu 496. ubi copiose respondit, quae & quot coniecturae sufficiant. , (for words alone are not sufficient 
a) Gloss. in § plane Instit. de testa mil. Hottom. cons. 5. vol. j : as that he framed or settled himself seriously to the making of his last will; being then perhaps very sick, or requiring them which were present to bear witness of his will 
b) Gloss & DD. iud. L. Diws Menoch. in d. cas. 496. & plenius infr. part. 7. § 13.  etc. Otherwise even as the opinion of a judge, being delivered privately, or extraiudicially, touching the event of any suit, is but a prediction of that which is likely to ensue, and not the sentence itself, or final judgement whereby the controversy is decided 
c) L. ex stipulatione C. de senten. & interlocu. Sprigel. Lexic. verb. sentent. , (which sentence ought to be pronounced judicially, after dew examination of the cause 
d) Bar. & alij in d. L. ex stipulatione. Vantius Nullita. uz. ex defect. process. n. 69. :) So when the testator doth only foretell, whom afterwards or at some other time, he doth intend to make his executor, or to leave his goods unto; This is but a signification of a future act, 
e) Paris. consil. 24. lib. 3 n. 10.  and so not the testament itself, wherein is required present and perfect consent 
f) Hottoman. de consil. 5. Corne. cons. 149. vol. ●. . Much less is that to be taken for a testament, when as any man rashly, boastingly, or jestingly, affirmeth that he will make this or that man his executor, when he hath no meaning at all, neither at that time, nor any other time to make him executor 
g) Alciat. par e●g. lib. 2. c. 12. Paris. consil. 127. vol. i n. 40. 41. Hyero. Franc. in L. quicquid de reg. tur. ff. n. j . For without meaning, or consent of mind, the testament is altogether without life; and is no more a testament, than a painted Lion, is a Lion.  
Thirdly by this that a testament is termed a sentence, there is a further consideration offered to our understanding, in respect of the analogy, betwixt a judicial sentence & a testament. Of judicial † sentences there be two sorts, the one interlocutory, the other definitive 
h) Tit. de sent. & interl. om. Iud. C. . An interlocutory sentence, is a decree given by the judge, betwixt the beginning and ending of the cause, touching some incident or emergent question 
i) Specul. de sentent. § species. . A definitive sentence is a final decree, whereby the principal cause and controversy is decided, in condemning or absolving the party convented 
k) Specul. ubi supra. : These † two sentences, have these two contrary effects. The one one of them, that is to say, the sentence interlocutory, may be revoked at any time so long as the principal cause dependeth undecided 
l) L. quod instit. ff. de re. iud. c. cum cessant de app. extr. L. si quis iusiur and § sin. C. de reb. cred. . But the sentence definitive cannot be revoked 
m) L. judex de re. iud. I. de question. ff. L. j de rescind. sen. C. Rebuss. in d. L. quod jussit, ubi multifariam limitat utramque conclusionem. . The † testament of any man, so long as he liveth, may be compared to a sentence interlocutory. For it may be revoked or altered at any time, and as oft as the testator will, whiles he liveth, even until the last breath: 
n) L. 4. de Adimen. leg. ff. c. Matth. c. de Caeleb. miss. ext.  and of these the last will prevaileth 
o) § posteriore. Instit., Quib. mod. jest. infi●. . But after his death, it is compared to a sentence definitive 
p) d. c. Matth●. , and as it cannot be revoked by the dead man, so ought it not to be revoked by any other, but observed as a law 
q) L. j C. de sacrosanct. eccle. , and executed as the sentence of a judge 
r) O●den. de action. class. 5. in prin. . And they are to be punished that do hinder the execution of the same 
s) c. Statut. de testa. lib. 3. provinc. constit. cā●. c●st●t●i●nus eod. tit. lib provincial. constitut. ●●b●r. .  
It followeth in the definition (of our will) concerning this word will. It † is written, that the will or meaning of the testator is the Queen or Empress of the testament. 
t) S●chard. in R●b. de te●●a. C. n. 2. in sin.  Because the will doth rule and govern the testament, enlarge and restrain the testament, and in every respect moderate and direct the same, 
v) L. in con licionibus d● co●d. & de mon. L. si mihi § in legate. de leg. j ff.  and is in deed the very efficient cause thereof. 
x) Wesenb. i● tit. de testa. ff.  The † will therefore and meaning of the testator, aught before all things to be sought for diligently; and being found aught in any wise to be observed faithfully, 
y) Vide infr. par. 4. §. 4.  it ought to be sought for as earnestly as the hunter seeketh his game: 
z) Bald in L. pen. de necess. haered. institu. C. Socin. jun. cons. 144 vol. 2. n. 23.  And † as to the sacred anchor ought the judge to cleave unto it: Pondering not the words, but the meaning of the testator 
a) § nostra instit. de lega.  For although no man be presumed to think otherwise then he speaketh, 
b) L. Labeo. § caeterum de sup leg. ff.  (for the tongue is the utterer or interpreter of the heart, 
c) We● ab. in tit. de verb. ●ig●●.  yet cannot every man utter all that he thinketh, and therefore are his words subject to his meaning. And as the mind is before the voice, (for we conceive before we speak) so is it of greater power; for the voice is to the mind, as the servant is to his Lord. 
d) d L. Labeo.   
Where it is said in the definition of our will, the interpreters do gather by this word our, that the testator ought to enjoy all liberty, and freedom in the making of his will: that is to say full power and ability, to withstand all contradicton and countermand 
e) Mantic. de coniect. vlt. vol. lib j tit. 3. n. 10 . And therefore † if the testator be compelled by violence, or urged by threatenings, to make his testament: the testament being made by just fear, is uneffectual 
f) L. j Quoth me. causa L. sin. Si quis aliquem testari prohib. ff. infr. part. ●. § 2. . Likewise if he be circumvented by fraud, the testament loseth his force 
g) d. L fin. ●i quis aliq. testari prohib. ff. & inf. par. 7. § 3 : for albeit honest and modest intercession, or request, is not prohibited; yet these fraudulent and malicious means, whereby many are secretly induced to make their testaments, are no less detestable than open force 
h) Olden. de action. class. 5. in princ. & infr. part. j § 3. .  
Moreover by † occasion of the aforesaid words our will, the writers do collect that the testator must be sui juris, that is to say, a freeman, not in subjection, as bondmen and other like persons 
i) L qui in potestate ff. de testa. & L si quae●amus eod. , of whom mention is made hereafter 
k) Inf. part 2. § 7, 8, etc. : Which have not liberty to make a testament.  
Likewise † by those words our will, are excluded those wills which depend of an other man's will 
l) L. captatorias. C. de test. mil. . Wherefore if the testator should refer his will to the will of another as if he should say. I give thee leave and authority, to make my will; and to make executor for me who thou wilt, etc. If here upon thou didst make a will, in his name, and didst name an Executor for him, yet this will is void in law 
m) Bar. in I. quidam. ff. de reb. dub. n. 7. Bald. in L. Executorem. C. de excep. rei iud n. 5. Io. And Gem. & Franc. in c. si patr. de testa. 6. Paris. consil. 38. vol. 3. n. 60. & inf. par. ●. § 11. . For as thy soul is not my soul, so thy will is not my will, nor thy testament my testament 
n) Bald (qui nihil ignoravit) & Angel. in L. captator. C. de mil. test. Paris. d. cons. 38 n. 40. .  
Furthermore by force of these words of our will, the † testament being termed a sentence differeth from those other sentences which are not of will: that is to say, from that sentence, which is the saying of some grave man: for that is not a sentence of will but of reason 
o) Paul. de castr. in d. L. j de testa. ff. ; and from the sentence of a judge, for that is not a sentence of will but of justice 
p) Paul. de castr. & Lancel. dec. in d. L. j de testa. . And howsoever the testator may declare his sentence, that is to say, his testament, as he will 
q) In testame●tis stat pro ra●ione voluntas. Mantic. de coniect. vlt. vol. lib. 6. tit. 14. n. 2. : yet the judge may not pronounce his sentence as he will 
r) Instit. tit. de office jud. in princ. : But he must judge according to that which is alleged and proved 
s) L. illicitus. § veritas ff ●e office praesidis. , (although peradventure as a private man, he know the same to be untrue) saving in certain cases 
t) Tu, si placeat, videas Io. Olden. aequis. juris interp. Cora●. lib. 3. Miscel. c. 20. Covar. lib. 1. var. resoluc. c. ●. Gentil. Disputac. vj. & generaliter Legistas in d. L. Illicitus & Cannostas. in c. j de office ord. , which because they are impertinent to this discourse, are not here to be handled.  
It followeth in the definition touching that which we would have done after our death. By which words, a testament differeth from all other sentences, proceeding from our will, and from whatsoever actions which take their effect in the life time of the testator 
v) Paul. de castr. in d. L. j de testa. ff. Mincing. in t●t. de testa. ordin. Instit. Covar. in Rub. de testa. extr. part. j . For † a testament respecteth that, which is to be performed after the death of the testator, and therefore so long as he liveth, the testament is of no force; but doth take his strength, and is confirmed by the testators death 
x) L. 4. de Adim. leg. ff. c. March. r. de celeb. miss. extr. . By these words also we may collect, the material and the final cause of every testament: Which thing because I have more amply enlarged hereafter, let this suffice which hath been spoken; for a taste only of such fruit, as grow in this garden.   

The Definition of a last will.  
1 What is a last will.  
2 Wherein the definition of a last will doth agree, or differ with or from the definition of a testament.  
3 Of the difference betwixt these two words Lawful and Just.  
4 Of the difference betwixt these two words Disposition and sentence.  
§. iiij.  
A Last will is thus defined. † Vltima voluntas est legittima dispositio, de eo quod quis post mortem fieri velit. 
a) Francis. Mantica de coniect. vlt. vol. lib. j tit. 4. num. 10.  A last will, is a lawful disposing of that which any would have done after death. This † definition differeth not from the definition of a testament, saving in two words: that is to say, in steed of justa sentencia, a just sentence, which is in the definition of a testament; here is ligitima dispositio, a lawful disposing 
b) Supr. § 2. & § 3. . Now if we shall consider the difference betwxit these words, justa sententia, and legitima dispositio; then shall we understand the full difference, betwixt a last will and a testament, (either being understood according to his definition) for in the rest both the definitions do agree, and that which hath been or may be said of the one, may also be verified of the other.  
Lawful † and just, do thus differ. This word lawful hath not all the significations which be included in the word just. For albeit by this word lawful, is excluded whatsoever is wicked, or whatsoever is contrary to justice, piety, or equity: or contrary to good and wholesome manners, as well as by the word just 
c) Spiegel Lexic. verb,. legitimum. , And although the word lawful may also signify solemn, or furnished with such due rites as law requireth, 
d) Gloss. in c. consanguinei de sen. & re. iud. extr.  as well as in the word just doth, albeit also that the word lawful in some sense do signify perfect 
e) L. Certo §. vlt. de servi. rust. praed. verb. legitima latitudo. , that is to say, not wanting any thing which the testator meant to utter 
f) Supra §. 3. n. 9 : yet it doth not signify perfect in such an excellent or special sense as doth the word just 
g) Mantic. de coniect. vlt. vol. lib. j tit. ●n 10. ; that is to say, having such perfection, as is requisite for the form of a testament, and is proper thereunto; namely the appointing of an Executor, by the which form a testament differeth from all other last wills of what kind soever they be 
h) Supra § 3. n. 19 .  
This word † dispositio is sometimes taken for a quality of the mind, or unperfect habit, that is to say, an inclination or affection 
i) Io. Casus Oxon. tractat. dialect. ij. part. c. 20. 21. . In this place it doth signify an act proceeding from a firm purpose or resolution 
k) Mantic. de coniect. vlt. vol. lib. j tit. 4. , like as the word sentence in the former definition 
l) Supra § 3. n. 20. . And albeit this word sentence: seem to insinuate a greater heed, or a more discreet consideration, to be taken in the disposing of that we would have done after our death, than the nature of this word disposition doth enforce: Yet no last will is of any force, sine animo disponendi, no more than is the testament sine animo testandi 
m) Vide infr. par. j § 13. .   

The definition of a Codicill.  
1 This word Codicill signifieth a little book.  
2 A Codicill rightly defined.  
3 How the definition of a Codicill doth agree, with the definition of a testament or differ from it?  
4 The signification of the word just in this definition of a Codicill.  
5 A testament is called a great will, and a Codicill a little will.  
6 A testament and a Codicill, compared to a ship and a boat.  
7 Of the invention of Codicils.  
8 Codicils may be made in writing, or without writing.  
9 Codicils may be made, either by him which hath made a testament, or which dieth intestate.  
10 Who must pay the legacies given in a Codicill, by him which dieth intestate.  
11 codicils be reputed part of the testament, whether they be made after, or before the testament.  
12 Codicils and testaments do agree in the efficient cause: But they have contrary effects.  
§. v.  
COdicillus, a Codicil, is a diminutive of Codex 
a) Codicillus à codice, Codex rursus dicitur à caudice, siquidem codex significat contextum tabularum quae priscis temporibus aptabantur cera ad scribendum, tametsi loco tabularum pergameni & chartae commodior successerit usus Olden. de action. class. quint: in princ. Spiegel. Lexi. verb. codicil. , a book. And so this † word Codicill being rather Latin then English, doth signify a little book, or writing, 
(b) Gloss. in Rub. inst. de codicil.  the reason wherefore it is so called doth strait ways appear.  
A Codicill is diversly defined of diverse. In my opinion it is † rightly defined after this 
(c) Sic enim a pletisque definitur, ut sit ultima voluntas minus solennis absque haeredis institutione. Quae definitio vix arridet, ut qua vix intelligam, quî differat codicillus à legato, quum & istud videatur voluntas ultima absque haeredis institutione, nec magis solennis, nec minùs perfecta, quàm est codicillus. Paul. de castr. in L. j de testa. ff. Covar. in Rub. de testa. ext. par. j n. 3.  manner. Codicillus est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit absque Executoris constitutione. 
d) Mantic. de coniect. vlt. vol. lib. 1. tit. 8.  A Codicill is a just sentence of our will, touching that which any would have done, after their death, without the appointing of an Executor. Which definition † doth agree almost word for word with the definition of a testament: saving that some words are here expressed, which are there omitted 
e) Supr. § ij. , absque Executoris constitutione, without the appointment of an executor. By force of which words the Codicill is made to differ from a testament: for a testament can no more consist or be without an Executor, than a Codicill can admit an Executor 
g) Intellige, directò, nam obliquè seu per fidei-commissum haereditas codicillis iure relinquitur. § Codicillus instit. de Codicil. Add Vasq. de success. create. lib. 3. § 25. Vbi regula extat. Ampliationibus octo, & sex Limitac. ornata. . By the † same words also is restrained that special signification of the word just, which in the definition of a testament, importeth that singular perfection and proper form, whereby a testament differeth from all other kinds of wills 
h) De qua supr. § 3. n. 19 . For here this word just is not only destitute of that peculiar sense: but it doth not so much as signify solemn, or furnished with testamentary rites or formalities 
i) Mincing. Instit. de Codicil. . For a Codicill is an unsolemn last will 
k) Grass. Thesaur. come. op. § Codicil. in prin. . So that by the word just in this definition is excluded that which is unlawful, and that perfection only included, which may stand with the nature of a Codicil 
l) De cuius vocabuli significatione, supr. § 4. n 3. . Whereupon † the writers conferring a testament and a Codicill together, and perceiving the odds betwixt the one and the other, they call a testament a great will, and a codicill a little will 
m) Accurs. & alij in R●b. de codicil. Instit. Sichard. in Rub. de Codicil. C. . And do † compare the testament to a ship, and the Codicill to a boat 
n) DD. maxim. Sich. in Rub. de Codicil. C. in princ. , tied most commonly to the ship. And not unfitly, aswell because the Codicill is not able to sustain, the heavy burden of an Executor, who representing the person of the testator 
o) Sichard. in Rub. de iure delib. C. n j Minsi. in Rub. de haered. instituend. Institut. Doct. & Stud. lib. 2. c. 11. , doth as it were (like Atlas who is feigned to carry the world upon his shoulders) bear upon his back, the whole mass and weight of all the goods, and cattles which did belong to the deceased 
p) L. Haereditas de reg. iur. ff. & ibi Cagnol. Plowden in casu inter Greisbrooke & Fox, & latiùs infr. part. 6. §. 3. , and on whose neck are laid all the actions, which either might be intended against the testator by others, or against others by the testator 
q) Instit. de perpetuis & temp. action. Terms of law. verb. execute. & infr. part. 6. §. 3. : As also because the Codicill being (as I have said) an unsolemn last will, can no more contain all those solemnities, ceremonies, and formalities which the Civil law doth exact in a testament 
r) Olden. de action. class. 5. in princ. , than a little boat is able to support, the tall masts, broad sails, the great store of the huge and weighty tackle and furniture belonging to a great ship, with the burden whereof the boat must needs sink and perish 
t) Aduerte tamen, quòd ista similitudo procedit intuitu juris tantum civilis, quia iure quo in hoc regno utimur, non magis onerantur testantes quàm codicillantes solennitatum observatione. . And in deed when † Codicils were first invented, they were used very sparingly 
v) Nempe ut condimenti non ut cibi suit olim codicillorum usus. Olden. ubi supr. , that is to say, in steed of a testament, when the testator had not opportunity to make a testament, by reason of the manifold solemnities thereof 
x) L. Codicillorun §. codicilli ff. de codicil. Instit. eod tit. in prin. ; which were remitted in a Codicill 
y) §. vlt. instit. de Cod. : or else as additions to the testament made, when as any thing was omitted in such a testament, which the testator would add, or some thing put in, which the testator upon better advise, would detract. Which emendation of the testament, was always done by way of Codicill 
z) L. conficiuntur in prin. de iure codicil. Cuiacius in tit. de codicil. C. . And this was that reason (whereof I spoke before) wherefore this kind of last will, was termed a Codicill: that is to say, a little book or a little writing.  
Concerning † the divers kinds of Codicils, although it be denied by some, that there be such two kinds of Codicils, as there is of testaments, viz. written and nuncupative 
a) Vasq. de success. crea lib. 3. § 25. n. 25. Grass. Thesaur. come. op. §. codicil. n. 10. : yet it is granted of the more part, that a Codicill may be made either in writing or without writing 
b) Gloss in Rub. de codicil. C. Mincing in Rub. de codicil. Instit. Wesenb in tit. de iure codicil. ff. quamuis abusiuè dici codicillos oporteat conditos sine scriptis quum Codicillus sit paruula scriptura. .  
Moreover it is granted of all, that a † Codicill may be made either by him which dieth intestate, or by him which dieth with a testament 
c) L. conficiuntur in prin. ff. de iure Codicil. §. non tantum. instit. de condicil. .  
If the † Codicil be made by that person which dieth intestate: the Legacies therein given must be paid by him, that shall have the administration of the goods of the deceased, as if he were executor 
d) L. ab intestat. ff. de Codicil. §. non tantum. Instit. de codicil. Brook Abridg. tit. de vice. n. 35 . In so much that if the Codicill were made long before the death of the party now deceased, who after the making of the Codicill did beget a child, to whom the Administration of the goods is committed, (whether he were borne during his father's life, or after his father's death,) he shall be charged with the payment of the Legacies, as if he had been borne when the Codicill was made 
e) d. L. ab intestat. L. si quis. §. sed etsi. L. gravi. L. is qui. ff. de iure codicil. Mincing. in d. §. ●on tantum. jas. Sichard. & alij in L. j C. de codicillis. .  
If the † Codicill be made by him which hath a testament; then whether the same were made before or after the testament 
f) L. conficiuntur. ff. de Codicil. d. §. non tantum Instit. de Cod. , it is reputed for part and parcel of the testament 
g) Vigel. Method. iur. civil. part. 4. lib. 9 c. 23. in prin. , and is to be performed aswell as the testament, unless being made before the testament, it appear to be revoked in the testament, or be contrary to that which is contained in the testament 
h) Mincing post gloss. in d. §. non tantum. instit. de codicil. .  
Codicils † and testaments do both agree in the efficient cause, (as they do in diverse others things 
i) Roland. Bonon. de arte notari. ubi resert 4. casus, in quibus convenit codicillus cum testamento. part. 2. c. 8. fol. 561. ): Yet nevertheless they have many contrary effects 
k) In lib. quem appellant Flores ultimarum voluntatum, octo numerantur differentiae inter codicillos & testamenta, quarum tamen pars maxima iam est extincta. . They agree in the efficient cause, because every person which may make a testament, may also make a Codicil; and whosoever can not make a testament, the same person cannot make a Codicill 
l) Bar. & alij in L. 2 de leg. j Grass. Thesaur. come. op. §, codicil. n. 2. qui affirmat hoc procedere non solum prohibente iure, sed etiam prohibente statuto testari. .  
They have divers contrary effects. For first whereas no man can die with two testaments, (because the latter doth always infringe the former 
m) §. posteriore Instit. Quib. mod. testa. infir. :) Yet a man may die with divers Codicils, and the latter doth not hinder the former, so long as they be not contrary 
n) L. cum proponat. C. de codicil. . Another contrary effect is this. If two testaments be found, and it do not appear which was the former or latter, both testaments are void 
o) L. vltim & ibi. DD. de edict divi Adria. toll. C. . But if two Codicils be found and it can not be known which was first or last, and one and the same thing is given to one person in one Codicill, and to another person in an other Codicill: the Codicils are not void, but the persons therein named aught to divide that thing betwixt them 
p) Gloss. & DD. in d. L. cum proponat. Grass. Thesaur. come. op. §. codicillus ubi attestatur hanc op. esse come. .  
Finally it is to be noted, that there be divers words which are common, or indifferent, either to make a Codicill or a testament. In which case whether the judge is to pronounce for a Codicill or a testament, is hereafter discussed 
q) Inf. part 4. §. 5. .   

The definition of a Legacy.  
1 What is a Legacy.  
2 Four things to be considered in this definition.  
3 Every legacy proceedeth of the liberality of the testator.  
4 How a legacy differeth from a gift in regard of death, or from other gifts.  
5 Not lawful for the legatary to take his legacy by his own sole authority.  
6 Legacies payable aswell by the administrator as by the executor.  
7 divers kinds of legacies in times past.  
8 The distinction of legacies confounded.  
§. vj.  
A Legacy (otherwise termed of our common lawyers a Devise 
a) Terms of law, verb. de vice. ) is † a gift left by the deceased, to be paid or performed by the Executor, or administrator 
b) §. j Instit. de lega. . There be other definitions of a Legacy which I do willingly omit, because this one is sufficient 
c) Constat plures esse Legati definitiones, aliam Florentini, aliam Modestini, aliam justiniani, quarum nulla est, quam unus aut alter non tentavit evertere, sed frustrà quidem sudarunt omnes; quip quorum fractis argumentis nullam hatum non per se iustam, legitiméque traditam, clarissimè ostendit D. Gentilis oxonians. hody Legistarum decus. lib. 1. Lection. & epistol. c. 14. 15. 16. . Wherein four † things especially are to be noted.  
First, in that it is called a gift, it argueth that it † proceedeth of the mere liberality, & free good will of the dead man; and consequently that he is not of necessity tied thereunto 
d) Mincing. in d. tit. de legate. instit. §. j .  
Secondly in that it is lest, it † differeth from other gifts; not only those which are called deeds of gift, effected and executed in the life time of the Donor: but also from those gifts which be made in consideration of death, wherein the things given, are delivered by the testator in his life time, to become their own to whom they are delivered in case the testator die 
e) §. j Instit de Donac. . For legacies are not delivered by the testator, but are to be paid by his Executor, or administrator 
f) L. j Quorum lega. ff L. non dubium. de l●ga C. & ibi DD. Pa●kins. tit. testa. c. 7. fol. 94. b. .  
And thirdly, because the legacy is to be paid by the Executor or administrator, (as appeareth by the definition,) it is noted, † that it is not lawful for the legatary, to take his legacy by his own sole authority 
g) d. L. non dubium & Sichar. abide. n. 2. , (only the executor may of his own authority enter to the goods and chattels of the deceased, 
h) Infr. 6. § j & iij. ) otherwise if the legatary presume to be his own carver, & do enter to the possession of the thing bequeathed, without delivery or consent of the executor, he thereby loseth his legacy 
i) d. L. non dubium. C. de lega. : except in certain cases, whereof hereafter 
k) Infr. part. 7. §. 22. in fin. . fourthly, in that here is mention aswell of the administrator as of the Executor, the meaning is, that † not only those legacies are dew, which are left in a testament, wherein is appointed an executor, and where the party doth not die intestate: But those legacies also which are left in a Codicill or last will, wherein no Executor is appointed, and where the party dieth intestate 
l) §. non autem Instit. de Codicil. ; which Legacies as they be due, so are they payable in both cases: in the one by the Executor; and in the other case by the administrator 
m) Eod. §. non autem. & L. ab intestat. ff. de iure codicil. . Nay more than this; if any legacy be left in a testament, although the executor therein named can not be executor, or do refuse the executorship, and so the party die in a manner intestate, and thereupon administration of his goods granted, according to the statutes of this realm 
n) Stat. H. 8. an. 21. c. 5. . In this case also by the laws and custom of this realm, the Legacies be due and payable by the administrator 
o) Brook Abridg. tit. testa. n. 20. inf. par. 7. §. 19 , though it be otherwise by the civil law 
p) L. j in sin. de Injust. testa. L. fidei commis. de Leg. j L. Imperator. de Leg. 2. ff. Grass. Thesaur. come. op. §. legatum. q. ●8. .  
In ancient time † there were four several kinds of legacies. Per vindicationem 
q) §. sed olim. Instit. de lega. , per damnationem 
r) Alij legunt per vendicationem, ut Porcius, & Mincing. in d. §. sed olim. , per sinendi modum 
s) i. obligationem, vel condemnationem. , per praeceptionem 
t) i. ante captionem. Minsin. in d. §. sed olim, . That is to say, by challenge, by condemnation, by suffering, by foretaking, being so distinguished, by occasion of a certain solemnity or formality of words, assigned to every kind of legacy 
v) Accipe singulorum legatorum exempla, 1. Titius rem illam habeto. 2. Haeres meus damnas esto dare. 3. Haeres meus sinito Titium rem illam sumere, sibíque habere. 4. Haeres praedium illud praecipito. gloss. in d. §. sed olim. : With several actions or remedies, ascribed to every such legacy, for the recovery thereof 
x) Legato videlicet per vindicationem relicto, actio realis: per damnationem verò personalis nascebatur. Sinendi modo relictum, sola legatarij autoritate sine vitio capitur, legatum per praeceptionem actione familiae Herciscundae exigebatur. Mincing. & alij in d. §. sed olim. . But afterwards the † laws being more favourable to dead men's wills, this precise solemnity of words was taken away, and liberty granted to make bequests by any manner of words 
(y) L. j C. come. de lega. §. nostra Instit. de lega. . (As else where more fully 
(z) Infr. part 4. §. 4. .) Whereby in the end, all legacies be came of one and the same nature, and are all at this present recoverable by like actions 
(a) d. §. nostra. Instit. de lega. . Which by the civil law is threefold 
(b) jure civili tres actiones Legatarijs competere dignoscitur, personalem, realem, Hypothecariam. jure autem quo nos utimur, quin prima actio qua executor ex quasi contractu teneatur, etiamnum vigeat, nulla est dubitatio. Secunda etiam qua rem Legatam persequimur competit quidem Legata●io primo adversus executorem, seu administratorem pro re tradenda, deinde adepta possession●, adversus quemlibet possessorem conceditur actio transgressionis. Tertiae verò actioni qua res testatoris legatarijs pignorari dicitur, suspicor nullum in hoc regno locum esse relictu●. , with us if the executor detain the legacy, or do slack the performance of the testators will. The legatory must sue the executor in the Ecclesiastical court, for the same legacy so detained or not satisfied 
c) Tract. de repub. Ang. lib. 3. c. 9 Bracton. de legib. & cons. Angl. lib. 2. c. 26. in En. Brook abridge. tit. de vice. n. 27. 45. Fitzherb Nat. Bre●. fol. 50. in Br. de consultac. in princ. Plowd. a cas. inter Paramor & Yardley. Terms of law, verb. devise. .   

The Definition of a gift in consideration, or because of death.  
1 What is a gift in consideration of death.  
2 Three sorts of gifts in consideration of death.  
3 Which of these three gifts is compared to a Legacy.  
§. seven.  
A Gift in consideration of death, is † where a man moved with the consideration of his mortality, doth give and deliver something to another, to be his, in case the giver die; or otherwise if he live he to have it again 
a) Instit. de donac in princ. . Of † gifts in case of death there be three sorts 
b) L. 2. ff. de donac. mor. cause. . One when the giver is not terrified with fear of any present peril, but moved with a general consideration of man's mortality, giveth any thing 
c) d. L. 2. L. Seni. L. ubi ita. ff. de mor. can. donac. . Another, when the giver being moved with imminent danger, doth so give, that strait ways it is made his to whom it is given 
d) d L. ●. . The third is when any being in peril of death, doth give some thing, but not so, that it shall presently be his that received it, but in case the giver do die 
e) Ibidem. . This † last kind of gift, is that which is compared to a legacy 
f) Bar. in d. L. seni. Grass. Thesaur. come. op. §. donatio. q. ●. : But the other two are reputed simple gifts: If the giver do not make express mention of his death, and so they can not be revoked 
g) jul. Clar. §. donatio. q 4. , but take full effect from the time of the making of the gift, if the same be not fraudulent 
h) Stat. Eliz. an. 13. c. 5. & an. 14. c. 11. .   

The Division of Testaments.  
1 Of the ancient division of testaments.  
2 An other threefold division.  
§. viii.  
FOrasmuch as that † ancient division of testaments, whereby they † were first distributed into two sorts 
a) Instit. de testa. ordin. §. j , the one testament being termed Calatis Comitijs 
b) ●. vocatis comitijs, seu vocato populo, à graeco verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, quod est voco. Tempore namque pacis, bis tantùm in anno Testator con●ocato per cornicinem populo, eóque present, ac quasi teste, ultimam suam voluntatem decla. rare solebat. Mincing. in d. §. j , the other Procinctum 
c) Ho● testamentum fieri consuevit ab exitutis in praelum ob dubiam bel●● aleam. In de procinctum dicitur, non quòd succincte sieret, sed quòd procin●i dicuntur milites qua● praecincti & expediti. Vi●●ius in d. §. j , (whereunto afterwards a third kind was added called Per aes & libram 
(d) i. per imaginariam venditionem. praesentibus enim testibus, unà cum libripende, se● estimatore patrimonij is qui successor defuncti futurus erat, mo●●turi bena emebat, d. inde percutiés libram, illud aeris quasi pretium dabat e●à quo haereditatem expectabat. Mincing. post Vigl. in d. §. j ) hath been long since abolished 
(e) Text. in d. §. j , and worn not only out of fashion, but almost out of memory; in so much that unto some their very names may seem strange. Unwilling therefore to offer any thing, more tedious than profitable, I thought good to make report of some other kind of testaments, whereof happily we may have some use in England.  
Understand therefore, that † of testaments some be Solemn, some unsolemn; some written, some unwritten or noncupative 
f) jure civili testamentum scriptum, non vocatur alia species a testamento solemni, plerunque enim haec duo consunduntur, & indifferenter, seu promiscue v●ui pantur. (Bar. in L. tabular. ff. Quemad. testa. app. & apertiùs. Mincing. in §. sed cum. Instit. de testa ord. in §. fin. ibid. Grass. Thesaur. come. op. §. testa q. 10. n. 1.) At verò iure quo nos utimur inspecto, planc diversa sunt. Saepiùs etenim necessarium est, ut testamenta nostra sint scripta, sed ut sint solennia nunq, quinimo vel eod. iure civili testamentum insolemne dividitur in scriptum & non scriptum. Grass. Thesaur. come. op. §. testa. q. 10. & q. 11. n. 3. , some Privileged, and some not privileged 
g) Mantic. de contect. vlt. vol. lib. 1. tit. 7. Add jul. Clar. §. testm. q 3. ubi tradit nobis aliam testamen● torum divisionem. .   

Of Solemn Testaments.  
1 What is a solemn testament.  
2 No use of solemn testaments here in England.  
3 The rigour of the civil law concerning testaments.  
4 This rigour justly reform.  
5 What moved justinian to exact the number of seven witnesses in testaments.  
6 Two or three witnesses sufficient by the law of God.  
§. ix.  
Solemn testaments are they †, wherein be all those solemnities of the civil law, (as the presence of seven. witnesses, and required thereunto, their subscription, their subsignation, the expedition of the act at one time, etc.) 
a) ● Solemn paulatim 〈…〉 testa ordin. 〈…〉 consul●●s. m●. C●●e testa.  But † of this kind of testaments, we have no use in England 
b) Supr. 〈…〉 1. . Wherefore it shall suffice, that I have showed (as it were only by the pointing of the finger,) that such a kind of testament there is mentioned in the Civil law; to the † observation whereof the Roman people were strictly tied, in the making of their testaments. (Much like as were the jews to their jewish ceremonies:) so that if any one of these solemnities were omitted, the testament was void 
c) L j de Injust. rupt. & irrit. test. ff. Mincing. in d. §. sed cum. n. 12. . Which thing was not only hard to be performed, but in some respects also ungodly. For that it was not sufficient for any man, to prove a testament by two or by three witnesses, (the law of God requireth no more 
d) Deut. c. 18. Matth c. 18. Mantic. de con●ect. vl●. v l. lib. 6. tit 3. n. 18. ) but it must be proved forsooth by seven witnesses 
e) d. §. sed cum paulatim. . Wherefore with † good reason, was this excess reform: First by the ecclesiastical law, which did reduce the number of seven witnesses to three, (the parochial minister being one, 
f) c. cum esses de testa. extr. ) & in some cases to two 
g) Testa. videlicet ad p●as causas condito. caelatum elij. de testa. extr. . And then by the general custom of this realm, which distinctly requireth no more witnesses but two, so they be free from any just cause of exception 
h) Lindw. in c. statut de testa. lib. 3. provincial. constitu. verb. probatis. Peckius in c. privilegium de reg. iur. lib. 6. n. 7. . The reason † wherewith justinian was moved, to approve of these solemnities, and to add thereunto as he did, was as he doth frankly acknowledge, (Propter testamentorum sinceritatem, ut nulla fraus adhibeatur 
i) d. § sed cum paulatim. instit de testa. ord. .) For the sincerity of testaments, and that no fraud should be practised. And I doubt not, but before he did set down so precise a law, he had sufficient trial of great cunning, and craft practised, in the making and proving of testaments. (I would there were none in England) which urged him to go from that rule †, and law of Ulpian the famous lawyer, the same also being most agreeble to the law of God. Vbi numerus testium non adijcitur etiam duo sufficiunt, pluralis enim elocutio, duorum numero contenta est 
k) L. ubi de testibus. ff. .) Where the number of witnesses is not expressed, even two are sufficient, for the plural speech is content with two. Where he sayeth the plural speech is content with two, which is the reason of the law: It hath this sense. It was a thing very well known, that one witness alone, was not sufficient to decide a controversy, (the testimony of one being as the testimony of none 
l) c. licet c. veniens etc. jusiurandi de testibus. extr. c. admonere. 33. q. 2. ;) and therefore there were required witnesses, but how many witnesses were sufficient was doubted of: whereupon Ulpian answereth, that albeit witnesses are required; Yet that plural speech, witnesses, is satisfied with two, and so two witnnesses are sufficient, where a greater number is not required 
m) DD. in d. L. ubi. .   

Of unsolemn testaments, and whether the aforesaid definition of a testament do agree to our testaments in England.  
1 What is an unsolemn testament.  
2 Of the freedom we enjoy in England, in making our testaments.  
3 Writing required in the devise of lands.  
4 Many things permitted which be not necessary.  
5 Whether it be needful that witnesses be required in a testament.  
6 Whether our testaments in England do agree, with the former definition of a testament.  
7 Some reasons whereby it should seem, that the former definition, and our testaments do not agree.  
8 The former definition of a testament, doth comprehend both solemn and unsolemn testaments.  
9 The reasons which prove that this foresaid desinition doth comprehend both testaments.  
10 Ulpian did flourish before justinian.  
11 The increase or decrease of solemnities do not make the testament to serve from the former definition.  
12 An unsolemn marriage is a true marriage, in respect of the knot or essence of matrimony.  
13 A Military testament, though unsolemn, is properly a testament.  
14 A testament amongst children is properly a testament though unsolemn.  
15 A great inconvenience, if an unsolemn testament were not properly a testament.  
16 What is a testament properly so called?  
17 In England our testaments though unsolemn, have the effect of testaments properly so called.  
18 An answer to those reasons, which seem to prove our testaments do not agree with the former definition.  
19 The former definition is not of any special testament.  
20 The conclusion.  
§. x.  
VNsolemne testaments are † so termed, whereas the solemnities of the Civil law above mentioned, or any of them are omitted, at the making of the testament 
a) L. j de injust. rupt. & irrit. testa. ff. : Without the which by the Civil law, the testaments were void 
b) d. L. j I. Hac consultissima §. ex imperfect. C. de testa. Mincing. in § sed cum paulatim. Instit. de testa. ord. 12. , except in certain cases. But † with us in England they are not void: for that our testaments are not subject, to the ceremonies of the Civil law, but are made with all liberty and freedom, and as (one reporteth) jure militari 
c) D. Smith. tract. de repub. Ang. lib. 3. c. 7. Quod tamen indistinctè non admitterem, quandoquidem multa privilegia testamentis militaribus competere videantur, qualia sunt cum duobus testamentis decedere, & id genus alia (de quibus infr. §. xiv.) quae nostratibus non licet vendicare. (ut eod. §. xiv.) Et contra Rogatio testium quae pro solennitate in militari testo requiritur (communi interpretum calculo) ab Anglis testantibus, non ita necessario obseruatur. : And so we are no further tied then to the observation of those requisites, that be necessary iure gentium 
d) Milites ad solennitates tantum juris gentium astringi videre est apud Dec. in L. milites C. de testa. mil. post Bar. in L. j C. de sacrosan eccle. & DD. in L. j ff. de nul. testa. Quibus add Tiraquel. de privileg. piae causae. c. 3. . Which requireth but two witnesses 
e) Dec. in d. I. Milites Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 9 in f●n. : saving that in † a legacy or devise of land, writing is also necessary, and that to be made in the life of the testator 
(f) Stat. H. 8. an. 32. c. 1. . How be it, it is not to be doubted, but that a man may make his testament in writing, wherein he disposeth of his goods only, and so he may use the testimony of more witnesses than two. Also † if he will he may procure the witnesses to subscribe their names to the testament; yea to every page of the testament, (if there be divers) and it is a good & a safe course whereby many forgeries might be prevented, or more easily detected. But no † man is tied to the observation of these cawtels 
(g) Lindw. in c. statutum de testa. lib. 3. provincial; constit. Cant. verb. probat. , (except as before) no not so much as to require the witnesses 
h) Ratio est quia rogatio testium non est juris gentium aut divini. Ab. Covar. & alij in c. relatum. el. j detest a. extr. Tiraquel. de privilegijs piae causae. c. 3. quo posito constat Anglos pleniore libertate frui in condendis testamentis, quam quae vel ipsis militibus indulta fuit a iure civili: quo (si communi sit credendum opinioni) rogatio testium est necessaria. jul. Clar. §. testim. q. 58 quamuis non desint qui contendunt rogationem huiusmodi, non ad solennitatem exigi, sed ut ex eo facilius diiudicari possit, Militem proferendo verba quae sonant in testm, ea deliberatè & seriò, animoque testandi, non ioco, non perfunctoriè protulisse, ut saepè solent alias. Tiraquel. de privileg. piae causae. c. 3. Wesenb. consil. 38. n. 65. Add quod in testamento inter liberos, ubi attenditur solennitas juris gentium, non est necessarium ut testes sint rogati. Grass. Thesaur. con. op §. testm. q. 11. Clar. §. testm. q. 18. Dec. consil. 610. Denique nec in testo ad pias causas (in cuius confectionem adhibendaesunt juris gentium solennitates) requiritur ut testes sint rogati, ut habet come. op. teste Covar. in c. relatum. el. j de testa. & infr. §. 16, : so beneficial are the laws of this realm to the subjects of the same.  
But † here me thinks a question doth offer itself to be resolved. If all our testaments in England be unsolemn, and † if by the Civil law regularly, all unsolemn testaments be void, in so much that if but one only solemnity be omitted, the testament is no testament 
i) L j de iniusto rup. & irrit. testo. ff. L. ex imperfect. L. si unus. de testa. C. : How doth the definition of a testament above mentioned, borrowed out of the Civil law, agree with our testaments here in England, being all unsolemn testaments? It should seem we had need to seek a new definition, & that I have erred, together with other our common and temporal lawyers of this realm, in borrowing that definition, which agreeth so just with their testaments, with which testaments our testaments do not agree. For if the definition did agree with both testaments, they should agree betwixt themselves, but the testaments do not agree betwixt themselves; & therefore the definition doth agree but with one alone: If it agree but with the one, and we confess it doth agree with their testaments, how then can it agree with ours also?  
To this question briefly my opinion is this, that the † definition doth comprehend, both solemn and unsolemn testaments: and therefore is agreeable to our testaments. The antecedent I prove thus †. The Definition (as appeareth) was made by Ulpian 
k) Vlp. in L. j de testa. ff. , this Vlpianus † is one of those ancient lawyers, whose answers, definitions, rules, and conclusions, are contained in the digests ˡ, and who flourished no less than two hundredth years before justinian 
m) justinianus adeptuus fuit Imperium an. Christi nato 527. Vlpianus autem floruit long ante, nimirum, tempore Alex. Severi Imp. Ro. paulo plus CC. annis post Christum natum. Cagnol. in L. vnic. si quis ius dicenti. ff . Which justinian did add certain other solemnities: without the which he ordained, that the testament should be void 
n) §. sed cùm paulatim verb. sed his Instit. de testa. ordin. L. jubemus. L. cum antiquitas C. de testa. . It must be granted therefore, that the definition being perfect, before those new solemnities were devised, and agreeable to those testaments which had not these solemnities, because as yet they were not: so now the same solemnities being taken away, the definition comprehendeth those testaments, which have them not at this present, as it did those other testaments which had them not at the beginning 
o) Eadem enim ratio oppositi in opposito, ac propositi in proposito. Socin. consil. 16. lib. 3. n. 15. Euerard. loc. a con●rarijs. . So that the † increasing or decreasing of the number of solemnities, maketh not the testament to come nearer, or depart further from the definition 
p) Nam differentia quae est tantum secundum maius & minus, non constituit diversas species, & sic nec diversas definitiones. L sin. de fund. instruct. legate. ff. Olden. de culpa. . Indeed the presence or absence of solemnities make the testament solemn, or unsolemn, but they do not make it a testament, or no testament 
q) Si enim equus caecus sit equus ita ut caecitas non faciat equum non esse equum, sed non esse oculatum, à fortiori testamenti insolennitas, non facit testan. non esse testamentum, sed non esse solemn à fortiori in q quum cae citas sit defectus in iure naturae, insolennitas autem defectus juris tantum civilis. Nam illa requisita de quibus in c. cùm inhibitio de clan. despons. ext. non esse de forma & substantia matrimonij, vel legittimationis prolis. sed de solennitate tantum, & ad ipsius decorem introducta post Theolog. & Canonistas prodidit Granis. consil. civil. 168. & hanc op. communi calculo receptam dicit. lo. Lup. & Mascard. de probac. verb. filius conclu. 798. n 8. Et licet hody per council. Tridentin. huiusmodi mattimonia fiant irrita. Nos tamen sequimur antiquum ius come. tanquam non mutatum. Stat. H. 8 an. 25. c. 19 . For † as an unsolemn marriage is not therefore no marriage because it is unsolemn, (the baynes perhaps not being published, or the marriage not being celebrated in the face of the church, but privately in a chamber, or some other rite or ceremony thereof being omitted,) but is nevertheless reputed for a true marriage 
(r) c. aliter. 30. q. 5. c. ●. de cland. despons. extr. , both in the ecclesiastical courts, in respect of the knot or essence of matrimony 
s) Abb. in c. 1. de cland. despons. extr. Dec. consil. 163. Covar. de sponsal. secunda part. c. 6. in principio. n. 7. Lindwood. in c. Humana. de clandest. desp. lib. 4. provincial. constitut. Cant. ; and in temporal courts in respect of the wives dower, and other legal effects 
t) Perk. tit. Dower. fol. sexagesimo pri. quod verum est iure hodierno. Licet olim regnant H. 3. & long ante cum contrarium ius obtinait. Fitzh. Nat. Bre. fol. 150. : even so an unsolemn testament doth still remain a testament; when these solemnities do rather appertain to the proof, or appearance, then to the substance of the testament 
v) Mincing. in d. §. sed cum paulatim. Old. de Act. class. 5. in prin. Ripa. in L Nemo. de leg. j & Io. Crot. in eand. L. col 6. Quorum opinione hae solennitates testamentariae non ad substantiam sed ad probac. testi. pertinent: quae quidem opinio sine difficultate procedit hîc in Anglia ubi istiusmodi solennitates omnino non sunt necessariae. licet fortasse alias contraria tanquam communis opinio locum sibi vendicaret. Bar. in d. L. Nemo. Covar. in c. cum esses. de testa. extr. n. 8. . For it is not said in the definition; there must be this or that number of solemnities in the testament, only it is requisite, that there be a just number 
x) justa sententia. , that is to say, so many as the law requireth, and if the law require none, the definition requireth none; more than is sufficient for a due proof 
y) Bou. in c. cum esses. de testa. ext. in sin. Soarez. lib. rec. Senten verb. testa. n. 72. jas. in L. cunctos de summa. tri. C. n. 39 .  
If an unsolemn testament were no testament, then testamentum militare, were no testament: for it is an unsolemn testament 
z) Wesenb. in tit de testa. mil. ff. Bald. in L. filii. C. famil. Herciscun. n. 5. : And yet testamentum † militare is both in name and nature a testament 
a) Tit. de testam. mil. ff. Instit. & C. Vasquius de success. crea. §. 21. n. 47. . Likewise if an unsolemn testament were no testament, then testamentum inter liberos were no testament; being unsolemn and unperfect 
(b) L. Hac consultissima. §. ex imperfecto. C. de testa. : But testamentum † inter liberos though unsolemn, even properly, and by the Civil law, is a testament 
(c) Grass. Thesaur. come. op. §. testam. q. 11. n. 2. ubi refert hanc op. esse come. ex Alex. Decio. Curtio Nat. Emanuele Costa, Vasquio, & alijs, cont. gloss. in d. §. ex imperfecto. . Besides this, † if an unsolemn testament were no testament, than (all the testaments here in England being unsolemn,) we should all die intestate 
(d) Instit. de haered. quae ab intestat in princ. : And dying intestate, then (mark what an inconvenience would follow,) by the statutes of this realm, the administration of the goods of every man dying intestate, aught to be committed to the widow, or next of kin to the deceased. But the contrary hath been generally observed, that is to say, where an executor hath been appointed, able and willing to undertake the executorship; there the maker of this will, hath been adjudged not to have died intestate, and so the administration of his goods hath not been committed to the widow, or next of kin, according to the statute, although the testament were unsolemn, which administation otherwise, aught to have been committed according to the said statute, as is aforesaid 
e) Id quod viridi obseruac. ficri ubique conspicitur. . And therefore by common observation also, an unsolemn testament is not no testament: but rather even properly a testament. For by the † opinion of the most & best writers that is concluded to be properly a testament, the author whereof can not be said to die intestat: & whose executor therein named, is to succeed ex testamento; 
f) Bald. in L. cunctos de summa trinitate C. n. 17. Sichard. in L. Hac consultissima. §. ex imperfecto. C. de testa. n. 5 in sin. Grass. Thesaur. come. op. §. testa. q. 11. n. 2. jul. Clar. § testm. q. 13. Euerard. consil. 185 n. 8. ; though it be but in respect of the laws or customs of the place where the testament is made being contented with fewer solemnities than are requisite in other places 
g) Andr. Gail lib. 2. practic. obseruac. 123. Soarez. lib. recep. senten. verb. testmt. 72. Baptist. Villabol. lib. come. op. verb. testmt. 57 Gabr. Rom. lib. 4. tit. de testa. conc 4. Vasq. de success. crea. §. 21. n. 47. 48. Paris. consil. 12. n. 45. vol. 3. quorum opinio est proculdubio communis, licet aliter sentiat gloss. in d. §. ex imperfecto. . Which † effect our unsolemn testaments have wherein an able & willing executor is named: For neither he is reputed to die intestat, which appointeth such an executor 
h) Hoc nemo nesei● qui vel mediocriter in alter●t●o ●oro versatur. , but is plainly, even in laws of strict interpretation (I mean the statutes of this realm) termed a testator 
i) Stat. Ed. 3. an. 4. c. 7. & an. 25. c. 5. stat: H. 8. an. 21. c. 5. & alijs penè infinitis locis. : Nether is the administration of his goods committed to the widow, or next of kin, by the authority of the ordinary: according to the statute as in case of one dying intestat 
k) Id quod non semel dictum est, sed & saepius est dicendum. . But the executor deriving his authority from the testator only, doth succeed in the place of the dead man, by force of the testament, according to the testators meaning and disposition 
l) Plowden in casu inter Greisbrook & Fox, fol. 280. his verbis: Lez executores nosmes sount executores magnetent & devant probate del testament, Car le probate nest que confirmation & allowance de ceo que le testator fist, etc. lit ils poyent executeur devant. probate, etc. . Wherefore an unsolemn testament, is even properly a testament. Which conclusion being true, the definition is not more proper to the one, then to the other.  
Now for the answering of the arguments objected. First † where it is objected, that all unsolemn testaments are void, although one only solemnity were omitted. That is true only by the Civil law: But it doth not therefore follow, that an unsolemn testament is no testament, in respect of his definition 
m) Vasq. de success. crea. §. 11. n. 48. , how so ever it have not the same effect, to all intentes in law. But if it be therefore a testament, because it taketh effect in law, then are all our testaments, (though unsolemn,) good and sufficient testaments; because they have as much force without those solemnities, as if they had them all and C. more 
n) Soarez. lib. recep. sen. verb. testmt. 72. Grass. d. §. testm. q. 11. Clar. §. testm q. 13. And. Gail. lib. 2. pract. obser. c. 123. Vasq. de success. crea. §. 21. n. 47. Sichard. in L. Hac consul●ss § ex imperfecto. C. de testa. . Secondly, where it is objected, that the definition doth agree to their testaments; and that their testaments and ours do not agree betwixt themselves: I answer, that the † definition is not of any special testament, that is to say, it is not of a solemn testament alone, nor of an unsolemn testament alone, nor of a written testament alone, nor of an nuncupative testament alone, nor is convertible with any special kind of testament, mentioned in any part of the Civil law, from the which our testaments made in England do differ. For indeed if the definition were made of any special testament alone, mentioned in the law, from the which our testaments do differ: Then could not our testaments differing from the testament defined, agree with the definition 
o) Quod enim differt à definito, differt à definitione: ut, quod non est homo, non est animal rationale. Euerard & Olden. loc. à definicione. lo. Casus Oxon. tract. de dialect fo. 225. . But the definition is of a testament which is also common to all those, or any other kind of testaments, aswell solemn as unsolemn, as appeareth before: and therefore the testament so defined, although it be special in respect of the definition, yet is it general in respect of the several kind of testaments above recited 
p) Testm. superius definitum genus est subalternum: Id quod potest es●e & species & genus diverso tamen respectu; nimirum species respectu superioris, id est, sententiae; Genus respectu inferioris, id est, paganici, & militaris: scripti, & nuncupativi; solennis, & insolennis testamenti. Huiusmodi autem testamenta differunt non numero sed specie, & sic testamenta, cuius supra est definitio posita, genus est, quia praedicatur de pluribus differentibus specie. , and is verified of every of them; solemn or unsolemn, and so consequently is common aswell to our testaments as to theirs, distributing both name and nature to every special testament 
q) Id quod est generi proprium. Olden. Topic Legal. Loco a genere. , how so ever they differ amongst themselves 
r) Species namque performam discrepat à specie. Conueniunt autem omnes species in suo genere. Olden. & E●erard ubi supra. . To † conclude therefore, we need not to seek any new definition, but rather they themselves, by reason of their new solemnities, devised since the making of the old definition 
s) Alciat. in L. j C. de sacrosanc. eccle. n. 12. .  
Indeed we have not these solemn testaments of the Civil law, but that in respect we are the more happy, and our law the more godly?   

Of a written testament.  
1 What is a written testament.  
2 A testament nuncupative is not made a written testament by after writing except in certain cases.  
3 Some things common both to a written and to a nuncupative testament.  
4 Some things peculiar to a written testament.  
5 Devise of lands, tenements, or hereditaments, is not good without writing.  
6 In a written testament it is not necessary that the witnesses be privy to the contents.  
7 Causes wherefore testators many times would have their wills secret.  
8 In what manner the testament is to be made when the witnesses know not the contents.  
9 The witnesses must be learned, and must write their names on the testament, when they do not know the contents thereof.  
§. xj.  
A Written 
a) Testamentum in scriptis ansit alia species à testo solenni examinavi. supr. §. 8. in margin.  testament, is † that testament which at the time of the making thereof, is committed to writing 
b) Mincing. in §. sed cum paulatim. Instit. de testa. ordin. . By which words, at the time of the making thereof: are excluded † such testaments as are afterwards put in writing. For being made first by word of mouth they do still remain nuncupative, notwithstanding the reducing thereof to writing 
Mincing. in §. fin. Instit. de testa. ord. : Unless the testament being first made by word, and afterward (in the life time of the testator) being written, it were brought to the testator, and by him approved for his testament: Or unless the testator, when he declared his testament, did will that the same should be written, & that thereupon the same was written accordingly, during his life. For than it is effectual, for the devise of lands, tenements, and hereditaments, as if it had been written at the first 
d) Dier. fol. 72. & ita saepè audivi à nonnullis huius regni Angliae ●urisperitis. .  
A written † testament albeit it have some things thereunto belonging, which also belong to a nuncupative testament, and so common to both; as the appointing of an executor, (without the which there can be no testament at all, neither written nor nuncupative 
e) Infr. part. 4. §. 2. ,) and as the devising or disposing of goods or chattels (which may be done indifferently either by word or by writing: 
f) Supr. §. 9 ) yet there be † some things, which be proper and peculiar to a written testament. One is the † devise or grant of lands, tenements, and hereditaments; which can not pass by a nuncupative testament, or will without writing 
g) Stat. H. 8. an. 32. c. ●. : As doth afterwards more fully appear, where is also showed, what lands, and how much, may be devised by will 
h) Infr. 3. part. §. 4. . another thing peculiar to a written testament is this: In a written testament † the testator hath this benefit; he may conceal and keep secret the tenor or contents of his will, from the witnesses 
i) L. hac consultis. C. de testa. & gloss. ibidem. : Which he cannot do when he maketh a nuncupative testament. And therefore if the testator be loath to have his will known, which thing happeneth very often †, either because the testator is afraid to offend such people as do gape for greater bequests then either they have deserved, or the testator is willing to bestow upon them: (lest they peradventure understanding thereof, would not suffer him to live in quiet,) or else because he should over much encourage others, to whom he meant to be more beneficial than they expected, (and so give them occasion to be more negligent husbands, or stewards, about their own affairs, than otherwise they would have been, if they had not expected such a benefit at the testators hands) or for some other considerations. In these and like cases, after the testator hath written his will with his own hand, or procured some other to write the same, he may close up the writing, without making the witnesses privy to the contents thereof; and showing the same to the witnesses, he may say unto them: This is my last will and testament, or herein is contained my will: and this is sufficient 
k) Authen. Et non obseruato. C. de testa. & DD. ibidem. . Neither is the testament therefore the less available, because the witnesses do not know what is contained in the same 
l) Mincing. in §. sed cum paulatim. Instit. de testa. ord. accedit Kling. in eund. tit. in. 8. , in case † the witnesses be able to prove the Identity of the Writing; that is to say, that the writing now showed, is the very same writing which the testator in his life time, affirmed before them to be his will, or to contain his will 
m) DD. in d. L. Hac consultisses. & in Auth. & non obseruato. C de testa. Covar. in c. cum tibi de testa. extr. n. 5. & inf. par. 4 §. 25. . Otherwise the will can take no effect, through the defect of sufficient proof 
n) Bar. & alij in L. si ita scripsero. ff. de cond. & daemon. Paris. cons. 19 vol. 3. n. 25. 26. . And therefore † lest the will should perish for want of due proof, when the testator would not have the contents known, it is not only requisite that the witnesses be learned, but expedient also that they writ their names, on the backside, or some part of the testament 
o) Specul. de Instr. Edi. §. compendiose. n. 10. Kling. in tit de testa. ordin. Instit. n. 8. & 9 , or use some other like means, that they may be able to depose and testify undoubtedly, that the same is the very writing itself, which the testator affirmed to be his will, or to contain his will 
p) Sichard. in Auth. quod sine. C. de testa. Covat. in c. cum tibi de testa. extr. Specul. ubi supr. & infr. part. 4. §. 25. .  
Whether a testament may be written with notes or figures, and whether it may be proved without witnesses, by the hand and seal of the testator, with other like questions, is declared afterward 
q) Infr. part. 4 §. 25. .   

Of a Nuncupative Testament.  
1 What is a nuncupative testament.  
2 Wherefore it is called nuncupative.  
3 Of the force and efficacy of a nuncupative testament.  
4 At what time commonly nuncupative testaments are made, and what is the reason.  
5 Testaments favourably expounded.  
6 A nuncupative testament made divers ways.  
§. xii.  
A Nuncupative testament † is, when the testator without any writing, doth declare his will, before a sufficient number of witnesses 
a) §. Fin. Instit. de testa. ordin. L. Haeredes palam. ff. de testa. . And it is called nuncupative † à nuncupando i. nominando, of naming 
b) Mincing. in d. §. fin. & Kling. in d. tit. de testa. ordin. n. 11. . Because, when a man maketh a nuncupative testament, he must name his executor, and declare his whole mind before witnesses 
c) Mincing. in d. §. fin. : And † a nuncupative testament, is of as great force and efficacy, (except for his lands, tenements, and hereditaments,) as is a written testament 
d) L. Hac consultissima §. per nuncupationem. C. de testa. d. §. fin. Instit. de testa. ordin. . This kind † of testament is commonly made, when the testator is now very sick, weak, and past all hope of recovery 
e) Terms of law. verb. devise. . For † (as one reporteth) it is received for an opinion amongst the ruder and more ignorant people, that if a man should chance to be so wise, as to make his will in his good health, when he is strong and of good memory, having time and leisure, and might ask counsel (if any doubt were) of the learned; that then surely he should not live long after. And therefore they defer it until such time, when it were more convenient to apply themselves to the disposing of their souls, then of their lands and goods 
f) Ibidem. . And † in consideration hereof it is, that testaments are so much favoured which be made in such perilous times; namely, for that the testator than cannot conveniently stay to ask counsel of such points as be doubtful in law 
g) Infr. part. 4. §. 4. .  
A † nuncupative testament may be made not only by the proper motion of the testator; but also at the Interrogation of another, as is hereafter declared 
h) Infr. part. 4. §. 26. .   

Of Privileged Testaments.  
1 What is a privileged testament.  
2 Wherefore they be called Privileged.  
3 diverse sorts of privileged testaments.  
§. xiii.  
Privileged testaments are those, † which are enriched with some special freedom or benefit, contrary to the common course of law 
a) Mantic. de coniect. vlt. vol. lib. 1. tit. 57 infi. . They be termed † privileged à privilegio quasi a privata lege 
b) Summa Hostiens. tit. de privileg in prin. . For a privilege doth signify a private law. For as much therefore as by a private or special law, some testaments be discharged or disburdened, from the usual orders, or observations of common or general law: in that respect they are called privileged.  
Of † privileged testaments there are three sorts, Testamentum militare, testamentum inter liberos, testamentum ad pias causas, a testament made by a Soldier, a testament made by a father amongst his children, and a testament made for good and godly uses. And although there be some other privileged testaments, yet their privileges are but small in comparison of these three 
d) Videlicet, testamenta rusticorum. testa. tempore pestis condita, & huiusmodi, de quibus Ripa. in tract. de pest. c. 2. .   

Of a Military Testament.  
1 The causes wherefore Soldiers enjoy such privileges in making their testaments.  
2 Wherein Soldiers are privileged concerning the making of their testaments.  
3 Soldiers privileged in respect of their own persons and of others also.  
4 Soldiers privileged in respect of solemnities testamentary.  
5 Soldiers privileged in respect of the substance and form of a testament.  
6 Three sorts of men called Soldiers.  
7 Whether all armed soldiers enjoy these privileges.  
8 Whether doctors of the law, and clergy men enjoy these privileges.  
9 The fruit which the common wealth reapeth by the study and practise of law.  
10 What benefit doth redound unto us by the Clergy.  
11 Whether the soldier, or the lawyer are more honourable.  
12 What manner testamentary privileges Divines and Lawyers do enjoy.  
13 All Doctors and Divines be not privileged.  
§. xiv.  
FOr as much † as soldiers being better acquainted with weapons than books, are presumed to have so much the less knowledge in the laws of peace, by how much they are the more expert in the laws of arms 
a) L. fin. §. C. de iure de. lib in fin. Vigli & Mincing. in tit. de testa. mil. Instit. . For as much also as noble warriors, in the defence of their country, do often times undertake perilous enterprises, wherein they lose their lives or their limbs; and seldom escape without wounds or bodily hurt 
b) L. quanquam C. de testa. mil. & ibidem. Dec. : As well therefore in regard of their small skill, in our peaceable laws on the one side 
c) Instit. de mil. testa. in p●inc. And. Gail. lib. 2. practic. obseruac. c 118. ; as in recompense of their great perils and hurts in furious and cruel battles, on the other side 
d) Dec. in d. L. quan. quam C. de mil. testa. Atque hatum causarum p●or est impulsma, posterior finalis. Gail. vb● supr. : They enjoy many notable privileges, and benefits in the making of their testaments, (especially by the Civil law,) which are not allowed unto others 
e) Vasquius de success resolve. lib. 2. §. 20. ubi ●nun●ra●●xx. priuleg●●, militibus in ●●lta. .  
Of these † privileges, some do respect the person of the testator, some respect the person of the executor, or legatary, some respect the solemnities about the making of the testament, and some respect the substance or form of the testament made 
f) L. neque enim ff de mil. test. & ibi Bar. Sichard. in Rub. de testa. mil. C. Mantic. de conject. vlt. vol. lib. 6. tit. 1. . Concerning the first kind of privilege, whereas † there be many which be disabled to make their testament, (as afterwards doth appear) 
g) Infr. 2 part. : Yet a Soldier is not disabled by any of these impediments, unless it be by reason of furor, or lack of reason, or for some other causes, when he is disabled jure gentium 
h) Bar. in d. L. Neque enim. Mincing in tit. de mil. testa. Instit in prin. . Concerning the person of the executor or legatary: Whereas there be divers which be prohibited to be executors, or legataries, to other persons; yet they are not to be prohibited to be executores or legataries to a Soldier (except in some few cases 
i) Bar. in d. L. neque enim, & infr. par. 5. .) Concerning † the solemnities of the Civil law, to be observed in the making of testaments: soldiers are clearly acquitted from the observation thereof 
k) L. Dinus ff de test●. mil. § plane. Insi●●. cod. tit. : Saving that in the opinion of divers, Soldiers when they make their testaments, aught to require the witnesses to be present 
l) Quorum opinio communis ●● ut ●●●ert fall. Clar. § testm 〈…〉 . But for as much as no subject of this land, is strictly tied to this observation of requiring the witnesses, in the making of his testament 
m) Supr. §. ●i● prin. cum nota● 〈◊〉. , (those only solemnities being necessary which be juris gentium 
n) Supr. §. x. in prin. :) Therefore that opinion is not to take place here in England; otherwise this absurdity would follow, that Soldiers should be tied to more strict observation, than men of greater skill; and enjoy less liberty, than they of less desert 
o) Vide quae superius dicta sunt. §. x. n. 5. c●●● notis mark . Concerning † military privileges which respect the form and substance of the testament made: First, whereas no other person, can die with two testaments; yet a Soldier may, and both testaments shall be deemed good, according to the will and meaning of the testator 
p) L. Queen ●rebatur ff. de mil. testa. . And whereas an other person, can not die partly testate and partly intestate; (at least by the Civil law 
q) L. ●us nostrum de reg. iur. ff. ) yet a Soldier may 
r) L. Miles C. de testa. mil. . And therefore if a Soldier make his testament, and therein appoint an executor for goods in one place, the next of kin shall have administration of goods in an other place 
s) d. L. Miles. . But this privilege doth also belong to every subject of this realm 
t) Fitzherb. Abridg. tit. exec. n. 26. & infr. par. 4. §. 17. & §. 18. . Other privileges there be, but it were to long to repeat them all 
v) Vide (si placeat) Vasq. de success. resoluc. lib. 2. §. 20. ubi enumerat 70. privilegia, quae militibus competunt. .  
After we have viewed what privileges do belong to Soldiers, it shall be expedient to show what manner of Soldiers they be to whom these privileges are granted. Wherefore we are to understand, that there † be three sorts of men, which be termed in law by the name of Soldiers. The first be milites armati, armed Soldiers: (such as are above described) the second be milites literarij, lettered Soldiers, as Doctors of the law: the third sort are milites caelestes, celestial or heavenly Soldiers, as clergy men and divines: for so the law doth term them 
x) Mincing. in Rub. de testa. mil. In. tit. . Concerning the first sort † either they be such as lie safely in some castle or place of defence, not besieged by the enemy, only in readiness to be employed, in case of invasion or rebellion, and then they do not enjoy these military privileges 
y) Intellige stationarios & Limitancos milites. de quibus Viglius, & post eum Mincing. in §. illis autem. Instit. de testa. mil. & lul. Clar. §. testm. q. 15. in fin. Adhibe duas alias micas salis, unam ex Zasio in L. Miles. ff. de re. iud. n. 5 alteram è Decio in Rub. de testa. mil. C. n. 3. : Or else they be such as are in expedition or actual service of wars, and such are privileged 
z) L. Pen. C. de testo. mil. Mantic. de coniec. vlt. vol. lib. 6. tit. 1. n. 32. , at least during the time of their expedition 
a) §. Sed hactenus. Instit. de mil. test. Clar. §. Testa. q. 15. n. 4. And. Gail. d obseruac. 118. , whether they be employed by land or by water 
b) Michael. Grass. Thesaur. come. op. §. testm. q. 3. n. 1. Zas. in L. miles. ff. de re iud. n. 5. in fin. , and whether they be horsemen or footmen 
c) Dec. in Rub. de testa. mil. C. n. 5. Ripa. in L. centurio. ff. de vulg. sub. n. 11. . Concerning the other two sorts of Soldiers, many are of this opinion, that they do not enjoy the foresaid privileges 
d) Sichard. in Rub. de mil. test. C. 9 'las. Ripa. & aljj in L. centurio. inde vulg. sub. ff. quo●um op. come. est. ut refert. Vasq. de success. crea. §. 24. n. 23. , because that they are not soldiers properly so called, but metaphorically 
e) Mincing. in Rub. de nul. testa. Instit. n. 2. . Others are of a contrary opinion; affirming † that the great pains, and studious travel of learned lawyers, (especially doctors of law and such like,) are no less beneficial to their country, than the hardy adventurers, of those armed soldiers. For that without laws no common wealth can be governed: And in that respect deserve as great privileges as they 
f) Michael. Grass. Thesaur. come. op. §. testm. q. 4. Alex in d. L. centurio qui tamen alijs fundamentis nititur. . Much † more then (by all probabilities) are those spiritual soldiers worthy of all privileges by whose prayers and intercessions, the wrath of God is appeased, and victory many times obtained, and without whose ministry christianity would quickly be ruinated and subverted 
g) Alex. in d. L. centurio. n. 18. .  
And yet doubtless it is more doubtful in law, whether these military privileges do appertain to testaments made by clergy men, then if they were made by lawyers 
h) Ripa. in d. L. centurio. ff. de vulg sub. n. 19 post Socin. jason. Claud. & alios ibidem. & Mathesilla. not. 61. Grass. Thesaur. come. op. §. testm. q. 5. . The reason may be, because howsoever divines be worthy: yet they be otherwise rewarded, though not in this 
(i) Vasq. de succesi. c●e a. §. 24. n. 31. in sin. , which reason notwithstanding doth not so fully satisfy. For if doctors and pleaders of the law be therefore privileged, because they be compared to soldiers 
k) Gloss. & DD. in L. miles. ff. de re. iud. Mentionem autem feci non solùm de doctoribus, sed de alijs etiam causidicis, propterea quòd licenciati ratione exercitij privilegijs militaribus fruuntur. Teste Ripa. in d. L centurio. n. 18. ; for that like valiant champions, by force of learning, strength of wit, and mighty power of eloquence, they defend their client's causes, against the subtleties, and injuries of their adversaries: how much more ought our clergy men divines, our captains in the spiritual warfare of this life, by means of whose sacred ministery and virtue of whose godly instruction, and might of preaching that powerful and invincible word: not our purses, nor our bodies, but even our souls are defended and in safety, against the cruel assaults of that bloody and mortal enemy of man kind, (who seeketh by all malicious means, like a roaring lion whom he may devour) and against his huge host of wicked spirits, who never rest day nor night, nor minute of an hour, but still strive with might and main to overthrow us, and to bring us all to everlasting destruction: how much more, I say, are these our captains in these so terrible conflicts, to be gratified and dignified, with all manner of military privileges 
l) Arg. a min. ad ma. . Wherefore if the matter rest upon the issue of desert & worthiness, without doubt of these three forenamed soldiers; the divine is not the last, but the foremost. Concerning the other two, (the lawyer I mean and the soldier) whether of them deserveth better of the common wealth, and whether is to be preferred before the other, is a question so incident to this controversy, and cleaveth so close thereunto, that there be few writers which handle the one, but they also touch the other 
m) Alex. jas. Ripa. in d L. centurio. Vasq. de success. create. §. 24. n. 31 . In the determination whereof, if the interpreters of the law may be judges in their own cause, than the sentence must needs be, cedant arma togae 
n) Vasq. in d. §. 24. n. 31 jas. in L. pen. C. de pactis. n 4. Angel. Arc. in §. fin. Instit de mil. testa. Alex. in d. L. centurion. 14. & Ripa. ibidem n. 15. Panor. & Canonistae in C. quando de magistr. extr. n. 3. Felj. in Rub. de maior. & ob. extr. col. 2. .  
Comparisons be odious. For mine own part, if you will give me leave, I will tell you a tale out of Zasius 
o) Zas. in L. miles. de re. iud. ff. n. 8. , writing upon this Q. which shallbe as true as any is in Aesop's fables. A certain painter (saith he,) meaning by his art to describe the strength of man, did paint a little man riding upon a huge lion, as if a man were stronger than a lion. A lion passing by, demanded of the painter, wherefore he made such a picture. Because (quoth the painter) my man is able to tame any lion, as easily as a horse or an ass. Well sir said the lion, if we could paint, thou shouldest see a lion devouring a painter. Eloquent men are as painters, valiant soldiers as lions: hither to in jest: But now in earnest, yet without offence. It is not the golden chain, nor the plume of feathers, nor the big looks, nor the proud brags, which make a right soldier 
p) Zas. in d. L mile's. n. 5 . Neither is it the long gown nor the grave beard, nor the stately gesture which make a good lawyer 
q) Cucullus non sacit monachum. . The counterfeit of either deserveth no honour: be he never so brave, never so grave. If both be as they should, the pre-eminence in matters of war is the soldiers; in matters of peace it is the lawyers 
r) Zas. in d. L. centurio. n. 20. Alex. in eand. L. n 14. Gail. lib. 2. pract. obser. n. 8. n. 16. . In other matters, he is the more honourable, which doth more honour the other. To return to the former question, whether these soldier like lawyers may challenge these former testamentary privileges: we are to distinguish betwixt privileges granted to soldiers, (so properly called) in respect of their want of skill and ignorance in matters of that quality, (for such do not belong to the learned;) and privileges of prerogative or desert. For these kinds of privileges belong also to doctors and clergy men 
s) DD. in L. miles. & L. centurio. ff. de re iud. Michael Grass. Thesau. come. op. §. testm. q. 5. nu 5. : but † with this restriction; that as they belong not to every soldier, but only to such as are in action: so they belong not to doctors utterly non proficient, or clerks unlawfully non resident, but such as painfully attend their profession, and diligently labour in their vocation 
t) Grass. d. q. 5. Viglius in d. §. j Instit. de testo. mil. Sichard. in L. fin. §. si quis vero. C. de codicil. n. 5. .   

Of the testament of the father amongst his Children.  
1 What is a testament amongst children.  
2 That testament is presumed last which is made in favour of children.  
3 If two testaments be found, and it do not appear which is first or last, neither is good.  
4 The testament made in favour of children, is not so easily revoked as an other testament.  
5 What manner mention is to be made in the latter testament, to take away the former made in favour of children.  
6 Certain cases wherein the testament made in favour of children, may be taken away by the second, without any mention of the former.  
7 Whether a testament may be proved which hath no witnesses of the making thereof.  
8 The privilege of proof without witnesses, whether it be peculiar to one kind of testament?  
§. xv.  
THe second kind of privileged testaments is, testamentum inter liberos; a testament amongst children 
a) Mantic. de coniect. vlt. vol. lib. 1. tit. 7. in fin. : that is to say, † wherein the father nameth his lawful and natural children his executors, giving to them the residue of his goods 
b) L. ex hac consultissima. §. ex imperfecto. C. de testa. & ibi DD. , unto which kind of testament divers privileges do appertain 
c) d. §. ex imperfecto. & L. fin. C. famil. Herciscun. Mantic. de coniec. vlt. vol. lib. 6. tit. 2. . The first privilege is this, if † two testaments be found after the death of the testator, of divers tenores, and it doth not appear which of them is the latter testament, in this doubt that testament is presumed the latter, and so shall prevail, which is made in favour of the children 
d) Bar. in L. j §. j de bon. poss. secudun tab. ff. Clar. § testm. q. 100 . Whereas if † neither be in favour of the children, nor otherwise privileged, neither testament shall prevail, but both are void, the one destroying the other 
e) L. sin. de haered. Insti. L. ius nostrum. de reg. iur. & Cagnol. ibidem. n 8. Bald. & Castr. in L. cum qui. de acquir. haer. ff. : Unless the testaments be made by a soldier, for than it seemeth that both testaments shall prevail, because he may, (if he will) die with two testaments 
f) L. quaerebatur de testa mil. ff. Bar. in d. L. j §. j de bon. poss secundum. tab. ff. .  
Another privilege is this, the † testament made in favour of children, is not so easily revoked as other testaments are 
g) Auth. hoc inter liberos. C. de testa. & gloss. ibidem. , for whereas in other testaments, the former is revoked or infringed by the latter, and that ipso iure 
h) § posteriore. Instit. quibus mod. testa. infir. ; without any express revocation of the former, and without any kind of mention of the former testament either general or special 
i) Infr. part. 7. §. 14.  (certain causes excepted). Yet † by the civil law, if the father have once made a testament, wherein he hath preferred his children as before, the same is not revoked by a latter testament, wherein stranger are preferred (whether the former be a written testament or nuncupative,) unless in the latter testament there be special mention of the former 
k) d. Auth. hoc inter liberos. Alex. jas. Sichar. ibidem. quorum opinio communis est contra Angel. ut inquit Grass. Thesaur. come. op. §. testm. q. 86. n. 11. , so † that it is not sufficient for the testator, to make general mention, saying, I make this my last will, notwithstanding any former testament, but he must make special mention, as notwithstanding any former testament made amongst my children 
l) Mantic. de coniect. vlt. vol. lib. 6. tit. 2. n. 19 & Sichard. in d. Auth. Hoc inter. , or unless the second testament be made ad pias causas 
m) ●as. in d. Auth. hoc 〈◊〉. : Or else some great displeasure, or enmity have happened, betwixt the father and the children, 
n) Grass. Thesaur. come. op. § testm. q. 8●. n. 11.  or some like cause have come to pass, whereby it may appear that the father did repent him of the making of his said will. 
o) Grass. ibidem.   
another privilege granted by the civil law, to father's testaments amongst his children is this, that the † same may take effect, albeit there be no witnesses to prove the same; as when there is a testament found in some chest, or like place, written or subscribed with the testators hand, or by him procured to be written by some other 
p) Bald. Paul. de castr. & jas. in Auth. quod sine C. de testa. . Howbeit I do suppose that by † the general custom of this realm of England, those two privileges be not proper or peculiar to father's testaments alone, but that the same are common to all other English men's testaments, and namely the latter privilege: when it doth appear undoubtedly, to be written or subscribed with the testators own hand, or is proved that the testator caused the same to be written by another. How this proof is to be made, that the testament is written or subscribed with the testators own hand, is declared in another place 
q) Infr. part. 4. §. xxv. .  
Other privileges there be, whereby these kinds of testaments are free, from sundry observations and solemnities, wherewith other testaments are charged. But because they are also common to all our testaments here in England; it were improper to repeat them in this place under the title of privileges.   

Of a testament ad pias causas.  
1 A testament ad pias causas may be so termed either in respect of persons or places.  
2 A testament ad pias causas may be made by strange and unaccustomed notes.  
3 A testament ad pias causas being found canceled, is not presumed to be advisedly canceled by the testator.  
4 In a testament ad pias causas whether the condition ought to be observed precisely.  
5 A testament ad pias causas is not void by reason of uncertainty.  
6 Whether all privileges which belong to a military testament, or to a testament amongst the testators children, do also belong to a testament ad pias causas?  
7 What if there appear two privileged testaments, and it doth not appear which is later, whether, shallbe preferred.  
§. xuj.  
THe third kind of privileged testaments, is that testament ad pias causas 
a) Mantic. de coniect. vlt. vol. lib. 1. tit. 7. in fin. & in lib. 6. tit. 3. : Which is so termed † not only in respect of persons, (as when the testator willeth his goods to be distributed to young Orphans, widows, strangers, prisoners, lame, and diseased persons, so that they be poor and needy, such as the law termeth miserable persons:) but also in respect of places: as when the same is left to hospitals, to churches, to repairing of high ways, bridges, walls of a town or city when the same be decayed; and stand in need to be repaired 
b) Lindw. in c. ita quorundam verb. pias causas de testa. lib. 3. provincial. constituc. Cant. & latissimè Tiraquel. tract. de privileg. piae causae. in praefac. eiusd. , and such a testament hath very many privileges 
c) Tiraquel. in d. tract. ubi enumerat 170. privilegia piae causae, quarum tamen long maxima pars competit singulis Anglorum testamentis, etiamsi non sint condita ad pias causas. .  
One privilege is, that † this kind of testament may be written with strange & unaccustomed characters, or notes; as in steed of A. the first figure 1. in steed of B. the second figure 2. in steed of C. the third figure 3. or with some other more strange devised letters. Yet nevertheless the same is as effectual as if it had been written after the usual and accustomed manner 
d) Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 3. Tiraquel. de privileg. piae causae. c. 12. vide inf par. 4. § 25. .  
another privilege is this, that if the † testament ad pias causas be found canceled and it is not known, whether the testator did willingly and wittingly cancel the same; the law doth presume it to be canceled unadvisedly 
e) Covar. in Rub. de testa. 3. part. n 19 Gravetta. consil. 128. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 32. , and so it is in effect, as if it had not been canceled at all, whereas in other testaments, the contrary is presumed: that is, that the testator did wittingly and willingly, cancel the same 
f) Alex. consil. 104 n. 6 vol. 7. Mantic. de conject. ult vol. lib. 12. tit. 1. num. 30. : whereby they are made void, as afterward is declared 
g) Infr. part. 7. §. 16. .  
another privilege is, that for the obtaining of any thing left conditionally ad pias causas, it † is sufficient the condition be accomplished by other means, then according to the precise form of the condition 
h) Tiraquel. de privileg. piae causae. c. 83. : Whereas in other testaments or legacies, it is not sufficient, unless the condition be precisely observed 
i) L. M●uius. L. qui haeredi de cond. & daemon. ff. vide inf. par 4. §. 7. .  
another privilege is, that the † testament ad pias causas is not void in respect of uncertainty, (as other testaments are:) and therefore if the testator say, I make the poor my executors, or I will that my goods be distributed amongst the poor: suc● manner of appointing Executors or legacies is not void 
k) ●ar. & jas in ●●●j C. de sac●●sa. eccle. ●rass. Thesaur. come. op. §. Institut. q. 1●. .  
Generally I suppose, that † whatsoever privilege doth belong, either to a Military testament, or to a testament made by the father amongst his children, in respect of the solemnities to be observed in the making of testaments 
l) jure civili non valet testm ad pras causas, absque solennitatibus conditum, lecus iure come. modo adhibeatur solen. si●as juris gentium. & haec est communis opinio. Grass. Thesaur. come. op. §. testm. q. 18. Boer. Decis. 93. n. 3. unde non requiritur, ut testes sint rogati in confection: testm ad p●as causas, ut habet communis opinio. Testibus Covar. in c. relatum. cl. j de testa. extr. n. 4. Tiraquel. de privileg. piae causae. c. 3 & Grass. d. q. 18. n. 5. , or the substance of testaments 
m) c. cum tibi de testa. extr. Quid autem respectu personae testanus Die, ut per Iu. Clar. §. testm. q. 5. ; that the same do also appertain to a testament ad pias causas, saving in some cases, and namely, where the privileges of both the former kinds of privileges be contrary, as where two testaments be extant, and it doth not appear which is former or latter. In which case it seemeth, that if they be military testaments, that then they are both good, otherwise they are both void 
n) Supr. §, 14. : But if the one of them be ad pias causas, then that is presumed last and so available, the other not being privileged 
o) jas. & Sichard, in L. fin G. de edict. D. Adrian. tollend. .  
But † what if both testaments be privileged, the one being inter liberos, the other ad pias causas, and it doth not appear, which is former or latter; which shall prevail? I suppose that which is inter liberos 
p) Mantic. de coniect. vlt. vol. lib. 6. tit 3 n. 13. , for the children are to succeed in case both the wills were void 
q) Bar. in L. j §. de bon. poss. secundum tab. ff. stat. H. 8. an. 21. c. 5. , and so have a double help, the one of the testament, the other of provision of law 
r) L. utrum. §. vlt. ff de minor. Alciat de praesump. reg. 3. praesup. 13. n. 3 . And it were hard to take the testators goods from his children, unless it did plainly appear that the other were the latter 
s) un ie Augu t. Quicunque (inquit) vult exhaeredato filio, haereden facere ecclesiam alium patronum quaerat q Augustinun c. vlt. 17. q. 4 . How be it, it seemeth that if the testament were not in favour of his children, but of some other of his kin; that then the testament ad pias causas, were to be preferred; unless they did prove the testament made in their favour to be the latter 
t) Mantic. de coniect. vlt. vol. lib. 6. tit. ●. n. 43. .   

Of testaments unprivileged.  
1 unprivileged testaments what they are.  
§. xvij.  
unprivileged testaments are they †, which have not any freedom or benefit contrary to the common course of ordinary law, but are tied to such observations as the law requireth, and hath appointed regularly for all testaments. Of which forms we shall discourse hereafter; when opportunity shall serve.    

THE SECOND PART OF THIS TESTAMENTARY TREATISE: WHEREIN IS DECLARED what persons may make a Testament, and who may not so do.  

The Paragraphs, or Chapters of the second part.  
WHether every person may make a testament §. 1.  
Of Children §. 2.  
Of mad-folks and lunatic persons §. 3.  
Of Idiots and fools §. 4.  
Of old men §. 5.  
Of him that is drunk §. 6.  
Of Slaves and villains §. 7.  
Of Captives and prisoners §. 8.  
Of a woman covert §. 9  
Of those which be deaf and dumb §. 10.  
Of him that is blind §. 11.  
Of traitors §. 12.  
Of Felons §. 13.  
Of Heretics §. 41.  
Of an Apostata §. 15.  
Of manifest usurers §. 16.  
Of incestuous persons §. 17.  
Of Sodomites §. 18.  
Of a libeler §. 19  
Of him that killeth himself §. 20.  
Of him that is outlawed §. 21.  
Of an excommunicate person §. 22.  
Of prodigal persons §. 24.  
Of him that hath sword not to make a testament §. 25.  
Of him that is at the very point of death §. 26.  
Of ecclesiastical persons §. 27.  
Of kings §. 28.   

WHETHER EVERY PERSON MAY MAKE A TESTAMENT.  
The second part.  
1 Every person may make a Testament which is not forbidden.  
2 divers persons forbidden to make their testaments.  
3 Some forbidden for want of discretion.  
4 Some forbidden for want of freedom.  
5 Some forbidden for want of their principal senses.  
6 Some forbidden by reason of some heinous crime.  
§. j  
IN the second part of this Testamentary treatise, shallbe declared (God willing) what person may make a testament, & who may not so do.  
Wherein it may be set down for a rule, that † every person (both man and woman, Christian & jew, sound or sick; and generally of what state or condition so ever he, or she be) hath full power and liberty to make a testament or last will 
a) Instit. Quibus non est permissam testa. fac. in prin. & gloss. ibidem. Suno de Praetis de inter. vlt. vol. lib. 2. inter. 1. sol. 4. Vasq. de success. progress. lib. 1. § j Michael Grass. Thesaur, come. op § testm. q. 20. , and may therein dispose of his goods and chattels 
b) Quibus enim permissum est testa● eisdem, & codicillari, & legata relinquere. Roland. tract. de codicil. n. 6 Michael. Grass. Thesaur. come. op. §. Codicil. n. 2. , saving such persons only as be prohibited by law or by custom 
c) Est enim edictum de testamentis, plubitorium certarum personarum gloss. in §. j Instit Quibus non est permissum testa. fac. Grass. Thesaur. come. op. testm q. 20. n. 1. .  
Therefore if we shall diligently examine, what persons are forbidden by law or by custom, it will easily appear who they are that can make a testament, or dispose of their goods and chattels. And albeit † many persons are forbidden by law, or custom to make testaments, yet they are reduced of some unto four or five sorts 
d) Bar. & Bald in L. Si quaeramus ff. de testa. Lindw. in c. cum viris de testa. lib. 3. provincial constit. Cant. . Amongst the first † are comprehended such as want discretion or judgement, as children 
e) Infr. ead. part. §. 2. , mad folks 
f) Infr. ead. part. §. 3. , and idiots 
g) Infr. ead. part. §. 4. , to whom also I may join those persons who be so very old, that they become childish again 
h) Infr. ead. part. §. 5. , and him that is drunk 
i) Infr. ead. part. §. 6. .  
Amongst the second † sort are comprehended such as lack freedom, & full liberty, as bondslave, slaves, and villains 
k) Infr. ead. part. § 7. , unto whom may be added captives and prisoners 
l) Infr. ead. part. §. 8. , and women covert 
m) Infr. ead. part. § 9 .  
In the third sort † are contained such as lack some of their principal senses, namely such as be dumb and deaf 
n) Infr. ead. part §. 10. , and blind 
o) Infr. ead. part. §. 11. .  
Among the fourth sort † are placed such as, for some heinous crime, are deprived of ability, of making of testaments, as traitors 
p) Infr. ead. part. §. 12. , felons 
q) Infr. ead. part §. 13. , heretics, 
r) Infr. ead. part §. 14. , apostates 
s) Infr. ead. part. §. 15. , many others 
t) De quibus infr. ead. part. §§. 16, 17, 18, 19, 20 21, 22. .  
And last of all, others † for other causes hereafter specified 
v) Infr. ead. part §§. 23. 24. cum sequentibus. vide Io. ab Imol. in c. qua ingredientibꝰ. de testa. extr. ubi haec sunt carmina: Testari nequeunt impubes, religiosus, Filius in sacris, morti damnatus, & obses, Crimme damnatus, cum muto surdus, & ille, Qui maiestatem laesit, sit caecus & ipse. .   

Of Children.  
1 At what age a testament may be made of lands.  
2 At what age a testament may be made of goods.  
3 What if the minor be doli capax, or a soldier, or the testament be ad pias causas.  
4 What if the testament be made with the authority of the tutor.  
5 What if the testator do live until he come to lawful age.  
6 A boy after 14. years, a woman after 12. may make a testament of their goods.  
7 What if the last day of the year be not finished.  
8 What if the testament made during minority, be approved by the testator after he be of full years.  
§. ij.  
IF we will understand when a child may make his testament, we must distinguish whether the testament be of lands, or of goods.  
If of lands † it is provided by the statutes of this realm, that wills or testaments made of any manours, lands, tenements, or other hereditaments, by any person within the age of 21. years, shall not be taken to be good or effectual in law 
a) Stat. H. 8. an. 34. c. 5. , for until that time, by the common laws of this realm, they be accounted infants 
b) Doct. & Stud. lib. j c. 21. lib. 12 c. 28. .  
If † of goods we must distinguish, whether the child be man or woman. A boy cannot make his testament before he have accomplished the age of 14. years, nor a wench before she have accomplished the age of 12. years 
c) L. qua aetate. ff. de testa. §. praeterea. Instit. quibus non est permissum. testa. fac. L. si frater. C. qui testa. fac. pos. . In so much that † if before these foresaid years they were of that ripeness of wit, that they were doli capaces, capable of deceit, or able to discern betwixt good and evil, and betwixt truth and falsehood, yet could they not make any testament, nor dispose of their goods 
d) DD. in d. L. qua aetate, quorum opinio communis est, ut aiunt Grass. Thesaur. come. op. §. testm. q. 20. & Vivius eod. lib. verb. pupillus. n. 7. : or if the boy were of that strength, that he were a soldier, notwithstanding those great privileges which do belong to soldiers in making of their testaments: yet could not he make his testament, before he had accomplished his age of 14. years 
e) L. vlt. C. de teston. mil. Grass. & Vivius. ubi supra. referentes hanc op. esse come. . Neither can a boy before he have accomplished 14. years of age, nor a wench before she have accomplished 12. make a testament ad pias causas 
f) jas. in L. si frater qui testa. fac. poss. C. atque haec opinio communi calculo comprobatur. jul. Clar. §. testm. q. 5. & Grass. §. testm q. 17. : Neither † is the testament good, made by the boy or wench before the said ages, although the same should be made by the authority or consent of the tutor 
g) jas. in d. L. si frater. C. qui testa. fac. poss. : neither doth † the testament become good, being made in their minorities respectively aforesaid, albeit they should afterwards attain to their several ages, wherein they might make their testaments 
h) §. pra terea. Instit. quibus non est permis. testa fac. L. si siliul familias ff. qui testa. fac. poss. .  
Howbeit † a boy after the age of 14. years, and a wench after the age of 12. years, may make a testament and dispose of their goods and chattels 
i) d. L. qua aetate ff. de testa. Perkins. tit. devise. fol. 97. quamuis impressi. sit viciosa. uz. litera (x) omissâ, nam quod sic scribitur, iiij. ante scribi debuit fourteen ans. , and that not only without the authority or consent of their curator or garden 
k) jas. in L. si frater. qui testa. sac. poss. C. , but also without the authority and consent of the father, if he have any goods of his own 
l) Verum quidem est, quod iure civili filius-familias testari nequeat ob illam patriam, cui subijcitur, potestatem. At verò in Anglia cessat perampla haec potestas & praerogativa. trac. de repub. Angl. lib. 3. c. 7. & sic cussante causa, cessat effectus. . Or if † he or she have attained to the last day of 14. or 12. years, the testament by him or her, in the very last day of their several ages aforesaid is as good and lawful, as if the same day were already then expired 
m) d. L. qua aetate. & ibi Bar. . Likewise † if after they have accomplished these years of 14. or 12. he or she do expressly approve the testament made in their minority, the same by this new will, and declaration is made strong and effectual 
n) Paul. de cast. & alij in L. si frater qui testa. fac. poss. C. .   

Of mad folks and lunatic persons.  
1 Mad and Lunatic persons cannot make a testament, and what is the reason.  
2 Whether the testament made in the time of furor be good when the testator is come to himself.  
3 A testament may be made by a Lunatic person, betwixt his fits.  
4 Every one is presumed to be of perfect mind and memory, until the contrary be proved.  
5 He that objecteth insanity of mind must prove the same.  
6 Whether it be sufficient to prove that the testator was mad before the making of the will.  
7 Whether he that is once mad be presumed so to continue.  
8 Insanity of mind hard to be proved.  
9 Witnesses must yield a reason if they will prove a man to be mad.  
10 Arguments of madness.  
11 Whether a general reason suffice to prove insanity of mind.  
12 Whether madness may be proved by singular witnesses.  
13 Those witnesses are to be preferred, which depose that the testator was of sound mind.  
14 What if the testament be made by a lunatic person, and the time of the making unknown, whether is the testament good or no?  
15 What if it cannot be proved that the testator had quiet intermissions.  
16 What if there be a mixture of wise things and foolish in the testament.  
§. iij.  
Mad-folks † and Lunatic persons, during the time of their furor or insanity of mind, cannot make a testament, nor dispose any thing by will 
a) §. Praeterea. Instit. quibus non est permissum. L. furiosum. C. qui testa. fac. poss. L. nec codicillos C. de codicillis. , no not ad pias causas 
b) Bar. in L. j C. de sacrosanc. eccle. n. 16. Dec. in d. L. furiosun. & haec opinio communiter est recepta. jul. Clar. §. testm. q. 5. Grass. §. testm. q. 17. : the † reason is most forcible, because they know not what they do 
c) Grass. d. §. testm. q. 21. in prin. : for in making of testaments, the integrity or perfectness of mind & not health of the body is requisite 
d) L. senium. C. qui testa. fac. poss. ; and there upon arose that common clause, used in every testament almost, sick in body, but of perfect mind & memory 
(e) Mincing. in d. §. praeterea Instit. quibus non est permiss. quae tamen clausula non est adeo necessaria, ut semper obseruetur. . And so † strong is this impediment of insanity of mind, that if the testator make his testament after this furor have over taken him, and whiles as yet it doth possess his mind, albeit the furor afterwards departing or ceasing, the testator recover his former understanding: yet doth not the testament made during his former fit, recover any force or strength thereby 
f) d. L. furiosum. C. qui testa. sac. poss. d. §. praeterea. Instit. quibus non est permissum, etc. . How be it † if these mad or lunatic persons have clear or calm intermissions, then during the time of such their quietness and freedom of mind, they may make their testaments, appointing executors, and disposing of their goods at their pleasures 
g) d L. furiosum. & d. §. praeterea. & DD. ibid. . So that neither the furor going before nor following the making of the testament, doth hinder the same testament begun and finished in the mean time 
h) d. Locis. .  
And here note, that † every person is presumed to be of perfit mind and memory, unless the contrary be proved 
i) Bar. in L. nec codicillos. C. de codicil. Alciat in tract. de praesump. regula j praesump. 78. . And therefore if any person go about to impugn or overthrow the testament by reason of insanity of mind, or want of memory, he must prove that impediment 
k) Bar. in d. L. nec codicillos. Mincing. in d. §. praeterea. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. . If it be asked wherefore then is that usual clause (of perfect mind and memory) so duly observed in every. testament, if he that doth prefer the will be not charged with the proof thereof? It may be answered, that that which is notorious is to be alleged not proved 
l) L. si adulterium. §. idem ff. de adul. : And so this being accounted notorious; (because where the contrary appeareth not, the law presumeth it) it need not be proved 
m) Vas. de success. progress. lib. 1. §. j ubi contra Socin. & Boer. sentientes, quod allegans mentis sanitatem tenetur eandem probare, non dubitat hanc opinionem indignam tantis viris affirmare. Ego verò sententiae Vasquij subscribo, nisi constet testatorem ante fuisse furiosum. vide Mascar. de probac. concl. 814. n. 10, 11, 12, 13. : and therefore I suppose, that clause to be more usual than necessary, and yet not hurtful 
n) Immo prodest huius. modi clausula, quoad probationis adminiculum a Notario scripta. Mantic. de coniect. vlt. vol. lib. 2 tit. 5. in fin. .  
Seeing then he whose intent is grounded upon the madness & lunacy must prove the same, it shall not be amiss, to set down some observations concerning the manner of proof thereof.  
First therefore it may be delivered for a rule, that † it is sufficient for the party which pleadeth the insanity of the testators mind, to prove that the testator was beside himself, before the making of the testament, although he do not prove the testators madness, at the very time of the making of the testament 
o) Gloss. in c. fin. de success. ab intestat. extr. Lanfranc. in c. quoniam contra de probac. extr. verb testmt.. & est communis opinio, per praepos. in c. dilectus. despons. extr. , the reason is: It being † proved that the testator was once mad, the law presumeth him to continue still in that case, unless the contrary be proved 
p) Mantic. de coniect. vlt. vol. lib. 2. tit. 5. Dec. in L. furiosum. C. Qui testa. fac. pos. . For like as the law presumeth every man to be an honest man, unless the contrary be proved 
q Alciat. de ipraesump. reg. 2. praesump. 8. , and being proved, than he which is evil to be evil still 
r) c. semel malus. de reg. iur. 6. : So concerning furor; the law presumeth every man to have the use of reason and understanding unless the contrary be proved, which being proved accordingly, than he is presumed in law to continue still void of the use of reason & understanding 
s) Panor. Io. And. & Butr. in c. cum dilectus de success. ab intestat. ext. quorum op. come. esse multis testimonijs probat. Mascard. de p●ac. verb. furiosum. concl. 825. n. 5. , unless the testator were beside himself but for a short time, and in some peculiar actions, and not continually for a long space, as for a month or more 
t) Bat. in L. 2. de bon. poss. infan. & furios. delat. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. n. 7. verb. sed tamen. , or unless the testator fell into some frenzy upon some accidental cause, which cause is afterwards taken away 
v) Are. in L. 2. ff. de testa. Covar. in tract. despons. & inition. 2. part. c. 2. n. 6. Mantic. ubi sup. verb. tertio. , or unless it be a long time since the testator was assaulted with the malady 
x) Bald. & alij. in L. furiosum. C. qui testa. fac. pos. Covar. in d. c. 2. n 6 , for in these cases the testator is not presumed to continue in his former furor or frenzy 
y) Paul. de castr. in d. L. furiosum. & Mascard. de probac. verb. furiotus. concl. 825. .  
another observation is this, † that it is a hard and difficult point, to prove a man not to have the use or understanding of reason; and therefore † it is not sufficient for the witnesses to depose that the testator was mad, or besides his wits, unless they render or yield a sufficient reason 
z) Bald. in d. L. furiosum. Mascard. tract. de probac. verb. furiosus. concl. 824. 827. , to prove this their deposition, as that they did see him to do such things or heard speak such words, as a man having wit or reason, would not have done or spoken 
a) Paul de castr. in d. L. furiosum. Boer. Decis. 23. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. & Mascard. d. concl. 827. Mincing. in §. praeterea Instit. quibus non est permissum, etc. : namely, † they did see him throw stones against the windows 
b) Bald. in L. Diws. ff. de office praesid. gloss. & DD. in L. si cum doten. §. sin autem. Sol. matr. Adhibe micam salis, ut per Mantic. d. tit. 5. n. 12. & per Dec. consil. 448 , or did see ●im usually to spit in men's faces 
c) Corn. consil. 22. vol. 4. Mantic. d. tit. 5. n. 11 Mascard. de probac. concl. 826. n. 29. , or being asked a question they did see him hiss like a goose or bark like a dog 
d) Mascard. d. concl. 828. n. 28. Mantic. ubi sup. & Corne. cons. 319. , or play such other parts as madfolks use to do. This or the like reason (whereby the judge may be induced to esteem the testator not to be found of mind,) ought the witnesses to yield, although they be not interrogated of the cause of their knowledge 
e) Paul. de castr. in d. L. furiosum. C. qui testa. fac. poss. Mantic. ubi supr. Boer decis. 23. n. 4. Mascard. de probac. concls 827. n. 4. . And some † there be which hold this for a sufficient reason in this case, if the witnesses do say, I know he was mad, for I did see him mad, although he do not express any particular act whereby such madness may be collected 
f) Ar●. in L. vlt. §. vlt. ff. de verb. ob. Boer. decis. 23. n 44. 45. Mantic. d. tit. 5. lib. 2. n. 16. . Furthermore † this furor or madness, may be proved by singular witness 
g) Gabr. lib. 1. come. conclus. tit. de testibus. con. cl 2. n. 43. post Alex. ●aus. Dec. & alios ibi nominatos. ; so that the witnesses be not singular in time (for if one witness depose, of the madness of the testator at one time, and an other witness of his madness at an other time, this doth not sufficiently prove that the testator was mad 
h) Quod procedit, sive agatur de probatione furoris in specie, sive in genere. ubi tempus est de substantia actus. Ruin. consil. 67. vol. 1. Mascard de probac. concl. 827. n. 9 :) But when the witnesses agreeing in time, one deposeth of one mad prank, an other witness of an other mad act at the same time, these prove that the testator was then mad, though they do not both depose of one and the same mad act 
i) Mascard. post Ruin. ubi supr. . If some witnesses do † depose that the testator was of perfect mind and memory, and others depose the contrary, their testimony is to be preferred, which depose that he was of sound memory 
k) Gabriel. lib. 1. come. concls. tit. de testibus. concl. 4. n. 19 ubi ad hunc finem citat jas. Corne. Socin. Dec. Gravet: Boer. & alios, quibus add Mascard. d. concl. 827. n. 11. , aswell for that their testimony tendeth to the favour and validity of the testament, as for that the same is more agreeable to the disposition of nature 
m) Idm. ibid. n. 18. , for every man is a creature reasonable.  

l) Simo de Praetis. de Inter. vlt. vol. lib. 2. solu. 4. n. 19  The last observation is this, if † a Lunatic person, or one that is besides himself at some times but not continually, make his testament, and it is not known, whether the same were made whiles he was of sound mind and memory or no: then in case the testament be so conceived, as thereby no argument of frenzy or folly can be gathered, it is to be presumed that the same was made during the time of his calm & clear intermissions: and so the testament shallbe adjudged for a good testament 
n) Michael Grass. Thesaur. come. op. §. testm. q. 21. ubi attestatur hanc op. esse come. Vasq. de success. progress. lib. 1. §. j n. 90. Vivius lib. come. op. verb. testmt. . Yea † although it can not be proved, that the testator useth to have any clear & quiet intermissions at all, yet nevertheless I suppose, that if the testament be wisely and orderly framed, the same aught to be accepted for a lawful testament 
o) Hanc opinionem communiter receptam esse contra Abb. & alios, refert idem Grass. d. q. 25. n. 4. Idem Boer. q. 23. n. 88 veriorem etiam & magis come. affirmat joseph Ludo. decis. 1. n. 13. Quinimo ne ab hac opinione recedas, monet Grass. ubi supra. . But if in the testament there be mixture of wisdom and folly, it is to be presumed that the same was made during the testators frenzy 
p) Bald. & Angel. in L. furiosum. C. qui testa, fac. poss. ; in so much that if there be but one word sounding to folly, it is presumed that the testator was not of sound mind and memory when he made the same. And therefore in this case is the testament void 
q) Idem Angel. in ead ● L. furiosum. , unless that it may be proved, that there was intermission of furor the same time.   

Of Idiots.  
1 What person is deemed an Idiot.  
2 An Idiot can not make a testament.  
3 He that is of a mean capacity, or indifferent betwixt a wise man & a fool, may make a testament.  
4 Although a man be not an Idiot, yet if he be so very simple, that there is but small odds betwixt him and a natural fool, such a person can not make a testament.  
5 What if an Idiot should make his testament wisely and reasonably to the show, whether were that testament good or not.  
6 A pleasant jest of a very fool, which gave a very wise sentence.  
7 An other jest of a foolish magistrate.  
8 A natural fool doth not understand what he saith, although he seem to speak wisely.  
9 A fools testament wisely conceived is sometimes good in law.  
§. iiij.  
AN Idiot 
a) Idiota apud Ciceronem & alios, indoctum, seu ill. teratum plerunque significat. , or a natural fool is † he, who notwithstanding he be of lawful age, yet he is so witless, that he can not number to twenty, nor can tell what age he is of 
b) Fitzherbert Na. Bre. de idiota inquirendo. , 
c) Quid? estnè statim fatuus quisquis non potest demonstrare patrem? Absit. Name, ut concedam filium illum meritò sagacem dici, suum qui novit patrem: certè si concluderem reliquos omnes elle fatuos, vercor, ne excluderem paucos. Notum est, quod cecinit de Telemacho, insignis Homerus: Ex illo natum matter me dicit: At ipse Nescio. Nam certum quis possit scire parentem? Quod igitur scriptum reliquit Fitzherbert. Que tiel person serra dit sot & idiot, que ne scier dire que fuit son pere ou mere, etc. ita exaudiendum est, si nesciat respondere, quis appellatur ipsius pater.  nor knoweth who is his father, or mother, nor is able to answer to any such easy question. Whereby it may plainly appear that he hath not reason to discern what is to his profit or damage, though it be notorious, nor is apt to be informed or instructed by any other 
d) Fitzherbert. ubi sup . Such † an Idiot cannot make any testament nor may dispose either of his lands 
e) Stat. H. 8. an. 34. c. 5. , or goods 
f) Sichard in Rub. qui testa. fac. poss. C. n. 16. Simo. de Praet. de interp. vlt. vol. lib. 2. dub. 1 fol. 4. . But † if a man be of a mean understanding (neither of the wise sort nor of the foolish) but indifferent, as it were betwixt a wise man & a fool, yea though he rather incline to the foolish sort, so that for his dull capacity he might worthily be termed Grossum caput, a dulpate or a dunce, such an one is not prohibited to make a testament 
g) Simo de Praetis. ubi supr. Mincing. in §. praeterea. Instit. quibus non est permiss etc. : Unless he † be yet more foolish, and so very simple and sottish, that he may easily be made to believe things incredible or impossible, as that an ass can fly, or that in old time trees did walk, beasts and birds could speak; as it is in Aesop's fables: For he that is so foolish, cannot make a testament 
h) Simo de Praetis de interp. vlt. vol. lib. 2. dub. 1. fol. 4. n. 21. , because he hath not so much wit as a child of ten or eleven years old, who is therefore intestable (as the text witnesseth) namely for want of judgement 
i) Text. in d §. praeterea Instit. quibus non est permiss. testa. fac. .  
But what † if an Idiot or natural fool should make his testament so well and wisely (in appearance,) that the same may seem rather to be made by a reasonable man, then by one void of discretion, whether is this testament good in law or no? Surely some have been of this opinion, that such a testament is good and available in law 
k) Ita fuisse decisum in Senatu Romano commemorant Io. And. & And. Barba, cum alijs. in c. ad ●●ram de consuetud. extr. , because almighty God doth sometimes so illuminate the minds of the foolish, that for that present in that case they are not much inferior to the wise 
l) Gloss. in d. c. nostram. . And † to this purpose divers credible writers do remember a merry accident, which (if they say truly) was no fable, but an undoubted fact 
m) Io And. Panor. Barba. & alij. in d. c. ad nostram. Hyero. Franc. in L. furiosi. de reg. iur. sf. Boer. decis. 23. n. 58. Mantic. de coniect. vlt. vol. lib. 2. tit. 5. n. 8. , and this it is.  
At Paris one morning a hungry poor man begging his alms from door to door, did at the last espy very good cheer at a cook's house: whereat by and by his teeth began to water, and the spur of his empty and eager stomach pricking him forwards, he made as much haste towards the place as his feeble feet would give him leave, where he was no sooner come, but the pleasant smell partly of the meat partly of the sauce, did catch such sure hold of the poor man's nose, that (as if he had been fast holden with a pair of pincers) he had no power to pass from thence, until he had (to stay the fury of his raging appetite) eaten a piece of bread, which he had of charity gotten in an other place. In the eating whereof his sense was so delighted with the fresh smell of the cook's cates, that albeit he did not lay his lips to any morsel thereof: yet in the end his stomach was so well satisfied with the only smell thereof, that he plainly acknowledged himself thereby to have gotten as good a breakfast, as if he had in deed there eaten his belly full of the best cheer. Which when the cook had heard, being an egregious wrangler and an impudent companion, what doth he but all hastily steps forth to the poor fellow, lays fast hand upon him, and in a hot choleric mood, bids him pay for his breakfast. The honest poor man half amazed at this strange demand, witted not well what to say: but the cook was so much the more fierce and earnest, by how much he perceived the good man to be abashed at his boldness, and did so cunningly cloak the matter, that in the end the poor man was contented to refer the deciding of the controversy to whatsoever person should next pass by that way, & without any more ado to abide his judgement. Which thing was no sooner concluded, but by and by cometh unto the place, a very natural fool and such an notorious idiot, as in all Paris his like was not to be found. All the better for me thought the cook, for more he doubted the sentence of a wise man then of a fool. Well sir, to this foresaid judge they rehearsed the whole fact, the cook cruelly complaining, and the other patiently confessing as before. A great multitude of people were gathered about them, no less desirous to know what would follow, then wondering at that which had gone before. To conclude, this natural perceiving what money the cook exacted, caused the poor man to put so much money betwixt two basins, and to shake it up and down in the cook's hearing, which done, he did arbitrate and award, that as the poor man was satisfied with the only smell of the cook's meat, so the cook should be recompensed with the only noise of the poor man's money. Which judgement was so commended, that who so heard the same, thought, if Cato or Solomon had been there to decide the controversy, they could not have given a more indifferent or just sentence.  
The like † case is reported to have happened at Bononia 
n) And. Barl a. in d. c. ad nostram. de consuetud. extr. n. 8. . There a certain covetous man lost his purse, with 21. ducats in it, which when he could not recover with diligent search, he fared like a mad man, and in the end was ready to have hanged himself for sorrow. another honest man having found such a purse, moved with compassion came and delivered the same to this covetous person, who never thanking the bringer, fell forthwith to telling of the money, and finding but 20. ducats therein, with great greediness he exacted the odd ducat: which because the finder denied, he is brought before the magistrate, a man of very great wealth, but of very little wit (but such magistrates are many times elected, where the matter lieth in the mouths of the multitude.) The one party sweareth, that there were 21. ducats in the purse which he lost. The other party sweareth, that there were but 20. ducats in the purse which he found. The magistrate although a fool, giveth no foolish sentence, for he pronounced that the purse which was found, was not that purse which was lost, and therefore condemned the covetous person to restore the 20. ducats to the other party.  
By these reasons and examples, therefore it may be reasonably inferred, that if a fool do make a wise and reasonable testament, the same aught to be allowed as lawful.  
Nevertheless this is the truer opinion, that such a testament is not good in law 
o) jas. & Dec. in L. futiosi. C. qui testa. fac. poss. , the reason is, because a testament is an act to be performed with discretion and judgement 
p) Supr. prim. part. §. 3. verb. Senten. . But † a natural fool by the general presumption of law, doth not understand what he speaketh, though he seem to speak reasonably 
q) Dec. in d. L. futiosum. C. qui testa. fac. poss. lim. 3. , no more than did balam's ass 
r) Num. c. 22. vers. 28. 2. Pe. c. 2. versic. 10. , when he reasoned with his master, or doth a Parrot speaking to the passengers. And although almighty God do sometimes so illuminate the minds of very natural fools and idiots, that they do well perceive, and understand what they speak: yet because this thing happeneth but very seldom, the law doth not presume the same by occasion of words only 
s) Dec. in d. L. furiosi. & in L. in negotijs de reg. iur●f. . And therefore unless further proof be made thereof, by other circumstances, the law doth not approve such testaments.  
In deed if it † may appear by sufficient conjectures, that they had the use of reason or understanding at such time, as they did make their testaments, then doth the former opinion take place, that such testaments are good in law 
t) Dec. in d. L. In negotijs, & in Hiero. Franc. in d. L. furiosi. de reg. iur. ff. .   

Of old men.  
1 Age alone doth never deprive a man of the power of making a Testament.  
2 He that by extreme old age is become a child in his understanding, cannot make a Testament.  
3 He that hath lost his memory, cannot make a Testament.  
§. v.  
ALbeit † old age alone doth not deprive a man of authority and power of making a testament 
a) L. senium. C. qui testa. fac. poss. , (for a man may freely make his Testament how old soever he be, for it is not the integrity of the body, but of the mind, that is requisite in testaments 
b) d. L. senium. :) yet † if a man in his old age, do become a very child again in his understanding 
c) Simo de Praetis. de inter. vlt. vol. lib. 2. dub. 1. solve. 4. n. 22. , which thing doth happen to divers persons, being, as it were, worn away with extreme age, and deprived, not only of the use of reason, but of sense also almost: such a person can no more make a testament, than a child 
d) Ibidem. .  
So it is, † if a man, either by reason of age, or some other infirmity, become so forgetful, that he hath forgotten his own name 
e) L. fin. C. de haered. Inst. , (which thing also hath happened to divers wise and learned men,) because for any act which is to be performed with discretion, he is no more fit than a fool or an idiot 
f) Bald. in d. L. fin. Mantic. de coniect. vlt. vol. lib. 2. tit. 15. n. 16, , of whom we have spoken already.   

Of him that is drunk.  
1 Whether he that is drunk may make a testament.  
§. vj.  
He † that is overcome with drink during the time of his drunkenness, is compared to a mad man, and therefore if he make his testament at that time, it is void in law 
a) Vasq. de success. crea. lib. ●. §. 13. requis. 7. n. 8 Simo de Praetis. de inter. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 22. : which is to be understood when he is so excessively drunk, that he is utterly deprived of the use of reason and understanding. Otherwise, if he be not clean spent, albeit his understanding be obscured and his memory troubled, yet may he make his testament being in that case 
b) ijdem. Vasq & Simo de Praetis. ubi supra. .   

Of slaves and villains.  
1 Of all men the slave is in greatest subjection.  
2 What is a slave.  
3 A slave hath neither lands nor goods, for both are his lords.  
4 Whether the children of bond parents, be subject to servitude.  
5 By the civil law the child is free, if the mother be free, notwithstanding the bondage of the father.  
6 By the laws of this realm the child is freeborn whose father is free, though the mother be a bond woman.  
7 No bastard is borne a slave, though the father be a bondman.  
8 A bondman cannot make a testament.  
9 Of the difference betwixt a bondslave and a villeine.  
10 A villeine, like unto him which is called in the civil law Ascriptitius Glebae.  
11 Whether a villeine may make a testament.  
12 The Lord may take from his villeine, whatsoever he hath, life excepted.  
13 The testament of the villeine is not void, but voidable.  
14 Sometimes the Lord can not make void the testament of his villeine.  
15 The Prince may at any time make void the alienation or gift of his villeine, and consequently his testament.  
16 What manner villains be here meant?  
17 A villeine executor may make a testament.  
18 A villeine executor may maintain action against his Lord.  
19 The reason of the former conclusion.  
§. seven.  
OF all † men which be destitute of liberty or freedom, the slave is in greatest subjection, for a † slave is that person which is in servitude or bondage to an other, even against nature 
a) §. servitus. Instit. de iure personarum. Et dicitur latinè servus; non à seruiendo, sed a seruando: propterea quòd seruandi non oriendi sunt à dominis. Nam cùm antiquitùs multi sçuijssent in captivos, eósque necassent, prohibitum id fuit, constitutúmque ut potiùs venderentur, quàm occiderentur. Et inde à seruando, nomé mutu arunt servi. §. servi autem. Instit. de iure personarum. . Neither † hath he any thing of his own, but whatsoever he possesseth, all is his Lords 
(b) §. in potestate. Instit. de his qui sui vel alley. iur. : Not only lands, goods, and chattels, and generally whatsoever he getteth, either by his own industry, or by the gift of other, or by any other means 
(c) §. iterum. Instit. per quas personas. : But † even his children also are infected with the Leprosy of his father's bondage 
d) Bracton. de legib. & consu. Ang. lib. 1. c. 6. principal grounds. fol. 44. .  
And although by † the civil law the wife being a free woman, the children are likewise free, Quia partus sequitur ventrem 
e) §. sed etsi. Instit. de ingenuis. ; in so much that if the mother be free, either at the conception or at the birth of the child, or in the mean time by the same civil law, that child shall be free, notwithstanding the bondage of the father 
f) Eod. ● sed etsi. : Yet it † is otherwise by the laws of the realm, for the child doth follow the state & condition of the father, and therefore in England the father being a bondman, the child shall be in bondage, without distinction whether the mother be bond or free 
g) Bracton. de legib. & cons. Ang. lib. 1. c. 6. : So that the child be begotten or borne in lawful matrimony. But † a bastard shall not be bound though the father were a bondslave 
h) Btacton. ubi supr. principal grounds. fol. 44. , because the law doth not acknowledge any father in this case, for by the law a bastard is sometimes called, filius nullius, the son of no man: sometimes filius vulgi, the son of every man 
i) Cui pater est populus, pater est sibi nullus, & omnis. Cui pater est populus, non habet ipse patrem. gloss. in §. pen. Inst. de nuptijs. . But howsoever the civil law and the laws of this realm differ in this, whether the bondage of the father or of the mother, do make the child bond: Yet in † this they do agree, that a bondman can not make a testament 
k) L. liber. de petic. haered. L. servus. Comm̄. de success. C. Vasq. de sucsess. progress. lib. 1. §. j ubi multis ampl. hanc propositionem ornat. .  
A villeine † howsoever he may seem like unto a slave, yet his bondage is not so great, for whatsoever a bondslave getteth, by and by it is his Lords; albeit ignorant and unwilling 
l) §. Item nobis Instit. per quas personas. , not only in respect of property, but also in respect of possession: for whatsoever a bondslave doth possess, he doth also possess it for his Lord 
m) Eod. §. Item ibi, non solum. . But it is not so with a villeine, for the Lord hath no title to the goods of his villeine before season; nor any title to his lands before entry, nor any title to any rent, reversion, common, or the advowsement of a church, belonging to the villeine, but by claim 
n) Perkin. tit. Grant. fol. 6. Brook Abridg. tit. villeinage. Doct. & Stud. lib. 2. c. 43. . And so the velleine in the mean time hath perfect property therein 
o) Doct. & Stud. d. c. 43. lib. 2. . And therefore † a villeine is more like unto him, which in the civil law is called Ascriptitius Glebae 
p) Ascriptitius Glebae, id est, adscriptus praedio. Spieg. Lexicon. , (that is to say, one that is ascribed or assigned to a ground or farm, for the perpetual tilling or manuring thereof 
q) Quemadmodum enim Ascriptitius verè seruus non est, sed ser● li tantùm macula as●●rsus. Bald. in L. cum precum. C. de lib. causa & sicut. qui ascribitur glebae, seu praedio perpetuò colendo, nunquam inde recedere debet: vel si aufugiat ad antiquos penates, nempe ubi natus est, redire compellitur. L. omnes de Agricul. censit. lib. 11. C. Eodem prorsus modo isti, quos Villeins appellat vulgus. Licet non sunt propriè servi; perpetuae tamen praedij culturae astringuntur nunquam inde recessuri invito vel ignorant domino. Quod si aufugiunt, conceditur statim breve, quod dicitur De nativo habendo. Fitzh. Nat. Bre. ,) then to a slave.  
If you will † understand whether a villeine, may make his testament or not: we must † note that whatsoever villains have of their own, be it lands or goods, the lord may by entry or seizing take and enjoy the same as his own 
r) Brook Abridg. tit. villeinage. Perkins. tit. grants. fol. 6. Litleton tit. villeinage. Terms of law. verb. Them. , only he may not slay or main his villeine 
s) Old tenur. tit. villain. . And therefore † if the villeine make any devise of lands or goods, the Lord may before the approbation of the will, or apprehension of the goods, by the executor, enter to those lands and seize those goods or some parcel thereof, in the name of the whole, and by that means make void the gift or devise of the villeine 
t) Doct. & Stud. lib. 2. c. 43. . The will is also void, though the Lord do not really seize any goods of his villeine, in case he did claim the villeine in his life time, and by words only did seize his goods, for then the executor shall not have them but the lord of the villeine 
v) Brooke. tit. villeine. n. 50. .  
But if † the will be proved before the ordinary, and by him approved; and the executors (by virtue of the same will or devise) enjoy or possess the same lands or goods, accordingly, than I suppose the lord may not enter, to such lands or seize those goods, no entry, seizing or claim being made before 
x) Brooke eodem titu. num. 73. Doct. & Stud. lib. 2. c. 43. Add quod Ascriptitius potest testm facere. Spec. de Instr. edi. §. compendiose. Lindw. in c. statutum. verb. Ascriptitiorun. de testa. lib. 3. provincial. constit. Cant. : for if a villeine purchase lands and alieneth the same to an other, before his lord enter; then the lord may not enter afterwards, but it shall be imputed to his own folly, that he entered not when the lands was in the villains hands 
y) Litleton. tit. villeinage. . And so it is of other goods, which if the villeine sell or give to an other before the Lord do seize them, the sale or gift is good, and the lord can not afterwards have the same 
z) Ibidem. .  
Nevertheless if the † prince have any villeine, which purchaseth lands, and alieneth the same before the prince do enter, yet may the prince at any time after enter unto the lands to whom so ever the same do come 
a) Litleton. ubi supr. . And likewise, if the princes villeine sell or give any goods, yet may the prince at any time after seize those goods in whose hands so ever they do remain 
b) Ibidem. , for the prince is not preiudized by any course of time. And therefore I do collect, that if the princes villeine should by testament dispose either lands or goods, the prince (notwithstanding the approbation of the same testament, and execution thereof) might enter to the lands and seize the goods so devised, or disposed, in whose hands so ever the same were 
c) Arg. a contract. ad vlt. vol. de quo Olden. Topic. Legal. loco à contract. .  
Note that † what I have here spoken of villains, is not to be understood of such persons as only hold lands in villeinage, being themselves no bondmen but free (for divers persons hold by tenure in villeinage, and yet be no villains themselves 
d) Brooke, Littleton, Old. tenors, tit. villeinage. ) but of such as both hold by villeinage and are villains also: For these are they whose testaments or last wills are voidable, saving as before, where the will is proved and the executor or legatary possessed of the things devised: And saving where † the villeine is executor to an other person, for being executor himself he may appoint an other executor, who shall have those goods which the villeine had as executor, and not the Lord of the villeine 
e) Brooke tit. villeinage. n. 73. . For if the † villeine himself were living the Lord could not take from him such goods, as he hath as executor to an other man, & if he did, his villeine might bring an action against him for the same, and recover both the goods and damages 
f) Brooke. d. tit. villeinage. n. 68 : the † reason is, because that which the villeine hath as executor, he hath it not to his own use 
g) c. Statutum. §. nullus de testa. lib. 3. provincial. constituc. Cant. & infr. part. 6. §. j , but is to be employed in the behalf of the testator, as to the payment of his debts and legacies, and to other godly uses: as appeareth more at large in the office of an Executor 
h) Infr. 6. part. §. j §. iij. §. xuj. §. xxj. .   

Of captives and prisoners.  
1 A captive during his captivity, can not make a testament.  
2 If the captive escape, whether the testament made during his captivity be good?  
3 What if the testament were made before he were captive.  
4 What if the testator be taken captive, by some pirate, Turk, Insidle or christian, when war is not proclaimed.  
5 Whether he may make a testament which is condemned to perpetual prison.  
6 What if the testator be imprisoned for debt.  
§. viii.  
He † that is taken captive by the enemy, during his captivity, can not make a testament 
a) L. eius qui apud hosts. ff. de testa. : In so much that † if afterwards he do escape, yet the testament made whiles he was with the enemy, is void 
b) Ead. L. eius. . But if † his testament were made before his captivity; then after his escape, the testament is of like force, as if he had not been captive 
c) L. ratio. ff. de captivis. Grass. Thesaur. con. op. §. testm q. 25. ubi hanc opinionem communiter approbatam oftendit. . Likewise if the testament were made before he were apprehended, and the testator die in captivity, yet is the testament allowed, and the executor by force thereof, is to have all his goods here within this realm of England, as if he had died the day before his captivity 
d) L. lege Cornelia. ff. de testa. . Likewise † if any person be taken as captive by any Piratte, Turk, Infidel or Christian, where war is not proclaimed, he that is so taken remaineth still a free man: and therefore if he make his testament whiles he is so detained, the testament is good and lawful 
e) L. qui à latronibus. ff. de resta. . If a † lay man be condemned to perpetual prison for some offence, it seemeth that he can not make a testament 
f) Panor. in Rub. de testm. extr. Grass. Thesaur. come. op. §. testm. q. 28. cui tamen opinioni quantumuis communi non acquiescit Clar. §. testm. q. 23. : but if † any person be imprisoned for debt, such imprisonment being ordained for safety not for punishment, he is not thereby disabled to make his testament 
g) Bald. in L. 1. C. si quis aliq. testari prohib. n. 5. ; saving that the testament is not good, when it is made in his favour, at whose suit the testator is imprisoned, of intent to extort the same 
h) L. qui carcerem. ff. quoth me cause. Mantic. de coniect. vlt. vol. lib. 2. tit. 7. n. 2. .   

Of a woman covert.  
1 A married woman cannot make her testament of lands.  
2 Especially not to her husband, and wherefore.  
3 What if she be not constrained, but doth devise the same freely of her own accord.  
4 What if the testament be made before marriage.  
5 What if the testament being made during marriage, she over live her husband.  
6 Certain cases wherein the devise of lands is good, not withstanding the coverture of the testatrix.  
7 A wife cannot make her ●●●●nent of goods, without her husband's licence 〈◊〉 ●●●sent.  
8 The reason wherefore the wife cannot make her testament of goods, without the husband's licence or consent.  
9 Whether it be necessary that this licence or consent should go before the making of the will, or concur, or may follow.  
10 Whether, and when the husband may revoke the licence given to his wife.  
11 Certain cases wherein the wife may make her testament without her husbands consent.  
12 Whether an Empress or a Queen may make a testament without the consent of the King or Emperor.  
13 Of that which is due to the wife, whereof the husband was never possessed, she may make her testament without his consent.  
14 A woman contracted in matrimony, if the marriage be not solemnized, may make her testament.  
15 A wife being executrix, may make an executor to the former testator without her husband's consent.  
16 The reason of the former position.  
17 Whether a wife being executrix, may make her husband executor in her place.  
18 A wife executrix may not give away the testators goods by her will.  
19 A wife both executrix and legatary, cannot make a testament of that which she did accept not as executrix, but as legatary.  
20 The reason wherefore an executor can not dispose the testators goods by legacies.  
21 The reason wherefore a wife executrix and legatary, may not make her testament of that which she did accept as legatary.  
22 Whether shall the wife which is both executrix, and legatary, be deemed to have accepted of the testators goods as executrix or legatary?  
23 Whether the wife being licensed to make her testament may make any more wills but one.  
§. ix.  
A Married † woman by the laws and statutes of this realm, can not make her testament of any manors, lands, tenements or hereditaments 
a) Stat. H. 8. an. 34. c. 5. . This conclusion is diversly enlarged: And first she † cannot devise the same to her husband 
b) Brook Abridg. tit. devise. n. 32. 34. : the equity of which prohibition, (If I may be so bold with the good favour of our temporal lawyers, to insert the reason & consideration of the civil law) is not obscure. For if this gap were left open, few children should succeed in the mother's inheritance 
c) L. 1. 2. 3. ff de donac. inter vir. & ux. : But by how much the husband were more cruel, & the wife more timorous, he crafty, she credulous, by so much the more were the lawful heir in danger to be disherited, and the cruel & deceitful husband in hope to be unworthily enriched and advanced. Wherefore if the wife should devise any her manors, lands, tenements, or hereditaments or any part thereof to her husband, this devise were void, because the same is presumed to have been made by constraint of the husband, or other sinister means 
d) Brooke. ubi supra. . Secondly, albeit † it did appear by due proof, that the husband did not constrain his wife thereunto; but that she of her own accord or free motion did make any such devise either to her husband or to any other person by his consent: yet is not the devise good 
e) Ita saepius accepi à nonnullis huius regni iurisperitis, non vulgaribus, quos ipse velim consulas. , as well because the words of the statute are general (and where the law doth not distinguish, there may not we distinguish 
f) L. p. ecio. ff. de public. in rem. action. ,) as for divers other reasons grounded in the common laws of this realm. Thirdly, albeit † the testament be made before the marriage, yet she being intestable at the time of her death, by reason her husband is then living, the testament is void 
g) Arg. §. alio. Institu. quib. mod. testa. infir. : for it is necessary to the validity of a testament, that the testator have ability to make a testament, not only at the time of the making thereof, when the testament receiveth his essence or being: but also at the time of the testators death, when the testament receiveth his strength and confirmation. 
h) d. §. alio. & §. non tamen. Instit. quib. mod. testa. infir. L. 1. §. exigit. ff. de bon. poss. secundum tab. Porcus in §. in extra neis. Instit. de haered. qual. & dria.  Fourthly, albeit † the wife do overlive the husband, yet the testament made during the marriage is not good 
i) c. Non firmatur de reg. iur. 6. L. 1. § j de leg. 3. : the reason is yielded before, because she was intestable at the time of the will making 
k) Arg. §. praeterea. Instit. quib. non est permiss. testa. fac. verb. nec ad rem. Ploughed. in cas inter Br●t. & Rigden. fol. 341. . But if † the testament being made during the coverture, she do approve and confirm the same after the death of her husband, in this case the devise is good, by reason of her new consent, or new declaration of her will 
l) L. 1. §. j de leg. 3. ff. & ibi Paul. de castr. & alij. . What if the testament be made before the marriage, and she over live her husband, whether in this case is the testament good or not? By the civil law it is of as great force, as if she had not been married at all 
m) d. §. non tamen. & §. pen. verb. denique. Instit. de mil. testa. : and so I am informed that it is by the laws of this realm 
n) Ploughed. d. cas. inter Bret & Rigden. fol 343 . Nevertheless I shall willingly refer thee to the learned professors thereof. This much of the devise of lands.  
Of † goods and chattels the wife can not make her testament, without the licence or consent of her husband 
o) Bracton de legib. & consuc. Ang. lib. 2. c. 26. Brooke. tit. devise. n. 34 & in tit. testament. n. 21. Lindw. in c. stat. verb. propriorum de testa. lib. 3. provincial. constituc. Cant. cui tamen hoc durum videtur. , (except in certain cases hereafter specified 
p) Hoc ipso. §. n. 11. cum sequen. ) because † by the laws and customs of this realm, so soon as a man and a woman be married, all the goods and cattles personal that the wife had at the time of the spousals, or celebration of the marriage, or after 
r) Tract. de repub. Ang. lib. 3. c. 6. Doct. & Stud. lib. 1. c. 7. , and also the chattels real, if he over live his wife; belong to the husband, by reason of the said marriage 
s) Doct. & Stu. lib. 1. c. 7 : and therefore with good reason she can not give that away which was hers without the sufferance or grant of the owner: 
t) L. id quod nostrum. de reg. iur. ff. c. filius de testa. extr. : Notwithstanding † upon licence or consent of the husband the wife may make her testament, even of his goods 
v) Lindw. in d. c. statutum verb. propriorum. de testa. lib. 3. provincial. constituc. Cant. Bract. d. lib. 2. c. 26. Brook. tit. devise n. 34. . And albeit the nature of a licence is to go before the act 
x) Phil. Franc. in c. Ratishibitio. de reg. iur. 6. , and the property of authority, or auctorizable consent is to concur with the act 
y) Tiraquel. de legib. Conub. gloss. 4. in prin. : yet by the laws of this realm, if a wife make a testament of her husband's goods, the husband not understanding thereof, and after her death the executors prove the same, if the husband deliver the goods devised in the will to the executor, thereby he hath made the testament good, notwithstanding he were not privy to the making thereof 
z Perkin. tit. devise. c. 8. fol. 97. Tiraquel. ubi supr. ; because in this case the same law presumeth, that the husband gave his consent in the beginning, at the time of the will making. And therefore the same being proved and the goods delivered accordingly, it is then too late for him to revoke the same 
a) Perkin. ubi supr. . Albeit otherwise, if † the husband do give licence to his wife, to make a will of his goods, yet he may revoke the same, not only at the making of the will, but after her death, at the least before the will be proved 
b) Brook. Abridg. tit. devise. n. 34. .  
The † cases wherein a wife may make a testament of goods and chattels, without her husband's licence and consent are these. First I suppose that an Empress † or a Queen may make her testament without the licence of the Emperor or King her husband, so that it be not in prejudice of her said husband 
c) De Augusta, & Regina, an & quando exemptae sint à legibus, vel statutis, quibus cavetur, ne uxor testamentum condere valeat sine mariti consensu, videre est apud Peckium, in praeclaro suo tractatu de testam. coniug.. lib. 3. c. 26. . The second case is when any thing is † due unto the wife, whereof she was not possessed during the marriage: For it seemeth that she may make her testament thereof, and that she may make her husband executor in that case 
d) Brook. Abridg. tit. testam. n. 11. Fitzherb. abridge tit. executor. n. 109. . Thirdly, if † a man and a woman be contracted together in matrimony, and the woman die before espousals or celebration of the marriage, albeit the law doth often call this woman thus betrothed and assured by the name of wife, because of the certain hope of marriage, shortly to be solemnized, whereby she shall become a wife 
e) Covar. de sponsal. 2. part. c. 1 n. 4. Peckius. de testa. coniug. lib. 4. c. 5. : yet I take it for a clear case, that the woman so dying may make her testament without his agreement, to whom she was contracted in matrimony 
f) Perkins tit. feoffment. c. 3. fol. 40. quod verum est iure huius regni. Caeterum attenta legistarum opinione communi, si statuto cave atur, ne quid coniuges invicem relinquere possi●t: intelligitur etiam de sponsis. Peckius. tract de testa. coniug. lib. 4. c. 11. . fourthly † if the wife be executrix to an other man, she may make her testament without the licence of her husband 
g) Fitzherb. Abridg. tit. exec. n. 40. Brook. eod. tit n. 11. Perkins. tit. de use. c. 8. fol. 97. : the reason † is because such goods as she hath as executrix, are not her husbands, but are to be distributed for the dead, as for the payment of his debts, performance of his will, & for such other good and godly purposes 
h) Latiùs inf. par. 6. §. j : and therefore if the executrix should make no executor but die intestate, administration might be obtained of the goods not administered by the next of kin of the testator deceased 
i) Plowden in cas. inter Greisbrook & Fox. , (for where an executor dieth intestate, the testator from that time is esteemed to die intestate 
k) Brook Abridg. tit. administrator. n. 45. ,) so far is it from the husband to have any of those goods whereof his wife is executrix; much like unto that lord whose villeine is executor, in which case he can not take from his villeine that which did belong to the testator, but his villeine may have an action against him for the same and may recover both the goods and damages, (as hath been said before. 
l) Supr. ead. part. §. viii. n. 18. ) Although otherwise whatsoever doth appertain to the villeine, the lord may take the same from him, and (as our common lawyers term it) may even rob his villeine 
m) Olden tenors. tit. villeinage. . Furthermore † it is not only lawful for the wife being executrix to make a testament without her husband's licence, but she may name and appoint him executor 
n) Brook Abridg. tit. exec. n. 11. . Howbeit this position †, that the wife being executrix, may make her will of those goods whereof she is executrix, without her husband's licence is restrained in two cases: the one is when she doth not make an executor, but bequeatheth the goods whereof she is executrix, by devise or legacy 
o) Ploughed. in casante● Bransby & Grantham. fol. 525 imo nec cum consensu marits, potest legare testatoris bona. . The other is, when † she is not only executrix, but legatary also, and hath accepted of the thing bequeathed, not as executrix but as legatary 
p) Infr. hoc ipso. §. n. 21. . In these two cases the will is void, the † reason of the former of these two limitations is, because an executor may not dispose of the goods of the testator, otherwise then to the use of the testator, as to the payment of his debts performance of his will, and to other charitable uses 
q) c. statutum. lib. 3. provincial. constituc. Cant. Ploughed. d. cas. inter Bransby. & Grantham. & infr. 6. part. §. j & §. iij. : and therefore may not give or devise the same by legacy, for that were to dispose of the testators goods, as if they were the proper goods of the executor, and to convert the same to the private use of the legatary 
r) Plowden. ubi supr. facit. c. filius. de testa. ext. , and not to the use of the testator. But when an executor doth only make an other executor, the second executor doth stand chargeable and accountable for the distribution of the first testators goods to the use of the same testator, as did the former executor, and is by the laws of this realm reputed for the executor, not of the executor, but of the former testator 
s) Brook Abridg. tit. execute. n. 132. & infr. par. 6. §. j & §. iij tu vide Bar. in L. veluti. ff. de petic. haer. ; so is not a legatary. The reason † of the second limitation is this, for that which one hath as legatary, he hath it to his own private use 
t) L. legatum. de leg. 2. L. à Titio de furtis ff. , and not to the use of the testator: and the wife being not only executrix, but legatary also; accepting of the thing bequeathed, not as executrix, but as legatary; doth thereby make it her own proper goods, & consequently her husbands: For that which is the wives, is by reason of the marriage her husbands, and being invested in him 
v) Tract. de repub. Ang. lib. 3. c. 6. , (as hath been said before:) cannot be given from him without his licence or consent 
x) L. id quod nostrum. de reg. tur. ff. . Great difference there is therefore betwixt these two cases, of accepting the thing bequeathed as executrix, or as a legatary, for in the one case it is not her husbands, and so she may make a testament thereof, by appointing an executor to distribute the same to the use of the first testator 
y) Brook. tit. exec. n. 11. : and in the other case it is her husbands; and so she can not make any testament of the same without his licence 
z) Supr. eod. §. .  
But † here ariseth an other question, what if it do not appear whether the wife did accept the thing bequeathed, as executrix or legatary: In whether name is she presumed in law to have accepted the same? as executrix? or as legatary? Some are of this opinion, that she is esteemed to have accepted the same as executrix, not as legatary 
f Ploughed. in cas. inter Paramor & Yardley. lib. 2. fol. 543. , because it is not lawful for legataries to carve for themselves, taking their legacies at their own pleasures 
g) L. 1. Quorum lega. ff. L. non d. ●●rum. de leg. C ; but must have them delivered by the executor 
h) Perkins tit. testam. c. 7. fol. 94. b. . And therefore if any should determine to accept such a legacy, it behoveth him by protestations or other act answerable, to manifest the same 
i) L. detestatio. de verb. sig. L. pro haerede de acquir. haered. ff. . Others are of contrary opinion, namely that in this case she is reputed to have accepted the thing bequeathed as legatary, not as executrixe 
k) Ploughed. in d. cas. inter Paramor & Yardley, ubi varijs arg. ●●t●git hoc ipsum confirmare. : Because where any act may be done, or any thing taken or possessed by a double right, the party is presumed to do that act, or to take and possess that thing by force and virtue of that right, which is more favourable and more beneficial to the party 
l) Alciat de praesump. reg. 3. praesump. 36. n 4. 5. post Alex. ● L. Gallus. §. vlt. de lib. & post. ff. n. 10. & Io. And. in c. si super de office del. in 6. Mascard. tra●●. de probac. concl. 42. n. 30. . Now it is more profitable for every one which is both executor and legatary to accept the thing bequeathed as legatary, then as executor: because the legatary hath full right in the thing bequeathed and may dispose thereof at his pleasure 
m) L. legatum. de leg. 2 L. à Titio. de sur. ff. : Whereas an executor hath not any such right, but must dispose the testators goods to the only use & for the only behoof of the testator: 
n) c. statutum de testa. §. thursdays▪ lib. 3. p●incial. constituc. Cant. Magna charta, c. 18. Perkin. tit. devise. fol. 97.  And therefore unless by solemn protestations 
o) Nam declaranti ꝑti credendum est, cùm dubitatur an ex hac vel illa causa rem possidebat DD. in d. L. Gerit. ff. de acquir. haered. M●scard. tract. de probac concl. 47. n. 9 , or other means it may appear that the executor did accept of the thing bequeathed as executor, the party shallbe deemed to have accepted the same as legatary, which opinion (if I do not err) is more agreeable to the rules of the civil law 
p) L. in toto iure. de reg. iur. ff. Mascard. tract. de probac. concl. 46. n. 29. 37. 57 Gravet. consil. 197. n. 4. . As for the reason of the other opinion, that a legatary may not take his legacy of his own authority: that is true, when an other person is appointed executor, otherwise not 
q) Sichard. in L. non dubium. C. de lega. n. 53. & jas. in ead. L. limb. 2 .  
What † if the case be such, as the wise can not make her testament without licence, and that the husband doth grant licence to the wife, to make her testament of a certain portion of his goods (as many times it hath happened and may again fall out, by reason of bonds and covenants at or before the marriage) and that the wife so licensed to make a testament, doth first make one testament, and afterwards an other, and peradventure the third, or fourth, whether shall the licence be extended to the last testament, or shall it be understood of the first testament only? For that testament is to be approved by the ordinary for the making whereof the wife is licenced. divers and those of great authority, are of opinion, that the licence is to be understood of the first testament, and not to be extended to any other testament 
r) Socin. consil. 89. vol. 1 Dec. consil. 512. . Others are of this judgement, that the licence is to be extended to the last testament 
s) Sarm entus. tract. de redditibus ecclesiast. c. 4. : otherwise the former testament should be void, because it is revoked by the latter 
t) §. posteriore. Instit. quib. mod. testa. infir. , and the latter testament should be void for want of the husband's licence: 
v) Lindw. in c. statutum verb. propriorum ux. de testa. lib. 3. provincial. constituc. Cant.  and so no testament at all should take place; or if the former testament were not revoked by the latter, as being unlawful, than it must be granted that a testament may take place not only without the will, but even against the will of the testator 
x) Quod certè valdè absurdum est. Quum potius tolerandum sit, ut quis decedat intestatus, quàm ut testamentum contra voluntatem testatoris sustineatur. Mantic. de coniect. vol. lib. 2. tit. 15 , whereas it ought to be directed and ruled according to the will of the testator, from whence it hath his life & being 
y) Supr. prim. par. §. 3. . And although it be so, that when licence is granted to any to do an iterable act, otherwise against law, it ought to be restrained to the first act only 
z) L. Boves. §. hoc sermone. de verb. sig. ff. , whereof a hundredth instances might be brought 
a) Tiraquel. in repet. d. §. hoc sermone. : yet that rule is to be understood, when the first act doth or may take effect in the life time of the person to whom such licence is granted 
b) Sarmientus. ubi supr. . But in our case the act, that is to say, the testament is of no force before the death of the testator 
c) c. Marthae. de celebr. miss. extr. , and therefore that ought not to minister an impediment, which is without effect in law 
d) c. non praestat. de reg. iur. 6. .   

Of those which be Deaf and Dumb.  
1 Some persons are both deaf and dumb; others deaf but not dumb; and others again dumb but not deaf.  
2 Whether he which is both deaf and dumb may make a testament.  
3 Whether he may make a testament which is deaf, but not dumb.  
4 Whether he may make a testament which is dumb but not deaf  
§. x.  
WHere it is said, that some persons can not make a testament by reason of the defect of some of their principal senses 
a) Supr. ead. part. §. j , that we may the better understand who those be; we are to note † that some persons can neither hear nor speak; others can speak but not hear; some again can hear and not speak 
b) Mincing. in §. Item surdus. Instit. quib. non est permiss. testa. fac. . Touching the first sort †, that is to say, those which are both deaf and dumb, if any be so by nature, then can he not make any kind of testament or last will 
c) L. discretis. C. qui testa. fac. poss. §. Item surdus. Instit. quib. non est permiss. testa. fac. ; unless it do appear by sufficient arguments, that he understandeth what a testament meaneth, and that he hath a desire to make a testament, for if he have such understanding, and desire, than he may by signs and tokens declare his testament 
d) Dec. in d. L. discretis. Tiraque l. de privileg. piae causae c. 9 Hoc scilicet subintellecto, ut in confectione testamentorum Anglicorum sufficiat probatio juris gentium. Id quod non semel dixi, sed, & saepiùs est dicendum. , if he be not deaf & dumb by nature. But being once able to hear and speak, if by some accident afterwards he looseth both his hearing and the use of his tongue, then in case he be learned and be able to write, he may with his own hand write his testament or last will, and so by art supply the defect of nature 
e) d. §. Item surdus. Instit. quibus non est per. miss. testa fac. . But if he be not able to write, then is he in the same case that they are, which be both deaf and dumb by nature, that is to say, if he have understanding he may make his testament by signs, otherwise not at all 
f) Dec. in d. L. discretis Tiraquel. de privileg. d. c. 19 piae causae. .  
Such † as can speak and can not hear, they may make their testaments, as if they could both speak, & hear: neither skilleth it whether that defect came by nature, or otherwise 
g) Mincing. in d. §. item surdus. . But there is none found so deaf, but that he is able to hear somewhat, if not the crying voice of a man, yet the loud voice of some instrument, as of a horn, or a trumpet, or a gun 
h) Paul. de castr. & I●s. in d. L. discretis. : and if he can speak, it is certain that he could once hear, otherwise if he could never have heard, he could never have spoken, for how could he be instructed to speak, if he could never hear 
i) DD. in d. L. discretis & in d. § Item surdus. .  
Such † as be speechless only, and not void of hearing, if they be learned, may very well make their testaments themselves by writing, or being unlearned, may also make their testaments by signs, so that the same signs be sufficient, well known to such as then be present 
k) DD. in L. discretis. .   

Of a blind man.  
1 A blind man may make a nuncupative testament.  
2 Whether a blind man may make a written testament.  
§. xi.  
HE that † is blind may make a nuncupative testament, by declaring his will before a sufficient number of witnesses 
a) Sed an requirantur omnes solennitates, de quibus in L. hac consultissima. C. qui testa. fac. poss. & videtur eas adhiberi debere, quia communi Doctorum opinion, solennitas huius L. adhibenda est, vel in testamento ad pias causas, à caeco condito; nec aliàs quicquam valet. Grass. Thesaur. come. op. §. testm. q 31. Ego verò adhaereo Alex. jas. Decio. Sichardo, & alijs in ead. L. hac consultissima. & Tiraquel. qui putarunt hanc solennitatem non esse necessariam in huiusmodi testamento, sed sufficere probationem juris gentium, & hanc opinionem recepit generalis regni nostri consuetudo. : But † he cannot make his testament in writing unless the same be read before the witnesses, in their presence, and acknowledged by the testator for his last will. And therefore if a writing were delivered to the testator, and he acknowledged the same for his will, this were not sufficient; for it may be that if he should hear the same read he would not acknowledge the same for his will 
(b) DD. in d. L. hac consultissima. C. qui testa. fac. poss. .   

Of Traitors.  
1 Traitors lose both their lives, lands and goods, and consequently, are intestable.  
2 Traitors are intestable not only from the time of their conviction, but from the time of the crime committed.  
3 A traitor pardoned and restored, may make his testament.  
§. xii.  
OF those who are prohibited to make their testaments as malefactors (who now are to make their appearance and to show themselves in the course of this treatise) traitors, because they are most pernicious to the common wealth, are most worthy the first place in punishments.  
Understand † therefore, that whosoever is lawfully convicted of high treason, by verditte, confession, outlawry or presentment, besides the loss of his life, shall forfeit to the prince all his goods and chattels, and all such lands, tenements and hereditaments; as he shall have in his own right, use or possession, of any estate or inheritance at the time of such treason committed, or at any time after 
a) Stat. Ed. 6. an. 5. c. 11. , and so consequently is intestable 
b) L. quisquis. §. j C. ad L. jul. mayest. L. si quis. de injust. test. L. nemo. ff. de leg. 1. Vasq. de succoss. progress. lib. 1. §. j n. 165. qui multis ampli. hanc. concls. ornat. : in so much † that traitors are not only deprived of making any testament, or other kind of last will, from the time of their conviction, but also the testament before made doth by reason of the same conviction become void, both in respect of goods, and also in respect of lands, tenements and hereditaments 
c) Stat. Ed. 6. an. 5. c. 11. DD. in d. L. nemo. de leg 1. ff. & Vasq. ubi. sup .  
Nevertheless if † any person being attainted of treason obtain the prince's pardon, and be thereby restored to his former estate; then may he make his testament as if he had not been convicted 
d) L. si quis. § quatenus ff. de injust. rupt. & irrit. testa. : or if he made any before his conviction and condemnation, the same by reason of such pardon recovereth his former force and effect, as hereafter is more fully declared 
e) Infr. 7. part. §. xvij. .   

Of Felons.  
1 Felons lose life and goods, and so be intestable.  
2 Who shall have felons lands.  
3 Whether he that is only indicted of felony may make his testament.  
4 Whether he that standeth mute may make his testament of his lands.  
5 Whether a man after he is apprehended for felony, may make his testament.  
6 Felons goods not to be seized before attainder.  
7 The testament of a Felon convicted is void, though he be never executed.  
§. xiii.  
IF any person † be condemned of felony he ought to suffer death, and † the Prince shall have all his goods, where so ever they be found 
a) Stat. Eliz. an. 5. c. 14. Terms of law. verb. robbery. : and if he † have any free hold it shall forthwith be seized into the Prince's hands, and the Prince shall have the profit thereof by the space of a year and a day, and also waste 
b) Praerog. Reg. c. 16. Eliz. an. 5. c. 14. : and after the Prince have had it, the year and the day, and waste, the land shall be restored to the chief lord of the fee, except in certain places, as in the county of Gloucester, where after a year and a day the lands and tenements of felons, shall revert to the next heir to whom it ought to have descended, if the felony had not been committed 
c) Praerog. reg. c. 16. : Or in Kent in Gavelkind, whereas it doth descend to all the heirs males, equally to be divided, or to the daughters, where there be no sons, to be divided amongst them, for there it is said, the father to the bough, and the son to the plough 
d) Eod. c. 16. . Felons therefore lawfully convicted can not make any testaments, or other dispositions of any goods or lands, whereof (as we see) the law hath disposed already 
e) Duplici ratione damnatus ad mortem, fit intestabilis: nimirum, bonorum publicatione & damnatione ad mortem. Damnatus autem ad mortem naturalem efficitur servus poenae, quod communi opinione nititur, adversus eos, qui existimarunt ingenuum hody non effici servum poenae huiusmodi damnatione: sed procedit prior opinio, siuè quis damnatus sit secundum ius common, siuè etiam secundum statutum alicuius loci. jul. Clar. §. testm. q. 21. Covar. in Rub. de testa. extr. 3. part. n. 27. Michael. Grass. Thesaur. come. op. §. testm. q. 26. .  
But † if any man be indicted only of felony and die before he be convicted or attainted, he may make his testament of his goods and also of his lands 
f) Quia non condemnatus non reperitur prohibitus. vide stat. R. 3. an. 1. c. 3. : or if † he be indicted at the Prince's suit, and so being arraigned upon that indictment will not answer, but standeth mute or dumb, whereupon he is to receive pain (as it is termed) Fort & Dure, and be pressed to death 
g) Do. & Stu. lib. 2. c. 41. . In this case his goods only be confiscate, but not his lands 
h) ibidem. , and therefore in this case I suppose he may make his testament of his lands 
i) Quia viz. non ꝓhibetur, q non condennatur. .  
If a fellow † be indicted, and afterwards attainted by verdict or confession, the time of the fact committed comprised in the indictment, is to be regarded in respect of his lands: but in respect of his goods, in the time of his judgement 
k) Perk. tit. grants. fol. 6 . And therefore if before judgement he do sell, give, or otherwise alienate his goods, such sail, gift, or alienation is good 
l) Perkins. ubi supr. concordatius civil. L. post contractum. ff. de donac. cum distinctione tamen, ut per Bar. in d. L. Grass. §. testm. q. 26. . Neither † may the Sheriff or other person, take or seize the goods of any person arrested and imprisoned, before the same person be convicted or attainted of felony, according to the law, or that the goods be otherwise lawfully forfeited 
m) Stat. R. 3. an. 1. c. 3. . How be it if he make his testament before the condemnation, for as much as the testament is not good before his death 
n) c. Matthae. de celebr. miss. extr. , such disposition being prevented by judgement or condemnation, is made frustrate 
o) Panor. in Rub. de testa. ext. jul. Cla. §. testm. q. 21. Grass. §. testm. q. 26 Vasq de success. resol. lib. 1. §. 6. n. 18. , in so much that if the † testator being convicted of felony, be never executed, for that perhaps he dieth in prison, or escapeth out of prison & dieth naturally: yet is the testament void by force of the condemnation 
o) Panor. in Rub. de testa. extr. jul. Clar. §. testm. q. 21. Grass. §. testm q. 26. Vasq. de success. resoluc. lib. 1. §. 6. n. 18. , unless he do obtain his pardon, and there withal full restitution to his former estate 
p) L. si quis. §. quatenus ff. de injust. testo. .   

Of Heretics.  
1 An heretic can not make a testament.  
2 Whether and when doth an heretic forfeit his lands or goods.  
3 Whether is the testament good, if the heretic were never convicted.  
4 An heretic may be condemned after his death.  
5 Whether an heretic having reclaimed his heresy. may make a testament.  
§. xiv.  
AN † heretic can not make a testament 
a) Auth. credentes. C. de hear. Lindw. in c. 1. de haeret. Vasq. de success. resoluc. lib. 1. §. iiij. n. 23. Simo de Praetis. de inter. vlt. vol. lib. 2. dub. 1. soluc. 4. . And albeit by the laws and customs of this realm an † heretic do not forfeit his lands; unless being delivered to lay men's hands, he be executed for his heresy 
b) Doct. & Stud. lib. 2. c. 29. ; nor his goods, unless being convicted of heresy, he be delivered to laymen's hands 
c) Ibidem. : Yet if he be convicted, and publicly excommunicated, though not as yet delivered, he can not make a testament of his goods or cattles 
d) Bar. in d. Auth. credentes. Grass. § testm. q. 24. Clar. § testm. q. 24. Gabr. come. conc. lib. 4. tit. de testa. c. 1. Quaere tamen p stat. 2. Hen. 5. c. 7. .  
If he † were never convicted of heresy, and yet die an undoubted heretic, in this case it may seem that his testament is void, in respect of his goods; the rather by force of the excommunication, into the which by reason of his heresy he did fall ipso facto 
e) c. Abolend. de sen. excom. extr. Lindw. in d. c. 1. de heretic. & inf. ead. part. §. 18. , especially if in his life time he were so publicly denounced 
f) At non sufficit excommunicatio, etiam ob crimen, quo efficitur quis intestabilis, nisi fit publicata, si verum dicat Simo de Praetis. de interp. ult vol. lib. 2. fol. 148. n. 75. : yea though he were not so denounced, yet † so odious is the crime of heresy, that he may be condemned of heresy after he be dead 
g) c. sané profertur. 24. q 2. L. ex iudiciorum ff. de accu. L. Manichaeos'. C. de haeret. c. urgentis de haer. extr. jul. Clar. §. haeresis. n. 21. Aegid. Bess. tract. var. tit. de heretic. Bellam. dec. 677. cum seq. : at least the exception of intestabilitie, may be opposed against the probate of the testament 
h) Per ea quae habet Dec. in L. 1. de secundis nuptijs. C. n. 7. Cardinal. in clem. eos de sepultur. q. 19 & infr. ead. part. §. 18. . If the † testator reclaim his heresy, them he is not intestable; although he did not reclaim the same before condemnation, so that he do it before he be delivered to the secular power 
i) Hoc verum iure quo nos utimur, nam iure civili reclamans haeresim post sententiam solùm evitat paenam mortis. Panor. in c. pen. de haeret. extr. Boer. decis. 343. Bess. tract. var. tit. de haereticis. . But how so ever he recover ability to make a testament, which reclaimeth his heresy, yet the testament made by an heretic, whiles he persisteth in his heresy, doth not recover any force by such recantation 
(k) Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 56. cuius rei ratio est, quia testm suit ab initio nullum. : and if he fall again into the heresy, by such relapse he doth incur all the punishments, whereunto he was subject before: neither is his recantation any more to be accepted 
(l) Clar. Bess. Carerius, Grillandus, & alij de haereticis. .   

Of an Apostata.  
1 An Apostata can not make a testament.  
2 An Apostata worse than an heretic.  
3 Who is an Apostata.  
4 The state of the heretic and of the Apostata damnable.  
5 Three kinds of Apostasy.  
6 Every Apostatae is not intestable.  
§. xv.  
THat † which hath been spoken of an heretic may also be verified of an Apostata 
a) L. 1, 2, & 3. C. de apostate. Summa Hostiens. tit. de apostate. §. qualiter. . For he is † as bad or rather worse and more execrable 
b) Wesenb. in tit. de apost. C.L. vlt. C. eod. . For † an Apostata is he which doth wholly start back from the Christian faith, which once he did profess and wherein he was once baptised, and becometh in profession a jew, 
c) Summa Hostiens. tit. de apostate. extr. c. non potest. 2. q. 7. c. quidam de apost. etc. contra christianos. de hear. 6.  or a Turk, or some other infidel approving their detestable rites, and superstitions: whereas an heretic, albeit he do obstinately persever in his error; yet he erreth not wholly, but particularly in some part of christian religion 
d) Summa Hostiens. tit. de hear. & de Aposta. . Both in truth are abominable and the † state of either miserable, and damnable. But of the two the Apostata is more horrible, and better were it never to have known the way of truth, then after the knowledge thereof, to reject it or start away from it 
e) 2. epistol. Petr. c. 2. vers. 21. epist. Paul. ad Hebraeos. c. 6. vers. 6. ; worthily therefore is the Apostata to be as severely punished, as an heretic 
f) Panor. in c. 1. de apostate. ext. .  
There † be three kinds of Apostasy: Persidiae, Inobedientiae, Irregularitatis; one of misbelief, an other of disobedience, the third of irregularity 
g) Summa Hostiens. tit de aposta. §. quot species. . Apostasy of misbelief is where a man doth utterly forsake the christian belief, as mention is made before: so did julian the Apostata. Apostasy of disobedience is, when the subject refuseth to obey the lawful commandment of his ordinary or superior 
h) Summa Hosticas. d. tit. de aposta. epist. ad Hebr. c. 13. vers. 17. : and so do many anabaptists at this day. Apostasy of irregularity is, when he that hath entered into the ministry and taken holy orders, forsaketh his spiritual profession; and becometh not in habit only, but in actions a lay man 
i) c. à nobis. de aposta. extr. : But † I suppose that an Apostata from obedience, or from spiritual profession, is not disabled to make his testament 
k) Bar. in Rub. de aposta. C. , though he be worthily subject to other grievous punishments 
l) De quibus Ab. in c. 1. de aposta. ext. & Hostiens. summa eod. tit. §. qualiter puniantur. .   

Of Usurers.  
1 A manifest usurer can not make a testament.  
2 Every usurer is not intestable.  
3 Who is a manifest usurer.  
4 Whether one act may make an usurer to be manifest.  
5 Whether he be an usurer which dareth for gain, but doth not receive any more than the principal.  
6 An usurer is not intestable in England, unless he take above 10. in the 100 for a years forbearance, or after that rate.  
7 The punishment for usury in England.  
8 A manifest usurer is not to be buried in any church or churchyard.  
§. xuj.  
A † Manifest usurer cannot make a testament, and though he make one, it is void in law concerning goods and chattels, unless he satisfy for the usury, or put in caution for satisfaction to be made 
a) c. quanquam de usur. lib. 6. Clar. §. testm. q. 26 Michael Grass. Thesaur. come. op. §. testm. q. 33. .  
Where it is † said, a manifest usurer, we are to note, that not every usurer is excluded from making a testament, but a manifest usurer only 
b) d. c. quanquam. & ibi gloss. & DD. , that is to say, † such an one as hath been condemned for an usurer, or hath publicly confessed that he hath taken usury, or is publicly reputed and taken for a usurer amongst his neighbours, who are presumed to know his life and conversation 
c) Gemi. & Franc. in d. c. quanquam. . And † albeit some are of this opinion, that a man can not be said to be a manifest usurer, unless he have divers times taken usury 
d) Bat. in L. 3. de furt. ff , yet that opinion is not held for sound, amongst the writers of the ecclesiastical laws; who think that a man may be a manifest usurer, by occasion of one only act the same being public and manifest 
e) Card. in clem. eos de sepul. q. 19 . Nevertheless † it is not sufficient in law to deprive a man of the authority or liberty of making a testament, because he hath lente his money or goods to usury, unless he have taken increase, over and above the principal 
f) Dom. & Franc. in d. c. quanquam de usur. lib. 6. Ripa. respon 116. . Neither † is it sufficient, to have taken usury, and that manifestly, to the effect of making the usurer intestable; unless he have received above the sum of 10. pound for the lone or forbearing 100 pound for one year or after that rate 
g) Stat. Eliz. an. 13. c. 8. . For † although all usury be worthily condemned by the laws and statutes of this realm, as unlawful and ungodly 
h) d. Stat. : Yet nevertheless every kind of usury, is not punishable with like penalty: for if any do receive usury only after the rate of 10. pound in the hundredth for a years forbearance, or under that rate, he shall only forfeit so much as shall be reserved or received by way of usury above the principal 
i) Ibidem. : but if any shall receive above that rate, he doth not only lose his principal together with the interest, but is also to be punished and corrected according to the laws ecclesiastical 
k) Eod. stat. Eliz. an. 13. c. 8. . By † the which laws ecclesiastical, if any be a manifest usurer, not only his testament is void, as is aforesaid, but his body after he be dead is not to be buried amongst the bodies of other christian men, in any church or churchyard, until there be restitution or caution tendered according to the value of such goods 
l) d. c. quanquam. de usur. 6. .   

Of Incestuous persons.  
1 Whether incestuous persons may give any thing by their testament and to whom.  
2 What marriages be incestuous.  
3 What degree of consanguinity doth hinder marriage.  
4 Certain cases wherein the testators may bequeath some thing to their incestuous children.  
§. xvij.  
HE † which doth contract incestuous marriage, is prohibited to dispose any goods or chattels by his testament or last will, either to his children begotten in such incestuous marriage, or to any other person 
a) L. si quis. C. de incest. nup. , saving to his children begotten in lawful marriage (if he have any by a former wife) or to his parents, or to his brother, or sister, or to his uncle or aunt 
b) d. L. si quis. Per liberos autem intellige non solùm siliam & siliam, sed nep●tem, & nepten, & d●inceps altos utriusque sexus descendentes: & per parents, non solùm patrem & matrem, sed etiam awm, aviam, & altos ascendentes. Accurs. Bald. & alij in d. L. si quis. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 92. . By † incestuous marriage in this place, I understand such marriages as are solemnized or had betwixt a man and a woman, being of kindred or alliance, the one to the other, within those degrees of consanguinity or affinity, within the which it is not lawful to marry 
c) Couar, de spons. & matr 2. part. c. 6. §. 8. c. le cilla. §. incestus. 36. q. 1. ; that is to say, within the levitical degrees, or the degrees prohibited by God's law. For at † this present, by the statutes of his realm it is declared and established, to be lawful for all persons to marry, which be not prohibited by God's law; and that no prohibition (God's law excepted) shall trouble or impeach any marriage, without the levitical degrees 
d) Stat. H. 8. an. 32. c. 38. . And therefore whosoever doth marry being prohibited by God's law, or being within the levitical degrees, can not dispose any thing by testament but to the persons above named, and especially not to his or her children begotten in such incestuous marriages; unless † the parents were ignorant of the impediment of such consanguininitie or affinity 
e) Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4 n. 92. : In which case the marriage being publicly solemnized; the children which are borne during such their ignorance, or the ignorance of one of them are legitimate 
f) c. cum inhibitio. §. si quis. de cland. despons. ext. & ibi Panor. Brook. tit. bastardy. n. 23. Fitzherb. tit. bastardy. n. 2. , albeit the parents afterwards should be divorced 
g) Covar. epit. de sponsal. 2. part. c. 8. §. j contrarium tenet Brook. tit. bastardy. n. 23. & alibi ꝑ eundem intersuos casus an. 24. Hen. 8. quem locum diligenter observes cupio. : or unless so much only were left unto their said children, as would serve for their competent sustentation or nourishment 
h) Plad ita ●ure Can. c. cum haberet de eo quit dax. in ux. ext. quod. c. locum habet non solum in spurijs, sed etiam in incestuosis, ut est come. op. teste Decio, in c. in patria de prob. extr. n 39 Gabr. lib. 6. de alimen concl. 1. n. 5. : or unless the children were appointed bare executors without any other benefit: In which cases the testament is good 
i) Inf. 5. part. §. 7 Petr. Duen. reg. 366. Limitae 9 verb. filius. Simo de Praetis. de interp. vlt. vol. lib. 5. fol. 17. n. 27. , as hereafter more at large 
k) Infr. part. 5. §. 7. .   

Of a Sodomite.  
1 Who is a Sodomite.  
2 A Sodomite can not make a testament.  
3 What if he were never condemned of Sodomitry.  
§. xviij.  
A † Sodomite, that is to say, 
a) Sodomia autem dicitur non solùm illud nefandum peccatum inter masculos, sed etiam flagitium illud contra naturam cum faemina. Et haec opinio communis est contra Socin. contendentem istiusmodi peccatum, non sodomiam, sed extraordinariam quandam pollutionem dici debere, quem DD. communiter reprobant, ut refert Vivius, lib. come. op. verb. sodomia. Dec. in L. j de secundis nuptijs. n. 9 C. Card. in clem. 1. de consang. & aff. q. 13.  he or she that doth commit that wicked & horrible sin against nature, as did the Sodomites, whereof mention is made in the holy scripture 
b) Gen. c. 19 , is † prohibited to make a testament 
c) Spec. de Instr. edit. §. compendioso. n. 5. , and to bequeath his goods and chattels. And albeit he were never convicted, † or condemned thereof in his life time, yet I suppose this exception may be objected against the probate of the testament 
d) Dec. in L. 1. de secundis nup. C. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 1. soluc. 4. n. 97. , for that he was intestate at the time of the fact committed 
e) Simo de Praetis. & Dec. ubi supra. Add Cardinal. in clem. eos. de sepul. q. 19 .   

Of a Libeler.  
1 What is a famous Libel.  
2 A Libeler intestable.  
§. nineteen.  
A † Famous 
a) Famosum quandoque in malam partem sumi multis exemplis ostendit Petrus à Placa. epit. delict. c. 3.  Libel is a writing made to the infamy of any man, published abroad to that end 
b) Summa Angel. Summa silvest verb. libellus. : and he that † is condemned for devising, writing, or publishing the same, is thereby deprived of the ability of making a testament, or disposing of any his goods or chattels 
c) L. si cui. §. si quis. ff. de testa. L. vnic. de famous. libel. C. Petr. á Pla. epit. delict. lib. 1. c. 3. .   

Of him that killeth himself.  
§. xx.  
IF any man do wittingly & willingly kill himself, his testament, if he made any, is void 
a) L. si quis filio. §. eius. de testa. ff. L. 2. qui testa. fac. poss. C. , both concerning the appointment of the executor, and also concerning the legacy or bequest of any goods, for they are confiscate 
b) Vasq. de success. resoluc. lib. 1. §. 3. n. 31. .   

Of him that is outlawed.  
1 An outlawed person looseth his goods and benefit of the law.  
2 What if the action be personal?  
3 What if the action be unjust?  
4 Whether an outlawed person may make his testament?  
5 What if the prince give the goods to the executor, whether is he therefore chargeable with the payment of legacies?  
6 He that is outlawed doth some time forfeit not goods only but lands also.  
7 An outlawed person may make his testament of lands not forfeited.  
8 An outlawed person may assign tutors testamentary to his children.  
9 Certain other cases, wherein he that is outlawed may make his testament.  
§. xxj.  
AN † outlawed person is not only out of the protection of the Prince, & out of the aid of the laws of this realm 
a) Fitzher. Nat. Br. fol. 161. Terms of law. verb. ut legarie. , but also all his goods and chattels be forfeited to the Prince, by means of the outlawry 
b) Doct. & Stu, lib. 2. c. 3 , although † he were outlawed but in an action personal 
c) Terms. ubi supr. , and although † also the action peradventure were not just: nevertheless his goods and cattles are forfeited, by reason of his contempt in not appearing: for it is a maxim in the common laws of this realm, that he that is outlawed doth forfeit all his goods and chattels to the Prince; without distinction whether the action be just or unjust 
d) Doct. & Stu. lib. 2. c. 3 . And therefore † it followeth, that he that is outlawed can not make his testament of his goods so forfeited 
e) jul. Clar. §. testm. q. 19 . In so much that † if the prince having seized the forfeited goods of the testator, should give the same again to the executor; nevertheless the testament is void in respect of such goods; neither can the legatary recover the same at the hands of the executor 
f) Doc. & Stu. lib. 1. c. 6. , for by the forfeiture and season the property thereof is altered, and so ceasing to be the goods of the testator, do not charge the executor, as assets 
g) Doc. & Stu. lib. 2. c. 3. & lib. 1. c. 6 .  
If † the testator be outlawed by an outlawry for felony, than he doth not only forfeit his goods and chattels, but also his lands and tenements, whether they be holden in fee simple or for term of life 
h) Terms of law. verb. ut legate. : And he that is thus outlawed, can neither make his testament of those goods nor of those lands, for they are none of his.  
Howbeit † I suppose that he that is outlawed in an action personal, may make his testament of his lands, for they are not forfeited 
i) Vide quae sequuntur hoc §. litera L. quo etiam tendit quod scripserunt Brook. Tit. Gard. n. 6. & Perkins. tit. grants fol. 6. . Or if † he do assign tutors to his children (as within the province of York and other places by custom there used parents may do 
k) Infr. part. 3. § seven. ) the same assignation is to be confirmed 
l) Is enim qui nostratibus dicitur ut legatus, parùm differt à relegato. Cùm relegatio (sicut utlegatio) nihil aliud est, quàm exilium temporarium. L. relegati. ff. de paen. Quinimo & relegati quandoque (prout etiam utlegati) bona confiscata sunt. jul. Clar. §. testm. q. 22. Attamen non amittit testm. factionem relegatus quoad bona, si quae sint non confiscata. jul. Clar. d. q. 22. Quare, sicut relegatus, ita etiam utlegatus testandi facultatem retinet: Si quid supersit non proscriptum, sive publicatum. Porrò bannitus non est intestabilis. Clar. q. 17. Denique nec deportatus ad pias causas. Grassus. §. testm. q. 17. n. 9 multò minùs efficitur vtlegatus intestabilis, quoad ea quae non sunt applicanda fisco. , by the ordinary to whom the probate of testaments appertaineth. Or † if there be any error or discontinuance in the suit, or process, by means whereof the outlawry is reversed or annulled: Or if the party outlawed were beyond the seas at the time of the outlawry pronounced 
m) Terms of law. verb. utleg. , or if three proclamations were not made according to the statute lately made in that behalf, viz. one in the open county court, an other at the general quarter sessions, & the third at the church or chapel where the party defendant dwelleth 
n) Stat. Eliz. an. 31. c. 3. ; in respect whereof the outlawry is reversed and void: In these and like cases the testament is good, notwithstanding such outlawry: And so it is if pardon be obtained, and he thereby fully restored 
o) L. si quis. §. quatenus. de injust. test. ff. .   

Of an Excommunicate person.  
1 An Excommunicate person may make a testament.  
2 Saving in certain cases.  
§. xxij.  
whether † an Excommunicate person may make a testament or not is a question which hath many patrons, both of the affirmative and negative part, howbeit the affirmative hath more in number. And those also greater in weight or authority 
a) Gabr. Rom. lib. 4. con. concls. tit. de testa. concls. 1. Grass. Thesaur. come. op. §. testm. q. 24. Petr. Duen. tract. reg. & shall. ubi citantur & huius, & illius opinionis Authores paenè infiniti. : And this affirmative conclusion proceedeth, although he be publicly exommunicated 
b) Grass. & Duen. ubi supra. , unless he be † excommunicate for heresy, or manifest usury, or for some other cause, for the which he is prohibited to make any testament 
c) Sed an hîc etiam opus sit denunciatione; vide quae superiùs dicta sunt ead. part. §. 14. & § 18. : or unless he be excommunicate with that great curse, which is called Anathema, which is not to be inflicted but upon great cause, with great deliberation and solemnity 
d) Socin. tract. reg. & fall. verb. excommunicatus. .   

Of Prodigal persons.  
1 divers persons intestable by the civil law, which are not prohibited by the laws and customs of this realm.  
§. xxiv.  
OThers † also for other causes are forbidden to make their testaments, by the civil law 
a) De quibus Vigelius in sua method. iur. civil. lib. 9 c. 5. & 6. cum sequentibus. , namely prodigal persons 
b) L. is cui. ff. de testa. §. Item prodigus. Instit. quibus non est permiss. , and such as are doubtful of their state of freedom or bondage 
c L. de statu. de testa. ff. ; the son also, so long as his father lived (in whose power he was) could not make a testament, by the civil law 
d) L. qui in potestate. ff. de testa. . But seeing the laws of our realm are contrary, I shall not need to enter into any discourse of that law about these persons.   

Of him that hath sworn not to make a Testament.  
1 It is an old question, whether he that hath sworn not to make a testament, may notwithstanding make a testament.  
2 The greater part hold the affirmative.  
3 No cautel under the same whereby the liberty of making a testament, may be taken away.  
4 Whether it be needful that the testator do expressly revoke his oath.  
xxv.  
IT is † an old question, whether he that hath taken an oath not to make a testament, may notwithstanding make a testament 
a) De qua. q. Bar. in L. si quis. ff de leg. 3. Io. And. in c. quod semel. de reg. iur in 6. Blade. in Auth. hoc inter. C. de testa. Spec. de Instr. edi. §. compendiose. vers. quid si quis. Summa Hostiens. tit. de sepulturis. §. an licitum. Oldrad. cons. 127. : and † although there were many which did hold, that in this case he could not make a testament 
b) Specul. Hostiens. Oldrad. & alij. ubi supra. , yet the greater number are of the contrary opinion 
c) Bar. in d. L. si quis. jul. Clar. §. testm. q. 94. Michael Grass. §. testm. q. 87. Soarez. lib. rec. senten. verb. testmt. 67. & haec opinio proculdubio communis est, testimonio eorundem Clar. Grass. Soarez. ; esteeming the other not to be lawful, and consequently not of force to deprive a man of the liberty of making a testament 
d) Bar. ubi supr. cui accedunt etiam Olden. de action. class. 5. in prin. Covar. in Rub. de testa. extr. 2. part. . And therefore if a man first make a testament, & then sweareth never to revoke the same, yet notwithstanding he may make an other testament and thereby revoke the former 
e) Bar. Clar. Grass. ubi supr. Gabr. lib. 2. come. concls. tit. de iureiuran. concl. 1. n. 8. cum infinitis alijs. : for † there is no cautel under heaven, whereby the liberty of making or revoking his testament can be utterly taken away 
f) Bar. & Olden. ubi supra. . Howbeit if † the testator will make his testament contrary to his oath, than it is necessary that he revoke his oath also, for the former testament is not revoked, unless the oath be also specially or expressly revoked 
g) jul. Clar. §. testm. q. 94. Soarez. lib. rec. sen. verb. testmt. 67. Grass. §. testm. q. 87. ubi dicit hoc esse valdè notandum. .   

Of him that is at the very point of Death.  
1 He that is at the point of death cannot always make his testament.  
2 What if it appear that he is of perfit mind and memory.  
3 What if his words can scarcely be understood.  
4 What if it be doubted whether he be of perfit mind and memory.  
5 Whether the testament made at the point of death by the motion of an other be good or not.  
6 What if the person be suspected which doth ask the question.  
7 They which be extremely sick do easily answer (yea) to any question.  
8 The former testament is not revoked by the second, made by him that is ready to die at the interrogation of a suspected person.  
9 Whether the testament be good, which is made at the interrogation of a person not suspected.  
10 What if the sick man's meaning do not appear but by his bare answer.  
11 Whether that testament be good, which being written by the Kinsfolks of the sick man, and afterwards read unto him, and he demanded whether he be content to have the same stand for his will, answereth (yea?)  
§. xxvi.  
whether † he that is at the very point of death may make a testament, or whether the testament made by him when he is half dead be good or no, may be known by these cases following.  
The first case is, when a man being so extremely sick, that he is well nigh dead, yet † nevertheless it appeareth undoubtedly by his gestures & sensible speeches, that he is of good understanding and sound memory; in this case there is no question, but he may make his testament 
a) L. quoniam indignum. C. de testa. & DD. ibidem. Mantic. de coniect. vlt. vol. lib. 2. tit. 6. Simo de Praetis. de interp vlt. vol. lib. 2. dub. vlt. soluc. 4. , for the integrity of the mind, and not of the body, is required in the testator 
b) L. 2. ff. de testa. L. senium. C qui testa. fac. poss. , and the liberty of making a testament, doth continue even until the last gasp 
c) L. 4. de adimen. leg. ff. . In so much that † if the testator be not able to pronounce his words so plainly and distinctly as he had been accustomed, but scarcely and with great difficulty can be understood of such as be present, (his tongue perhaps being swollen or become stiff, and untruly, or otherwise disturbed by means of his sickness,) yet doth not the testament therefore lose his force or virtue 
d) d. L. quoniam indignum. Simo de Praetis. ubi supr. Phil. Franc. in Rub. de testa. lib. 6. Alex. consil. 33. vol. 3. n. 7. .  
The second case is, † when a man is at the point of death, but it doth not appear plainly whether he be of perfect mind and memory. In which case, some are of opinion, that nevertheless he is to be presumed of perfect mind and memory 
e) Panor. in c. fin. de success. ab intestat. extr. n. 9 . Others are of the contrary opinion, comparing him that is in this case to a dead man, partly through the intolerable extremity of the sickness, and partly through the cogitation of imminent death 
f) Paul. de Castr. consil. 155. vol. 1. . Others more indifferent do reconcile these contrary opinions, with this distinction: either the sick person doth speak so distinctly as he may be understood, and then he is presumed to be of perfect mind and memory, and so to be in that case that he may make his testament: or else he can not speak so distinctly as he may be understood, and then he is not in case to make his testament 
g) DD. in L. jubemus. C. de testa. Mantic. de coniect. vlt. vol. lib. 2. tit. 6. n. ●. Viglius. in §. sed cùm paulatim. Instit. de test. ord. hoc distinctionum soedere conciliat istas contrarias leges, nempe L. quoniam indignum. & L. jubemus. C. de testa. .  
The † third case is, when he that is at the point of death and hardly able to speak, so as he may be understood, doth not of his own accord make or declare his testament, but at the interrogation of some other, demanding of him whether he make this or that person his executor, and whether he give such a thing to such a person, answereth yea, or I do so. In which case it is a question of some difficulty, whether the testament be good or not, neither can it be answered simply, either negatively, or affirmatively, but diversly in divers respects 
h) De hac q. consulas velim Mantic. de conject. vlt. vol. lib. 2. tit. 6. & Gab. Rom. lib. ●. con. conclus. tit. de testa. concl. 2. ubi non paucis contentus est distinctionibus. , for if † the which doth ask the question of the testator, be a suspected person 
i) Paul. de Castr. consil. 155. col. pen. vol. 1 Zas. cons. 3. vol. 1. n. 37. So. cin. jun. consil. 183. n. 27. vol. 2. qui refert hanc op. esse magis come. , or be importunate to have the testator to speak 
k) Zas. d. cons. 3 n. 37. vol. 1. ubi attestatur hanc op. esse come. , or make request to his own commodity 
l) Socin. d. consil. 183. vol. 2. n. 39 Sichard. in L. jubemus. C. de testa. n. 7. in fin. ; as if he say, do you make me your executor, or do you give me this or that? And thereupon the testator answer yea: in this case, it is to be presumed, that the testator did answer, yea, rather to deliver himself of the importunity of the demandant, then upon devotion or intent to make his will 
m) Paul. de Castr. in L. hac consultistima §. at cum humana. C. qui testa. fac. poss. Mantic. de coniect. vlt. vol. lib, 2 tit. 6. n. 10. Socin. jun. consil. 144. vol. 2. n. 49. Sichard. in d. L. jubemus. C. de testa. n. 7. Peckius. tract. de testa. coniug. lib. 1. c. 17. ; because it † is for the most part painful and grievous to those that be in that extremity, to speak or be demanded any question: and therefore are ready to answer (yea,) to any question 
n) Hic, cui moribundus (ait Alex.) responderet; Ita: etiamsi interrogares num interfecisset hominem, cons. 33. vol. 3.  almost, that they may be quiet: which advantage, crafty and covetous persons knowing very well, are then most busy, and do labour with tooth and nail, to procure the sick person to yield to their demands, when they perceive he cannot easily resist them, neither hath time to revoke the same afterwards being then passing to an other world 
o) d. L. jubemus. & DD. ibidem. . And therefore worthily and with great equity and reason, is that to be deemed, for no testament, when the sick person answereth, yea, the interrogation being made by a suspected person; aswell in respect of presumption of deceit in the one, as of defect of meaning of making of a testament in the other 
p) Mantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 9 Covar. in c. cum tibi. de testa. ext n. 4. Peckius. d. c. 17. n. 2. . And † this is true especially, when there is an other former testament, for that is not to be revoked by a second testament made at the interrogation of an other, in manner aforesaid 
q) Socin. jun. d. consil. 183. n. 34. Zas. d. cons. 3. n. 45. Molineus in addic. ad consil. Deccis. 489. ubi non dubitat affirmare, Decium & alios contrarium consul: pessimè consuluisse. . But † if the person which maketh the motion be not any way suspected, and it doth appear withal by some conjectures, that the sick person had a desire to make his will, as if the sick person send for his friend, who being comen unto him, asketh him whether he make this or that man his executor, which otherwise were to have the administration of his goods if he died intestate; to whom the sick person answereth; yea, or I do make him my executor: In this case this testament is good 
r) Zas. d. consil. 3. n. 37. Socin jun. consil. 183 n. 31. Covar. in d. c. cùm tibi. n. 4. Peckius. d. c. 17. n. 5. , albeit it were in prejudice of an other testament made before 
s) Dec. d. consil. 489. Socin. jun. consil. 144. vol. 2. n. 44. 45. . But † what if it do not appear by any conjecture, that the testator had a meaning to make his testament, and yet no suspicion can be conceived against the person which demandeth the question, whether is the testament good, if the testator do only answer, yea? I suppose, that without some conjecture of the testators meaning, it is not sufficient 
t) Mantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 9 Socin. jun. consil. 183. vol. 2. n. 6. 37. .  
The fourth case is, when the † sick man's kinsfolks, or some other persons do cause a testament to be written, after then inditing, (the sick man as yet no● knowing thereof) and then afterwards the same being read unto him, and he being demanded, whether the same, shall stand for his testament, answereth, yea, and shortly after dieth: in this case the testament is not good 
v) Mantic. de coniect. vlt. vol. lib. 2. tit. 6. n. 10. qui dicit hanc op. esse magis come. Covar. in d c. cùm tibi. n. 4. , unless the testator had first uttered his meaning to the writer or inditer thereof 
x) Sichard. in L. jubemus. C. de testa. n. 7. Gabr. lib. 4. come. conclus. tit. de testa. concls 2. n. 13. 17. , or had requested them to write his will 
y) Gabriel. ubi supr. , or unless the testator being of good mind & memory, had by plain and express words, or other apparent conjectures, confirmed the same, then only by answering yea 
z) Mantic. de coniect. vlt. vol. lib. 2. tit. 6. in sin. .  
But what if a will be brought to the sick man, which being read over in his hearing, and he demanded whether the same shall stand for his last will and testament; answereth yea: and it doth not appear whether the same was written and prepared by the direction of the sick man, or else of his kinsfolks and friends, whether is it to be presumed, to have been prepared by his direction or by theirs? It seemeth by the sick man, in favour of the testament 
a) Alex. consil. 33. vol. 3. Gabr. lib. 4. tit. de testa. concl. 2. n. 15. ; but when it appeareth indeed to have been made ready by others, then albeit the testator being interrogated do answer as before, it is presumed that the question was made by the suggestion or of the executor 
b) Mantic. de coniect. vlt vol. lib. 2. tit. 6. n. 10. , and so the testament is not good, as is aforesaid.   

Of Ecclesiastical persons.  
1 Two sorts of Ecclesiastical persons, regular, and secular.  
2 Who are meant by regular persons.  
3 Religious persons compared to bondmen.  
4 Religious persons compared to dead men.  
5 Who be here meant by secular clerks.  
6 Ecclesiastical persons are not simply prohibited to make their testaments.  
7 Ecclesiastical persons may make their testaments of all goods, which they have not in right of their church.  
8 Ecclesiastical persons can not make their testaments of things immovable, which they possess in right of their church.  
9 An Ecclesiastical person may make his testament of the glebe by him sown.  
10 Whether an ecclesiastical person may make his testament of the fruits not received.  
11 All fruits which happen during the vacation, are due to the next incumbent.  
12 Whether an ecclesiastical person may make his testament of all movable goods, which he hath in right of his church.  
13 Some cases wherein ecclesiastical persons cannot dispose of their goods.  
§. xxvij.  
OF † Ecclesiastical persons there be two sorts, the one Regular, the other Secular 
a) c. duo. 12. q. 1. gloss. in Rub. de regularibus. extr. . By Regular † I do understand Monks, friars, and other religious persons 
b) c. 2. de testa. extr. , whereof because we have none this day in the church of England, I shall not need to enter into any discourse concerning them: Only this by the way, that these religious persons in respect of their canonical obeisance, vowed unto their Abbots and prelate's, are in law compared unto bondmen 
c) Specul. de statu. Monach. , and † in respect of their vow of their perpetual poverty, or renouncing the world, they are compared unto dead men 
d) Litleton. tit. villeinage. circa medium. , & in these respects they could not make a testament 
e) Quod si quis scire cupiat, an, & quatenus Monachus sit testabilis, legate jul. Clar. §. testm. q 28, 29, 30. Michael. Grass. §. testm. q. 34. & Ferdinan. Vasq. de success progress. lib. 1. §. j . But if a religious man had made a testament before his entrance into that profession, than was the same to have been proved and executed, as if he had been naturally dead 
f) Litleton. ubi supr. : and if he had made no testament, when he had entered into religion, than the ordinary might have committed the administration of his goods, as of one that had died intestate 
g) Ibidem. . But it was and is otherwise with secular clerks, who albeit they be sometimes comprehended under the name of religious persons 
h) Panor. in Rub. de regular. extr. , yet the law disposeth otherwise concerning their testaments, then of the testaments of religious persons 
i) ut statim sequitur hoc §. .  
By † Secular clerks I understand Archbishops, Bishops, Deans, Archdeacon's, Prebendaries, Parsons, Vicars, and other ecclesiastical ministers or clergy men 
k) Michael Grass. Thesaur. come. op. §. testm. q. 34. jul. Clar. §. testm. q. 27. . These persons † are in some respects prohibited to make their testaments, but they are not simply forbidden 
l) c. 1. c. cum in officijs. c. relatum. el. 2. c requisisti. de testa. extr. Covar. in d. c. 1. . Wherefore that we may the better know when they may make a testament, & when they may not; we are first to consider whether the things whereof they make their testaments, do belong unto them in any other respect then in the right of the church, or of their ecclesiastical living 
m) Ita distinguitur in d. c. relatum. cl. 2. .  
For † of other things than such as are gotten by right of the church, whether the same be left unto them by their parents, or given by some friend, or whether they got the same by their own industry, either by preaching of the gospel or by teaching of scholars, or other labour 
n) Panor. in d. c. relatum. cl. 2. de testa. extr. flores vlt. vol. part. 1. fol. 4. , of such things they may freely dispose and make their testaments, aswell as lay persons 
o) d. c. 1. de testa. extr. & Covar. ibidem. Grass. §. testm. q. 34. Perkins. tit. devices. c. 8. in prin. , although the same be given, or gotten after they be entered into the ministery, and also after they have obtained such spiritual promotion 
p) Cyn & alij in Authen. licentiam. C. de Episcopis & Cler. Grass. d. §. testm. q. 34. n. 2. .  
If any thing do appertain unto them in right of their church, than we are to consider, whether the same be movable or not. For of † immovable things, as of houses, or of demeans, or of glebe, and such like, ecclesiastical persons can not dispose by their testaments 
q) L. jubemus. C. de sacrosan eccle. c. cùm in officijs. c. relatum. cl. ●. de testam. extr. Perkins tit. devices. in princ. , nor of the trees, or fruits, growing upon the same demeans, or glebe 
r) Perkins ubi supr. Epistola cuiusdam libri qui inscribitur, An answer to an Abstracti, etc. : Saving † whether the incumbent before his death, hath caused any of his glebe lands to be manured and sown, at his proper costs and charges, with any corn or grain, for in this case such incumbent, may make and declare his testament of all the profits of the corn, growing upon the same glebe lands, so manured and sown 
s) Stat. H. 8. an. 28. c. 11. . And although † heretofore, as well by general custom of this realm 
t) Lindw. in c. nullus rector. de consuetud. lib. 1. provincial. constituc. Cant. , as by special constitution 
v) c. cùm inter rectores tit. de consuetud. lib. 1. provincial. constituc. Ebor. , it was lawful for parsons and vicar's, after the feast of the annunciation of the blessed virgin 
x) d. c. nullus. , & in some places after the feast of S. Mark 
y) d. c. cùm inter rectores. lib. 1. provincial. constit. Eborac. , to make their testaments of the fruits of their livings, albeit not as yet received, but payable that year or harvest following. Nevertheless by the statutes of this realm, such custom and constitution is taken away, by which statut 
z) d. Stat. H. 8. an 28. c. 11.  † all fruits, tithes oblations, and other emoluments whatsoever belonging to any Archdeaconry, denary, prebend, parsonage, vicarige, hospital, wardenship, provost-ship, or other spiritual promotion, benefice, dignity or office, (chantries only excepted) growing, rising or coming, during the time of the vacation of the same spiritual promotion, belong to the next incumbent, and to his executors towards the payment of the first fruits.  
Of goods † movable which an ecclesiastical person possesseth, albeit the same were gotten in right of the church, or by means of his ecclesiastical living, he may make his testament, like as of any other his temporal goods 
a) Lindw. in d c. nullus. verb. legata. Doct. & Stud. lib. 2. c. 39, 40. quod verum quidem est, iure seu consuetudine huius regni Angliae: sed attento iure cano. non procedit indistinctè. Abb. in d. c. relatum cl. 2. de testa. extra. , whether such ecclesiastical person be bishop, deane, archdeacon, prebendary, parson, or vicar, or otherwise termed or entitled (certain cases only excepted) 
b) jul. Clar. §. testm. q. 27. Grass. §. testm q. 34.  viz. † of goods which a bishop hath common with a deane or chapter 
c) c. relatum. cl. 2. de testa. extr. Perkins. tit. devices in princ. Doct. & Stud. lib. 2. c 39 , or which a deane or chapter have common to themselves 
d) Fitzherb. Abridg. tit. testm n. 1. , or which a master or brethren of an hospital or college have also amongst themselves, in the right of their house 
e) Perkins. Doct. & Stu. ubi supra. , or of goods which are dedicated to the service of God, as ornaments of the church 
f) Aetiologia, est quia huiusmodi rerum nullum est commercium. §. nullius. Instit. de rerum divis. , or of the ecclesiastical rights, not received or not due, nor payable in the time of the incumbency of the testator, but reserved to the next incumbent 
g) d. Stat. H. 8. an. 28. c. 11. : In which cases it is not lawful for ecclesiastical persons to make their testaments of such goods; which cases excepted, it is lawful for an ecclesiastical person to declare his will 
h) Exceptio enim firmat regulam in non exceptis. Dec. in L. 1. de reg. iur. ff. , either of the goods themselves, (if the remain and are extant) or of the money taken for the same being sold or alienated 
i) Istud verum iure quo nos utimur. artic. cler. c. 1. Doct. & Stud. lib. 2. c. 39 secùs iure can. Panor. in d. c. relatum. cl. 2. n. 3. Grass. d. §. testm. q. 34. jul. Clar. §. testm. q. 27. .   

Of Kings.  
1 Examples borrowed out of the old testament, whereby it may seem lawful for kings to give away their kingdoms.  
2 Certain human reasons, tending to the same purpose.  
3 Other examples taken out of profane histories of Kings, which have disposed of their kingdoms by their testaments.  
4 By the civil and cannon laws, a King can not give away his kingdom.  
5 Whether by the laws of this realm, a King may give away his kingdom.  
6 An uncertain conclusion.  
§. xxviii.  
IT may seem lawful for a king by his testament, to make his heir whomsoever he shall think good, or to leave his kingdom to whom he will, both by god's law and man's law.  
By god's law, because † Moses a man, to whom God did speak as it were face to face, left the principality or government of the Isralites to josua 
a) Deutero. c. vlt. vers. 9 10. , being of the tribe of Ephraim 
b) Gloss. in c. Moses. 8. q. 1. , and not to any of his own tribe, which was the tribe of Levi 
c) Phil. Franc. in Rub. de testa. lib. 6. post gloss in d. c. Moses. . King David likewise, a man after gods own heart did bestow the kingdom on Solomon 
d) Lib. 1. reg c. 1. versic. 28, 29, 30. cum sequent. , having the same time an elder son, namely, Adoniah 
e) eod. c. versic 41. cum sequen. : the same Solomon, the wisest man that ever was or shallbe 
f) ●. reg. c. 3. vers. 12. , whiles he reigned as king did give unto Hyram king of Tyrus, twenty cities of the kingdom of Israel, situate in the land of Galilee 
g) 1. reg. c. 9 vers. 11. . The holy Patriarch jacob also, even he that wrestled with an angel 
h) Genes. c. 32. vers. 24. etc. , deprived his eldest son Reuben of his birth right, and gave the same to the sons of joseph 
i) Genes. c. 49. Paralip. c. 5. in princ. .  
By man's law, because † the voice and will of a Prince hath the force of a law 
k) §. sed & quod. Instit. de iur. na. gen. & civil. ; because also a king is said to be a mortal God 
l) Bald in §. praeterea. de prohib. alienac. feud. per feather. n. 14. psal 82. vers. 6. ; and therefore what he commandeth aught to be obeyed without resistance 
m) Bald. in auth. hoc amplius. C. de fidei come. n. 10. quem velim videas. , if it do not repugn the law of God immortal 
n) Act. Apost. c. 4. vers. 19 etc. 5. vers. 29. . To be short, if a king might not dispose of his own kingdom at his own pleasure, than his state were not so good as the state of his subject 
o) Oldrad. consil. 94 in fin. , for the meanest subject may freely dispose of his own 
p) Supr. ead. part. in prin. . Besides which urgent reasons, whereby appeareth the root and life of this humane law, there be sundry pregnant examples, which as branches springing from that lively root, have in sundry ages and countries brought forth fair and goodly fruit; whereby the force and efficacy of that law hath been made manifest to all the world; let these few suffice for a taste. It is recorded that Attalus a king in Asia the less, did in his testament institute the Roman people his heir, who by virtue of that testament did enjoy the kingdom 
q) Florus lib. 2. Hottoman. illustr. quaest. c. 1. : likewise that Alexander king of Egypt, did bequeath unto the same Roman people the kingdoms of Alexandria and Egypt 
r) Cicero Ora. 1. pro lege agrar. alias lib. 2. c. 15. , Ptolemaeus the king of Egypt gave away the kingdom of the Cyrens 
s) Hottoman. d. c. 1. , Vnguinus was king of the Goths by the appointment of Haldanus 
t) Eodem loci. : To come nearer (I mean in respect of place not of time) we may read how Prasutagus, one of the kings of this realm of England, a little after the death of Christ, did make the Emperor Nero his heir 
v) Cornel. Tacitus. lib. 14. Camden. fol. 290. alias fol. 355. : And divers other kings have done the like 
x) Quorum meminit Gentilis disp. 2 fol. 45. . So that it is neither new or strange, that kings have by their testaments given away their kingdoms from those, who otherwise should have enjoyed the same.  
Notwithstanding † aswell by the civil law 
y) Bar. & Angel. in L. prohibere. §. planè. ff. quod vi aut clam. jas. in L. debito●um C. de pactis. Bald. in proem de feudis. n. 32. Vasq. de success. crea §. 26. lim. 3.  as by the cannon law 
z) Innocen. Cardinal. Imol. Panor. Io. de Anan. & alij. in c. intelecto. de iureiur. extr. Felin. in c. dilecti de maior. & ob. extr. , (with the which laws the laws of this our realm of England, do in this point seem to join hands 
a) Fitzherb. Abridg. tit. devise. n. 5. tit. execute. n. 108. hisce verbis: L opinion de plus justices & Doctors deal cannon & civil ley, assembles in le Exchequer chamber, quant Roy Henry quart morust, fuit que il puit saier testmt. & legacy des biens que il aver, mez dez biens de Royalme, cest assavoyer ancient, Corone & juells ill ne puit. Eodem tendunt quae à Guiliel. Lamberto, viro doctissimo, transcripta sunt, sub hac verborum serie: Debet verò de iure rex onmes terras & honores, omnes dignitates, & iura, & libertates Coronae regni livius, in integrum cum omni integritate, & sine diminutione servare, & defendere, etc. lib. de priscis Angl. legib. tit. de reg. office fol. 130. :) It is unlawful for a king to give away his kingdom from his lawful heirs, for the confirmation whereof divers writers use divers reasons 
b) De hac q. consulas Franc. Hotto. iurisconsultorun omnium, quos ista peperit aetas, celeberrimum. lib. 1. illustr. quaest. c. 1. .  
But † amongst all their reasons, I see no reason to induce me to adventure any further into the examination of this deep and dangerous question, much less to proceed to the conclusion; not only because the same being so high an object, doth far exceed the slender capacity of a mean subject: but also for that this princely controversy, as it hath seldom received ordinary trial heretofore; so hereafter if the case were to be argued in very deed, very likely it is to be urged with more violent arguments and sharp syllogisms, then by the unbloody blows of bare words, or the weak weapons of instruments made of paper and parchment: And on the other side to be answered with flat denials of greater force, and distinctions of greater efficacy, then can proceed from any legal or logical engine; and in the end to be decided and ruled by the dead stroke of uncivil and martial cannons, rather than by any rule of the civil or cannon law.  Videant quorum interest.   

THE THIRD PART OF THIS TESTAMENTARY TREATISE: WHEREIN IS EXAMINED what things may be devised by will.  

The Paragraphes, or Chapters of the third part.  
WHat things are examined in this third part §. 1.  
Lands, tenements and hereditaments, can not pass by will but in certain cases §. 2.  
Certain cases approved by custom, wherein it is lawful to bequeath, or devise lands, tenements and hereditaments. §. 3.  
Certain cases authorized by the statutes of this realm, whereby it is lawful to devise lands, tenements, and hereditaments §. 4.  
Of the devise of goods and chattels §. 5.  
divers kinds of goods and chattels not devisable by will §. 6.  
Of the assigning of tutors, and disposing of children's portions §. 7.  
Of committing the tuition of children, and custody of their portions, within the province of York §. 8.  
Who may appoint a tutor §. 9  
Who may be appointed tutor §. 10.  
To whom a tutor may be appointed §. 11.  
Of the manner of appointing tutors §. 12.  
Of the office and authority of a tutor §. 13.  
By what means the tutor-ship is ended §. 14.  
What quantity of lands may be devised §. 15.  
What quantity of goods or chattels may be devised §. 16.  
If the testator do in fact bequeath more than he may by law, which legacy is to be preferred, or what other course is to be followed §. 17.   

WHAT THINGS ARE EXAMINED IN THE THIRD PART.  
The third part.  
1 The third principal part divided into two members.  
2 The first member threefoulde.  
§. j  
IN the third part of this Testamentary treatise, there is to be showed, first what things, & then how much the testator may dispose, or devise by his testament.  
Concerning the former of these, it shall not be a miss to speak first of the bequeathing or devising of lands, tenements, and hereditaments 
a) Infr. ead part. § §. 2, 3, 4. .  
secondly of the bequeathing or devising of goods and chattels 
b) Infr. ead. par. §§. 5, 6. , and thirdly of the committing of the tuition of children, and custody of their portions and rights, during their minorities 
c) Infr. ead. part. §§. 7, 8, etc. .   

Of the devise of lands.  
1 The rule of the devise of lands is negative.  
2 The exceptions of this rule are of two sorts.  
§. ij.  
TRue it is, that this matter of the devise of lands, tenements and hereditaments, which in this realm of England with all questions incident thereunto, is to be determined according to the laws temporal of this realm; and is not subject to the rules and decisions of the laws civil or ecclesiastical: lest therefore whilst I would seem a mere professor of the civil law, I might seem altogether to neglect both law and civility, by thrusting my sickle into an others harvest, and setting my foot in an others possessions without licence first obtained: for the avoiding of this offence, before I go any further, I am to crave this favour (learned professors and serious students of the laws temporal of this realm,) that for as much as this your field, wherein groweth all these questions concerning the devise of lands, doth lie so just betwixt me and those other grounds, wherein the mark whereat I aim, is placed, and wherein the fruit which I would gladly utter is planted: so that I can not (as now my journey lieth) have ready access unto the one but through the other: It would therefore please you give me a little leave to walk through a corner of your large dominions, unto those foresaid places, more proper to them of mine own profession. (Your territories I confess are very fertile, and full of hidden treasure, the fruit also of that soil, I mean the golden cases much like the golden fleece of Colchos: the growing very pleasant & profitable: Howbeit you need not be afraid of any prejudice, for neither will I disturb your quiet possession with any long abode: neither can I if I would, convey away the riches you should reap, by disclosing of the mysteries of your gainful art to me unknown, unless I would seem to be more bold than blind baiarde, more arrogant than the ignorant Cobbler, who for his sauciness received this admonition: Ne suitor ultra crepidam.) And further that as a poor passenger, I may be allowed to take a taste of those things which you have set abroach to all the world, and which by your sundry books you have made common to all travelers, the rather for that I am prepared in some sort to requite the same. This only I desire, and this I hope you will not deny, to the purpose therefore.  
Touching the bequest or devise of lands, tenements and hereditaments, this appeareth to be a true position, and ground agreeable to the civil law 
a) c. imperialis. de prohib. feud. alien. lib. 2. Feud. Bald. in c. 1. de success. feud. , and also the laws of this realm 
b) Stat. H 8. an. 27. c. 10. in princ. Doct. & Stud. lib. 1. c. 8. Perkins. tit. devise. 102. , that lands, tenements or hereditaments, can not be disposed or devised by will, but in certain cases, of which some are approved by force of certain customs 
c) Infr. §. prox. , within this realm; and some by force of certain statutes 
d) Infr. ead. par. §. 4. .   

Certain cases approved by custom, wherein it is lawful to devise lands, tenements, or hereditaments.  
1 Gavelkinde lands may be devised by will.  
2 The cause wherefore the custom of gavelkind did continue.  
3 Burgages land deviseable by will.  
4 To whom and after what manner Burgages lands be deviseable.  
5 Whether any other person may devise Burgages lands but a citizen.  
6 Burgages tenure a kind of tenure in Soccage.  
7 Whether livery or season be needful, where burgages land is devised.  
8 Whether the jointenaunt may bequeath his part of Burgages land otherwise deviseable.  
9 Of lands devised to certain uses.  
10 The custom of devising lands to feoffs reform.  
11 The causes of this reformation.  
12 The statute or act of reformation.  
§. iii.  
THe first case wherein by custom of this realm of England, it is lawful for a man by his last will or testament, to devise or bequeath lands, tenements or hereditaments, is this, namely, when lands, tenements or hereditaments, are holden in Gavel-kind: for such † lands, tenements or hereditaments by ancient custom, may be given or devised by will 
a) Dyer. fol. 153 verb. devise. Terms of law. verb. Gravelkind & ita saepissimè accepi à nonnullis huius regni iurisperitis. , (the same otherwise being duly made.) For † after that William duke of Normandy, had invaded and conquered all England, Kent only excepted, at last also the kentish-men yielded, but upon condition that they might enjoy their ancient customs of Gavelkind, which was granted unto them, & since hath continued 
b) Lambert. perambulation of Kent. fol. 23. : amongst which customs, being very large and beneficial, this is one; that they which hold lands in gavelkind, may give and sell the same, without licence asked of their lords: saving unto the lords, the rents and services due out of the same tenements 
c) Terms of law▪ ubi supr. Lambert. ubi supr. fol. 416. .  
The † second cause is, when the lands or tenements be holden in Burgages tenure 
d) Fitzherb. Nat. Bre. ex gravi querela. in prin. Doct. & Stud. lib. 1. c. 7. & 10. . For it is the custom of divers Cities and Borroughes of this land, (as in London, York, Oxford, etc.) that such persons as are seized of lands, tenements, or hereditaments, lying and being in such cities or boroughs, and hold the same in burgages tenure, may by their testaments or last wills, give or bequeath the same to whom they will 
e) Brook. Abridg. tit. devise. n. 22. 51. Fitzber in d. Br. ex gravi querela. Doct. & Stud. d. c. 7. & 10. Lindw. in c. statut. de testam. lib. 3. provincial. constituc. Cant. verb. de consuctudine. & verb. laicalis feodi. eod c. , to hold in fee simple, or in fee tail, or for life or years, or otherwise, and such bequest or devise is good 
f) Fitzherb. in d. Brevi ex gravi querela. , the will being lawfully made, and proved before the ordinary, as touching the goods and chattels bequeathed in the same, and enrolled before the mayor of the said city or borough 
g) Fitzher. in d. Bre. ex gravi querela. . Howbeit, it is not always necessary, that the testament be proved before the ordinary, or enrolled, wherein lands only, and no goods and chattels are bequeathed 
h) Brook Abridg. tit. devise. n. 43. : For in some places by the custom there used, the devisee may enter to the lands devised of his own authority, without any probation or enrolment precedent, and in other places he is to be put in season or possession by the Balife 
i) Brook. d. tit. devise. n. 43. principal grounds. tit. burgage. fol. 43. . And it seemeth not to be needful, to the validity of the devise in this case, that the testator should be a citizen, or burgess of that city or borough, where the lands or tenements devised do lie: but it is sufficient, if the lands and tenements be holden in burgages 
k) Brook tit. devise. n. 22 : For that not he only is said to hold in burgages, who is a citizen or burgess of the place where the lands or tenements be, and holdeth of the king, or other lord lands or tenements lying in the city or borough, yielding therefore to his said lord a certain yearly rent: but he also that is no citizen or burgess, which holdeth of any lord lands or tenements in burgages, yielding unto him a certain rent by the year 
l) Old. tenors. verb. burgage. , which tenor in burgages is but a kind of tenure in soccage 
m) Litleton. tit. burgage. in princ. . Howbeit there is this difference betwixt citizens, burgesses and freemen, and those which be not citizens, burgesses or freemen, that is to say, citizens, burgesses and freemen, may bequeath their burgages lands to Mortmain, which others can not do 
n) Brook Abridg. tit. custom. n. 7. 38. 41. tit. devise. n. 22. 28. Doct. & Stud. lib. 1. c. 10. . And in some borough by the custom thereof, a man may devise by his testament lawfully made, his lands and tenements, which he hath in feesimple within the same borough at the time of his death, and by force thereof the devisee, after the death of the testator, may enter into the tenements to him devised, to have and to hold to him after the form and effect of the devise, without any liberty of season thereof to be made unto him 
o) Litleton. tit. burgages . But if there be two joint tenants in feesimple, within one borough, where the lands and tenements within the same be devisable by testament, if one of the said joint tenants devise that which to him belongeth, by testament and die, this devise or legacy is void 
p) Principal grounds. fol. 20. b. : The reason is, for that no devise can take effect till after the death of the testator, who did bequeath and devise the same, but by his death all the land doth incontinently by the law of this realm, come to the survivor, who neither claimeth nor hath any thing by devise but of his own right by the suruiu●ir according to the course of the law of this land, and for this cause such devise is void 
q) Principal grounds. fol. 20. b. .  
another case there was also sometimes used and practised, of devising lands, tenements, and hereditaments by wills to certain uses, intentes and trusts: which wills or testaments of lands, tenements and hereditaments in feoffees hands were for the time accounted and taken for good 
r) Stat. H. 8. an. 27. c. 10. .  
But this custom was reform in many things, for divers good considerations: namely, because by the common law of this realm, lands, tenements & hereditaments, be not devisable by testament: and also for that such devices were not only hurtful to the heir of the testator, being many times thereby disinherited, but also for that divers other inconveniences did by reason thereof ensue: as that the lords lost their wards, marriages, reliefs, harriots, escheats, aids, Pur fair fitz chiualer & pur file marier. Furthermore by occasions of such wills, and other conveyances, to secret intentes, uses and trusts, men could not be certainly assured, of any lands by them purchased, nor knew not against whom they should use their actions & executions, for their rights and titles. Besides this men married lost their tenances by the courtesy, women their dowries; finally the prince himself lost the profits of the lands of persons attainted: For reformation whereof a statute was made in the time of King Henry the eight, and enacted as followeth 
s) d. Stat. H. 8. an. 27. c. 10. .  
That is to say, that where any person or persons, stand or be seized, or at any time hereafter shall happen to be seized of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sail, or feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner means whatsoever it be, that in every such case, all & every such person & persons, & bodies politic, that have or hereafter shall have any such use, confidence, or trust, in fee simple, fee tail, for term of life or of years, or otherwise: or any use, confidence, or trust in remainder or reverter, shall from henceforth stand and be seized, deemed, and adjudged in lawful seizon, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders, and hereditaments with their appurtenances to all intents, constructions, and purposes in the law, of and in such like estates as they had or shall have, in use trust, or confidence, of or in the same. And that the estate, title, right, and possession, that was in such person, or persons, that were or hereafter shall be seized, of any lands, tenements, or hereditaments, to the use, confidence, or trust, of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them, that have, or hereafter shall have, such use, confidence, or trust, after such quality, manner, form and condition, as they had before, in or to the use, confidence, or trust, that was in them.  
And be it further enacted by the authority aforesaid, that where divers and many persons be or hereafter shall happen to be, jointly seized of and in any lands, tenements, rents, reversions, remainders, or other hereditaments, to the use, confidence, or trust, of any of them that be so jointly seized, that in every such case, that those person or persons, which have, or hereafter shall have, any such uses, confidence, or trust, in any such lands, tenements, reversions, remainders, or hereditaments shall from hence forth have and be deemed & adjudged to have, only to him or them, that have, or hereafter shall have, such use, confidence, or trust, such estate, possession and seizon, of and in the same lands, tenements, rents, reversions, remainders, or other hereditaments in like nature, manner, form, condition, and course, as he or they had before in the use, confidence, or trust of the same lands, tenements, or hereditaments: saving and reserving to all & singular persons, and bodies politic, their heirs and successors, other than those person or persons, which be seized, or hereafter shall be seized, of any lands, tenements, or hereditaments, to any use, confidence or trust, all such right, title, entry, interest, possession, rents, and action, as they or any of them had or might have had, before the making of this act.  
And also saving to all and singular those persons, and to their heirs, which be or hereafter shall he seized, to any use, all such former right, title, entry, interest, possession, rents, customs, services, and action, as they or any of them might have had to his or their own proper use, in or to any manors, lands, tenements, rents, or hereditaments, whereof they be or hereafter shall be seized to any other use, as if this present act had never been had or made: any thing contained in this act to the contrary not withstanding.  
And where also divers persons stand and be seized of and in any lands, tenements, or hereditaments, in fee simple, or otherwise, to the use or intent that some other person or persons, shall have and perceive yearly to them, and to his or their heirs, one annual rent, of ten pounds, or more, or less, out of the same lands and tenements, and some other person, one other annual rent to him and his assigns, for term of life, or years, or for some other special time, according to such intent and use, as hath been heretofore declared, limited, & made thereof. Be it therefore enacted by the authority aforesaid, that in every such case, the same persons, their heirs, and assigns, that have such use and interest, to have and perceive any such annual rents, out of any lands, tenements, or hereditaments, that they and every of them, their heirs, and assigns, be adjudged and deemed to be in possession and seizon of the same rent, of and in such like estate, as they had in the title, interest, or use of the said rend or profit, and as if a sufficient grant, or other lawful conveyance, had been made & executed to them, by such as were or shallbe seized to the use or intent of any such rent, to be had, made, or paid according to the very trust & intent thereof. And that all & every such person or persons, as have, or hereafter shall have, any title, use, and interest, in or to any such rent or profit, shall lawfully distrain for non payment of the said rend, and in their own names make advouries, or by their balifs or servants, make cognisances and justifications, and have all other suits, entries, and remedies for such rents, as if the same rents had been actually and really granted to them, with sufficient clauses of distress, reentree, or otherwise, according to such conditions, pains, or other things, limited and appointed upon the trust and intent, for payment of surety of such rent.  
And be it further enacted by the authority aforesaid, that where as diverse persons have purchased or have estate, made and conveyed, of and in divers lands, tenements, and hereditaments, unto them and to their wives, and to the heirs of the husband, or to the husband and to the wife, and to the heirs of their two bodies begotten, or to the heirs of one of their bodies begotten, or to the husband and to the wife for term of their lives, or for term of life of the said wife: or where any such estate or purchase of any lands, tenements, or hereditaments, hath been or hereafter shall be made to any husband and to his wife, in manner and form above expressed, or to any other person or persons, and to their heirs and assigns, to the use and behoof of the said husband and wife, or to the use of the wife, as is before rehearsed, for the jointer of the wife: that then in every such case, every woman married, having such jointer made or hereafter to be made, shall not claim, nor have title to have any dower of the residue of the lands, tenements, or hereditaments, that at any time were her said husbands by whom she hath any such jointer, nor shall demand nor claim her dower of and against them that have the lands and inheritances of her said husband. But if she have no such jointer, than she shall be admitted and enabled to pursue, have and demand her dower, by write of dower, after the due course and order of the common laws of this realm: this act or any law or provision made to the contrary thereof notwithstanding.  
Provided always, that if any such woman be lawfully expulsed or evicted from her said jointer, or from any part thereof: without any fraud or covin, by lawful entry, action, or by discontinuance of her husband: then every such woman shall be endowed of as much of the residue of her husband's tenements, or hereditaments, whereof she was before dowable, as the same lands and tenements so evicted and expulsed, shall amount or extend unto.  
Provided also, that this act, nor any thing therein contained or expressed, extend, or be in any wise hurtful or prejudicial to any woman or women heretofore being married, of, for, or concerning such right, title, use, interest, or possession, as they or any of them have, claim, or pretend to have, for her or their jointer or dower, of, in, or to, any manors, lands, tenements, or other hereditaments of any of their late husbands, being now dead or deceased, any thing contained in this act to the contrary notwithstanding.  
Provided also, that if any wife have, or hereafter shall have, any manors, lands, tenements, or hereditaments, unto her given or assured, after marriage for term of her life, or otherwise in jointer, except the same assurance be to her made by act of parliament, and the said wife, after that fortune to overlive the same her husband, in whose time the said jointer was made or assured unto her, that then the same wife, so over living, shall and may at their liberty, after the death of her said husband, refuse to have & take the lands and tenements, so to her given, appointed, or assured, during the coverture, for term of her life, or otherwise in jointer: except the same assurance be to her made by act of parliament, as is aforesaid, and thereupon, to have, ask, demand and take, her dower by write of dower or otherwise, according to the common law, of and in all such lands, tenements, and hereditaments, as her husband was and stood seized of any state of inheritance, at any time during the coverture, any thing contained in this act to the contrary, in any wise notwithstanding.  
Provided also, that this present act, nor any thing therein contained, extend, or be at any time hereafter interpretated, expounded, or taken to extinct, release, discharge, or suspend any statute, recognisance, or other bond, by the execution of any estate, of or in any lands, tenements, or hereditaments, by the authority of this act, to any person or persons, or bodies politic: any thing contained in this act to the contrary thereof notwithstanding.  
And for as much as great ambiguities and doubts may arise of the validity and invalidity of wills heretofore made of any lands, tenements, & hereditaments, to the great trouble of the king's subjects, the kings most royal majesty, minding the tranquillity and rest of his loving subjects, of his most excellent and accustomed goodness, is pleased, and contented, that it be enacted by the authority of this present parliament, that all manner true and just wills and testaments heretofore made by any person or persons, deceased, or that shall decease before the first day of May, that shall be in the year of our Lord God 1536, of any lands, tenements, or other hereditaments, shall be taken and accepted good and effectual in the law, after such fashion, manner, and form, as they were commonly taken, and used at any time within forty years next afore the making of this act: any thing contained in this act, or in the preamble thereof, or any opinion of the common law, to the contrary thereof notwithstanding.  
Provided always, that the kings highness shall not have, demand, or take any advantage or profit, for or by occasion of the executing of any estate only, by authority of this act, to any person or persons, or bodies politic, which now have, or on this side the said first day of May, which shall be in the year of our Lord God 1536, shall have any use or uses, trusts or confidences, in any manors, lands, tenements, or hereditaments, holden of the kings highness, by reason of primer seizon, livery, Ouster le main, fine for alienation, relief, or hariotte: but that fines for alienations, reliefs, and hariots, shallbe paid to the king's highness. And also liveries and Ouster le manes shall be sued for uses, trusts, and confidences to be made and executed in possession, by authority of this act, after and from the said first day of May, of lands and tenements, and other hereditaments holden of the king, in such like manner and form, to all intents, constructions, and purposes, as hath heretofore been used or accustomed, by the order of the laws of this realm.  
Provided also, that no other person or persons, or bodies politic, of whom any lands, tenements, or hereditaments, be or hereafter shall be holden mediate or immediate, shall in any wise demand or take any fine, relief, or harriot, for or by occasion of the executing of any estate by the authority of this act to any person or persons, or bodies politic, before the said first day of May, which shall be in the year of our Lord God 1536.  
And be it enacted by the authority aforesaid, that all and singular person and persons, and bodies politic, which at any time on this side the said first day of May, which shall be in the year of our Lord God 1536, shall have any estate unto them executed of and in any lands, tenements, or hereditaments, by the authority of this act, shall and may have and take the same or like advantage, benefit, voucher, aid, prayer, remedy, commodity, and profit by action, entry, condition, or otherwise, to all intents, constructions, & purposes, as the person or persons seized to their use, of or in any such lands, tenements, or hereditaments, so executed, had, should, might or aught to have had at the time of the execution of the estate thereof by the authority of this act, against any other person, or persons, of or for any waist, disseizon, trespass, condition broken, or any other offence, cause or thing concerning or touching the said lands, or tenements, so executed by the authority of this act.  
Provided also, and be it enacted by the authority aforesaid, that actions now depending against any person or persons, seized of or in any lands, tenements or hereditaments, to any use, trust, or confidence, shall not abate ne be discharged for or by reason of executing of any estate thereof by authority of this act, before the said first day of May, which shall be in the year of our lord God. 1536. any thing contained in this act to the contrary notwithstanding.  
Provided also, that this act nor any thing therein contained, shall not be prejudicial to the king's highness for wardships of heirs now being within age, nor for liveries or for Ouster le mains, to be sued by any person or persons, now being within age, or of full age, of any lands, or tenements, unto the same heir or heirs now all ready descended: any thing in this act contained to the contrary notwithstanding.  
Provided also, and be it enacted by the authority aforesaid, that all and singular recognizances heretofore knowledged, taken, or made to the kings use, for or concerning any recoveries of any lands, tenements, or hereditaments heretofore used or had, by write or writs, of entry upon disseizon in Le post, shall from henceforth be utterly void and of none effect, to all intents, constructions, & purposes.  
Provided also, that this act, nor any thing therein contained, be in any wise prejudicial or hurtful to any person or persons borne in Wales, or the marches of the same, which shall have any estate to them executed by authority of this act in any lands, tenements, or other hereditaments within this realm, whereof any other person or persons now stand or be seized, to the use of any such person or persons borne in Wales, or the marches of the same: but that the same person or persons borne in Wales or the marches of the same, shall or may lawfully have, retain and keep the same lands, tenements, or other hereditaments, whereof estate shall be so unto them executed by the authority of this act, according to the tenor of the same: any thing in this act contained, or any other act or provision heretofore had or made, to the contrary notwithstanding.   

Certain cases wherein by the statutes of this realm, it is lawful to devise lands, tenements or hereditaments.  
§. iiij.  
Now follow certain other cases authorized by the statutes of this realm of England, wherein it is lawful to bequeath or devise lands, tenements and hereditaments by will; sometimes wholly, and sometimes in part only, or rateably, according to the nature of the tenure of such lands, tenements and hereditaments, as in the same statutes, which I have here set down at large doth appear.  

An Act, declaring how by the Kings grant lands, tenements and hereditaments, may be by will, testament, or otherwise disposed, and concerning wards and primer season, etc. 
Anno 32 II. 8. c. 1.   
WHere the kings most royal majesty in all the time of his most gracious and noble reign hath ever been merciful, loving and benevolent, and most gracious sovereign lord unto all and singular his loving and obedient subjects, and at many times past hath not only showed and imparted to them generally by his many and often great & beneficial pardons heretofore by authority of his parlements granted, but also by divers other ways and means many great and ample grants and benignities in such wise, as all his said subjects been most bounden to the uttermost of all their powers and graces by them received of God, to render and give unto his majesty their most humble reverence & obedient thanks and services, with their daily and continual prayer to almighty God, for the continual preservation of his most royal estate, in most kingly honour and prosperity: yet always his majesty being  and endowed by God with grace, goodness, and liberality, most tenderly considering that his said obedient and loving subjects can not use or exercise themselves, according to their estates, degrees, faculties and qualities, or to bear themselves in such wise, as that they may conveniently keep and maintain their hospitalities and families, nor the good educations, and bringing up of their lawful generations, which in this realm laud be to God, is in all parts very great and abundant, but that in manner of necessity, as by daily experience is manifested and known, they shall not be able of their proper goods, chattels, and other movable substance to discharge their debts, and after their degrees set forth and advance their children & posterities: Wherefore our said sovereign Lord most virtuously considering the mortality that is to every person at Gods will and pleasure most common & uncertain, of his most blessed disposition and liberality being willing to relieve & help his said subjects in their said necessities and debility, is contented and pleased that it be ordained, and enacted by authority of this present parliament in manner and form as hereafter followeth; that is to say, that all and every person and persons having, or which hereafter shall have any manors, lands, tenements or hereditaments, holden in socage or of the nature of socage tenure, and not having any manors, lands, tenements, or hereditaments, holden of the king our sovereign Lord by knight's service, by socage tenure in chief, or of the nature of socage tenure in chief, nor of any other person or persons by knight's service from the 20. day of julie in the year of our Lord God 1500. & forty, shall have full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing or otherwise, by any act or acts lawfully executed in his life, all his said manors, lands, tenements, or hereditaments, or any of them at his free will and pleasure, any law, statute, or other thing heretofore had, made or used, to the contrary notwithstanding.  
And that all and every person and persons, having manors, lands, tenements, or hereditaments, holden of the king our sovereign Lord his heirs or successors in socage, or of the nature of socage tenure in chief, and having any other manors, lands, tenements, or hereditaments holden of any other person or persons in socage, or of the nature of socage tenure, and not having any manors, lands, tenements, or hereditaments, holden of the king our sovereign Lord by knights service, nor of any other Lord or person by like service, from the 20. day of julie in the said year of our Lord God 1500, and forty, shall have full and free liberty, power and authority to give, will, dispose and devise, as well by his last will or testament in writing or otherwise, by any act or acts lawfully executed in his life, all his said manors, lands, tenements and hereditaments, or any of them at his free will and pleasure, any law, statute, custom or other thing heretofore had, made, or used to the contrary notwithstanding. Saving always and reserving to the king our sovereign lord his heirs and successors, all his right, title, and interest of primer seizon, reliefs, and also all other rights and duties for tenors in socage or of the nature of socage tenure in chief, as heretofore hath been used and accustomed, the same manors, lands, tenements or hereditaments to be taken, had, and sued out of and from the hands of his highness his heirs and successors by the person or persons to whom any such manors, lands, tenements or hereditaments, shall be disposed, willed, or devised in such and like manner and form as hath been used by any heir or heirs before the making of this statute. And saving and reserving also fines for alienations of such manors, lands, tenements, or hereditaments holden of the king our sovereign lord in socage, or of the nature of socage tenure in chief, whereof there shall be any alteration of freehold or inheritance, made by will or otherwise as is aforesaid.  
And it is further enacted by the authority aforesaid, that all and singular person & persons having any manors, lands, tenements or hereditaments of estate of inheritance, holden of the king's highness in chief, by knight's service, or of the nature of knight's service in chief, from the said twenty day of julie, shall have full power and authority, by his last will by writing or otherwise by any act or acts lawfully executed in his life, to give, dispose, will or assign two parts of the same manors, lands, tenements or hereditaments, in three parts to be divided, or else as much of the said manors, lands, tenements or hereditaments, as shall extend or amount to the yearly value of two parts of the same in three parts to be divided in certainty and by special divisions, as it may be known in severalty, to and for the advancement of his wife, preferment of his children, and payment of his debts, or otherwise at his will and pleasure, any law, statute, custom or other thing to the contrary thereof notwithstanding. Saving and reserving to the king our sovereign lord, the custody, wardship, & primer seizon or any of them, as the case shall require, of as much of the same manors, lands, tenements or hereditaments, as shall amount and extend to the full and clear yearly value of the third part thereof without any diminution, dower, fraud, covin, charge, or abridgement of any of the same third part, or of the full profits thereof: Saving also and reserving to the king our said sovereign lord, all fines for alienations of all such manors, lands, tenements, and hereditaments, holden of the king by knight's service in chief, whereof there shall be any alteration of freehold or inheritance, made by will or otherwise, as is abovesaid.  
And be it enacted by authority aforesaid, that all and singular person and persons, having manors, lands, tenements, or hereditaments of estate of inheritance, holden of the king in chief by knight's service, and having other manors, lands, tenements, or hereditaments, holden of the king, or of any other person or persons, by knight's service or otherwise, every such person and persons, from the said twenty day of julie shall have full power and authority to give, dispose, will or assign by his last will in writing or otherwise by any act or acts lawfully executed in his life, two parts of same manors, lands, tenements, or hereditaments, in three parts to be divided, or else as much of the same manors, lands, tenements, and hereditaments, as shall extend or amount to the yearly value of two parts of the same, in three parts to be divided in certainty and by special divisions, as it may be known in severalty, to and for the advancement of his wife, preferment of his children, and payment of his debts, or otherwise at his will and pleasure, any law, statute, custom or other thing to the contrary thereof notwithstanding. Saving alway and reserving to the king our sovereign lord, the custody, wardship, and primer seizon or any of them, as the case shall require, of as much of the same manors, lands, tenements, or other hereditaments, as shall amount and extend to the full and clear yearly value of the third part thereof, without any manner diminution, dower, fraud, covin, charge, or subtraction of the same third part, or of the full profits thereof.  
Saving alway & reserving to our said sovereign lord the king all fines for alienation of any such manors, lands, tenements, or hereditaments, holden of the king by knights service in chief, whereof there shall be any alteration of freehold or inheritance, made by will or otherwise, as is abovesaid.  
Be it further enacted by the authority abovesaid, that if any person or persons, hold any manors, lands, tenements, or hereditaments, only of any other lord or person, than of the king our said sovereign lord by knights service, and other lands, and tenements in socage, or of the nature of socage tenure, that then every such person shall or may give, dispose, or assure, by his last will or otherwise by any act or acts, lawfully executed in his life, two parts of the said manors, lands, and tenements, holden by knight's service, or of as much thereof as shall amount to the full yearly value of two parts, in manner and form as is above declared: and also all the lands and tenements, holden by socage, or of the nature of socage tenure, at his will and pleasure as is above written, saving and reserving to the lord of the lands and tenements, holden by knights service, for his custody and wardship, as much of the same lands and tenements, as shall extend or amount to the full and clear yearly value of the third part of the same lands and tenements, holden by knight's service, without any diminution, dower, fraud, covin, charge, or subtraction of any portion of that third part, or of the clear yearly value thereof in manner and form aforesaid.  
And be it further enacted by the authority abovesaid, that if any person or persons hold any manors, lands, tenements, or hereditaments, only of the king our sovereign lord by knights service and not in chief, or hold any manors, lands, tenements, or hereditaments of our said sovereign lord by knight's service and not in chief, and also hold other manors, lands, tenements, and other hereditaments, of any other person or persons by knight's service, and also hold other manors, lands, tenements, or hereditaments, of any other person or persons in socage, or of the nature of socage tenure, that then all and every such person and persons, shall and may give, dispose, will, devise, and assure, by his last will or otherwise, by any act or acts lawfully done and executed in his life two parts of the same manors, lands, tenements and hereditaments, holden of our said sovereign lord the king by knight's service, and two parts of the manors, lands, tenements, and hereditaments, holden of any other person or persons by knight's service, or as much of either of them as shall amount to the full yearly value of two parts, in manner and form as is above declared: and also of all his lands and tenements, so holden in socage, or of the nature of socage tenure, at his free will and pleasure. Saving and reserving to the king's highness, the custody and wardship of as much of the same manors, lands, tenements, or other hereditaments, as shall extend and amount to the full and clear yearly value of the third part of the said manors, lands, tenements, and hereditaments, so holden of his highness by knights service, without any diminution, dower, fraud, covin, charge, and subtraction of any portion of that third part, or of the full profits thereof. And also saving and reserving to the lords of whom any of the said manors, lands, tenements, or other hereditaments been holden by knights service for custody and wardship, as much of the same manors, lands, tenements or hereditaments, holden of them or any of them by knight's service, as shall extend and amount to the full and clear yearly value of the third part of the same, without any diminution, charge, fraud, covin, or subtraction of any portion of that third, or of the clear yearly value of the third part thereof, in manner & form above declared.  
Provided alway and it is further enacted by the authority aforesaid, that if that third part of the manors, lands, tenements, or hereditaments, of any of the king's subjects, which in any of the cases above said, shall hereafter come to the king's highness, his heirs or successors, by virtue of this act, as is abovesaid, be not or do not amount to the clear yearly value of the third part of all the said manors, lands, tenements, or other hereditaments, whereof the king's highness is or shall be entitled to have the custody or primer seizon, as is above said: that then our said sovereign lord, and his heirs shall and may at his or their free liberty and pleasure, take into his or their hands & possessions, as of the other two parts of the said manors, lands, tenements, and other hereditaments, as with that of the same manors, lands, tenements, or hereditaments, holden and remaining in the king's hands, shall make up the clear yearly value of the full third part of the said manors, and tenements, so to be had to the kings highness in title of wardship and primer seizon, or any of them, as the case shall require, and like benefit and advantage to be given to every lord and lords, of whom any such manors, lands, tenements, or hereditaments, been or shall be holden by knights service as is abovesaid, concerning only his third part of or for title of wardship.  
Provided alway, and be it further enacted by the authority aforesaid, that every person and persons, shall sue their liveries, for possessions, reversions, or remainders, and also pay reliefs and heriots after such manner and form, as they should or ought to have done before the making of this act, and as if this act had never been made. And that fines for alienations shall be paid in the kings chancery, for and upon writes of entry in the post, to be obtained in the same court of chancery, after the said twenty day of julie, for common recoveries, to be had or suffered of any manors, lands, tenements, or hereditaments, holden of the king in chief: in like manner and form as is used upon alienations of such manors, lands, tenements, or hereditaments, so holden in chief, by fine or feoffment.  
Provided also and be it enacted by the authority aforesaid, that in such cases, where fines for alienations shall be paid in the king's chancery, for writes of entry in post, as is aforesaid, that then none other fine shall be paid in the same court for any such writes, any usage or custom to the contrary thereof notwithstanding.  
And be it further enacted by the authority aforesaid, that where two or more persons now hold, or hereafter shall hold any manors, lands, tenements or hereditaments, of the king our sovereign lord by knights service, jointly to them and to the heirs of one of them, and he that hath the inheritance thereof dieth, his heir being within age, that in every such case the king shall have the ward and marriage of the body of such heir so being within age, the life of the freeholder or freeholders of the said manors, lands, tenements, or hereditaments, so holden by knight's service notwithstanding. Saving and reserving to all and every woman and women all and every such right, title, interest of dower, as they or any of them ought to have, or be or shall be justly entitled to have claim or demand of any manors, lands, tenements or hereditaments by the laws of this realm, to be taken or assigned unto them or any of them, out of the two parts of the said manors, lands, tenements or hereditaments, severed and divided from the third part, as is above said, and not otherwise: And saving also to the king our sovereign lord, his heirs and successors, the reversions of all such tenants in jointenure and dower, immediately after the death of such tenants, if they shall happen to die, during the minority of the kings wards.   

another act for the Explanation of the former, concerning wills, and the devise of lands.  
whether in the last parliament, begun and holden at Westminster the 28. day of April, in the 31. year of the kings most gracious reign (cap. primo wills. 2.) And there by divers prorogations holden and contived unto the 24. day of julie, in the 32. year of his said reign. It was by the kings most gracious and liberal disposition, showed toward his most humble and obedient subjects, ordained and enacted, how and in what manner, lands, tenements, and hereditaments, might by will, or testament, in writing, or otherwise by any act or acts lawfully executed in the life of every person given, diposed, willed, or devised, for the advancement of the wife, preferment of children, payment of debts, of every such person, or otherwise, at his will or pleasure, as in the same act more plainly is declared. Sithen the making of statute, divers doubts, questions, and ambiguities, have risen, been moved and grown, by diversity of opinions taking, in and upon the exposition of the letter of the same statute.  
For a plain declaration and explanation whereof, and to the intent and purpose, that the kings obedient and loving subjects, shall and may take the commodity and advantage of the kings said gracious and liberal disposition, the lords spiritual and temporal, and the commons in this present parliament assembled, most humbly beseeching the king's majesty, that the meaning of the letter of the same statute, concerning such matters hereafter rehearsed, may be by the authority of this present parliament enacted taken, expounded, judged, declared, and explained, in manner and form following.  
First where it is contained in the same former statute, within divers articles & branches of the same, that all and singular person and persons, having any manors, lands, tenements, or hereditaments, of the estate of inheritance, should have full and free liberty, power and authority, to give, will, dispose, or assign, as well by last will and testament in writing, or otherwise, by any act or acts lawfully executed in his life his manors, lands, tenements, or hereditaments, or any of them in such manner and form, as in the same former act more at large it doth appear. Which words of estate of inheritance, by the authority of this present parliament, is and shall be declared, expounded, taken, and judged, of estates in fee simple only. And also that all and singular person and persons, having a sole estate or interest in feesimple, or seized in feesimple, in copercenarie, or in common in feesimple, of & in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion or remainder, or of rents or services incident to any reversion or remainder, and having no manors, lands, tenements, or hereditaments holden of the king, his heirs or successors, or of any other person or persons by knight's service, shall have full and free liberty, power and authority to give, dispose, will or devise, to any person or persons (except bodies politic and corporate) by his last will and testament, in writing, or otherwise, by any act or acts, lawfully executed in his life, by himself solely, or by himself and other jointly, severally, or particularly, or by all those ways or any of them, as much as in him of right is or shall be, all his said manors, lands, tenements, rents, and hereditaments, or any of them, or any rents, commons, or other profits, or commodities, out of, or to be perceived of the same, or out of any parcel thereof, at his own free will and pleasure any clause in the said former act notwithstanding.  
And further be it declared & enacted by the authority aforesaid, that all & singular person & people, having a sole estate or interest in feesimple, or seized in feesimple in copercenery, or in common in feesimple, of or in, any manors, lands tenements, rents, or other hereditaments, in possession, reversion, or remainder, or of & in, any rents or services incident to any reversion or remainder, held of the king by knight's service in chief, or of the nature of knight's service in chief, hath & by the authority of this present parliament shall have full and free liberty, power, & authority to give, dispose, will, or assign to any person or people (except bodies politic & corporate) by his last will & testament in writing, or otherwise by any act or acts, lawfully executed in his life, by himself solely, or by himself & other jointly, severally, or particularly, or by all those ways or any of them, as much as in him of right is or shall be, two parts aswell of all the said manors, lands, tenements, rents, and hereditaments, as of all and singular his other rents & hereditaments, or of any of them, or any rents, commons, or other profits or commodities, out of, or to be perceived of the same two parts, or out of any parcel thereof, in three parts to be divided, or as much thereof as shall amount to the full and clear yearly value of two parts thereof, in three parts to be divided, of what person or persons so ever they be holden, at his free will and pleasure. And that by the authority aforesaid, the said will so declared shallbe good and effectual for two parts of the said manors, lands, tenements and hereditaments, although the will so declared be made of the whole, or of more than of two parts of the same. The same division to be made and set forth, by the devisor or owner of the same manors, lands, tenements and hereditaments by his last will in writing, or otherwise in writing. And in default thereof, by a commission to be granted out of the kings court of the wards and liveries, upon the inquiry of the true value thereof, by the oaths of 12. men, and return or certificate thereof had in the same court, of the said manors, lands, tenements, and hereditaments, division to be made by the master of the wards and liveries, if the master of the wards and liveries for the time being, and the parties thereunto can not otherwise agree upon the same division. And that the issues and profits of the two parts of the same manors, lands, tenements, and hereditaments upon every such division, to be restored to them, that shall have right, or title to the same, from the death of the owner or devisor thereof.  
And further be it enacted and declared, by authority aforesaid, that all and singular person and persons, having a sole estate or interest in feesimple, or seized in feesimple, in copercenary, or in common, in feesimple, of and in any manors, lands, tenements, rents, or other hereditaments, in possession, reversion or remainder, or of and in any rents, or services, incident to any reversion or remainder, holden of the king, his heirs or successors by knight's service, and not in chief, or holden of any other person or persons by knight's service shall have full and free liberty, power and authority, to give, dispose, will, or devise, to any person or persons, except bodies politic and corporate, by his last will and testament in writing, or otherwise, by any act or acts lawfully executed in his life, by himself solely or by himself and other jointly, severally, or particularly, or by all those ways, or any of them, as much as in him of right is or shall be, two parts of all the said manors, lands, tenements and hereditaments, or any of them so holden by knight's service, or any rends common or other profits or commodities, out of, or to be perceived of the same two parts, or out of any parcel thereof, in three parts to be divided, or as much thereof, as shall amount to the full and clear yearly value of two parts thereof, in three parts to be divided, at his free will & pleasure. And that the said will so declared, by authority aforesaid, shallbe good and effectual, for two parts of the said manors, lands, tenements, or hereditaments, although the will so declared be, or shallbe made, of the whole lands, and tenements, so holden by knight's service, or of more, than of two parts of the same. And also for the whole of all other such manors, lands, tenements, and hereditaments, or any of them, not holden of the king by knight's service in chief, or otherwise by knight's service, nor of any other person by knights' service, and of any rents, commons, or other profits or commodities, out of, or to be perceived of the same, or out of any parcel thereof at his free will and pleasure. The same division to be made and set forth, by the owner of the said manors, lands, tenements, and hereditaments, by his last will and testament in writing, or otherwise in writing. And in default thereof, for as much of the same manors, lands, tenements, and hereditaments, as shall concern the king's interest, by commission, to be directed out of the king's court of the wards and liveries, in manner & form as is aforesaid, if the master of the wards and liveries for the time being, and the parties thereunto can not otherwise agree upon the same division. And that restitution of the issues and profits of the two parts thereof, shallbe had and made, in manner and form abovesaid. And for such of the same manors, lands, tenements, and hereditaments, as shall concern the interest of any other lord or lords, by commission to be granted out of the king's court of the Chancery, to inquire thereof, by the oaths of 12. men, if the same lord or lords, and the parties thereunto can not otherwise agree upon the same division.  
And be it further enacted and declared by authority aforesaid, that the save, reserving, and provisions, concerning saving of the custody, wardship, relief, and primer season to the king, of such manors, lands, tenements, and hereditaments, or as much thereof, as shall appertain unto him, by virtue of the said former act, and by the declaration and exposition thereof, declared by this present act, during the king's interest therein. And also of the custody and wardship to other lords, of as much of such manors, lands, tenements, and hereditaments holden of them, as shall amount and extend to the clear yearly value of the third part thereof over and above all charges, without any diminution or abridgement of the third part, or of the full profits thereof, comprised and mentioned in divers articles in the said former act contained, by the authority aforesaid be and shallbe intended, expounded, and taken, as hereafter ensueth: that is to say, that the king shall have and take for his full third part, of all such manors, lands, tenements, and hereditaments, where unto he is or shall be entitled by the said former act, and by this present act, such manors, lands, and tenements, as shall by any means descend, or come by descent, as well of the estate of inheritance in fee tail, as in feesimple, or in fee tail only to the heir of any such person or that shall make any will, gift, disposition, or devise, by his last will in writing, or by any act or acts lawfully executed in his life, immediately after the death of the same devisor or owner thereof. And that the will, gift and devise, of every such devisor or owner, of and for the two parts of the said manors, lands, tenements, and hereditaments residue, shall by the authority aforesaid, be and stand good and effectual in the law, albeit, the same will, gift or devise, be had and made of all his fee simple lands, tenements, and hereditaments, and in case the same manors, lands, tenements, and hereditaments, which after the death of any such owner or devisor, which shall make any such gift, disposition, or devise, by his last will, in writing, or otherwise, by any act or acts, lawfully executed in his life, to his wife, children or otherwise, as is aforesaid, which shall immediately after his death, descend, revert, remain or come, to his heir or heirs, as well of estate of inheritance in fee tail, as of estate in fee simple, or fee tail only, be not, or shall not amount or extend to the full clear yearly value of the full third part, with the full profits thereof, of all the said manors, lands, tenements, or other hereditaments of the said devisor or owner, according to the true intent and meaning of the said former act, and of this present act, that then the king shall and may have & take, into his hands and possession, to make up his full third part, with the full profits thereof, according to his interest therein, as much of the other manors, lands, tenements, or hereditaments, willed, given, disposed, or assigned by any such person, to his wife, children or otherwise, as is aforesaid, as with such of the same, manors, lands, tenements, and hereditaments descended, or by any means come unto the heir, as heir of any such devisor or owner, shall make up the clear yearly value of the said full third part with the full profits thereof, of all the said manors, lands, tenements, hereditaments, of every such owner or devisor, so to be had to the king, in the title of wardship or primer season, as the case shall require. And the division thereof, to be had and made, and with the restitution of the profits of the two parts of the said manors, lands, tenements, and hereditaments, in such manner and form as is above rehearsed. And like benefit and advantage, to be given, had and taken, by the said authority, to every Lord and Lords, of whom any such manors, lands, tenements, or hereditaments, been or shall be holden by knights service, in manner and form as is above said, concerning only his or their third parts thereof, according to their said interest therein.  
And be it further enacted, by the authority aforesaid, that if it happen the same third part, or any part thereof, left, willed, or assigned, to the king or other lord, at any time during their interests therein, to be lawfully evicted or determined, that than the king and the other lord, shall have as much of the two parts residue, as shall accomplish and make up a full third part, in clear yearly value, after the rate and portion of such manors, lands, tenements, and hereditaments, as shall then happen to remain of the same third part, not devicted nor determined, and of the other two parts of such manors, lands, tenements, and hereditaments, as the king or other lord should or ought to have had, by virtue of the said former act, and this present act: and the same to be divided, in manner and form above rehearsed, any clause in the said former act notwithstanding.  
And be it further enacted and declared by the authority aforesaid, that the saving and reserving for fines for alienation, by any such last will and testament, of such manors, lands, tenements, or hereditaments, holden of the king by knights service in chief, or of the nature of knights service in chief, or by socage in chief, or of the nature of socage tenure in chief, or for fines for alienation, of such manors, lands, tenements, or hereditaments, whereof there shall be any alteration of freehold, or of inheritance, made by any such last will, comprised in divers and sundry articles, mentioned in the said former act, be and shall be intended, expounded, taken, deemed and judged, by the authority aforesaid, that all such person or persons, to whom the said manors, lands, tenements, or hereditaments, or any of them, be or shall be given, disposed, willed, or devised, by any such last will, shall be exonerated, acquitted and discharged for ever, against the king, his heirs, and successors, for all such fines for alienations, by any such last will or testament, without licence, by suing forth of the kings pardon for alienation out of the kings court of Chancery, paying to the king, his heirs or successors, for the fine of every such alienation, the third part of the yearly value of the same manors, lands, tenements or other hereditaments, to him or them willed or devised, and this act from time to time, shall be a sufficient warrant, to the lord chancellor of England, or keeper of the great seal, for the time being, for the granting out of the said pardon or pardons, under the king's great seal as heretofore hath been used for pardons for alinations, without any further suit to be made to the king for the same.  
And it is further declared & enacted, by the authority aforesaid, that wills or testaments, made of any manors, lands, tenements, or other hereditaments, by any woman covert, or person within the age of 21. years, idiot, or by any person de non sane memory, shall not be taken to be good or effectual in the law.  
And further be it enacted by the authority aforesaid, that if any person or persons having estate of inheritance, of or in, manors, lands, tenements or hereditaments, holden of the king by knights service in chief, or otherwise of the king by knights service, or of any other person or persons by knight's service, hath given at any time sithen the 20. day of the said month of julij 32. H. 8. An. do. 1540 or hereafter shall give, will, devise, or assign, by will or other act executed in his life, his manors, lands, tenements, or hereditaments, or any of them by fraud or covin, to any other person or persons, for term of years, life or lives, with one remainder over in fee, or with divers remainders over for term of years, life or in tail, with a remainder over in fee simple to any person or persons, or to his or their right heirs, or at any time sithen the said 20. day of julie, hath conveyed or made; or hereafter shall convey or make by fraud or covin contrary to the true intent of this act, any estates, conditions, menalties, tenors, or conveyances, to the intent to defraud or deceive the king of his prerogative, primer season, livery, relief, wardship, marriages or rights: or any other lord of their wardships, releefs, heriots, or other profits which should or ought to accrue, grow or come unto them or any of them, by or after the death of his or their tenant, by force and according to the former statute and of this present act and declaration: and the same estates and other conveyances, being found by office to be so made or contrived by covin, fraud or deceit, as is abovesaid, contrary to the true intent and meaning of the said former act, and of this act: That then the king shall have as well the wardship of the body, and custody of the lands, tenements and hereditaments, as livery, primer season, relief, and other profits, which should or ought to appertain to the king, according to the true intent and meaning of the said former act, and of this present act, as though no such estates or conveyances by covin, had never been had or made until the said office be lawfully undone by travers or otherwise. And that the other lord and lords, of whom any such manors, lands, tenements, or hereditaments, shallbe holden by knights service, as is aforesaid, shall have their remedy in such cases, for his or their wardships of bodies and lands, by write of right of ward, and shall distrain and make avowry or cognisance, by themselves or their bailiffs, for their reliefs, heriots, and other profits, which should have been to them due, by or after the death of their tenant, as if no such estate or conveyance had been had or made. Saving and reserving always, by the authority aforesaid the right and title of the donees, feoffees, leassees, and devisees thereof, against the said devisor and his heirs, after the interest and title of the king or other lord therein ended and determined.  
Provided always that this act, explanation, and declaration, or any of them, or any thing in this said act, explanation or declaration contained, shall not extend to the will or devise of sir john Gaynsforde, late of Crowherst in the county of Surrie knight deceased: Nor to the will or devise of sir Peter Filpot knight deceased: Nor the will or devise of Richard Creswel late of Mattingley in the county of South. gentleman deceased, nor to the will or devise of Thomas Vnton late of the county of Berk. gentleman deceased, son of sir Thomas Vnton knight also deceased: or shall be in any wise prejudicial or hurtful, to any person or persons, for or concerning any manors, lands, tenements, or hereditaments, contained or specified in the said wills or devices, or in any of them, but that the said last wills and devices, and every of them, shall stand, abide, remain, and be, in the same case, force and effect in the law, to all intents, purposes and constructions, as the said last wills and devices, and every of them, were before the making of this act, declaration, and explanation, and of none other effect or force: this act, declaration, & explanation, or any of them, or any thing therein contained to the contrary thereof in any wise notwithstanding.  
Provided alway, and be it enacted by the authority aforesaid, that all and every person and persons from whom the king or other lord or lords, shall take any manors, lands, tenements or hereditaments for his or their full third part, or to make up his or their third part, shall and may, by authority of this present act, in any of the cases aforesaid upon his or their bill exhibited in the kings court of Chancery, against all and every such person and persons, which shall be entitled by or under any such will, gift, disposition or devise, to the other two parts, have such contribution or recompense for the same, as by the chancellor of England, or by the keeper of the great seal of England for the time being, shall be thought good and convenient.    

Of the devise of goods and Chattelles.  
1 All manner of goods and chattelles may be devised by will, certain cases excepted.  
2 The rule of the devise of lands contrary to the rule of disposing of goods.  
§. v.  
COncerning the second kind of things deviseable by testament, namely goods & chattelles; this may be delivered for a rule: That all manner of goods and chattelles, may be bequeathed or devised by will or testament 
a. L. caetera. ff. de leg. 1. §. tam corporales. Inst. de legate. & ibid. DD. Lindw. in c. statutum. de testa. lib. 3. provincial. constituc. Cant. Perkins. tit. devise. c. 8. fol. 99 , certain cases only excepted 
b) De quibus. §. pro●. .  
Which rule is clean contrary to the former of the devise of lands, tenements, and hereditaments; for they can not be devised, saving where some custom, or statute hath gained liberty, of bequeathing or devising of the same 
c)  supr. ead. part. §§. 2, 3, 4. : But here in steed of the Negative rule, is set down the Affirmative, the exceptions of which rule are prosecuted in the next Paragraphe.   

divers kinds of goods, not deviseable by will.  
1 Goods which a man hath jointly with an other, can not be devised by will.  
2 What if the other joint-tenannt be made Executor whether is the bequest good?  
3 Goods which a man hath as administrator, cannot be given by will.  
4 Every administrator accountable to the ordinary.  
5 Difference betwixt the executor, and the executor of an administrator.  
6 Goods of the realm, that is to say, of the ancient crown and jewels, can not be given by will.  
7 Goods belonging to a church or hospital, can not be devised.  
8 Goods belonging to a city, borough or commonalty, can not be devised.  
9 Church goods can not be devised.  
10 Things which descend to the heir and not to the executor, are not deviseable by will.  
11 Whether the corn growing upon the ground, whereof a man is seized in right of his wife, be deviseable?  
12 Whether corn on the ground be deviseable by the lessee, the lessor being seized in right of his wife.  
13 Corn growing deviseable by the tenant, by the courtesy of England.  
14 Corn growing deviseable by the tenant in dower.  
15 Whether corn growing on land mortgaged, be deviseable?  
16 Whether corn growing, may be devised by the testators daughter, where a son and heir is afterwards borne, or wherein the mother doth recover her dower?  
17 The testator cannot bequeath that which is an other man's.  
§. vj.  
FIrst a man can not give or bequeath by will any of those goods or cattles which he hath jointly with an other, for if he should bequeath his portion thereof to a third person, this bequest is void by the laws of this realm 
a) Perkins. tit. devise. fol. 101. Doct. & Stud. lib. 1. c. 6. licet ius civil contrarium dictet. L. cùm alienum. C. de legatis. , and the survivor, which had those goods or chattels jointly with an other, shall have that portion so bequeathed notwithstanding the said will 
b) Hoc verum iure regni nostri Angliae. Doct. & Stud. lib. 2. c. 25. secùs iure civili, ut latè per Olden. de action. class. 4. action. pro socio . In so much that if the testator make the other joint-tenant his executor, against the which executor, an action is commenced in the ecclesiastical court in a cause of legacy: nevertheless the executor is not to be adjudged to possess the said goods as executor, or by right of the will, but by the title and right of the survivor 
c) Doct. & Stud. lib. 2. c. 25. , and so the executor is to be dismissed, and the will in that respect to be judged void 
d) Vide supr. ead. part. §. 3. n. 8. .  
secondly, an administrator can not make a testament of those goods which he hath as administrator, to any person dying intestate 
e) Brook tit. administrator. n. 7. Fitzherb. eod. tit. n. 3. , because he hath not any such goods to his own proper use 
f) Ploughed. in cas. inter Bransby & Grantham. fol. 525. 526. , but aught there withal to pay the debts and legacies of the dead person, and to distribute the rest, (if any thing do remain) in Godly and charitable uses 
g) c ita quorundam. de testam. lib. 3. provinci. const. Cant. stat. Ed. 3. an 31. c. 11. , and for that cause, every administrator is accountable to the ordinary for such distribution of the goods of the deceased, committed to his administration 
h) d. Stat. Ed. 3. an. 31. c. 11. . And albeit an executor of an executor may administer the goods of the former testator 
i) Stat. Ed. 3. an. 31. c. 25. : yet the executor of an administrator can not administer the goods of the former deceased, but a new administration is to be committed by the ordinary of all the goods unadministred, by the late administrator, as if he had also died intestate; any testament or assignation of an executor by him notwithstanding 
k) Brook. Abridg. tit. administ. n. 7. Principal grounds. fol. 61. . By this then it appeareth, that the authority of an executor is greater than of an administrator: for an executor may appoint an executor to the first testator, so can not an administrator: How be it an executor can not give away the goods of the testator in his will by legacies, no more than an administrator 
l) Ploughed. d. cas. inter Bransby & Grantham. , for those goods are not the proper goods of the executor: but are to be employed for the behoof of the testator 
m) c. stat. de testa. lib. 3. provincial. constit. Cant. ; and in that respect also is the executor accountable to the ordinary as well as th'administrator 
n) Eod. c. statutum. ; I mean of a bare & mere executor, of whose diligence the testator made special choice, to whom nothing is bequeathed in the said testament.  
thirdly, by the opinion of divers justices of this realm, and doctors of the cannon and civil law, the goods of this realm, that is to say, of the ancient crown, and jewels, cannot be disposed by will 
o) Fitzherb. Abridg. tit. exec. n. 108. , as is aforesaid 
p) Supr. part. 2. §. vlt. .  
fourthly those things, which belong to any college or hospital, can not be devised by the testament or last will of the master of the said College or Hospital 
q) Perkins. tit. deuise● fol. 96. Doct. & Stud. lib. 2. c. 39 . The same may be said of a Mayor of any city or borough, for he can not by his testament, bequeath any thing belonging to the city, borough or commonalty 
r) Perkins. tit. devise. fol. 96. §. non solùm. Instit de lega. verse. sed si. , no more than a master of a college or hospital, such things as he hath in right of the college or hospital 
s) Perkins. ubi supra. .  
fiftly, the goods of the church can not be devised by testament 
t) c. 1. de testam. extr. : But the corn growing upon the glebe 
v) Stat. H. 8. an. 28. c. 11 , and certain other goods may be bequeathed, as hath been before declared 
x) Supr. part. 2. §. penul. .  
sixtly, those things which after the death of the testator, descend to the heir of the deceased, and not to his executor, can not be devised by testament 
y) Perkins. tit. devices. à quo sequentes casus mutuatus sum. , except in such cases, where it is lawful to devise lands, tenements, or hereditaments. And therefore if a man seized of lands in fee or fee tail, bequeath his trees growing upon the said land at the time of his death, this devise is not good except as before: but if he devise the corn growing upon the same land at the time of his death, from the heir to some other person, this devise is good, albeit the land whereupon it groweth be not deviseable: the reason of the difference is, because the trees are parcel of the freehold, and descend together with the land to the heir and not to the executor: but it is not so of corn, for the same shall go to the executor as parcel of the testators goods. And therefore if a man be seized of lands in the right of his wife, and sow the land, and devise the corn growing upon the same land, and die before the corn be reaped: in this case the legatary shall have the corn and not the wife: but it is otherwise of grass, and herbs not separated from the ground, at the time of the death of the testator. If a man seized in fee in right of his wife do let the same land for years to a stranger, and the lessee soweth the ground, and afterwards the wife dieth, the corn not being ripe: In this case the lessee may devise the same corn, notwithstanding his estate be determined. So is it, if he that is tenant by courtesy of England of lands, tenements or hereditaments for his life, let the same land to an other for years, and the leassor die within the term of those years: In this case the lessee may devise the corn which shall be growing upon the same land, not ripe at the time of the death of the testator. Likewise if the tenant in dower, sow those lands which he hath in dower, and make his executors, and after dieth, the corn not separated, there the executors shall have the corn, notwithstanding the same be not seeded, and so the tenant in dower, may devise the corn, growing upon that land which she holdeth in dower at the time of her death. But it is not always lawful for a man or a woman to devise the corn by them sown, for if a man seized of land in fee do infeoffee a stranger in mortgage upon payment, and not payment made on the party of the feoffer, at a certain day: and the feoffee sow the land, and the feoffer pay the money at the day appointed, and enter: in this case it is thought, that the feoffee cannot devise the corn growing upon the said land. Likewise if he that is tenant in tail of certain land, do let the same land for term of life, and the lessee do sow the same land, and the tenant in tail die, and the issue do recover the same in form done in the descent before the corn be separated: it is thought in this case that the issue in tail may bequeath the same by his testament. Moreover if a man seized in fee, have issue a daughter and die, his wife being great with child, and the daughter enter and sow the ground, and afterward before the corn be severed, the wife is delivered of a son, and thereupon his next friend do enter for him; yet the daughter may devise the corn growing upon the same land: but if after the sowing of the corn and before the birth of the son, the mother hath recovered her dower against her daughter, and the same land that is sown, is allotted or assigned unto her by the Sheriff, for her dower, in allowance of other lands, there the mother may devise the corn, growing upon the said land, and not her daughter.  
Finally, whereas by the civil law, it was lawful for the testator to bequeath not only his own things, but an other man's also 
a) §. Non solum Instit. de lega. L. cùm alienum. C. de lega. : in so much that the executor was compellable to redeem the same thing, and deliver it to the legatary, or if the owner would not sell it, then to pay the just value thereof to the same legatary 
b) Eod. §. non solùm. L. non dubium. ff. de lega. 3. , unless the testator were ignorant that the same thing did belong to an other, and did suppose it to be his own: In which case the legacy is void, so that the executor is neither bound to buy the thing, nor to pay the value thereof 
c) d. §. non solùm. L. si unum. §. si rem. ff. de lega. 2. , because peradventure if the testator had known that it had been an other man's, he would not have bequeathed the same 
d) d. §. non solum. Instit. de lega. : yet nevertheless both by the laws ecclesiastical 
e) c. filius. de testa. extr. & ibi Covar. in fin. Panor. in reap. c. cùm esses. eod. tit n. 18. Bar. tract, de differentijs interius can. & civil. n. 86. , & also by the laws of this realm 
f) Ploughed. in cas. inter Bransby & Grantham. huc etiam pertinent quae superiùs scribuntur in initio huius §. de coemptore, seu condomino disponente. , no man can bequeath or devise anything by his testament or last will, saving only that which is his own, and that which he hath to his proper use 
g) Ploughed. ubi sup. ; and if he do bequeath any other man's, the bequest is void; so that the executor is neither bound to redeem the thing for the legatary, nor to pay the value thereof 
h) Covar. Panor. Sichard. ubi supra. ; and that without distinction, whether the testator did know or not know, whether the thing bequeathed were his own, or an other man's 
i) Si enim ignorasset rem esse alienam, tunc vel civili iure non valet legatum. §. non solùm. Instit. de lega. . But what if the testator do bequeath some thing, which at the time of the making of the testament is not his, but the testator afterwards doth buy the same: Whether is this thing due or recoverable by the legatary yea, or nay? By the civil law it is not due 
k) L. 1. ff. de regul. Caton. , but in some few cases 
l) Repertor. Bertachni. verb. regula. Caton. . By the laws of this realm it seemeth that we are to distinguish, whether some special thing be devised or not; for if a special or certain thing be devised, as if the testator do bequeath the manor of Dale, then albeit the testator had no such manor when the will was made: yet by the purchase made afterwards, the testator is presumed to have had this meaning from the beginning, to purchase the same for the benefit of the legatary, and so the devise is good 
m) Ploughed. in cas. inter Bret & Rygden. fol. 344 . But if the legacy be not special but general, as if the testator do bequeath all his lands, than the testator having some lands at the time of making the testament, and purchasing other lands afterwards, these lands purchased after the making of the testament shall not pass 
n) Ploughed. ubi supra. . But howsoever the laws of this realm have determined concerning the devise of lands, tenements and hereditaments, purchased after the making of the testament: yet concerning goods, if the testator do bequeath any such thing in general terms, as a horse or an ox, although the testator have neither horse nor ox at the time of his testament made, neither yet at the time of his death, the legacy is not therefore void 
o) Bar. Paul. de Castr. & al●j. in L. legate. generaliter. de leg. 1. ff. , but the executor is bound to deliver an horse, or an ox, as else where is confirmed, where also is showed to whom the choice belongeth in this case, and what manner thing is to be delivered 
p) Infr. part. 7. §. x. .   

Of Assigning tutors, and disposing of children's portions, during their minorities generally considered.  
1 Many questions about the tuition of children.  
2 The matter of tuitions both large and uncertain.  
§. seven.  
IF I should undertake to speak fully of the assignment, or appointing of tutors to children, and custody of their portions or other rights during their nonage, not only many questions would offer themselves to be handled, (namely who may grant the tuition, of whom, to whom, after what manner, what is the office and authority of a tutor, when the tuition is finished, what action the pupil hath against the tutor for the recovery of his rights, or the tutor against the pupil for the charge of his education and conservation of such things as are due to the child; and finally if the tutor testamentary excuse himself, or refuse the tutorship, what order is to be taken in the behalf of the child,) which questions are so ample & minister so great abundance of matter, that it is not possible to comprehend the same within any compass fit for this brief treatise. And further the customs of this realm are so divers and contrary one to an other, which do concern this matter, that I might easily fall into divers errors.  
Wherefore as well for that this matter should not exceed the proportion of a just member, as also for that I would be loath to play the blind guide, I thought it better, and more safe, to refer the Reader to the learned of every place, of whom he may be more sufficiently certified of their particular customs, then to fill up this volume with the multitude of different; yea and contrary observations, of sundry countries, and places within this Realm, whereof I can obtain no sounder warrant nor better assurance of the legality thereof, than the bare reports, and relations of others.  
Howbeit, forasmuch as within the Province of York, I myself have had some reasonable experience in these affairs for many years, I thought it not amiss briefly to signify what is there observed.   

Of the committing of the tuition of children, and custody of their portions, within the province of York.  
1 No parents of any Country have like power over their children, as had the Romans.  
2 Whence the authority of assigning children, did descend.  
3 The customs of the North parts of this Realm, do very much resemble the Civil law.  
§. viii.  
ALbeit neither within this Realm of England, nor within any realm christian, any parents have the like power over their children, as had the Romans 
a) §. Ius autem. Instit. de tutelis. & ibi glossa in qua enumerantur septem aut octo in quibus ius patriae potestatis consistit. ; to whom alone that patria potestas was proper and particular 
b) Eod. §. nec non tract. de repub. Angl lib. 3. c. 7. Intellige tamen ut in gloss. in d. §. ius auten. ; which was the chief cause whereby they did & might by their testaments, commit the bodies of their children, and their portions at their pleasures to the custody of others according to the civil law 
c) L. 1. ff. de testa. tutel. §. permissum. Instit. de tutel. : yet in divers places within this realm, and namely throughout the province of York, there doth remain a certain resemblance of that power and determination of the civil law; as in many other things, so also in the assigning or appointing of tutors by their testaments or last wills 
d)  patet ex his quae subsequuntur §§. 9, 10, 11, 12, 13, 14. , whether we regard the person of the testator or of him that is assigned tutor, or of the children, or the manner of assignation, or the office and authority of the tutor, or the means whereby the tuition is ended, which I must only point at.   

Who may appoint a Tutor.  
1 The father may appoint a tutor, by his testament or last will.  
2 Whether the mother may appoint a tutor.  
3 Whether a stranger may assign a tutor.  
4 Whether the ordinary may assign a tutor.  
§. ix.  
Understand therefore that by general custom observed within the province of York 
a) De qua consuetudine apertissimè, per indubitatae fidei acta & instrumenta antiqua, in archivis Archiepiscopi E●o●ac. reposita, constat. , the father by his last will or testament may for a time commit the tuition of his child, and the custody of his portion 
b) Fat●or quidem nostratium liberos ab illa prima potestate ferè solutos, & quasi emancip●tos esse, ut refert D. Smith in suo tract. de repub. Angl. Qu●● tamen haec consuetudo, quae vel praecipuè in partibus borealibus viget, summa nitatur aequitate & ratione, negari non potest. Quis enim diligentiùs de pupilli rebus cogitat quàm parents? aut cui maiori curae esse poterit, ut ex eo maximè quantúms nulla alia subesset causa, ijs liceret morientibus, in testamentis suis designare liberis vice parentes eos, quorum experta fide norunt futuros esse liberis suis tutores, id est, tu●ores, sive defensores. , for within that province, children have their filial portions of their father's goods according to the civil law 
(c) Et quidem debetur eadem prorsus quantitas, nam ut quandoque triens, quandoque semis competit. (auth. novissimo C. de inoffic. teston) pro numero liberorum, ita iure quo nos utimur, media pars debetur liberis, nulla relicta vx●re, quà superstite, certia pars bonorum ijs competere dignoscitur. infr. ead. part. §. 16. , except he be heir, or advanced in the life time of his father 
d) Vide infr. ead. part. §. 16. , which testament and assignation is to be confirmed by the ordinary 
e) Id quod iuri civili consonat sed si pater filio emancipato tutorem assignaverit omnino judicis sententia confirmandus est. §. fin. Instit. de tutel. , who also is to provide for the execution of the same testament 
f) Infr. part. 6. § j .  
If the father die, no tutor being by him assigned, and the mother do in her last will and testament appoint a tutor, the same will is to be proved, and the assignation of the tutor confirmed 
g) Confirmatur quidê tutor à matre datus, sed cum inquisitione propter fragile mulieris consilium. Sufficit verò modica inquisitio filius si instituatur, alias requiritur magna. L. matter. C. de testa. tutel. L. 2. ff. de confir. tut. Bar. in L. naturali. §. si quaeratur. eod. .  
And if no tutor be assigned by either of the parents, then may a stranger if he make the Orphan his executor, and give him his goods, assign a tutor unto him 
h) L. patronus. ff. de consir. tit. nam qui instituit impuberem videtureum eligere quasi in filium. Et ipse habetur loco patris. Bald. in d. L. si patronus. , which tutor is by the ordinary to be confirmed 
i) d. L. si patronus. .  
And if there be no tutor testamentary at all, then may the ordinary commit the tuition of the child to his next kinsman 
l) De hac potestate testimonium non obscurum perhibent omnia ferè acta & instrumenta tùm recentia, tùm antiqua, quae in archivis publicis Archiepiscopi Ebor. fideliter custodita.  demanding the same, according as in administrations where any dieth intestate 
(m) Nam ubi successionis emolumentum ibi residet tutelae onus. L. 1. ff. de tutel. , so that the child be not ward, for then the ordinary may not dispose of the custody of his person, as is hereafter declared 
(n) Infr. ead. part. §. xj. .   

Who may be appointed Tutor.  
1 He that cannot be executor cannot be tutor.  
2 Whether he that is under age or lunatic may be appointed tutor.  
3 Whether a woman may be tutrix.  
§. x.  
Any person may be assigned tutor which is not forbidden 
a) Quando excipiuntur aliqui, reliqui proculdubio admittuntur. Name firmat exceptio regulam in non exceptis. Dec. & Cagnol. in L. 1. de reg. ivi. ff. , who is forbidden may appear by that which is hereafter spoken of an executor 
b) Infr. part. 5. , for he that can not be an executor can not be tutor 
c) L. testa. ff. de testa. tutel. .  
He that is not 21. years old, or is not of perfect mind and memory, may be assigned tutor: but it is to be understood that he shall be tutor when he is of full age, or when he doth return to sanity of mind 
d) § furiosus. Instit. qui tut. testa. dari poss. .  
By the civil law a woman (the mother and grandmother excepted) can not be assigned tutrix 
e) L. iure nostro de testa. tuit. ff. : but it is not observed as a law within the province of York, where not only the mother and grandmother are admitted, but other women also, albeit they be married, and under the government of their husbands 
f)  per acta & instrumenta. d. scacarij Archiepiscopi Ebor. .   

To whom a tutor may be appointed.  
1 A tutor may be assigned to him that is not 14. years old, and to her that hath not accomplished twelve.  
2 After 14. and 12. he and she may choose their curators.  
3 When the curator is to be confirmed.  
4 A tutor may be assigned to the child unborn.  
5 No tutor can be assigned unto him that is ward by reason of his lands.  
6 Neither to infants or idiots wards.  
7 Who shall have the ward-ship of a child that hath lands.  
8 What the Guardian may do.  
9 The hard estate of wards.  
10 All infant's wards, are not subject to like conditions.  
11 Who shallbe Guardian to the infant, which hath lands in socage.  
12 Procheyn amie accountable to the ward after his full age.  
13 Idiots in the custody of the prince, whether the custody of an infant or idiot may be devised by the testator.  
§. xj.  
BY the said custom generally observed within the province of York, a Tutor may be assigned to a boy at any time until he have accomplished the age of 14. years, and to a wench until she have accomplished the age of twelve years 
a) L. tutelae. C. de testa. tut. §. permissum. Instit. de tutel. tit. quibus modis tut. finitur. Instit. in prin. . But after those years he or she respectively may choose their own curators, notwithstanding their father's will 
b) §. Item inviti. Instit. de curator. L. diws. §. curatores. ff. qui pe. tut. L. matris. C. eod. in fin. quam op. longaews approbavit usus. : but if they do not electanie other curator after their several ages, than he that is assigned in the will, is to be confirmed curator to either of the said children, albeit he were above 14. years, and she above 12. when the will was made 
c) L. tutelae. C. de testa. tut. §. dantur. Instit. de cura. .  
A tutor may also be assigned to a child that is not borne 
d) §. cum autem. Instit. de tut. : likewise to an idiot, or him that is lunatic 
e) §. furiosi. Instit. de cura. & licet huiusmodi personae, maiores sint 25. annis erunt sub curatione. d. §. furiosi. an haec authoritas fit penes testatorem, vel ordinarium, an ad regem spectet iure praerogat. Quaere ut inf. in d. §. .  
But all this which is here aforesaid is to be restrained, so that it be not to the prejudice of him that is a Guardian, or hath the wardship of any infant or minor 
f) Habenti tutorem tutor non est dandus. §. interdum. Inst. de cura. , or of any idiot, by reason of any lands, tenements or hereditaments, belonging to such infant or idiot 
g) Stat. praerogativae regis. c. 9 Fitzh. Bre●e de idiota inquirendo. . For by the common laws of this realm of England, the lord of whom the infant doth hold his lands, so soon as the father dieth, hath the wardship and keeping of the heir, and thereby may seize upon the body of the ward and his lands 
h) Tract. de repub. Ang. lib. 3. c. 5. per stat. de praerog. regis. an. 17. Ed. 2. c. 1. & 6. , whereof also he may take the profits, without account, so that he nourish and bring up the ward 
i) d. tract. de repub. An. : And not that only, but also offering to his ward convenable marriage, without disparagement before 21. years, if it be a man, or 14. if it be a woman; if the ward refuse to take that marriage, he or she must pay the value of the marriage 
k) Stat. West. c. 22. , which is commonly rated accordingly to the profits of his lands, which is a thing utterly condemned of some & greatly lamented of many, both grave and godly; because of the insatiable covetousness of divers in these days 
l) Vide d. tract. de repub. Angl. lib. 3. c. 5. Terms of law. verb. garden. , for that thereby it cometh to pass many times, that a free man and a gentleman whiles he is an infant, of slender discretion and less experience, destitute of his best friend, that is to say, his natural father, and consequently subject to the subtleties and importunities of his crafty and covetous Gailor, is bought and sold like a beast, to such as seek to make most advantage of him; and in the end besides many more inconueniaunces, matched to my masters daughter, sister, cousin, or some other female, to whom for her virtues and gentle conditions, if thine enemy should be preferred in marriage, thou couldst wish him no greater torment (if it were lawful for thee to wish him any torment) hell excepted.  
To these perils are these infant's subject which hold lands of other by knights service, called in french Guard noble 
m) d. tract. eod. c. 5. , for there is an other kind of service, called Guard Returier alias Guard in socage, or tenure by the plough 
n) Eodem loco. . This wardship falleth to him that is next of kin, and can not inherit the land of the ward 
o) Stat. Marleb. c. 17. an. 52. H. 3. , as the uncle on the mother's side, if the land descend by the father; or the uncle on the father's side, if the land descend by the mother 
p) Brook. tit. gardens & prochein amye. n. 11 12. 13. Terms of law. verb. prochein amye. .  
This Guardian otherwise called prochein amie is accountable for the profits and revenues of the land to the ward, as the tutor for the goods and chattelles to the pupil when he is of full age 
q) d. stat. Marleb. c. 17. d. tract de repub. Angl. lib. 3. c. 5. .  
Concerning Idiottes such is the prerogative of the princes of this land, that they shall have the custody of all the lands of natural fools, and may take the profit thereof without waste or destruction, of whose fee so ever the same be holden, finding to them necessaries 
r) Stat. Ed. 2. de praerog. reg. c. 9 : And after the death of such Idiottes, the land must be restored to the right heirs 
s) Eod. stat. . But in the mean time, that is to say, during the nonage of the ward, or during the life of the Idiot, the tuition of the body of the ward or Idiot, or of his lands can not be devised by testament, to any other person contrary to the course of common law, in prejudice of him to whom the wardship doth belong 
t) Quia tutorem habenti tutor non datur. , saving the testator may commit the custody of such goods and chattelles, as he doth bequeath to the said infant or idiot, to whom he will and during so long time as he will 
v) Siquidem unusquisque potest rebus suis quam velit legem imponere. Mantic. lib. 7. tit. 1. nu. 38. & testatoris voluntas habetur pro lege. L. servus. ff. de manumiss. licet alias videatur per Fitzherb. Nat. Bre. de idiota inquirendo quòd bonaquae idiotae obueniunt, suo gardiano accrescunt. Quaere tamenper Stamford. super d. praerog. reg. c. Idiot. .   

Of the manner of appointing Tutors.  
1 A tutor may be appointed simply or conditionally to a day or from a day.  
2 The condition depending, what is to be done in the mean time.  
3 Lawful to appoint one or many tutors.  
4 Whether where one tutor is appointed an other may be received.  
5 Whether divers being assigned, one tutor alone may be admitted.  
6 By what words a tutor may be appointed.  
7 What if the testator say, I commit my children to thy power or to thy hands.  
8 What if he say, I commit my children unto the quick and dead.  
9 What if he say, I desire thee to take care of my son.  
10 The testator may use any language in the assignation of a tutor.  
§. xii.  
BY the said general custom it is observed within the province of York 
a) De qua per plurima acta & testa. in d. sacro. existen. , that a tutor may be assigned either simply, or conditionally 
b) §. ad certum. Instit. qui testa. tutor dari poss. , and until a certain time, or from a certain time 
c) Eod. §. ad certum. L. tutor. §. tutorem. de testaria. tut. ff. . But no tutor may intermeddle as tutor, until he be confirmed by the ordinary, albeit he be assigned tutor simply 
d) L. legitimus & ibi Bar. ff. de legit. tutel. , much less where he is assigned conditionally, or from a certain time, may he intermeddle as tutor until the condition be extant 
e) L. qui sub conditione ff. de testa. tutel. , or the time limited be expired 
f) d. L. qui sub conditione. : but the ordinary may in the mean time commit the tuition, and he that is so appointed by the ordinary, may for that time administer 
g) Bar. & alij in d. L. qui sub conditione. .  
Moreover it is lawful to appoint either one tutor alone, or many together 
h) L. si plures. ff de testa tut. . Where one alone is appointed tutor by the testator, the ordinary ought not to join an other tutor 
i) §. interdum. Instit. de cura. , unless he that is named tutor be lunatic 
k) L. non solùm. §. vlt. ff. de excus. tut. gloss. in d. §. interdum. Instit. de curator. , or be absent about the affairs of the common wealth 
l) L. tutor. §. si quis abfuturus. ff. de suspect. tut. , for in these and other like cases an other tutor may be joined 
m) Gloss. & Mincing. in d. §. interdum. Instit. de cur. ; at least during the impediment. Where divers are appointed, there one alone may administer 
n) L. 3. de administ. tut. ff. : which conclusion doth proceed with less difficulty, when cotutors can not or will not meddle 
o) L. legitimos. §. in legitimis. ff. de legit. tut. L. 47. de administ. tut.  or transfer their authority to him which dealeth 
p) Bald. in L. qui pupille. C. de negotijs. gest. , for they may do that, and so also be his sureties 
q) L. Romanus. ff. de tutor. vel curator. dat. ab his. .  
It skilleth not by what words the tutor be appointed, so that the testators meaning do appear: for they are nevertheless to be confirmed tutors 
r) L. 1. de confir. tut. ff. & ibi Bar. L. quoniam. C. de testa. Socin. consil. 83. vol. 1. .  
Wherefore if the testator say, I commit my children to the power of A.B. or I leave them in his hands, it is in effect, as if the testator had said, I make A.B. tutor to my children 
s) jas. in L. manumissionis. ff. de justit. & iure. Boer. decis. 124. ubi attestatur hanc opinionem, & tutiorem, & veriorem esse. : so it is if he say, I leave them to his government, regiment, administration etc. 
t) Molin. in addic. ad Decium. in c. ex part de app. extr. Socin. consil. 83. vol. 1. .  
If the testator say, I commit my son to A. B. both quick and dead with all his legacies by me given, by these words it is presumed that the testator meant, that A.B. should be tutor to his child if he lived, and if he died, then to have those legacies 
v) Socin. d. consil. 83. .  
If the testator say, I desire my wife to take care of my children, during their minorities, albeit those words do not necessarily infer or conclude a tuition of their own nature, but rather that she should chastise them, when they deserved to be corrected 
x) Dec. in d. c. ex part de app. extr. Boer. decis. 124 in princ. , (for to have tuition of children is a greater thing and extendeth further than to have a care of them only 
y) Dec. in d. c. ex part. :) Nevertheless for as much as the ruder sort of people, do not know the difference of terms, nor the natural force of words 
z) Socin. d. consil. 83. vol. 1. : Therefore if any be assigned tutor by these foresaid words he is to be confirmed 
a) L. 1. de confir. tut. ff. & ita limitatur. §. quamquam in L. qui aliena. ff. de neg. gest. ut per jas. in L. manumissiones. ff. de justit. & iur. .  
The same also may be said where the testator doth commit his child to the custody of an other: For albeit, it be a greater thing to have the tuition of a child, then to have the bare custody of a child committed unto him 
b) Rom. Sing. 164. Dec. in c. ex part. de app. extr. : Yet in all things the will and meaning of the testator, 
c) d. L. 1. de confir. tut. & DD. in eand. L. molin. in addic. ad lect. Deccis in d. c. ex part. M.  is to be observed and preferred before the property of the words 
d) L. quoniam indignum. C. de testam. , whereof perhaps he is ignorant, which meaning is to be collected by that which went before or folleweth after in the will, and by other circumstances, which the discreet judge ought to inquire 
e) Boer. decis. 124. .  
Finally, it skilleth not in what language the tutor be assigned, whether in English, Latin, Greek, or any other tongue 
f) L. vlt. C. de testa. tur. .   

Of the office and authority of a Tutor.  
1 The office of a tutor doth principally respect the person of the pupil.  
2 The office of a tutor doth secondarily respect the good administration of the pupils goods.  
3 The tutor ought to make an inventary and is chargeable with an account.  
4 Whether a tutor ought to enter into bonds for the performance of his office.  
5 Of the authority of a tutor.  
6 Whether the tutor may alienate the goods of the pupil.  
§. xiii.  
THe office and authority of the Guardian or him that hath the wardship of any infant, by reason of any lands, tenements or hereditaments, whether the same be held by knight's service, or by soccage tenure is already declared 
a) Supra ead. part. §. x, n. 8. 9 , wherefore in this place I shall only touch the office and authority of a tutor, according to the custom observed within the province of York, not greatly differing from the disposition of the civil law.  
This therefore is the office of a tutor. first and principally to defend the person of his pupil 
b) Ind rutores quasi tuitotes, id est, defensores, à tuendo, & defendendo appellantur, sicut aeditui dicuntur, qui aedes tuentur. §. tutores. Instit. de tutel. L. 1. ff. eod. , that is to say, to provide that he be honestly and virtuously brought up, and to provide for him meat, drink, cloth, lodging, and other necessaries, according to the child's estate or condition and ability 
c) Nec tantùm alimenta praestari debent pupillo, sed etiam in studia impensae debent impédi pro facultate patrimonij, & dignitate natalium. Wigand. Happel. tract. de tutel. tit. 138. n. 44. fol. 350. .  
secondarily, the office of a tutor consisteth in the good and faithful administering, or disposing of the goods and chattels of the said pupil 
d) §. datus. Instit. de excus. tut. & Mincing. ibidem. , that is to say, the tutor may not commit any thing that may be hurtful, nor omit any that may be profitable to his pupil 
e) Latiùs de office tutoris. Happelius tract. de tutel. tit. 38. per totum. ; and in the end restore unto the pupil all his goods and chattels, by him the said tutor before received 
f) L. tutorem quendam. C. de arbitr. tut. Olden. de action. class. 4. action. tutel. directa. . And for that purpose every tutor ought even at the very entry into his office, to make a true inventory of all the goods and chattels of his pupil 
g) L. tutor qui repertorium. ff. de administr. tut. L. tutores, vel curatores. C. de administr. tut. Bar. in d. L. tutor. : and to make a just and true account of his dealings, in the behalf of his pupil 
h) L. 1. §. offic. de tut. & ration. distrahend. ff. , and it is generally observed within the said province, that every tutor as well testamentary, as other appointed by the ordinary, doth enter into bond with sureties to the effect aforesaid, according to the discretion of the ordinary 
i) Hoc usitatissimun esse infr. provinc. Ebor. certo certius est, utcunque iure civili tutor testatorius, vel datiws, satisdare non teneatur. L. testamento. de testa. tutel. L. 2. de confir. tut. ff. .  
Concerning the authority of a tutor, assoon as he is confirmed, he may seize upon the body of the pupil 
k) Aymo. consil. 18. , and may likewise take possession of all his goods 
l) L. 1. ff. de admnstr. tut. . And if any do convey away the person of the said pupil, he may be convented and in the end compelled to restore him 
m) Gabr. lib. 5. come. conclus. c. 1. n. 41. post Cas. consil. 120. aim cons. 18. n. 6. fortè etiam incidit in sententiam excommunicationis, quia impedit executionem testamenti. per c. statu. de testa. lib. 3. provinci. constit. Cant. Fitzh. Nat. Bre. fol. 44. . Likewise if any person do detain any thing belonging to his said pupil, recoverable in the ecclesiastical court, he is usually convented by the tutor in the behalf of the pupil 
n) Sed an debet agere, vel conveniri nomine tutorio. Bar. in L. 1. §. sufficit. ff. de admnstr. tut. Brook Abridg. tit. guard. el. 2. .  
Furthermore the tutor may alienate and sell such goods belonging to the pupil, as can not be kept until he come to lawful age 
o) L. lex C. de admnstr. tut. : but other goods which may conveniently be kept, and continued until the pupil attain to lawful years, and especially goods immovable, the tutor may not sell nor alienate 
p) Eadem L. lex. & ibi Angel. & alij. .   

By what means the tutorship is ended.  
1 The tutor-ship is ended by divers means.  
2 In respect of pupil the tutor-ship is ended when he cometh to lawful age.  
3 Sufficient age in a man at 21. sometimes at 14.  
4 Sufficient age in a woman, at 12. 14. 16. years in divers respects.  
5 In respect of the tutor his office is ended, if he cannot be executor or do excuse himself.  
6 Likewise if he be removed as suspected, or become lunatic or deaf and dumb, or be absent or die.  
7 How the tutorship is ended in respect of the form of the tuition.  
§. xiv.  
THe tutor-ship is ended by divers means, whereof some respect the person of the pupil, some do respect the person of the tutor, and some do respect the manner and form of the tuition itself 
a) Vigel. method. iur. civil. part. 2. lib. 5. c. 8. Wigand. Happel. tract. de tutel. tit. 55. 56. etc. .  
In respect of the person of the pupil, the tutorship is finished, when the pupil hath accomplished sufficient age. Sufficient age in a man is sometimes at 21. years and not before, sometimes at 14 
b) Minor quibus casibus habetur pro maiore, vide Repertor. Bertachni. verb. minor. gloss. & DD. in c. ex part. de restitue. spol. extra. . In a woman sometimes at 12. sometimes at 14. and sometimes at 16 
c) Tract. de repub. Ang. lib. 3. c. 5. Principal grounds. fol. 35. Brook tit. guard. el. 2. . He that is ward by reason of lands holden in knight's service is not out of ward-ship until he be of the age of 21. years 
d) Mag. Char. c. 3. an. 9 H. 3. Bract. de leg. & cens. Angl. lib. 2. c. 37. Brook tit. guard. n. 111. : he that is ward by reason of lands holden in socage, is then out of wardship when he is of the age of 14. years 
e) Terms of law. verb. prochein Amy. , at which years he may refuse his guardian, and call him to an account 
f) Marlebr. c. 17. an. 52. H. 3. , at the same age also is the tutor-ship ended (if he have no lands but goods) and the minor may then also call his late tutor to account 
g) L. indecorum. C. cum tut. esse desin. Instit. quib. mod. tut. fin. in prin. : and if he will he may then choose a curator, either the same person that was tutor or some other 
h) Supr. ead. part. §. x. .  
A woman assoon as she is 12. years of age, is out of the government of her tutor 
i) Inst. quib. mod. tut. fin. in princ. , unless she be ward in respect of lands, for than she shall continue ward until she be 16. years old 
k) Brook tit. guard. el. 2. n 7. Principal grounds. fol. 35. , except she be of the age of 14. years at the death of her ancestors, for being of those years at her ancestors death, for as much as she may have an husband able to do knights service, she shall not be ward 
l) Tract de repub. Ang. lib. 3. c. 5. Fitzh. Nat. Bre. fol. 141. D. .  
In respect of the person of the tutor the tuition is ended, if he become such a one, as can not be made executor 
m) L. testament. de testa. tut. ff. , of whom mention is made hereafter 
n) Infr. 5. part. , or if he justly excuse himself 
o) Instit. tit de excus. tut. l. 2. §. remittit. ff. eod. : (But those laws concerning excusing of tutors and curators are very seldom or not at all practised: for tutors now a days are so far from excusing themselves, that on the contrary they strive and labour mightily to be admitted, turning that to a benefit, which was wont to be a burden 
p) Olden. in L. 12. tab. tit. 3. fo. (mihi) 55. Trac de repub. Ang. lib. 3. c. 5  or if the tutor be removed as suspected, the tuition is determined 
q) L. si arrogati. §. pen. ff. de tut. §. pen. Instit. de suspec. tut. , (and he is said to be a suspected tutor which dealeth not faithfully in his office 
r) §. suspectus. Instit. de susp. tut. vel cur.  or if the tutor become lunatic, or deaf and dumb, or in that case, that he can not govern or administer his goods 
s) L complurima ff. de tutel. L post susceptum de excus. tut. , or if he die 
t) L. Cuius bonis. C. de curator. furios. , or is absent, being taken of the enemy 
v) L. si arrogati. ff. de tutel. .  
In respect of the manner and form of the tuition, the office and authority of the tutor is determined, as if the tutor be appointed upon condition, which condition is broken, or if the tutor be appointed during a certain time, which time is finished 
x) § praetereà. Instit. quib. mod. tut. fin. L. si adrogati. §. sed etsi. & §. fin. ff. de tut. , in these and many other respects (which for brevity I omit) the tutor-ship is determined 
y) Videant justinianistae Vigelij methodum juris civilis, ubi perplures traduntur causae finiendi tutelam. .   

Of the quantity of lands deviseable by will.  
1 Of lands, tenements, and hereditaments, sometimes all, sometimes but two parts of three, is deviseable.  
§. xv.  
Now that I have showed what kind of things may be devised by will, it remaineth to show how much is deviseable, of lands or goods.  
And first concerning lands, tenements and hereditaments, sometimes they may be devised wholly, as lands, tenements and hereditaments holden in socage, or of the nature of socage tenure 
a) Sup●. ead. part. §. 4. : sometimes two parts of three may be devised, namely of lands, tenements and hereditaments holden in chief by knight's service, or of the nature of knights service in chief 
b) Eod. § 4. , as appeareth more fully heretofore, where I have set down the statutes at large.   

What quantity of goods or chattels may be devised by testament.  
1 Legacies to be paid out of the clear debtlesse goods.  
2 The executor compellable to pay debts out of his own purse, if he pay legacies first.  
3 Funeral expenses to be deducted out of the whole goods.  
4 The testator may sometime bequeath all his detlesse goods, sometimes half, and sometimes but a third part.  
5 When half the testators goods is due to the wife or children.  
6 When the wife and children ought to have either of them a third part.  
7 Whether the wife and children ought to have any part of the debts due to the testator.  
8 Whether the wife and children may claim any reasonable part of leases.  
9 Whether the wife and children may claim a reasonable part of goods, where there is no custom.  
10 The reason of the law which leaveth all to the disposing of the testator.  
11 The reason of the custom whereby the power of the testator is restrained.  
§. xuj.  
COncerning the quantity of goods and chattelles to be disposed, this is first to be noted, that the testator can not bequeath any part of the goods, but where something remaineth clear, the moderate funerals, and the debts due by the testator first discharged 
a) Bracton de legib & cons. Angl. lib. 2. c. 26. n. 2 L. scimus. §. & si praesatam. C. de iure de lib. In qua lege assignatur ratio quare legatarijs praeferuntur creditores: nempe legatarij de lucro captando, creditores autem de damno vitando contendunt. d. L. scimus. Et licet haeres qui inventario legitimè confecto, leg atarijs satisfaciat, securus sit iure civili adversus creditores, quibus eodem iure concessum estactionem intentare, non contra haeredem, sed contra legatarios. Longè tamen aliter iure nostro, cautum est, quo non legatarios, sed ipsum executorem convenire permittitur, ut statim subijcitur. . And therefore if the testator do bequeath any legacies by his testament where his goods and chattelles will not suffice to discharge his funerals and debts, and the executor pay any of those legacies, before he have discharged the debts, by means whereof there is not sufficient goods left wherewith to pay the testators debts: in this case the executor shall be charged with the payment thereof out of his own purse 
b) Fitzherb. Abridg. tit. devise. n 1. Brook. tit. admnstr. n. 37. Perkins. tit. devise. fol. 109. , as one that had otherwise wasted the goods of the testator 
c) Doc. & Stud. lib. 2. c. 11. quam conclusionem facile admitterem, conscio executore aeris alieni. Sichard. in d. §. & si praefatam. verb. 3. utilitas. & Mincing. in §. sed nostra Instit. de haered. qual. & diff. n. 12. Caterùm quod nonnulli ex nostratibus eandem conclusionem extendunt, ut locum habeat vel ignorant executore, alios esse creditores: An istud verun. sit dubito, durum esse non inficior. Et quidem summus justiciarius Brook oppositam sententiam tenet, nisi ubi principi quid sit debitum, quia regia debita suo periculo scire debet. Brook. tit. exec. n. 116. .  
This then being understood that no legacy is due, but where there clearly remain some goods and chattels, the funerals and debts first deducted (for funeral expenses are to be deducted forth of the whole goods both by the civil law 
d) L. scimus. §. in computation C. de iure delib. , and by the laws of this realm 
e) Fitzh. Na. Br. fol. 121 Doct. & Stud. lib. 2. c. 10. Brook Abridg. tit. exec. n 172. .) Thou shalt understand that of that which remaineth, sometimes the whole, sometimes the half, and sometimes the third part, may be bequeathed or devised by the testator, according to the diversity of these cases following.  
The first case is, when the testator hath neither wife nor child, at the time of his death, for than he may dispose all the residue of his clear goods and cattles at his pleasure 
f) Lindw. in c. statut. de testam. lib. 3. provincial. constit. Cant. verb. defunctum. Bracton. de legib. & consuetu. Ang. lib. 2. c. 26. Tract. de repub Angl. lib. 3. c 6. Fitzherb. Bre. de rationabil. part bon. .  
The second case is, when the testator at the time of his death hath a wife and no child, or else some child or children, but no wife. In which case by a custom observed, not only throughout the province of York, but in many other places beside, within this realm of England; the goods are to be divided into two parts, and the testator can not bequeath any more than his part, that is to say, the one half, for the other half is due to the wife, or else to the children, by virtue of the said custom 
g) Lindw. Bracton. & Fitzherb. ubi supr. .  
The third case is, where the testator leaveth behind him both a wife, and also a child or children: In which case by the custom observed in divers places of this realm of England, and namely within the province of York: the testator can not bequeath any more of his goods, than the third part of the clear goods 
h) Act. & computat. in scaccario Archiepiscopi Ebor. Lindw. Bract. & Fitzher. ubi supr. , for in this case the said clear goods are to be divided into three parts, whereof the wife ought to have one part, the child or children an other part, and the third part (which is called the deaths part) remaineth, to the testator, by him to be given or bequeathed to whom he thinketh good 
h) Lind. Bract. & Fitzh. in locis praed. .  
And here note that where the wife or children ought to have a rateable part of the goods of the deceased, be it a third part or half as the case yieldeth, there also they ought to have a like part of the debts due unto the testator after they be recovered by the executor or administrator, for than they are numbered or accounted amongst the goods of the testator but not before 
i) Brook Abridg. tit. exec. n. 112. Siquidem si ista ex cōsuetudiue tantum debentur, hac non prob●ta, sine difficultate illud procedet quod est iuri recepto magis consonum. . But of leases the wife and children can not have any rateable part within the province of York, or other places, where they have been accustomed to have their rateable part of the movable goods and debts recovered, unless the said wife or children demanding their rateable parts of leases, do prove that by special custom of that place, (namely of that city, county, deanery or parish where the testator dwelled and had such leases,) the wives and children were accustomed to have their rateable part, as well of the leases, as of the movable goods of the testator, which special custom being proved, they may recover their rateable part as before 
k) Fitzh. in Br. de rationab. part. in quo Brevi fit mentio, non solùm bonorum, sed etiam. cattallorum. Atque huc facit, quod habemus in Mag. Chart. c. 18. .  
The fourth case is, when there is no such custom, of dividing the goods of the testator into two parts, or into three parts, as is before mentioned, in which case albeit some were of this opinion, that even by the common laws of this realm, the clear mooveable goods were to be divided into three parts or into two parts as before, whereof the wife and children were to have their parts 
l) In hac sententia stetit Glandevile, antiquus huius regni iurisconsultus, motus per stat. de Magna. Chart. c. 18. ut refert Fitzh. in d. Brevi de rationab. part. bon. Brook Et per de rationab part: bo: sic enim post multam disputationem inquit. Et fuit dit pue. ley M. 31. Henr. 8. que ceo ad estre mise en ure come un comen ley & nunque demur, & ideo videtur que ceo est le com̄en ley. , and consequently that the testator could not dispose any more thereof, than the half or third, being the deaths part. Nevertheless others (whose opinion hath prevailed) do hold the contrary, to wit that there is no such division to be made by force of the common laws of this land, but only by force of custom 
m) Fitzh. d. Br. de rationab. part. bonor. Brac. de legib. & consuet. Ang. lib. 2. 26. Tract. de repub. Angl. lib. 3. c. 6. , and consequently that it is lawful for the testator, by the laws of this realm (except in those places where the custom aforesaid is observed) to dispose all the whole residue of his goods, his funerals and debts deducted) at his liking, and that the wife or child can claim no more thereof, but according as the testator shall devise by his testament.  
And in the opinion of some, the law of this land which leaveth all the residue to the disposition of the testator, funerals and debts deducted, seemeth to have better ground in reason, than the custom, whereby he is forced either to leave two parts of three, or at least the one half to his wife and children 
n) Bracton. d. lib. 2. c. 26 . For what if the son be an unthrift, or naughty person, what if the wife be not only a sharp shrew, but perhaps of worse conditions? Is it not hard that the testator must leave either the one half of his goods to that wife or child or more, for the which also peradventure he had laboured full sore all his life? were it not more reason that it should be in the liberty of the father, or husband to dispose thereof at his own pleasure? which when the wife and children understood, it might be a means whereby they might become more obedient, live more virtuously, and contend with good desert, to win the good will and favour of the testator 
o) Hisce rationibus utitur Bracton in desensionem ●u● is huius regni. d c. 26. cui add Rebuff. in L obuenire de verb. signif. ff. fol. 682. . These reasons make for the testator, and for the equity of the common law, which leaveth the whole residue to his disposition.  
But the custom whereby the liberty of the testator is restrained is not without reason also. Forwhere it is asked, what if the child be an unthrift, the wife worse than a shrew? So it may be demanded with like facility, what if the child be no unthrift, but frugal and virtuous? what if the wife be an honest and modest woman? which thing is the rather to be presumed 
p) c. dudum. etc. vltim. de praesump. extr. Mas. card. tract. de probae. conclus. 222. . But if it be not amiss to fear the worst, then on the contrary, what if the testator be an unnatural father or unkind husband? perhaps also greatly enriched by his wife, whereas before he was but poor, standeth it not with as great reason that such a wife and children should be provided for, and that it should not be in the power of such a testator, to give all from them, or to bestow it upon such as had not so well deserved it, and by that means set his wife & children a begging? surely the custom hath as good ground in reason against lewd husbands and unkind fathers, as hath the law in meeting with disobedient wives and unthrifty children 
q) Mediam viam elegit justinianus, tàm quoad uxorem, quàm quoad liberos. Nam quod ad uxorem attinet, inbet imperator illa bona restitui, quae marito vel ab ipsa uxore, vel ab alio nuptiarum causa, nempe ad sustinenda matrimonij oneradonata sure. L. 2. fol. matr. ff. Bar. in Rub. solu. m●iom. ff n. 21. quod autem attinet ad liberos iure civili, Assis nunc triens, id est, tertia pars totius patrimonij, nunc semis, seu dimidium assis pro legitima debetur. Auth. novissimo. C. de inoffic. testa. quae quidem legitima gratis tantum liberis deberi intelligitur: nam ingratis nihil habet parens pro legitima ●●linquere. Claud. Battandier. tract. de legitima. c. 13. .   

If the testator do bequeath more than he may, which legacy is to be preferred or what other course is to be followed.  
1 If the testator bequeath more than the death's part, whether one legacy is to be preferred before an other?  
2 divers opinions about this question.  
3 First concerning this question we are to consider, whether there be an inventary or not.  
4 An inventary being made the legatary need not pay any one whole legacy, where there is not sufficient to pay the rest.  
5 Certain cases wherein an inventary being made, the executor is forced to discharge some legacies wholly, though there be not sufficient goods wherewith to discharge the rest.  
6 If the executor pay to some legatary his whole legacy, whether he thereby tie himself to pay the rest wholly also.  
7 Whether the legacy being unduly paid, may be recovered.  
8 No inventary being made, how far the executor is bound to pay legacies.  
§. xvij.  
Now that we have seen when the testator may dispose all the residue of his clear goods or half, or but the third part only: and what be the reasons of enlarging or restraining of the liberty of the testator in that behalf, for as much as it doth often fall out in fact, that the testator doth bequeath more by his testament, than he may by law or custom, that is to say, more than the whole residue where he may dispose all, or more than the half, where he can give but the half, or more than the third, where he can give no more but the third. It shall not be unprofitable to examine which of the legacies are first to be discharged, and namely whether that legatary which is first named in the will, aught to have his legacy first answered before the rest, and that he that is named in the second place to have his legacy next, and so the third and fourth, until the deaths part be wholly spent, & then the rest of the legataries to have nothing: or whether the executor may gratify which of the legataries he will, without difference whether he be first or last named in the will, or else whether ought every legatary to suffer defalcation, or rateable deduction from every legacy, to wit, from the greater legacy the greater part, and from the lesser legacy the lesser part, proportionably, so that the legacies do not exceed the deaths part, and that the death's part may suffice to pay the legacies.  
It seemeth by the opinion of some, that a rateable part is to be deducted, & taken from every legacy, and that it is not in the power of the executor to gratify any one legatary to the prejudice of an other legatary, whether he be first or last in the testament 
a) L. si quis testamento § apud julianum. ff. de leg. 1. & jas. ibid. Paul. de castr. in L. scimus. §. legitimam creditorib. C. de iure delib. , but rather, if the executor pay to one legatary his whole legacy, that then he bindeth himself to pay to the rest of the legataries their whole legacies also 
b) In Auth. de haered. & falcid. §. non autem. & ibi Bar. .  
On the contrary it seemeth by the opinion of others, that if the executor do make an inventory, than it is in the power and choice of the executor, to pay to which of the legataries he will, his whole legacy 
c) L. scimus. §. & si praefatam. C. de iure delib. & ibi jas. verb. tertia utilitas. Ploughed. in cas. inter Paramor & Yard. his verbis: Si home devise a A. 20. li. a B. 20. li. & a C 20. li. & fait son. exec. & morust ayant biens forsque all value de 20. li. Orc. il est id election de executor, a queux de euxe Troy's ill voyl payer lez 20. li. & sil payer a lune, lauter ne poyet contradire ceo, ne ad ascun remedy pur son legacy. fol. 545. : like as it is in his choice to pay to which creditors he will his whole debt 
d) d. §. & si praefatam. , albeit he be not ignorant of other debts, of the same nature 
e) Et hoc ita iure huius regni. ut infr. part. 6. §. 16. secus iure civili. ut eod. §. 16. , and that payment being made accordingly, and no assettes remaining in the hand of the executor, the legatary hath no more remedy against the executor for his legacy, then hath the creditor for his debt, who by the laws of this realm is utterly excluded, and by which laws it is lawful for the executor, to gratify which of the creditors he will 
f) Do. & Stu. lib. 2. c. 10. , saving in certain cases else where mentioned 
g) Infr. part. 6. §. 16. .  
In which contrariety of opinions this is first to be considered: whether the executor do make an inventory or not.  
If the executor do make an inventory, according to the laws and statutes of this realm, than he need not pay to any legatary his whole legacy 
h) Paul de Castr. in L. scimus. §. Ima. creditoribus. C. de iure delib. Alex. in d. L. §. & si praefatam. , though he be first named in the will 
i) jas. in L. si quis testa. §. apud jul. ff. de leg. 1. , (I mean where there is not sufficient, to answer to every legatary his whole legacy) but may retain a rateable part, according to the proportion aforesaid 
k) Immò iure civili legatarius partem indebite solutam restituere tenetur. Castrens. & Alex. ubi supr. unde frustra peteret, quod statim restitueret. c. dolo. de reg. iur. 6. non tamen potest executor falcidiam retinere. Spec. de Instr. edit. §. xii. n. 26. ; saving in certain cases, whereof one is, when some special thing is bequeathed, as the testators signet or his white horse, which special legacy, (as some do deem,) is to be satisfied and paid wholly without diminution in respect of any other general legacies, or of legacies which do consist in quantity 
l) jas. post Paul de Castr. in d. L. si quis testo. §. apud jul. quamuis non negem propositionem hanc non sine difficultate procedere. . another case is when the legacy is to be distributed in pios usus 
m) Castrens. in d. §. apud jul. . An other is when the father doth bequeath some thing to his daughter for her dower, or towards her marriage 
n) Castrens. ubi supr. . An other is when the testator doth bequeath any thing in satisfaction or recompense of some injury by him done, or of goods evil gotten 
o) Castrens. in d. §. Federic. de senis consil. 243. , for those legacies also are not to be diminished by reason of other general legacies, or legacies consisting in quantity, the which shall remain wholly unsatisfied, rather than those foresaid legacies shall be diminished: and consequently in these cases it is not in the power of the executor, to gratify any other legatary at his election 
p) Paul. de Castr. in d. §. apud jul. cuius consilio haec sunt menti tenenda, quia (inquit) sunt singularia. .  
Furthermore if the executor do make an inventory, and afterwards pay to some legatary his whole entire legacy, yet is he not thereby tied, to pay the rest of the legacies wholly, (the deaths part not being sufficient) and this is undoubtedly true, if the executor were ignorant of other legacies given by the testator 
q) Plowden in cas. inter Paramor & Yardley. Quod verò Bar. scripsit quòd haeres subtiliter seu scienter uni legatario integraliter soluens, omnibus alijs in solidum solvere compellitur, omni penitus inconstantia amota, intelligendum est, sine deductione salcidiae, id est, quartae haeredi debitae. (Bar. in §. non autem. de haered. & falcid. in Auth.) Nec enim dixit, neque profecto somniavit Bartolus haeredem compellendum solvere reliqua legata sine diminutione legatorum, quae superant vires haereditatis, facto scilicet inventario. DD. in Auth. sed cùm testator. C. ad L. falcid. , exceeding the deaths part when he did pay the whole legacy 
r) L. scimus. §. & si praefatam. C. de iure delib. & ibi gloss. ibidem. . But neither the executor nor any other legatary, can reclaim or recover that overplus paid and delivered to the hands of the legatary, as unduly paid unto him, in respect that there is not sufficient to pay all the rest of the legacies out of the deaths part 
s) Hoc verum iure quo nos utimur, quo neque executori, neque legatario competat indebiti condictio, vel aliqua actio quae sapiat eius naturam. Immo verò vel ipso iure civili, utcunque creditoribus, vel legatarijs, per huiusmodi actiones subveniatur; at certe executori legis Falcid. vel Trebel. beneficium prorsus denegatur. Spec. de Instr. edit. §. nunc verò aliqua. n. 26. .  
If the executor enter to the testators goods and will make no inventary thereof, then may every legatary recover his whole legacy at his hands 
t) L. scimus: C. de iure delib. facit. c. in literis. de raptor. extr. , for in this case the law presumeth that there is sufficient goods to pay all the legacies, and the executor doth secretly and fraudulently subtract the same 
v) Sichard. in d. L. scimus. §. & si praefatam. quod intellige nisi executor doceat de bonorum insufficientia, nam tunc licet non conficiat inventarium, non tenetur ultra vires haereditatis. jas. in d. § & si praesatam. limitac. 4. Covar. in c. 1. de testa. extr. n. 15. De iure verò regni nostri, sive sit inventarium confectum, sive non, creditor, seu qualiscunque petens, sufficientiam probet bonorum, ut videtur per Dyer. M. 6. Hen. 8. c. 3. & alibi. , whereas otherwise the executor is presumed not to have any more goods which were the testators, then are described in the inventary, the same being lawfully made 
x) Bald. & Sichard. in §. Imia. d. L. scimus. & haec opinio communis est, ut ait Franciscus Herculan. tract. de probac. ne●a. n. 256. .    

THE FOURTH PART OF THIS TREATISE, SHOWING HOWEORIN what manner Testaments may or ought to be made.  

The Paragraphes or Chapters of the fourth part.  
OF the forms of testaments §. 1.  
Of the general, substauntiall, form of a testament §. 2.  
After how many sorts an executor may be made §. 3.  
Of a simple assignation of an executor §. 4.  
Of a conditional assignation, or nomination of an executor §. 5.  
Of the effect of a conditional disposition §. 6.  
Whether every possible condition ought to be observed precisely §. 7.  
Whether the condition be accounted for accomplished in law, when it doth not stand by the executor or legatary, wherefore the same is not accomplished. §. 8.  
Whether he that is made executor, or to whom any legacy is bequeathed conditionally, may in the mean time whiles the condition dependeth, be admitted to the executorship or obtain the legacy by entering into bonds to perform the condition, or else to make restitution. §. 9  
Whether it be sufficient that the condition was once accomplished, though the same do not continue. §. 10.  
Of divers conditions which may seem doubtful whether they be lawful or unlawful: And first of those conditions whereby the liberty of making testaments is hindered; how far the same are lawful or unlawful §. 11.  
Of those conditions whereby the liberty of marriage is hindered; how far the same are lawful or unlawful §. 12.  
Whether the prohibition or forbidding of alienation of the goods bequeathed be good or not §. 13.  
Within what time the condition may or ought to be performed, no certain time being limited by the will §. 14.  
Of the understanding of this usual condition, (If he die without issue.) §. 15.  
What order is to be taken concerning the administration of the goods of the deceased, whiles the condition of the executorship dependeth unaccomplished §. 16.  
Of the making of an executor, to or from a certain time §. 17.  
Of the making of an executor universally or particularly §. 18.  
Of making of executors by degrees §. 19  
How many may be appointed executors §. 20.  
Of those things which do appertain to the appearance of testaments §. 21.  
Of the particular forms of testaments §. 22.  
Of the form of a solemn testament §. 23.  
Of the form of an unsolemn testament §. 24.  
Of the form of a written testament §. 25.  
Of the form of a nuncupative testament §. 26.  
Of the particular forms of other testaments or last wills §. 27.   

IN WHAT MANNER TESTAMENTS OR LAST WILLS ARE to be made. The fourth part.  
Of the forms of testaments.  
1 So many several forms of testaments as there be kinds.  
2 Of testamentary forms some be general, some particular.  
3 The general form of testaments is twofold essential and accidental.  
§. j  
Here followeth the fourth principal part of this testamentary treatise: wherein I undertook to show how or in what manner testaments or last wills may or ought to be made.  
For performance whereof I thought it convenient, first to deliver certain advertisements, and then to proceed.  
The † first advertisement is this, that as there be divers kinds of testaments or last wills (whereof heretofore 
a) Supr. 1. part. §§. 7, 8, 9, etc. ) so there be divers forms of testaments or last wills: for every kind hath his several form, and every kind differeth from an other by his form 
b) L julianus §. si quis. ad exhibend. ff. .  
The † next advertisement is this, that albeit every particular kind of testament have his proper form peculiar to itself 
c) Supr. 1. part. §§. 7; 8. etc. & infr. ead. par. §. 22. cum reliq. usque ad finem ; nevertheless they have also general forms common to them all 
d)  infr. eod. §. & §. prox. .  
Wherefore before I speak of those particular forms, order requireth that I speak of the general.  
Of † which general forms some do respect the substance or inward essence of the testament, whereby that is made to be, which was not 
e) Bar. & jas. in L. nemo ff de leg. 1. , and some do respect the outward appeeraunce or proof of the testament, whereby that is made to appear, which otherwise though it were should not seem to be 
f) Olden. de action. class. 5. in prin. ubi tenet contra Bar. & alios, solennitatem testamentariam non esse de forma substantiali, s●u essentiali, sed de forma probatoria. Cuius opinio hand dubie vera est, ubi solennitas non est de necessitate eiusdem, ut hic in Anglia Conar in c. cùm esse●. de testa. extr. n 8. Mincing in §. sed cùm pa●latim. instit. ●e t●●●a. o●din. n 4. .   

Of the general substantial form of every Testament.  
1 The essential form common to every testament, is the naming of an executor.  
2 What it is to appoint an executor.  
3 The naming of an executor is said to be the head of the testament.  
4 The naming of an executor is also said to be the foundation of the testament.  
5 No will properly termed a testament, wherein no executor is named, albeit other legacies be left therein.  
6 The effect of dying without or with an executor.  
7 An occasion of further consideration concerning the making of an executor.  
§. ij.  
THe general, † substantial, or essential form common to every testament, is the naming or appointing of an executor 
a) L. 1. de haered. Instit. L. 1. de vulg. sub. L. haeredes palam de testa. ●●●nce obstat quod ius civil mentionem faciat de haerede, non d executore. N●m executores quales passim constitutos videmus in Anglia, ex omni ferè part conueni●e cum ijs, quos (nomen tant●̄ si excipias) civil ius appellate haeredes compertum est, ita, ut executor huiusmodi ●●●ritò vice haeres dici debeat. Quinimo & legistae, & canonistae omnes, illum pro haerede agnoscunt executorem, qui nullo allo instituto haerede deputatus est ad distribuendum bona defuncti in pios usus. Bar. in L. nulli. C. de episcopis & cler. Zas. in L. precibus de vulg. sub. Ripa. in L. filiosa de leg. 1. n. 21. ff. Pano●. & Covar. in c. cùm tibi de testa. ext. Lindw. in c. statutum de testa. lib. 3. provincial. const. Cant. verb. prius. Mantic. de coniect. vlt. vol. lib. 4 tit. 1. n. 7. , the which alone doth make a testament, and without the which no will neither is, neither can be rightly termed a testament 
b) L. quod per manus. de iure codicil. Bar. & jas. in d. L. nemo de leg. 1. ff. Idipsum jas. in Rub. de leg. 1. qua etiam in re conspirant iura huius regni, ut per Brook his verbis: Alias citatis, & nunc denuo citandis. Nota per lez doctors deal civil ley, & sergeants deal comen ley, si home sait son testament & nosme nuls executors, ceo nest testament, etc. Et alibi per Ploughed. sub hac verborum forma: Sans testament home ne serra executor. Brook tit. exec. n. 20. Ploughed. in cas. inter. Gre●sbrook & Fox. fol. 276. b. . To † name or to appoint an executor, is to place one in the steed of the testator, who may enter to the testators goods and cattles, and who hath action against the testators debtor, and who may dispose of the same goods and chattels, towards the payment of the testators debts, and performance of his will 
c) Sichard. in Rub. de haered. Instit C. Terms of law. verb. execute. , which if he neglect to do, he may be convented by the said creditors, & legataries, so long as he hath assets in his hand 
d) Terms of law. verb. exec. & latiùs infr. part. 6. §. 3. .  
This † naming or appointing of an executor, is said to be the head of the testament 
e) §. ant Instit. de lega. . And as the body is dead which lacketh a head, so the testament is as it were dead, wherein no executor is appointed 
f) §. imprimis. Instit. de fide●com. haered. : it is also said † to be the foundation of the testament 
g) d. §. ant. Instit. de lega. , wherefore as no building can stand without a foundation, so no testament can stand without the appointing of an executor 
h) d. L. quod per manus de iure codicil. ff. & DD. ibidem. jul. Clar. §. testm. q. 5. n. 2. , neither can be properly named a testament. And † although never so many legacies or devices be given, all those legacies and devices notwithstanding such disposition may be called a codicil, or a will, or otherwise termed, but certainly a testament, it is not, neither can be properly so named 
i) Quip legata sunt accidentia quae adesse, & ab●sse possunt, sine subiecti (id est, testamenti) interitu. jas. in Rub. de leg. 1. ff. Vasq. de success. crea. §. xvij. : and therefore † he that made any such disposition, shall be deemed to have died without a testament 
k) d. L. quod per manus. de iure codicil. ff. Instit. de haered. quae ab intestat. , and so the administration of his goods to be committed to the widow or next of kin, as of one dying intestate 
l) Stat. H. 8. an. 21. c. 5. : whereas on the contrary, if an executor be appointed, suppose no other legacy be left nor devise made, yet such disposition both is and may be lawfully and properly said to be a testament 
m) L. 1. §. qui neque de haered. Instit. ff. , whether the same be solemn or unsolemn, written or nuncupative, privileged or unprivileged 
n) Supr. part. 1. §. x. , and the person so disposing is called a testator 
o) Stat. Westm. 2. c. 23. an. 13. Ed. 1. stat. Ed. 3. an. 4. c. 1. & an. 25 c. 5. stat. 4. Brook & Fitzh. abridge tit. execute. & tit. testam. omnibus in locis cum sexcentis similibus clare constat, testatorem & executorem testamentarium relativorum naturam sape●e. : and in this case the ordinary can not commit the administration of the dead man's goods, as of one that died intestate; the executor being able and willing, to undertake the execution of the testament 
p) ●atr. part. 7. §. nineteen. .  
Seeing † therefore, the force and efficacy of making of an executor is such, as without the which no will or disposition is, or deserveth to be termed, a testament, and without the which the party deceased shall be deemed to have died intestate, notwithstanding the multitude of other legacies or devices, and so administration of the goods to be committed as is aforesaid: It shall be therefore behooful to step a little further into the consideration of this matter, of making an executor, as the most excellent part and foundation of every testament, and to show after how many sorts an executor may be made 
q) Infr. §. prox. , and what are the different effects of every several sort or manner of appointing an executor 
r) Infr. ead. part. §. 4. .   

After how many sorts an Executor may be made.  
1 An executor may be appointed simply or conditionally, from or until a time, directly or indirectly, universally or particularly, in the first degree, second, third, etc. and one alone may be appointed executor or many.  
2 After how many sorts an executor may be made, after so many may a legacy or devise be given.  
§. iij.  
AN † executor may be appointed after divers manners, especially after these following. First either simply 
a) Infr. ead part. §. 4. , or conditionally 
b) Infr. ead. part. §. 5. . secondly either from a certain time, or to a certain time 
c) Infr. ead. part. §. 17. . thirdly either universally or particularly 
d) Infr. ead. part. §. 18. . fourthly either in the first degree, or in the second degree, or in the third degree, or in the fourth, etc. 
e) Infr. ead. part. §. 19 . & last of all either one may be appointed sole executor, or divers may be appointed executors together 
f) Infr. ead. part. §. 20. , of which I mean to entreat severally. But by the way I would have the reader to observe, that † as an executor may be made diversly, so a legacy may be given or a devise made accordingly, that is to say, simply or conditionallie, from a time or for a time, universally or particularly, in the first, second, or third degree, etc. and to one or many, which order of semblance or imitation, if the diligent reader shall note (which thing is very easy to be performed; for that which is said of the one may also be said of the other, in every respect almost, saving where I have noted the difference) he shall reap two benefits in one reading, and case me of double labour.   

Of a pure or simple assignation of an Executor.  
1 The chief points considerable about the simple assignation of an executor.  
2 What is a pure or simple assignation of an executor.  
3 divers examples of a simple appointment of an executor.  
4 Whether is he understood to be made executor to whom the testator doth give all, or the residue of his goods.  
5 It is not always needful to express this word executor, in making of an executor, namely when the testators meaning is known.  
6 Other examples of the former conclusion.  
7 The general legatary is not always understood to be executor.  
8 What if the words be indifferent either to make a testament or a codicil.  
9 An executor may be made either by the proper motion of the testator, or at the interrogation of an other.  
10 The testator must have a firm purpose of making his testament, otherwise words are of no force.  
11 It skilleth not of words, so that the meaning appear, neither in what part of the testament, the executor be appointed.  
12 Of the effect of a pure or simple nomination of an executor.  
13 Certain cases wherein the mention of a condition doth not make disposition conditional.  
14 Whether impossible or unhonest conditions do make the disposition conditional.  
15 Whether necessary conditions make the disposition conditional.  
16 Conditions referred to that which is paste or present are not properly conditions.  
17 Conditions necessarily understood do not make the disposition condicional.  
18 The application of that which hath been spoken of the assignation of an executor to a legacy or devise.  
19 Certain cases of the devise of lands wherein the meaning of the devisor is preferred before the propriety of words.  
20 The different effects of a simple assignation of an executor and a simple legacy.  
21 A legatary may not of his own authority take his legacy, and what is the reason.  
22 What remedy a legatary hath for the obtaining of his legacy.  
23 Certain cases wherein the legtarie may of his own authority apprehend his legacy.  
§. iiij.  
COncerning † the pure and simple making of an executor, I thought good to remember these points, viz: what it is, in what form of words it may be made, what is the effect thereof, & finally how a simple nomination of an executor, and a simple legacy or devise do agree or differ.  
A † simple nomination or appointing of an executor is, when the testator maketh his executor without any condition 
a) §. haeres. Instit de haered. Instit. & Mincing. ibidem. Grass. Thesaur. come. op. §. legatum. q. 43. n. 2. , as if the † testator say, I make A.B. my executor, or thus, I institute A.B. my executor, or thus, I will that A.B. be my executor, or thus, I desire A.B. to be my executor, or thus, A.B. shall be my executor, or thus, let A.B. be my executor 
b) L. quoniam indignum. C. de testa. & DD. ibidem. : For the law regardeth not so much the words, as the meaning of the testator 
c) d. L. quoniam Mantic. de coniect. vlt. vol. lib. 4. tit. 3. Grass. Thesaur. come. op. §. Institutio. q. 14. . And therefore if the testator say, I commit all my goods to the disposition of A.B. it is in effect as if he say, I make him my executor 
d) Cùm tibi de testa. extr. summa Rosella. verb. testmt. j vers. quibus verb. : So it is if the testator say, I commit my soul and all my goods to the hands or disposition of A.B. 
e) Io. de An. And. Barba. in d. c. cùm tibi. Brook Abridd. tit. executor. n. 98.  or I make A.B. Lord 
f) L. his verbis. ff. de haer. Instit.  of all my goods: or I make my wife lady of all my goods 
g) Bald. in d. L. his verb. , or I leave all my goods to A.B. 
h) Gloss. Bar. & Bald. in d. L. his verbis. Grass. Thesaur. come. op. Institutio. q. 14. quem velim videas.  or I make A. B. legatary of all my goods 
i) Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 8. Bald. in L. id quod pauperibus. C. de episcopis & cler. n. 1. verb. contrarium. : Or I leave † the residue of all my goods to A.B. 
k) Panor. in c. Ranutius de testa. ext. n. 3.  for in those cases he to whom all or the residue is bequeathed, is thereby understood to be made executor 
l) Rationem assignat Panor. in d. c. Ranutius Quia (inquit) juris imperiti nesciunt aptiùs loqui. . And this I suppose to be true when it doth sufficiently appear by other means also, to be the meaning of the testator not to die intestate, but that he to whom all or the residue is bequeathed, should immediately by virtue of the will, enter to all the testators goods, and (paying his debts and legacies) retain the residue to himself 
m) Quo c●●●, nihil reor interest, n●●é testamétum solemn, vel non solemn. Nam quod quidam volunt verbum (relinquere) adiectum universitati bonorum: in voluntate minus solenni importare sideicommissum, non institutionem, actumque valere iure codicillorun donationísue causa mortis non testamenti (ut in apostil. ad Panor. in d. c. Ranutius.) ita est intelligendum, quando testamentum aliàs non valeret. Bald. L. epistola. C. de fideicom. n. 4. Sichard. in L. sin. C. de codicil. n. 4. Covar. in d. c. Ranutius. §. j n. 3. . For † it is not always necessary to express this word (Executor) in making of an executor 
n) c. cùm tibi de testa. extr. Brook. tit. exec. n. 98. , neither hath every testator skill so to do 
o) Panor. in. d. c. Ranutius. n. 3. , wherefore it is sufficient if the testators meaning do appear by other words of like sense or purpose 
p) L. quoniam indignum. C. de testa. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. . And † hence it is that if the testator write after this manner: In all my goods movable and immovable, I make A.B. though the testator do not add executor, yet it is to be understood, and supplied, and so is in effect as if the testator had said, In all my goods movable and unmovable, I make A.B. my executor 
q) Paul. Castrens. & alij in L. errore. C. de testa. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 5. . Hence also is it that if the testator say, I will that A.B. be my executor, if C.D. will not: In this case C.D. is presumed to be appointed executor: and may if he will be admitted to the executor-ship, and exclude the other executor 
r) jul. Clar. §. testm. q. 35 n. 2. . Likewise if the executor supposing his child, brother, or kinsman, to be dead, do say in his will; for as much as my child, brother, or kinsman is dead, I make A.B. my executor: in this case if the child or other person whom the testator supposed to be dead, be alive: he that is named executor shall not be admitted to the executorship, but the child, brother or kinsman, whom the testator thought to have been dead 
s) Sichard. in Rub. de haered. Insti. C. n. 3. , for that it is presumed to have been the meaning of the testator, to have made that child, brother or kinsman, his executor, if he had thought him to have been living, and not the party named 
t) Sichard. ubi supr. ꝑ L. fimr. C. de in of. Testa. Alex. consil. 185. lib. 2. .  
But † if on the contrary, it do appear to be the testators meaning, not to make him executor to whom he doth bequeath his goods, as when the testator having bequeathed his goods to one person, doth expressly name an other to be his executor 
v) Bar. in L. his verbis: de haered. Instit. ff. cuius opinio communiter approbatur, ait Grass. Thesaur. come. op §. Institutio. q. 14. Berous in c. Ranutius de testa. extr. n. 20. , or if he to whom all is bequeathed, be unable 
x) Instit. de haered. quae ab intestat. in princ.  to execute the testament, or if the testator bequeath the residue of his goods, the debts discharged 
y) Imol. in d. c. Ranutius n. 8. Berous ibi. 37. quae opinio communis est, teste Grass. d. §. Instit. q. 14. n. 6. : In these cases the universal legatary doth still remain legatary, and is to receive his legacy, at the hands of the executor, or administrator.  
If the † words be indifferent either to make an executor or an universal legatary; a testament or a codicil 
z) Defunctus quando censendus est voluisse codicillari, vel testari. Pulchrè Bald. in L. filii. C. familiae Herciscund. sed pleniùs Mantic. de coniect. vlt. vol. lib. 2. tit. 3. , and no circumstances to or fro, to maintain the one rather than the other, either else the circumstances being indifferent: although in this case the judge ought rather to pronounce the deceased to have made a testament, than a codicil, and to have left an executor rather than to have died intestate, in respect of the civil and ecclesiastical laws 
a) Legistae. in L. verbis civilibus. de vulg. sub. ff. Canonistae. in c. cùm tibi, de testa. extr. Mantic. de coniect. vlt. vol. lib. 2. tit. 3. n. 12. : Yet in regard of the statute, it is more safe to commit the administration to the widow or the next of kin demanding the same, for fear of forfeiture of ten pounds 
b) Stat. H. 8. an. 21. c 5. , lest peradventure the judge before whom the penalty is to be demanded shall deem the party to have died intestate.  
Furthermore † the testator may lawfully make his executor not only of his own accord without interrogation, but also at the entreaty or request of an other (except in certain cases else where declared 
c) Supr. part. 2. §, xxuj. ,) and that not only by the words aforesaid, but by others of like effect 
d) Mantic. de coniect. vlt. vol. lib. 4. tit. 3. . And therefore if the testator being demanded by an other, whether he do make A. B. his executor, do answer yea, or I do, or what else, or why not, or whom else should I make executor, or I cannot deny; this is a pure and a simple assignation of an executor 
e) Ripa. Alcia. Zasius & alij Doctores. in L. 1. §. si quis ita. de verb. ob. ff. Clar. §. testm. q. 37. .  
Provided † always in all the cases aforesaid, and in every other like case, that the testator have a firm & constant purpose and meaning to make his will, when he uttereth any such words 
f) Mantic. de coniect. vlt. vol. lib. 4. tit. 4. in prin. supr. 1. part. §. iij. verb. sententia. , for otherwise if the testator have no meaning to make his will, although he used the most plain words that might be devised, for the making of an executor, yet (as I said ere while) it were no more a testament or a will, than a painted lion is a lion 
g) Supr. part. 1. §. 3. n. 25 , for the purpose and meaning of the testator is the life and soul (as I may term it) of the testament, without the which the testators words are but wind: if that do not appear, such only words shall not be admitted for a will 
h) L. diws L. Lucius. ff. de mil. testa. § plane. Instit. de mil. testa. Mantic. de coniect. vlt. vol. lib. 2. tit. 4. , for what if the testator say in ieaste, I make thee my executor? what if he said so for fear? what if he were overcome with drink? therefore it is not enough to prove the testators words, unless it be proved that the testator had animum testandi: which how it is proved, is else where declared 
i) Infr. 1. part. §. xiii. .  
Note also that as it skilleth not by what words the executor is appointed, so † it is not material in what part of the testament he be appointed, whether in the beginning or in the midst, or ending 
k) §. ant Instit. de lega Grass. Thesaur. come. op. §. Institutio. q. 1. .  
The † effect of a pure and simple assignation of an executor is this, that the executor may immediately after the death of the testator undertake the executorship, and enter upon the testators goods and chattels 
l) Wesemb. in tit. de acquir. haered. ff. & in tit. de haered. Instit. Et hoc verum est, etiam ante probationem testamenti Ploughed. lib. 1. in cas. inter Greisbrook & Fox. Cagnol. in L. si precibus C. de impub. & alijs. sub. n. 276. 277. 278. : whereas on the contrary, the effect of a conditional assignation, doth suspend his admission and execution of the testament, as afterward more fully doth appear 
m) Infr. ead. part. §. 6. 7. .  
And † there note that if the testator say, I make A. B. my executor according to the conditions afterwards expressed, if the testator afterwards express no conditions, it is in effect as if the testator had made him his executor simply 
n) L. pen. C. de Instit. & sub. . And so he may enter upon the testators goods presently after his death, for the testator in not expressing any conditions, is presumed to have altered and revoked his purpose concerning the adding of conditions 
o) DD. in d. L. Pe●. , and consequently that he would have the appointment of the executor to be pure and simple: howbeit if the testator making his executor upon conditions, to be then expressed afterwards, in the mean time, whiles he is in making his will, be suddenly prevented by death, or insanity of mind, that he can not express those conditions, according to his purpose and determination: In this case the assignation is void, and he which is so appointed executor is not to be admitted to the executorship 
p) L. si quis destinaverat. alias, si is qui. ff. de testam. Paul. de Castr. in L. jubemus. C. de testa. & latiùs infr. part. 7. §. 12. . Likewise if the testator do make his executor after this manner: I make A.B. my executor if I shall express any conditions, in this case no conditions being expressed, he that is so appointed ought not to be admitted 
q) Dec. & alij. in d. L. Pen. C. de Instit. & sub .  
It is † also to be noted, that, that assignation of an executor is in effect pure & simple, where the condition is impossible or unhonest, for such conditions are reputed as not written but omitted 
r) §. Impossibilis. Instit. de haered. instituend. L. obtinuit. de cond. & daemon. L. conditiones. de condic. Instit. ff. , and so the executor without accomplishment of any such condition, is forth with to be admitted to the executorship, except in some cases, as hereafter is declared 
s) Infr. ead. part. §. 6. 7. .  
Furthermore † when it is certain, that the condition will necessarily follow or be extant; the appointment of the executor made under such condition, is reputed pure and simple, as if the testator make A.B. his executor if the sun shall rise the next day 
t) L si pupillus. §. sub conditione. ff. de novac. Alex. consil. 59 n. 14. vol. 4. : unless the time when the condition will be extant, be uncertain, as I make A.B. my executor if my son shall die, for though it be most certain that he will die: yet nothing is more uncertain than the time when, and therefore the assignation is in effect conditional 
v) Sichard. in Rub. de condic. Instit. C. & fusiùs. infr. ead. part. §. 17. & part. 7. §. 23. .  
And the like may be said, † when the condition is referred to that which is paste or present, as if the testator say, I make A.B. my executor, if he be bachelor of the civil law, or if he have been student in the university of Oxford, for this kind of condition, is not properly a condition 
x) L. si ita stipulatus. ff. de verb. ob. Bar. in L 1. de cond. & daemon. ff. , but rather a final cause, wherefore the testator made his executor 
y) jas. in L. stichum. de leg. 1. ff. . And although the testator be uncertain whether the executor be bachelor of law, or have been student, yet it is certain in respect of the fact itself: and is either true or false at that instant when it is made, and so the condition worketh no delay or suspension, but is either a good or void assignation at that moment 
z) DD. in d. L. si ita stipulatus. .  
Finally † that assignation of an executor is pure and simple, when that condition is expressed which is necessarily understood 
a) L. haec verba de leg. 1. ff. L. conditiones. de cond. & daemon. ff.  as if the testator said, I make A.B. my executor if the law will 
b) Mantic. de coniect. vlt. vol. , or if he will undertake the executorship 
c) Grass. Thesaur. come. op. §. legatum. q. 47. .  
That † which hath been spoken of the making of an executor (according to my former advertisements) may easily be applied to a legacy, mutatis mutandis: wherefore as that nomination or assignation of an executor is pure and simple which is made without condition, so that legacy is pure and sure which is given without condition.  
secondly, by the like application it may appear, that it is not material in what form of words a legacy be bequeathed, so that the testators meaning do appear: which meaning is to be preferred before the propriety of words 
d) §. nostra. Instit. de lega. , and that not only concerning goods and chattels, but also concerning lands and tenements, for further declaration whereof I have added these examples following which I have borrowed out of a little book called the terms of law 
e) Verb. devise. .  
First † therefore if a man do by his will devise to A.B. all his lands and tenements: In this case not only all his lands and tenements, which the testator hath in possession do pass, but those also which he hath in reversion by virtue of this word tenements.  
Item if lands be devised to a man to have to him for evermore, or to have to him, and his assigns: in these two cases the devise shall have a feesimple, whereas if it be given by feoffment in such terms, the feoffee hath but an estate for his life, for a devise made without express words of heirs is good even in feesimple.  
Item if a man devise his land to an other to give or sell, or do therewith at his pleasure, & will this in feesimple.  
Item a devise made to one and to his heirs, males, doth make an estate in tail, but if such words be put in deed of feoffment it shall be taken in feesimple, because it doth not appear of what body the heirs males shall be begotten.  
Item if lands be given by deed to A.B. and to the heirs males of his body, who hath issue a daughter, which daughter hath issue a son, and dieth, there the land shall return to the donor, and the son of the daughter shall not have it: because he cannot convey himself by heirs males, or his mother is a let thereunto. But otherwise it is of such a devise given by will, for there the son of the daughter shall have it, rather than the will shall be void.  
Item if one devise to an infant in his mother's womb it is a good devise, though such a feoffment, grant or gift be void.  
Item if one will that his son shall have his land after the death of his wife, here the wife of the devisor shall have the land first, for term of her life. So likewise if a man devise his goods to his wife, and that after the decease of his wife, his son and heir shall have the house where the goods are, there the son shall not have the house during the life of the wife: for it is presumed that his intent was, that his wife should have the house also for term of her life, notwithstanding it were not devised unto her by express words.  
Item if a devise of land be made to A.B. and to his heirs males of his body begotten. After the devise hath issue a son and a daughter, and dieth, here the daughter shall have the land, and not the son; howsoever he be the more worthy person, and heir to his father, but because the will of the dead person is that the daughter shall have it: therefore law and equity would that it should so be.  
thirdly it may appear by that which hath been said of an executor, that the legacy is void where the testator hath not animum testandi 
f) Infr. part. 7. § 13. .  
fourthly that there be divers conditions, which do not make die legacy conditional 
g) Infr. §. 5. 6. .  
lastly † concerning the effect of the one & the other, albeit otherwise the appointing of an executor, and the bequeathing of a legacy do agree in divers things: yet in this they do differ greatly. That is to say, an executor simply instituted, may as soon as the testator is dead, enter to the goods and chattels of the deceased 
h) L. cùm haeraedes. ff. de acquirend. poss. Bar. in L. ex facto. ff. de haered. instituend. Cagnol. in L. precibus. C. de imp. & alio. subst. n. 276. : But † a legatary or devisee may not of his own authority take the legacy, & serve himself, but must receive the same at the hands of the executor 
i) L. 1. quorum lega. ff. L. non dubium. C. de lega. Perkins. tit. testament. c. 7. fol. 94. Brook. tit. devise. n. 3. : the reason is for that the executor is charged with the payment of all the testators debts, so far as the goods and chattels will extend, and the legacies are not to be paid but of the residue, if any thing remain 
k) Perkins ubi supr. & in tit. devices. (ubi etiam tradit aliam cautelam, sed parum honestam frustrandi legata & fraudandi testatorem.) Aliam rationem assignatius civil; nempe, ob detractionem falcidiae, quae ratio quàm sit apud nos debilis, facile est conijcere, quandoquidem nullu● est falcidiae locus infra regni nostri limits. . And † the legatary hath no remedy by the common laws of this land, for any legacy of goods to him bequeathed, if the executor will not deliver the same: But it behoveth the legatary in this case to take a citation against the executor of the testament, to appear before the ordinary or other ecclesiastical judge competent to answer him in a cause of legacy 
l) Tract. de repub. Angl. lib. 3. c. 9 Fitzh. Na. Br. brevi de consultatione Brook. tit. devise. n. 3. 27. 44. Ploughed. in c●s, inter Paramor & Yard. Terms of law. verb. devise. . Notwithstanding † in some cases the legatary may be lawfully possessed of his own legacy, without delivery thereof to be made by the executor, for if there be sufficient goods and chattels in the hands of the executor, to pay all the testators debts and legacies, & the legatary is possessed of the thing bequeathed, at the time of the death of the testator: in this case the legatary doubtless by the civil law may still retain the same in his own hands 
m) Socin. consil. 11. vol. 1. Ripa in. L. 1. ff. quorum lega. n. 15. Olden. de action. clas. 2. act. 2. fol. 113. : Neither is he to deliver the same to the executor, and afterwards to receive the same again at his hands 
n) c. dolo. de reg. iur. 6. . Likewise if the testator give licence to the legatary, to enter to his legacy: In this case the legatary may without the privity or consent of the executor take his legacy and keep the same, so that there be sufficient beside to discharge the testators debts 
o) jas in L. non dubium. C. de lega. . Peradventure also in case of such sufficiency of goods, a certain special thing being bequeathed (as the testators riding horse, his books, or his signet) though an other person than the executor detain the same, the legatary may as well by the laws of this realm 
p) Brook Abridg. tit. devise. n. 6. 30. , as by the civil law 
q) Sichard. in L. 3. C. de lega. n. 16. , commence suit against: the occupier thereof and recover the same legacy 
r) Ratio est quia dominium rei legatae statim post mortem testatoris transit in legatarium, etiam nondum facta traditione. gloss. & DD. in §. in nostra Instit. de lega. & in L. à Titio. ff. de fur. , unless this third person were able to justify his possession, even against the executor or against the testator himself if he were living: for that is a lawful bar or exception against the legatary also 
s) L. si rem legatum. ff de excep & praeiudic. . But if there be not sufficient goods to pay the testators debts, or if the legacy consist in quantity or be general, (as if the testator bequeath twenty pounds or a horse) the legatary can not of his own authority take so much of the testators money, nor any horse which was the testators without licence given by the testator or permission of the executor 
t) Brook. tit. devise. n. ●. & n. 30. , nor may bring any action against any third person for the same legacy, albeit he possess all the testators goods 
v) Quod autem diximus iure civili triplicem concedi actionem legatario, ꝓ consequédo legato, procedit specie relictâ, sed si quantitas, vel genus relinquatur, non competit rei vendicatio. Bar. in L. ●. ff. de leg. 1. Sichard. in I. non dubium. C. de lega. nisi fortè quantitas, non ut quantitas, sed ut corpus relinquatur, vel nisi genere relicto, facta sit electio debita, tunc enim idem juris est, ipsòque iure transit rei dominium, ac si legata fuit species. Angel. Are. & alij. in d. §. mra. Instit. de lega. vide supra part. 1. §. 6. in fin. & quae ibidem adnotantur. . Finally if the legatary be also executor, then may he if he will as legatary accept the same 
x) Sichard. in L. non dubium. C. de lega. n. 13. . But what if it do not appear whether he did accept the same as legatary or as executor, whether is it presumed that he did accept the same as executor or as legatary, this question is else where absolved.   

Of a conditional assignation of an executor.  
1 The chief points considerable about the conditional assignation of an executor.  
2 When the assignation of the executor is condutionall.  
3 By what words the disposition is made conditional.  
4 Of conditions some be necessary, some impossible, some indifferent or possible.  
5 What conditions be necessary.  
6 Two sorts of necessary conditions.  
7 Of impossible conditions there be divers kinds.  
8 Impossible by nature.  
9 Impossible by law.  
10 Impossible in respect of some persons.  
11 Impossible by reason of contrariety or perplexity.  
12 Possible conditions are those which are indifferent betwixt necessary and impossible.  
13 Of possible conditions, some be arbitrary some casual, some mixed.  
14 Item of possible conditions, some consist in chancing, some in doing, some in giving.  
15 Of conditions some are affirmative, and some negative.  
§. v.  
Concerning a † conditional assignation or nomination of an executor, I thought good to deliver first, what it is 
a) Eod. § n. 2.  secondly what manner of words do make the disposition to be conditional 
b) Infr. n. 3. , thirdly how many kinds of conditions there be 
c) Infr. n. 4.  fourthly what is the effect of a condicional assignation of an executor 
d) Infr. ead. part. §. 6. , fiftly I have examined certain questions, not impetinent hereunto 
e) Infr. ead. part. §. 7. §. 8. § 9 come sequé. usque ad §. 16. .  
The assignation † of an executor is conditional, when the testator doth not make his executor simply, but doth add some quality to the assignation, whereby the effect of the disposition is suspended or hindered, and dependeth upon some future event 
f) Sichard. in Rub. de Instit. & sub. C. n. 1. Grass. Thesaur. come. op. §. legatum. q. 46. , as for example, the testator maketh A.B. his executor, if his ship shall return from Venice.  
divers † words there be whereby the disposition of the testator is made conditional. First & principally, by this word (If) 
g) Bar. in L. 1. de cond. & de●●n. ff. Mantic. de coniect. vlt. vol. lib. 10. tit. 5. , as in the former example, by this word also (when) the disposition is sometimes made conditional, namely when it is joined to a verb of the future tense: as I make A.B. my executor, or give him a hundred pound when he shall be of the age of twenty one years 
h) Sichard in Rub. de Instit. & sub. C. n. 4. , or when he shall be married 
i) Bar. in d. L. 1. de cond. & daemon. ff. n. 8. 9 & Paul. de Castr. in eand. L. Vasq. de success. progress. lib. 3. §. 29. n. 3. in fin. . Sometimes by this word (while:) as I make my wife executrix, or give her a hundred pound, whiles she shall abide with my children: for it is in effect as though the testator had said, if she abide 
k) Sichard. in d. Rub. Bar. in L. si. Titio. ff. quando dies lega. cedit. . Also these words (when so ever, where so ever) the disposition is made conditional 
l) L. si ita scriptum. §. fin. de leg. 2. ff. Sichard ubi supra. : sometimes also by these words (which, what person, whosoever:) as I make him my executor, or give him a hundred pound which shall marry my daughter 
m) Sichard. in d. Rub. n. 4. : sometimes the ablative case absolute, doth infer a condition, as (my son being dead) I make A.B. my executor 
n) Ripa. in L. centurio. ff. de vulg. & pupil. sub n. 160. 161.  in which case not only A. B. is assigned conditionally, that is to say, if the testators son be dead, but also the testators son if he be living, is presumed to be assigned, during his life 
o) Ripa. ubi supr. Alex. consil. 185. lib. 2. . divers other words there be whereby the disposition is made conditional, wherein Bartolus 
p) Bar. in L. 1. de cond. & daemon. ff.  hath not only taken great pains, but hath also been at some cost (as it should seem) in making a great feast, marshalling together all such nouns, pronouns, verbs, etc., which make the disposition conditional, to whom I refer the reader to be satisfied.  
Manifold † are the divisions of conditions 
q) Vide Sichard. in Rub. de Instit. & sub. C. à quo multifariam dividitur conditio, 1. in tacitum & expressum, quarum deinde utraque species in tres species subdividitur. Tacita nimirum (ait) ex dispositione vel naturae, vel juris, vel testatoris suboritur: expressa autem aut est necessaria, aut impossibilis, aut indifferens, seu possibilis. Et harum rursus quaelibet species multiplex, quas ego species in hoc §. explicavi. , but the plainest and fittest for this treatise, I suppose to be this, viz. Of conditions some be necessary, some impossible, some possible 
r) Sichard. in d. Rub.  or indifferent.  
Of necessary † conditions some may be so termed in respect of fact, some in respect of law 
s) Bar. in L. 1. de cond. & daemon. ff. Mantic. de coniect. vlt. vol. lib. 10. tit. 5. . By necessary conditions in respect of fact I understand those conditions, whereof there is a certain and infallible natural cause, by force whereof the condition must necessarily follow: as if the testator make A.B. his executor, or give him a hundred pound if the sun shall rise the next day 
t) Paul. de Castr. in L. si pupillus. §. sub cond. ff. de Novac. Alex. consil. 59 n. 14. vol. 4. Sichard. ubi supra. . Of † this kind of necessary conditions there be two sorts 
v) Tu si placeat (justinianista) videas Bald. in d. L. si pupillos. §. qui sub cond. ubi post gloss. ponit tria exempla necessariae conditionis; unum necessitatis fut●rae secundum naturam, veluti si moriar: aliud necessitatis futurae secundum fidem catholicam, ut si Antichristus natus fuerit: tertium necessitatis praesentis, veluti si non tetigero caelum digito. , some are certain in every natural respect, that is to say, it is not only certain that the condition will follow, but also when, as in the former example of the rising of the sun: and some again are certain but not in every respect: As when the testator maketh A.B. his executor if his son shall die, or when his son shall die; for albeit, it be certain that every man must die, yet when, where, or how, it is uncertain 
x) Sichard. in d. Rub. de Instit. & sub. C. . By necessary conditions so termed in respect of law, I understand all such conditions, which the law requireth in every act, albeit the same were not expressed, as for example, the testator saith, I make A.B. my executor, if he will intermeddle therewith 
y) Grass. Thesaur come. op. §. legatum. q. 47. , or I give A. B. a hundred pound, if he will 
z) L. haec verba. de leg. 1. ff. . This kind of necessary condition is sometimes expressed by the testator and sometimes not expressed 
a) DD. in d. L. ch●● verba. .  
Of † impossible conditions there be four sorts 
b) Sichard in d. Rub. de Instit. & sub. C. cui add Zasium in L. impossibilis. de verb. ob. st. ; in the first sort † are contained those whereunto nature is an impediment: for example, the testator maketh A.B. his executor, or giveth him a hundred pound if he touch the skies with his finger: or if he drink up all the water in the sea 
c) §. impossibilis. Instit. de haer. instituend. & Mincing. ibid. L. impossibilis. ff. de verb. ob. & Bar. ac alij ibid. . In † the second sort are contained those conditions which be contrary to law or good manners, as for example, the testator maketh A.B. his executor, or giveth him a hundred pound if he murder such a man, or deflower such a woman 
d) Mincing. in d. §. impossibilis. & DD in d. L. impossibilis. : this condition is unlawful and unhonest, and consequently to be deemed impossible: For the law would have us to think every thing impossible to be done, which is unlawful to be done 
e) L. si filius. ff. de cond. Instituc. : here upon it is said, id possumus quod de iure possumus, as if every thing unlawful were also impossible 
f) DD. in d. L. si filius. . In † the third sort are contained these conditions, which albeit they are not otherwise utterly impossible in respect of nature or of law, yet in respect of the person are so hard, that they seem impossible: as if the testator make A.B. his executor if he shall marry the kings daughter, he being but a base subject 
g) Sichard. in d. Rub. de Instit. & sub. C. Minsin. in d. §. impossibilis. Zas. in d. L. impossibilis. ff. de verb. ob. . In † the fourth sort are contained those conditions which by reason of contrariety or repugnant perplexity be impossible, or incompatible 
h) L. si Titius. ff. de con. Instit. , as if the testator say if my son be executor, I make my daughter my only executrix, & if my daughter be executrix I will that my son be sole executor 
i) d. L. si Titius. Minsin. in d. §. impossibilis. .  
Possible † conditions are those which are as it were in the midst betwixt necessary and impossible conditions, and which are indifferent either to be, or not to be 
k) Sichard. in Rub. de Inst. & sub. C. n. 9 . Of † possible conditions some are termed casual, some arbitrary, and some are said to be mixed conditions 
l) L. vnic. §. sin autem. C. de cad. tol. Bar. in● L. 1. de Instit. & sub. C. Mantic. de coniect. vlt. vol. lib. 10. tit. 5. n. 3. Wesenb. in tit. de cond. Instit ff. . Casual conditions are those whereof the event is uncertain, in respect of human knowledge 
m) Spiegel. Lexic. verb. fortuitum. : as for example the testator doth make A.B. his executor, or give him a hundred pound, if the king of Spain die this year 
n) Mincing. in §. pen. Instit. de haered. instit. . arbitrary conditions are those which the law esteemeth to be in his power, on whom the condition is imposed 
o) Sichard. in d. Rub. Vigl. & Mincing. in §. pen. de haered. instit. : as for example, the testator maketh A.B. his executor, or giveth him a hundred pound, if he shall go to the church 
p) jas. in L. si filius à patre. ff. de lib. & posthu. n. 1. . Mixed conditions are those which are partly abitrarie and partly casual 
q) Bar. in L. 1. de Instit. & sub. C. , or partly in his power on whom the condition is imposed, and partly in the power of some other: as for example, the testator maketh A.B. his executor or giveth him a hundred pound, if he marry the testators daughter. Furthermore † of possible conditions some consist in chancing, some in giving, and some in doing 
r) L. in facto ff. de cond. & daemon. . Finally † of conditions some be affirmative, some negative 
s) d. L. in facto. , the use of all which distinctions doth hereafter ensue 
t) Infr. ead. part. §. pr●x cum sequen. usque ad §. 16. .   

Of the effect of a conditional disposition.  
1 divers and contrary effects of conditions.  
2 Two rules whereof the former is, that necessary and impossible conditions do not suspend the effect of the disposition.  
3 Examples of this former rule.  
4 The second rule is, that possible conditions do suspend the effect of the disposition.  
5 Example of the same rule.  
6 Conditions partly certain, and partly uncertain, do suspend the effect of the disposition.  
7 Necessary conditions being otherwise expressed then understood, suspend the effect of the disposition.  
8 Impossible conditions which the testator supposed to be possible, do suspend the effect of the disposition.  
9 divers restraints of this last position being the fourth limitation of the former rule.  
10 Very hard conditions or almost impossible, do suspend the effect of the disposition.  
11 A restraint of this last position being the fift limitation.  
12 Impossible conditions negatively conceived, are not void themselves, but make void the disposition.  
13 A restraint of this last conclusion being the sixth limitation.  
14 Conditions which become impossible being at the first possible, do hinder the effect of the disposition.  
15 A restraint of this conclusion being the seventh limitation of the former rule.  
16 The condition which is both impossible and unhonest maketh void the disposition.  
17 Conditions which be impossible by reason of repugnancy, make void the disposition.  
18 A restraint of this last limitation.  
19 Possible conditions do suspend the effect of the disposition until they be accomplished.  
20 divers limitations of this position being the second rule.  
21 A further consideration of the former conclusions together with other questions.  
§. vj.  
THe † manifold diversity of conditions breedeth many sundry and contrary effects. For sometimes he that is appointed executor conditionally, or to whom any legacy is given conditionally, is not to be admitted to the executorship, nor can effectually demand the legacy, until the condition be accomplished. And again, sometimes he that is named executor, or to whom any thing is bequeathed upon condition, may presently be admitted to the executorship, or demand the legacy, though the condition be not yet accomplished, or as though no condition at all were expressed.  
Wherefore that we may know, when the condition is to be first accomplished, before the executor can be admitted, or the legatary demand his legacy; and contrary wise when the executor may be admitted, or the legatary make his demand before the accomplishment of the condition; I thought good to deliver two rules with their limitations.  
The † former rule is this, that when the condition is extreme, that is to say, either necessary or impossible, such condition hindereth not the executor nor legatary, but that he may be admitted to the executorship or recover the legacy, as if such had not been at all expressed 
a) L. si pupillus. §. qui sub conditione de Novac. L. nam etsi. L. quod si ea. de cond. indeb. L. julianus de iure. de lib L. haeres meus. de cond. & daemon. L. 1. L. conditiones. L. filius. L. qndam. L. mulier. de condic. Instituc. ff. L. repraehendenda. de Instit. & sub. C. §. impossibilis. Inst. de haered. inst. : for example, † the testator doth make thee his executor, or doth give thee a hundred pound if the sun shall arise upon Easter day 
b) Paul. de Castr. in d. L. si pupillus. §. qui sub condic. Sichar. in Rub. de Instit. & sub. C. n. 7. : Or if the testator doth make thee his executor, or giveth thee a hundred pound if thou shalt drink up all the water in the sea 
c) Mincing in §. impossibilis. Instit. de haered. instit. ; both these conditions are extreme, the one necessary, the other impossible: and therefore in these two cases thou mayest be admitted executor, or obtain the legacy, as if the disposition had been simple or without any such condition 
d) Per LL. supradictas. .  
The † second rule is this, that when the condition is not extreme, but indifferent or possible, than the same condition must first be satisfied before the executor can be admitted, or the legatary recover his legacy 
e) L. qui haeredi. de cond. & daemon. L. si quis sub conditione. si quis omis. can. Testa. L. cedere diem. de verb. sig. ff. Grass: come. op. §. egatum. q. 52. Simo de Praetis. de interp. vlt. vol lib. 5. interp. 2. dub. 2. fol. 66. n. 109. . For † example, the testator doth make thee his executor, or doth give thee a hundred pound if his ship shall return from Venice; this condition is indifferent, neither necessary nor impossible. In the mean time therefore until the same condition be extant, thou canst neither be executor nor obtain the legacy by force of that disposition 
g) d L. qui haered. & ibiis gloss. Bar. & alij. . 
f) Mincing. in §. haeres. Instit. de haered. instit.  To return to the former rule the same is diversly limited or restrained.  
The first limitation thereof may be this, that albeit † that condition which by course of nature must needs follow, is accounted as it were already accomplished by reason of the infallible certainty, yet when the condition is not in every respect certain, but certain & uncertain in divers respects: as for example, the testator maketh A.B. his executor, or giveth him a hundredth pound if or when his son shall die 
h) nihil interesse utrum testator dixerit si morietur, vel cùm morietur prius per Bar. Castrens. & Alex in L. extraneum. el. 1. C. de haered. instit. quorum opinio communis est, ait Alex. in d. L. extranaeun. licet secus sit in contractibus. : howsoever this condition be certain in respect of death, because it is not certain in respect of the time of his death, therefore in the mean time the executor or legatary, where there is such a condition can not obtain the executorship or legacy, but must expect the event of the condition 
i Paul. de Castr. & jas. in d. L. extraneum. Sichard. in d. Rub. de Instit, & sub. C. .  
An other † limitation to the former rule is this, although the disposition be not made conditional by expressing of that condition, which by the law is necessarily understood 
k) L. haec verba. ff. de leg. 1. : Nevertheless, if the condition be expressed in other manner than is understood, the disposition is thereby made conditional 
l) L. si ita. §. illi. ff. de leg. 1. ; so that in the mean time, the effect thereof is suspended, as for example, the testator saith, I give to A.B. twenty pound if he will 
m) d. §. illi. ibi, si volet, id est, si se velle declarauerit. . In which case except the legatary do by some means declare his willingness, the legacy is not due, and if he die in the mean time, before he have declared his willingness, the legacy is not transferred to the executor or administrator of the legatary 
n) jas. & alij in d. §. illi. Quaere tamen, isto siquidem casu distinguit Practic. Papiens. in forma libelli, pro legate. rei singular. fol. 455. , whereas if no such condition had been expressed, but that the legacy had been left simply, then albeit the legatary had died not knowing of the said bequest, his executors or administrators might have obtained the same 
o) Bar. Zas. & alij in d. L. haec verba. ff. de leg. 1. .  
The third limitation is, when it doth appear to be the testators meaning, by the expressing of the said necessary condition to make the disposition conditional 
p) Grass. Thesaur. come. op. §. legatum. q. 47. ubi etiam ostenditur quomodo appareat huiusmodi testatoris voluntas. .  
The fourth is, that † although impossible conditions, whether they be impossible by nature or by law, do not hinder the effect of the disposition, being reputed as if they were not written nor uttered 
q) L. 3. ff. de cond. & daemon. §. impossibilis. Instit. de haered. instit. Grass. Thesaur. come. op. §. legatum. q. 50. : Nevertheless if the testator did suppose the same condition to be possible or lawful, then is not the condition void but the disposition whereunto it is added 
r) L. servo manumiss. ff. de cond. indebit. . As for the example, the testator maketh A.B. his executor, or giveth him a hundred pound if he marry his, the testators daughter, supposing her to be living whereas she is dead: in this case the condion is impossible, for the legatary can not marry a dead woman: And yet nevertheless, because the testator did think her to be living, and so the condition to be possible. A.B. cannot be executor, nor obtain the legacy, for it is not likely, that the testator would have made him executor, or have given him a hundred pound, if he had known or believed his daughter to have been dead 
s) DD. in d L. serve manumisso. . Howbeit † there be divers cases, wherein the disposition is not void by reason of an impossible condition, which the testator did account possible and lawful, but the condition itself is void howsoever it seemed possible in the opinion of the testator: one is where the condition may be accomplished by some equivalent means though not in the same manner described in the disposition 
t) L. huiusmodi §. si ita cui. ff. de leg. 1. Bar. in L. 1. de con. & daemon. ff. jas. in d. L. si ita. §. illi. de leg. 1. . another case is, when the testator after the making of his will understanding the condition to be impossible, did nevertheless confirm his will by codicils 
v) jas. in d. L. servo manumiss. Arc. in L impossib. de verb. ob. ff. . The like is, when the testator was doubtful whether the condition were possible or no 
x) Bar in L. ab omnibus. §. in teston. de leg. 1. Arc. in L. impossibilis de verb. ob. jas. in d. L. servo manumiss. de cond. indeb. ff. , or the bequest were in favour of liberty 
y) L. civitatem. §. falsum juncta gloss. de cond. & daemon. L. cùm Stichus. de statu lib. ff. & jas. in d. L. servo. , or in favorem piae causae, when the testator doth bequeath any thing to be employed to godly uses, for then the condition which he supposed possible is rejected, and the disposition available as pure and simple 
z) Bald, in L. 1. C. de come. servo. manumiss. Bar. in L proxime. §. 1. de his quae in testa. del. ff. & clarius per jas. in d. L. servo manumiss. .  
The fifth, is when the † condition is not utterly impossible, but very hard and as it were impossible to be performed by him on whom it is imposed. In which case it seemeth to be the purpose of the testator, that the party shall reap no benefit by that disposition: Otherwise the testator would not have imposed so hard and difficult a condition 
a) Sichard. in Rub. de Instit. & sub. C. Minsin. in §. impossibilis. Instit. de haered. instituend. , and therefore in this case the condition doth suspend the effect of the disposition, until the condition perhaps be accomplished 
b) L. cùm haeres. §. 1. de statu lib. L. continuus. §. illud. de verb. ob. ff. . Notwithstanding † if the condition be impossible only in the respect of the shortness of the time prescribed by the testator: as if he make A. B. his executor, or give him an hundred pound, if he do erect a monument within three days after his death: in this case the condition hurteth not 
c) L. si mihi & tibi, § 1. ff. de leg. 1. , for that it respecteth the execution and not the substance of the will. And it is to be understood that the testator would have it performed with as great expedition as is possible 
d) jas. Lanc. Dec. & alij in d. §. 1. Zas. in L. continuus. §. illud. de verb. ob. ff. .  
The sixth is when † the impossible condition is conceived negatively, for than it is not accounted as if it were void itself, (as is the affirmative possible condition) but it maketh void the disposition whereunto it is adjoined: as for example, the testator chargeth his executor to whom he hath also given the residue of his goods, that if he do not touch the skies with his finger, or do not kill his father, then to pay to A.B. an hundred pound; in this case the legacy is void 
e) §. L. ultim. Instit. de lega. in fin. L. ab eo. C. de fideicom. L. vnic. C. de his quae Paen. nomine. : The reason is, because the executor who otherwise should have the same thing bequeathed, is not to be punished for not doing that thing which is impossible or unhonest to be done 
f) Mincing. in d. §. vlt. Instit. lega. Castrens. in d. L. vnic. C. de his. Paen . But † if the negative impossible condition be not set down in way of penalty but simply, the disposition is not void but taketh effect presently: as for example, the testator maketh A. B. his executor or giveth him an hundred pound, if he do not drink up all the water in the sea: In this case (if any were so fond as to add any such condition) the effect of the disposition is not hindered, and so A.B. is to be admitted executor, or may obtain the legacy, as if no condition were expressed 
g) L. impossibilis. de verb. ob. ff. Bar. & alij in eand. L. Paul. de Castro. in d. L. vnic. quem videas. .  
The seventh limitation is, when † the condition was not impossible at the first, but becometh impossible afterwards, for than it is not void, but maketh the disposition void: for example, the testator maketh A.B. his executor, or giveth him a hundred pound if he marry his, the testators daughter: afterwards and before marriage this woman dieth, whereby the condition is made impossible: In this case the condition although now impossible is not void, but maketh void the disposition; and so A.B. cannot be executor, nor obtain the legacy by virtue of such disposition 
h Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 23. . But † if the woman were not dead, but did refuse to be married, and so the condition become as it were impossible, for lack of her consent; In this case the disposition were not void, & so he might be admitted to the executorship or obtain the legacy, as if no condition had been imposed, or rather as if the same had been accomplished: as else where 
i) Infr. ead. part. §. 8. , is more fully declared.  
The eight is when † the condition is both impossible and unhonest, for then the disposition is thereby void: and that in disfavour of the the testator, who added such a condition 
k) Bald. in L. si pater. de Instit. & sub. C. n. 5. , whereas if the condition had been only impossible or unlawful, the disposition had been good, and that in favour of the testament 
l) Gloss. in §. impossibilis. Inst. de haered. instit. aliud autem in contractibus obtinet. .  
The ninth is when the condition is impossible by reason of perplexity, whereof there is example before, for then the disposition is void 
m) L. ubi repugnantia. de reg. iur. ff. & ibi Cagnol. limitans eand. reg. gloss. in d. §. impossibilis. add Petr. Duen. Tract. reg. & fall. verb. conditio: ubi tradidit tres limitationes. .  
The tenth is, when † the condition is repugnant to the nature of the disposition, as in captious dispositions, whereof I have spoken hereafter more at large 
n) Infr. ead. part. §. 11. . Notwithstanding † if the repugnancy be not in such sort but that it may be reconciled, it hurteth not the disposition 
o) Cagnol. in d. L. ubi repugnantia. de reg. iur. ff. : And therefore if the executor do name two executors, for example, his son and his daughter with a condition or proviso that his daughter do not administer: albeit here seem a repugnancy in the assignation of the daughter, for that it is the office of every executor to administer: yet because the same may be reconciled, the daughter is to be admitted to the executorship, namely, to prosecute any action, though not to administer further of any goods whereof they are in possession or which shall after be by action so recovered 
p) Brook Abridg. tit. executor. n. 2. .  
The eleventh limitation is, when the unhonest condition is referred to the time past, for than it is not rejected, but doth either presently confirm or infirm 
q Covar. Tract: de sponsal. part. 2. c. 3. §. 1. n. 9  the effect of the disposition.  
Now that we have seen the limitations of the first rule, let us take a view of the limitations of the second rule, which is that, when † the condition is possible, the effect of the disposition is suspended, until the condition be accomplished. So that he which is made executor or to whom any thing is bequeathed under such condition, can not be admitted to the executorship, nor obtain the legacy in the mean time 
r) L. qui haered. de cond. & daemon. L. si quis sub conditione. Si quis omiss. causa. testa. L. caedere diem. de verb. sig. ff. Grass. Thesaur. co. op. §. legatum. q. 52. Simo de Praetis. de interp. vl. vo. li. 5. Interp 2. dub. 2. n. 109. : In so much that it is not enough to perform the condition by an other equivalent means, but it must be accomplished in that precise manner and form of the condition, without varying in any one jot 
s) L. qui haeredi. L. Me vius. de cond. & daemon. f●. .  
The first limitation of this 2 rule is this † when it doth not stand by the executor or legatary wherefore the conditon is not performed: for than it is accounted to be accomplished 
t) c. Imputari. de reg. iur. lib. 6. . another limitation is this, when the condition is negative, for there the executor or legatary may in the mean time be admitted to the executorship, or recover the legacy entering first into bond to make restitution, 
v) L. Mutianae. ff. de cond. & daemon.  if the condition be not performedo.  
The third limitation is when the condition was once accomplished, though it do not continue 
x) L. in substitution. ff. de vulg. sub. .  
The fourth limitation is, when the condition is possible in respect of fact but not lawful 
y) L. filius. ff. de cond. instituc. supra ead. par. §. 5. .  
But † for as much as none of these conclusions do proceed simply or indistinctly, I thought good to examine every of them severally and at large, namely;  
First whether every possible condition ought to be observed precisely and add unguem 
a) Infr. ead. part. §. ꝓx. .  
Secondly, whether it be sufficient for the executor or legatary that it stand not by them, wherefore the condition is accomplished 
b) Infr. ead. part. §. 8. .  
Thirdly, when and in what cases the executor or legatary is to be admitted to the executorship, or may obtain his legacy before the accomplishment of the condition by entering into bond 
c) Infr. ead. part. §. 9 .  
Fourthly, whether it be sufficient that the condition was once performed, though it do not so endure 
d) Infr. ead. part. §. 10. .  
fiftly, whereas it may be doubted of divers conditions, whether they be lawful or no: I have declared how far the same be lawful or unlawful 
e) Infr. ead. part. §§. 11, 12, 13. .  
Unto the which questions I have also added these following.  
Within what time the condition may or must be accomplished, when no certain time is limited by the testator 
f) Infr. ead. part. §. 14. .  
Than how that usual condition (if he die without issue) is to be understood, or when it is said to be accomplished 
g) Infr. ead, part. §. 15. .  
Finally, what order is to be taken concerning the administration or possession of the goods of the deceased, whiles the condition of the institution of the executor dependeth unaccomplished 
h) Infr. ead. part. §. 16. .   

Whether every possible condition ought to be observed precisely.  
1 Conditions are of a strict interpretation.  
2 Conditions inducing a form are to be observed precisely.  
3 Examples hereof.  
4 When the testator doth respect the end it skilleth not of the means.  
5 Voluntary conditions are to be observed precisely, not necessary conditions.  
6 He in whose favour the condition is made, may consent to other means.  
7 The condition of payment to be made to the infant is satisfied by payment to the tutor.  
8 In substitutions it sufficeth that the condition be effected by other equivalent means.  
9 In favour of liberty or of godly uses the condition need not to be precisely observed.  
10 Whether the condition may be performed by an other person then him that is named in the condition.  
11 Where the law alloweth other means the precise form need not to be observed.  
§. seven.  
FOr as much † as conditions are said to be of a strict interpretation 
a) Michael. Grass. Thesaur. come. op. §. legatum. q. 52. n. 1. , and to induce a form to every disposition, whereunto they are joined 
b) Bald. in Authen. ut liceat C. quando Mul. Tut office Fung. Tiraquel. de retract. §. 1. gloss. 21. n. 13. , unto which form nothing may be added, nothing detracted, nothing altered 
c) Tiraquel. de retract. §. 1. gloss. 11. n. 11 Peckius in c. cùm nom. de reg. iur. in 6. n. 6. . Therefore it is holden for a rule that † every possible condition ought to be precisely observed, neither is it sufficient (but in some cases) to accomplish the same by any other means, 
d) Grass. Thesaur. come. op. § legatum. q. 52. ubi attestatur de communi opinion.  or in any other manner than is prescribed. For † example, the testator maketh thee his executor, or giveth thee a hundred pound if thou shalt give to A.B. ten pound, thou not knowing of the testators will, dost of compassion or good will give ten pound to A.B. because he is poor, and thou art rich: In this case thou shalt not be reputed to have accomplished the condition, because thou being ignorant of the disposition, didst it not with a mind or purpose to satisfy the condition 
e) Gloss. & DD. in L. si quis haeredem. C. de Instit. & sub. & haec est communis opinio, ut per Michael. Grass. d. §. legatum. q. 52. n. 3. : Nevertheless, if thou didst first know of the condition, thou art presumed to have given the ten pound with a mind to perform the condition, unless the contrary do appear 
f) Bar. & Paul. de Cast. in L. 2. de cond. & daemon. ff. : So that it is not necessary to protest or to affirm by words, that thou didst give the ten pound with a mind or intent to perform the condition, seeing the same is presumed unless the contrary be proved 
g) Bar. & Paul. de Cast. in d. L. 2. . another example to the same effect is this, the testator maketh thee his executor or giveth thee a hundred pound if thou pay ten pound to C.D. before a certain time, within which time C. D. dieth, and thou payest the same ten pound within the same time, to the executor or administrator of C.D. in this case the condition is not said to be performed, and so thou canst not be executor nor obtain the legacy of a hundred pound, because thou didst not pay the ten pound to C.D. himself, for the payment ought to have been made to C.D. himself 
h) L. sub diversis. §. vlt. & ibi Bar. de cond. & daemon. ff. Mantic. de coniect. vlt. vol lib. 11. tit. 17. n. 25. & hoc quidem sine difficultate in haerede legatarij, quia haeredi legatarij solutio fieri non potest per d. § vlt sed an idem juris sic in haerede haeredis, quaest●o est magis dubia, de qua legendus est Mantic. ubi supr. , and not to his executors or administrators.  
The first limitation of this foresaid rule is, † when it doth appear that the testator hath more respect to the end, then to the means; for than it is sufficient that the testament be accomplished, although in other manner than it is expressed in the condition 
i) Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 3 .  
The second limitation is, when † the condition is not voluntary, but necessary: for in necessary conditions it skilleth not, whether the same be accomplished in that manner expressed by the testator, or in any other good manner 
k) Bar. in L. Gallus. §. quid si tantum. n. 2. de lib. & posthu. ff. Grass. Thesaur. come. op. § legatum. q. 52. Simo de Praetis. de interp. vlt. vol. lib. 1. in fin. ubi etiam respondit quaenam conditio sit dicenda necessaria, vel voluntaria. .  
The third limitation is, when † the person in whose favour the condition was made, doth consent that the same be accomplished in other manner; 
l) Simo de Praetis. de interp. vl. vo. lib. 1. solve. vlt. n. 34.  for example, the testator maketh thee his executor or giveth thee a hundred pound, if thou give to A.B. ten pound: So it is that A.B. did owe unto thee ten pound, & is contented to be released of that ten pound which he oweth, in steed of that ten pound which he is to receive: In this case the condition shall be accounted for accomplished, as if the ten pound had been really paid 
m) Simo ubi supr. licet ortasse contrarium obtineat in contractibꝰ, attenta dispositione huius regni Angliae. Perkins. tit. conduit. fol. 146. . These three limitations (especially the first of them,) be so general, that they may seem to comprehend the residue of the limitations, nevertheless it shall not be amiss, if I express them for the better understanding of those former limitations.  
The fourth limitation therefore † is this, when that is paid to the tutor, which is limited to the child: 
n) L si fundus. ff. de cond. & daemon.  for example, thou art made executor, or a hundred pound is bequeathed to thee, if thou pay unto the testators son (being an infant) ten pound: in this case the condition is sufficiently performed, if payment be made to the tutor of the child 
o) d. L si fundus. Grass. d. §. legatum. q. 52. Mantic. de coniect. vlt. vol. lib. 11. tit. 17. n. 29. : especially if the money be convertede to the benefit of the child 
p) Bar. in d. L. si fundus. Mantic. d. tit. 17. n. 29. . And albeit this condition may be said to be a voluntary condition, because it doth consist in giving, yet in this case the testator is presumed to have more regard to the condition, namely, the benefit of the child, then to the form of the condition: For if payment should be made to the child, it might easily be consumed & do the child little benefit 
q) Mantic. ubi supr. , and therefore better for the child, and more agreeable to the meaning of the testator, and more safe for him that payeth the money, to pay the same to the tutor, rather than to the infant 
r) Alciat. de verb. signif lib. 3. col. 81. in fin. .  
The fift limitation is † in vulgar or common substitutions, for than it is sufficient likewise that the condition be effected by other means, then according to the strict form of the condition 
s) Paul. de Castr. in L si magister. C. de Instit. & sub. n. 2. in fin. . For example, the testator maketh his son executor, and if he will not, he doth substitute thee executor in his steed if the testators son can not be executor, in this case thou shalt be executor, as if he had refused to be executor, although respecting the form of the condition thou art substitute only in case the other will not, and not in case he cannot: the reason is, because in substitutions the law presumeth that the testator doth more regard the effect, than the form of the condition 
t) Paul. de Castr. ubi supr. Alciat. de verb. signif. lib. 3. reg. 4. q. 3. .  
The sixth limitation is † in favour of liberty, that is to say, when the lord or sovereign by his testament granteth unto his villeine or bondman freedom upon some condition 
v) Bar. in L. Maenius de cond. & daemon. ff. .  
The seventh limitation is when that which is left conditionally is to be distributed in pios usus: for in these two limitations it is sufficient, that the condition be effected by other equivalent means, though not according to the precise literal form of the condition 
x) Bar. in d. L. Maenius. cum addic. ibid. .  
The eight limitation is, when † the condition which consisteth in giving, is performed by another person, then by him (yet for him) who is named executor, or to whom any thing is given upon condition, if he give to an other: In which case it is all one, as if he himself had given the same 
y) Bar. in L. Arethusa. de stat. hom. ff. & in L. fin. de cond. instit ff. atque hoc est magis common, teste Mantic. de coniect. vlt. vol. lib. 11. tit. 17. n. 10. .  
The ninth limitation is, when the condition can not be performed in such manner as is prescribed in the condition: as for example, the testator giveth a sum of money if so many sermons be made in such a church within such a time, during which time the church is interdicted, by occasion whereof the condition can not be accomplished: In this case the disposition is not absolutely void 
z) L. legatum. de admistr. rerum. ad civit. pertin. ff. , but the money may be converted to some godly use 
a) Simo de Praetis. de interp. vlt. vol. lib. 1. in fin. .  
The tenth limitation is, † when the law doth interpret it, as if it were precisely observed, as may appear in the next question 
b) Infr. §. proxim. .   

Whether the condition be accounted for accomplished in law, when it doth not stand by the executor or legatary wherefore the same is not accomplished.  
1 No man to be punished but such as be faulty.  
2 He is not reputed faulty in law who doth what he can.  
3 Whether the condition be reputed for accomplished if it stand not by the party.  
4 Certain distinctions about the former question.  
5 arbitrary conditions are accounted for accomplished if it do not stand by the party.  
6 The reason of the former conclusion.  
7 arbitrary conditions are not accounted for accomplished where the party is in fault.  
8 Casual conditions are not reputed to be accomplished before the event.  
9 The reason of the different effect, betwixt casual & arbitrary conditions.  
10 Certain cases wherein casual conditions be reputed as accomplished, albeit the same be not so in deed.  
11 In mixed conditions this consideration is first to be had, how the impediment cometh.  
12 The impediment in mixed conditions may happen divers ways.  
13 When it standeth by him by whom the condition is to be preformed, the same is not reputed for complete.  
14 What if after first refusal he consent, and then the other party is willing.  
15 A restraint of the last position.  
16 When it standeth by the party in whom the condition is to be performed, the same is not reputed for complete.  
17 A limitation of the former conclusion.  
18 When the testator doth hinder the performance of the condition, it hurteth not the executor or legatary.  
19 When a third person doth hinder the performance of the condition, whether it hurt the executor or legatary.  
20 The accomplishment of the condition being hindered by casual means, whether it hurt the executor or legatary.  
§. viii.  
IT agreeth † with equity and humanity that no man be punished, or deprived of his right without his fault 
a) c. sine culpa. de reg. iur. 6. , and it seemeth that † he is not in fault, but worthy to be excused, who doth whatsoever lieth in him for the accomplishing of that which is imposed upon him 
b) Peckius. in c. imputari. de reg. iur. 6. , wherefore no marvel if at the first view it seem true, that when it doth not stand by the executor or legatary, wherefore the condition is not performed (they doing whatsoever in them lieth for to accomplish the same;) that then the same should be accounted as it had been fully performed 
c) c. cùm non stat. c. imputari. de reg. iur. lib. 6. . And in deed so it is † regularlie for the most part very true that when it doth not stand by him to whom it appertaineth, wherefore the condition is not accomplished, it ought to be accounted as if it were performed: 
d) d. c. cùm non stat. d. c. imputari. de reg. iur. lib. 6.  but this rule doth not take place perpetually.  
Wherefore † if we will understand when this rule doth hold or fail, we are to call to mind some of the former distinctions or divisions of conditions 
e) Supr. ead. part. §. 5. , especially this: That of conditions some be arbitrary, such as the law presumeth to be in the will and power of the man to whom they are imposed 
f) L. vnic. §. sin autem. C. de cad. tollend. Vigli. & Mincing. in §. Pen. Instit. de haered. instit. : Some be casual, such as are not in the power of that man to whom they are imposed, but either in the power of some other thing, or person, so that the event thereof is to us uncertain 
g) d. §. sin autem. : and some be mixed conditions such as do consist partly in our own power, and partly in the power of some other thing or person 
h) d. §. sin autem. Vigl. & Mincing. ubi supr. , for example of which several conditions I refer the reader to those former which I have there set down 
i) Supr. ead. part. §. 5. .  
When † the condition is mere arbitrary, then if it stand not by him, by whom the condition is to be performed, the law reputeth the same as if it were fully accomplished, though in deed it remain unperformed: 
k) L. quae sub conditione. §. 1. ff. de cond. Instit. Bar. in L. 1. C. de Instit. & sub.  for example, the testator doth make thee his executor, or giveth thee a hundred pound if thou ●oe to church on Easter day 
l) Hoc esse exemplum pontativae conditionis, patet ex Sichardo in Rub. de Instit. & sub. C. n. 9 & Minsingero, in §. Pen. Inst. de haered. inst. n. 2. quorum alter profert exemplum eundi Francfordium, alter eundi Biscanum: reliqui ferè omnes instant in hoc exemplo, si ascenderis capitolium. DD. in d. §. sin autem. C. de cad. tol. & in d. §. Pen. Instit. de haered. instituend. , that day being ●ome; by reason of overflowing of waters or some other necessary impediment, thou art not then able to go to the church being otherwise willing to go, if thou hadst not been hindered. In this case thou art to be admitted executor, and mayest recover thy legacy, as if thou hadst gone to the church that day 
m) d. L. quae sub. conditione. §. 1. ff. de condic. Instit. &. c. imputari de reg iur. 6. ; the † reason wherefore the condition is accounted for accomplished in law, albeit respecting the fact it is not accomplished, I suppose to be this, because the testator is presumed to have more regard to thy good will and endeavour, in these conditions which be within thy power, then to the event of the condition 
n) Sichard. post Bar. & Bald. in d. L. 1. C. de Inst. & sub. , so that by satisfying the expectation of the testator, thou haste also satisfied the exaction of law 
o) DD. in d. L. 1. .  
Howbeit † even there also where the condition is arbitrary, and where the testator doth as it were accept good will for a full performance, if he by whom the condition is to be performed, were in fault, by occasion of which fault the condition can not in deed be accomplished, though perhaps the party would willingly perform the same if he than could, there the same condition is not reputed to be performed in fiction of law 
p) Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 24. post Bar. & Bald. in d. L. 1. C. de Instit. & sub. : for example, the testator maketh A.B. his executor or giveth him a hundred pound, if he go to the church on such a day: upon the which day A.B. intending to accomplish the condition, proceedeth towards the church, and as he is going committeth some crime or offence, whereupon he is arrested and stayed, so that he can not go to the church according to his purpose: In this case the condition is not accounted for accomplished, for that he, by whom the condition was to be accomplished 
q) Bar. & Bald. ubi supr. gloss in c. imputari de reg. iur. 6. Aymo Cravetta. consil. 202. n. 8. , was himself in the fault, and the cause wherefore the same was not accomplished. So it is if the condition can not be performed, by the negligence or delay of the person, by whom the same aught to have been performed 
r) Bar. in d. L. 1. Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 14. : and although an impediment is said to excuse a man from delay 
s) DD. omnes in L. quod te ff. si cer. Pe. , yet when the impediment may be foreseen and prevented, such impediment shall not excuse him which doth not avoid the same 
t) Gloss. & DD. in d. L. quod te. Zas. post alios in L. continuus. §. illud. ff. de verb. ob. . If thou crave an example, let this be the same, the testator maketh thee his executor, or giveth thee a hundred pound if thou go to the church within two months, during the first month thou dost not go, during the second thou knowest thou shalt not be able to go by reason of some impediment, be it by occasion of wars, or of the weather, or of the way, or of some infirmity in thy own body and then being letted, thou makest an offer to go, and dost protest that it doth not stand by thee, and that thou wouldst go if it were possible: Neither this protestation nor this impediment will relieve thee because thou didst wittingly fall into these difficulties, and wouldst not go when thou mightest safely have gone 
v) c. Mona. de reg. iur. 6. Zas. in d. §. illud. n. 6. fall. 4. & Peckius in L. fin. ad L. Rhodiam. de iactu. . When † the condition is mere casual, the same is neither accounted for accomplished or extant in presumption or fiction of law, neither yet for unaccomplished or deficient, until the actual event of the same condition do first come to pass 
x) L. vnic. §. sin autem. C. de cad. tol. & ibi Bar : And therefore if the testator make thee his executor or give thee a hundred pound, if the king of Spain die this year 
y) Vigli. & Mincing. in § pen. Instit. de haered. instituend. : In this case until the event do indeed declare whether ᵏ the K. die this year or no, the condition is neither accounted for extant or deficient, but is suspended 
z) Sichard. in Rub. de instit. & sub. C. . And if he die, then is the condition said to be purified or extant, and so thou art to be admitted, otherwise not 
a) L. vnic. §. sin autem. C. de cad. tol. . So there is a great difference, whether the condition be arbitrary or casual, for the one is divers times accounted for accomplished in law though not in fact: but the other is not accounted for accomplished or extant in law, unless the same be accomplished in fact also 
b) Eod §. sin autem. . The † reason of the difference is partly showed before; for in arbitrary conditions the testator is presumed not to exact more than he may easily perform, on whom such condition is imposed 
c) Sichard. Bar. Bald. & ferè omnes interp. in L. 1. de instit. & sub. C. , and so it is sufficient that it stand not by him, that the same condition is not performed: But herein casual conditions, for as much as the testator doth not refer it to that which is in his power on whom the condition is laid, therefore the testator is thought to refer the force or effect of this disposition, to the determination of fortune 
d) Paul. de Castr. in L. quae sub. conditione. ff. de condic. institu. , (or rather to speak more christianly, to the will of God,) and therefore this event of gods will must decide the doubt, I mean whether he that is appointed under such condition shall be executor or not, or obtain his legacy or not. Notwithstanding † sometimes even in casual conditions, it is sufficient that it doth not stand by the executor or legatary, wherefore the same condition is not accomplished, like as in arbitrary conditions 
e) Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 15. . The first case is, where the testator would have so disposed howsoever the condition should fall out 
f) Gloss. in L. 1. C. de instit. & sub. . The second is when by his fact, the accomplishment of the condition is hindered, to whom it is beneficial that the same should never be performed 
g) L. iure civili. ff. de cond. & daemon. . The third case is in favour of freedom or liberty from servitude 
h) L. fin. C. de . instituend. .  
If we † will know when a mixed condition is reputed in law to be accomplished, albeit in fact the same be not performed, we must consider by what means the impediment is ministered, namely † whether it proceed from the person by whom the condition is to be performed, or from that person to whom the condition is to be performed, or from the testator himself who devised the condition, or from some other third person, or whether it happen by some other means according to the secret purpose and will of God, which we no less foolishly then commonly, call Chance or fortune.  
When † he that is made executor, or to whom a legacy is given upon a mixed condition, is himself the only cause wherefore the condition is not performed; then worthily is the same condition not to be accounted for accomplished 
i) L. in teston. el. 2. ff. de cond. & daemon. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 37. : for example, the testator maketh thee his executor or giveth thee a hundred pound if thou marry his daughter; thou refusest so to do; with great reason is the condition not reputed for performed, and so thou canst not be executor nor obtain the legacy 
k) Bar. in d. L. in testa. Sichard. in L. 1. C. de instit. & sub. : In so much † that albeit afterwards thou become willing, and dost offer to marry her, and she then refuse this thy offer, and so it doth now stand by her and not by thee, that the condition is not performed: Nevertheless thou canst not reap any benefit by her refusal, because thou hadst broken the condition before, whereby thy right passed away and was extinguished, and so thy repentance is now too late 
l) jas. in d. L. 1. de Instit. & sub. C. n. 7. & Sichar. in eand. L. n. 9 & est con. op. teste Grass. Thesaur. come. op. §. legatum. q. 46. n. 16. post Dec. in d. L. 1. n. 13. quam sententiam intellige ut ꝑ Molin. in addic. ibid. : Unless † at such time as thou didst refuse, thou then couldst not marry, for that perhaps at that time thou were not of sufficient age to marry, for thy dissent at that time when thou couldst not consent, doth not hinder thee 
m) L. eius est nolle. de reg. iur. ff. .  
When † the condition is not performed by his means only, unto whom or in whose person the same is to be accomplished, than it is reputed in law as if it were fulfilled in deed 
n) L. Titio centum. §. Titio. ff. de cond. & daemon. : for example, the testator maketh thee his executor, or giveth thee a hundred pound if thou marry his daughter, thou art willing and dost offer her marriage, which she refuseth: In this case the condition is reputed for complete, and so thou mayest recover the executorship or legacy 
o) d. L. Titio. §. Titio. . Notwithstanding if † the words of the condition be directed unto her, not unto thyself: as for example, the testator maketh thee his executor or giveth thee a hundred pound, if his daughter marry thee. In this case if she do refuse, and it doth not stand by thee, the condition is not reputed for accomplished 
p) Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 37. , unless it were the meaning of the testator, that thou shouldest have the benefit of the disposition, in case of this her refusal 
q) L. iure civili ff. de cond. & daemon. . And yet there is no great difference betwixt the one Phrase and the other, for the testator in saying, if thou marry her, doth necessarily understand thereby, if she also be content to marry thee, for thou canst not do the one, unless she also do the other 
r) Socin. in. d. L. in teston. Mantic. de coniect. vlt. vol. lib. 11. tit. 8. n. 37. , and therefore this limitation is suspected of some not to be sound 
s) Michael Grass. Thesaur. come. op. §. legatum. q. 46. n. 17. , notwithstanding it is more generally approved and rather admitted then the contrary opinion 
t) Alex. in L. 1. C. de Instit. & sub. : what if the testator make A.B. his executor, or give him a hundred pound if he marry his daughter, and at the first A.B. is willing and offereth to marry her, but she refuseth; afterward she is willing, but he refuseth: whether in this case is the condition said to be complete: this question is satisfied afterwards 
v) Infr. ead. part: §. 10. in sin. .  
When † the impediment doth proceed from the testator himself, than the condition is reputed for complete: as for example, the testator doth make thee his executor, or giveth thee a hundred pound upon condition, if thou bury his body within the Cathedral church of Saint Peter at York: the testator dieth excommunicate (because he refuseth to come to the church, or because he is an Heretic or Schismatic, a manifest usurer, or for some other like cause) for the which his sepulture in that case is denied: Seeing in this case it doth not stand by thee, but by him, wherefore the condition is not complete, it shall not prejudice thee, but that thou mayest be admitted to the executorship or obtain the legacy, as if thou hadst in deed performed the condition 
x) DD. in L. milites. §. vlt. Ad L. jul. de adul. ff. Sichard. in L. 1. de Instit. & sub. C. n. 1. .  
When † the impediment doth proceed from a third person, than I suppose the condition to be accounted in law for accomplished 
y) Bar. in L. in teston. el. ff. de co. d. & d. mon. : For example, the testator maketh thee his executor, or giveth thee a hundred pound if thou marry his daughter within a month, during which month, a third person doth purposely hold her from thee, so that thou canst not marry her within the time prescribed: In this case the condition is reputed to be accomplished, and so thou mayest obtain the executorship or legacy, as if thou hadst married her within the said time 
z) Bar. in d. L. in teston. Bald. & Alex. in L. 1. de Instit. & sub. C. & hoc ego quidem procedere puto in hoc regno, etiam si ille tertius iniustè detineat mulierem: cùm apud nos Honoratus non habeat aliquam actionem contra iniustum illum detentorem, pro damno, seu interest. Videant autem justinianistae Mantican. de coniect. vlt. vol. lib. 11. tit. 16. n. 22. . But if the third person do not purposely detain her, being ignorant peradventure of the testators will, than it seemeth that the condition is not reputed for complete 
a) Bald. Alex. & DD. in L 1. C. de Instit. & sub. Mantic. de coniect. vlt. vol. lib. 11. tit 16. n. 22. .  
When † the impediment doth not arise by any of the means aforesaid, but by casual means (as we term it) when it proceedeth from the will and providence of almighty God, the law doth not account that condition for complete 
b) Hen. B●ic. in c. sicut ex literis. de spons. extr. Bar. in L. 1. C. de Instit. & sub. . And therefore if the testator make thee his executor, or give thee a hundred pound if thou marry his daughter, and she dieth before thou hast married her: in this case the condition shall not be accounted for accomplished or extant, but contrariwise (as it is indeed,) unperformed and deficient, so that thou canst not receive any benefit by that conditional disposition 
c) Gloss. & Din. in c. imputari de reg. iur. 6. Sichard. & alij DD. in d. L. 1. C. de Instit. & sub. : for where the performance of the condition is hindered by the will and providence of God, whereunto the testator made relation, there the law doth not allow any feigned performance 
d) Mantic. de coniect. vlt. vol. lib. 11. tit. 16. n. 23 , except it be in favour of liberty from bondage 
e) L. libertatem. ff. de manumiss. teston. Covar. in c. 3. de testa extr. , or of alimentation or in a disposition 
f) Sichard. in L. 1. C. de Instit. & sub. n. 6. in fin.  ad pias causas 
g) Tiraquel. de privileg. piae causae. c. 57 , or except the condition be not conditional but modal 
h) Grass. Thesaur. come. op. §. legatum. q. 58. n. 4. & haec opinio communiter approbatur. Alex. ● L. 1. de Instit. & sub. C. , for (conditio) and (modus) do greatly differ, as in the next paragraph is declared.   

Whether he that is made executor, or to whom any legacy is given conditionally, may in the mean time, whiles the condition dependeth, be admitted to the executorship, or obtain the legacy, by entering into bonds to perform the condition, or else to make restitution.  
1 divers kinds of conditions to be remembered in this question.  
2 When the condition is affirmative it sufficeth not to put in bonds.  
3 What if the affirmative do also imply a negative.  
4 What if the disposition be made sub modo, and not sub conditione.  
5 How Modus and Conditio do differ.  
6 When the testators will is not repugnant, than it sufficeth to put in bond.  
7 If the condition be negative, than what things are to be regarded?  
8 If the condition consist in not doing, than it is material whether the same may be accomplished during life.  
9 If the condition can not be accomplished during life, than it sufficeth to put in bond, to the effect aforesaid.  
10 Example of such condition as can not be accomplished during life.  
11 The reason of devising this bond, and who was the inventor thereof.  
12 Certain cases wherein the legacy may be obtained without bond, being given upon condition, which may seem not to be accomplished during life.  
13 If the condition negative may be accomplished during his life, to whom it is imposed, this caution hath no place.  
14 A condition negative is said to be accomplished when it cannot be infringed.  
15 Great odds whether the condition may be accomplished during his life, to whom it is imposed or not.  
16 What if the negative condition can not be infringed without sorrow.  
17 If the condition consist in not giving, than we must inquire and resolve as in the condition of not doing.  
18 When the condition doth consist in not happening, than this bond hath no place.  
19 The form of the bond, to whom it is to be made, and whether sureties be necessary.  
§. ix.  
IF any † be desirous to know whether he that is made executor, or to whom any legacy is left by the testator, undersome possible condition, may in the mean time whiles the condition dependeth unperformed, be admitted to the executorship, or obtain his legacy so left by entering bond or putting in sufficient caution either to perform such condition, or else to make full restitution of all things by him received: It shall be behoveful to call to his remembrance how many kinds of possible conditions there be 
a) De quibus. supra. ead. part. §. 5. , especially he must not forget, that of these conditions some be affirmative, and some be negative 
b) L in facto. ff. de cond. & daemon. : and again, that as well of the affirmative as of the negative, there be three sorts, that is to say, some consist in chancing, some in giving, & some in doing, & on the contrary, some consist in not chancing, some in not giving, and some in not doing 
c) d. L. in facto. . Now to apply these distinctions to the question.  
When † the condition is affirmative (whether it do consist in chancing, giving, or doing:) he that is made executor, or to whom any legacy is given, under such condition, cannot be admitted to the executorship, nor demand the legacy by virtue of the last will or testament of the deceased, so long as the same condition dependeth unfulfilled, or is not extant 
d) L. Mutian. in ff. de cond. & daemon. & gloss. ac DD. ibid. , albeit the executor or legatary should put in sufficient bond to make restitution, in case the condition should be deficient: For the event of such affirmative condition is to be expected and must be extant, before the disposition of the testator can take effect 
e) L. qui haeredi. ff. de cond. & demon● D. in d. L. Mu●●an. , except in these cases following. One is † when the affirmative condition which doth consist in doing or giving, doth with all secretly imply or contain a negative 
f) L. par●●● §. socrus ff. de cond. & daemon. Bar. & Paul. 〈◊〉 Castr. in d. L. Mutually. Ripa. in L. ita scipula●●●s. ff. de verb. ob. ff. n. 46. : as for example, the testator maketh his wife executrix, or giveth her a hundred pound, if she abide with his children; which affirmative condition, (if she abide with his children) consisteth in doing, and doth withal secretly imply a negative, that is to say, (If she do not departed from his children 
g) Bar. & Paul. de Cast. in d. L. Mutianae. per. d. §. soc●●●. :) and therefore in this case, the executor or legatary, by entering into sufficient bond to perform the condition, or else to make restitution, is to be admitted to the executorship or may obtain the legacy, as if the negative had been expressed 
h) Bar. & Paul. Castr. ubi supra. Simo de Pretis. de interp. vlt. vol. lib. 5. interp 2. dub. 1. n. 24. 25. fol. 42. . another case is, when † the disposition is not made sub conditione, sed sub modo 
i) L 1. C. de his quae sub modo. L. quibus diebus §. Termilius. ff de cond. & daemon. verum prop●●è loquendo Cautio de modo implendo, non est cautio mutiana, sed al●a ei similis. Bald. in Auth. cui C. de indict. vid. n. 22. in sin. . For † thou shalt understand, that conditio and modus do differ, Conditio is a quality which so long as it dependeth unperformed or is not extant, doth hinder the effect of the disposition, so that, that thing which is disposed conditionally, can neither be demanded, neither is due in the mean time 
k) Bald. & Sichard. in Rub. de Instit. & sub. C. : Modus is a moderation, whereby a charge or burden is imposed, in respect of a commodity, which moderation doth not so far hinder the effect of the disposition, but that the thing disposed is due, and may be demanded in the mean time 
l) Bar. in d. L. quibus diebus. §. Termilius. de cond. & daemon ff. Sichard. in d. Rub. de Instit. & sub. C. Grass. Thesau. come. op. §. legatum. q. 58. Modus (inquit Cuiacius) est finis, propter quem legatur, vel causa legandi collata in futurum. Cuiac. in tit. de his quae sub mod. C. : and it is called modus a moderando. The one of them is thus known from the other, that is to say, the condition is commonly known by this word (if) or by words of like value 
m) Bald. & Sichard. in Rub. de Inst. & sub. C. , whereof I have given examples before 
n) Supra. ead. part §. 5. : the mean or moderation is known by this word (that) as I make A. B. my executor or give him a hundred pound, that he may erect a monument. 
o) Bar. in d. §. Term●lius. & Sichard. in d. Rub. de Instit. & sub. C.  Now in this case when any thing is left under a moderation or with the exaction of a remuneration, that thing which is so bequeathed, is presently due and may now also be demanded, so that he which maketh demand do enter into bond in manner as hereafter is described, to perform that which is exacted by the testator, or else to make full restitution 
p) L. quibus diebus. §. Termilius. ff. de cond. & daemon. L. 1. 2. C. de his quae sub modo. . another case is, when † the testators will is not repugnant thereunto: for then this bond (as it is affirmed) hath place even in affirmative conditions 
q) Bar. in d. L. Mutianae. de cond. & daemon, ff. n. 3. .  
When the † condition is negative, than we are to regard what kind of negative condition it is, that is to say, whether the same consist in not doing or not giving or not chancing.  
If † the condition consist in not doing, than it is material, whether the same may be accomplished so long as he liveth on whom the same is imposed, yea, or no.  
If † the condition consisting in not doing can not be performed so long as the person, on whom it was imposed liveth, then may he obtain the bequest, by putting in bonds to accomplish the condition, or else in defect thereof to make full restitution 
r) d. L. Mutianae & ibi Bar Bal●. & Paul d● Ca●●r. Zas. in L. dedi tibi. ff. de cond. cause. dor. : as for † example, the testator maketh one his executor or giveth him a hundred pound, if he never play at the Cards or Dice: This condition we see is negative, it consists in not doing, and it is such a condition withal, as can not be fully performed, so long as he liveth on whom it is imposed, because at any time during his life, he may infringe the same, by playing at the Cards or Dice 
s) S●m● de Praetis. de interp. vlt. vol. lib. 5. inter. 2. jub. 1. n. 23. , for albeit he did abstain this day, yet might he play the next day, or if not the next day, yet some one day, or other so long as he had any days to live 
t) Simo de Praetis. ubi supr. Paul. de Castr. in d. L. Mutianae. , and so in the mean time, that is to say, all his life long he should not reap any commodity by the testament, if the full performance of the condition were first exacted. Wherefore † least the testators will should be uneffectual, and least the executor or legatary should reap no benefit thereby, if the full performance of the condition should be expected, ere the bequest could be obtained: one Mutius Scevola did devise this remedy, that he who is made executor, or to whom any legacy is bequeathed, upon a condition negative, which could not be fully performed during his life, should enter into bond to perform the condition, (that is to say, never to do that which is prohibited, or else to make a full restitution) and by that means obtain the executorship, or legacy 
v) d. L. Mutianae. cum gloss. ibid. Simo de Praetis. ubi supr. Zas. in L. ded● tibi. de cond. cause. dot. ff. n. 7. 9 , which bond or caution is of Mutius the author thereof, called Mutiana cautio 
x) Gloss. in d. L. Mutianae. , and after a sort hath the effect of the full accomplishment of the condition 
y) ●ar. & Castr. in d. L. Mutianae. . Yea in some cases † the legacy which is given under a condition negative consisting in not doing, may be obtained without any such bond, albeit the same condition may be infringed during the life of the legatary, namely, in a legacy of liberty or freedom from bondage 
z) L. libertatem. L. libertas. §. 1. de manumiss. testa. ff. , & in a legacy ad pias causas 
a) Tiraquel. de privileg. piae causae. c. 48. : The reason of the difference is, because in these favourable legacies the testator is presumed to have meant only of the first act when the legatary had opportunity of doing the thing prohibited 
b) Tiraquel. ubi supra. : So that if at that season or first opportunity, the legatary do not infringe the condition by doing contrary to the disposition of the testator, it is not hurtful though after that first opportunity past the legatary go against the condition 
c) Gloss. in L. Titio. §. fundus. ff. de cond. & daemon. Tiraquel. d. c. 48. , unless the meaning of the testator do appear to be contrary, viz. that the condition should be extended to every act during the life of the legatary 
d) L. vlt. de manumiss. testa. ff. Tiraquel. ubi supra. .  
But † if the negative condition be such as may be performed during his life on whom it is imposed, this aforesaid bond or caution hath no place 
e) L. cum tale. §. 1. ff. de cond. & daemon. L. pater. §. socrus. eod. , and consequently the executorship or legacy disposed under such condition, so long as the same dependeth not fully performed, can not be obtained 
f) L. cum tale. §. 1. & gloss. in d. L. Mutianae. ; For example, the testator maketh thee his executor, or giveth thee a C. pound if thou never play at dice or cards with A.B. or if thou do not at any time give away thy lands to A.B. this condition howsoever it be negative, & also consists in not giving, or not doing: Yet it may be fully & perfectly complete and performed in thy life time: For A. B. with whom thou art forbidden to play, or to whom thou art forbidden to give thy lands, may die before thee, & then thou canst not play with him nor give him thy lands when he is dead, and so it is evident, that this condition may be fully performed, & accomplished in thy life time, for a † negative condition is then said to be fully accomplished, when it is brought to an impossibility 
g) Gloss. &. DD. in d. L. Mutianae. ff. de cond. & daemon. , and therefore in this case thou canst not be admitted executor nor obtain the legacy, until the condition be brought into that state, that it can not be infringed 
h) DD. in d. L. Mutianae. & d. L. cum tale. §. 1. Simo de Praetis. de inter. vlt. vol. lib. 5. interp. 2. dub. 1. n. 23. . Great † odds therefore there is, betwixt those negative conditions which can not be performed in the life time of that person, on whom they are imposed, & those negative conditions which may be performed during his life: For there the executor or legatary may obtain the executorship or legacy by putting in bonds, but here he can not, unless it be † such a case as the event thereof doth bring grief and sorrow, to the party on whom the condition is imposed, for in such cases where the condition can not be infringed or become deficient, without sorrow or heaviness, it is lawful for the executor or legatary to enter into bonds for making restitution, (if the condition be not performed,) and so to be admitted to the executorship, and to obtain the legacy in the mean time 
i) d. L. cum tale. L. pater. §. socrus. ff. de cond. & daemon. : as for example, the testator maketh his wife executrix or giveth her a hundred pound if she depart not from her children: This condition may be extant in the life time of the mother, for it may happen the children to die, & the mother to overlive, and then the condition must needs be extant, for after their death she cannot infringe the condition by departing from them that are not: nevertheless, because the death of the child is a hard and heavy thing to the mother, therefore the law is not so hard, but that in this case the condition depending, the mother is to be admitted to the executorship, and may recover the legacy upon bonds, to accomplish the condition, or else to make restitution 
k) d. L. cum tale. & gloss. in d. L. Mutianae. .  
When † the condition doth consist in not giving, then as before, we are to inquire whether the condition be such as the same can not be accomplished during his life, on whom it is imposed: for if it be such a condition, that which is disposed under such a condition may be obtained by entering bond as before 
l) d. L. Mutianae. ff. de condic. & daemon. : for example, the testator doth make thee his executor, or doth bequeath unto thee a hundred pound if thou do not give away thy lands 
m) L. 4. §. idem julianus. ff. de condic. instit. , this condition can not be fully performed, but by thy death, because so long as thou livest thou mayest give away thy lands, and so infringe the condition 
n) DD. in d. §. idem julianus. , wherefore least the testators will should be deluded, or thyself defrauded, thou mayest be admitted to the executorship or obtain the legacy in the mean time so that thou become bounden as before, to perform the condition or else to make full restitution. 
o) d. L. Mutianae. Simo de Praetis. de interp. vlt. vol. lib. 5. Interp. 2. dub. 1. n. 23.   
When † the condition doth consist in not chancing, than this bond or condition can not be admitted, neither can the thing disposed under such condition be obtained before the condition be performed 
p) d. L. Mutianae. & ibi Bar. & alij. : And therefore (for example) if the testator make thee his executor or give thee a hundred pound if thy ship do not return from Spain, in this case the event of the condition is to be expected. And if it so come to pass that thy ship doth return, then is the condition deficient, and so thou canst not be admitted to the executorship, nor obtain the legacy by virtue of the said disposition 
q) Bar. & Paul. Castr. in d. L. Mutianae. L. vnic. §. sin autem. C. de cad. tol. : But if the Ship can not return (which thing may happen by shipwreck, or by some other accident) and so all hope or possibility taken away, than the condition is said to be accomplished or extant, and so thou art to be admitted to the executorship, or mayest recover the legacy, as if the disposition had been simple 
r) Idem Paul. de Castr. in d. L. Mutianae. d. §. sin autem. .  
Now † that we have seen in what cases the aforesaid bond, hath place, and in what case it hath no place, it shall not be amiss in word to show the manner and form of the bond and to whom it must be made, and whether sureties be required. The form thereof is this (not to do that thing which is contained in the condition, or else to restore the things disposed together with all the mean fruits and profits thereof 
s) L. cùm filius. §. qui Mutianam. ff. de leg. 2. ,) the bond is to be made by the executor, unto the substitute 
t) Bald. in Auth. cui relictum. C. de Indict. viduitat. n. 20. , or him that is appointed executor in place of him that is bound if the condition be not observed 
v) Bald. in d. Auth. , and if there be no such substitute, then to the executor 
x) Idem Bald. ibid. ; and if there be no executor, then to the ordinary, because he doth as it were succeed where any dieth intestate 
y) Stat. Ed. 3. an. 18. c. 19 vel forte praestanda est huiusmodi cautio Mutiana administratoribus casu, quo administratio sit concessa. : likewise the legatary must enter bond to him that is substituted unto him, if there be no substitute, then to the collegatarie, if there be none such, then to the executor, if there be no executor, then to the ordinary 
z) Bald. in d. Auth. cui relictum. C. de Indict. vid. , there need no surety neither for any thing immovable, nor for a thing movable, unless the party be not fit or sufficient 
a) d. Auth. cui relictum. .   

Whether it be sufficient, that the condition was once accomplished, though the same do not continue.  
1 Many cases wherein it is sufficient that the condition was once accomplished, though it do not so continue: and contrariwise many cases wherein it is not sufficient, that the condition was once accomplished unless it do continue.  
2 The order to be observed in this diversity of cases.  
3 If the condition be casual, than it is sufficient that the condition was once accomplished.  
4 divers examples of this conclusion.  
5 If the condition be arbitrary, than it is not sufficient that the condition was once accomplished.  
6 divers examples of this conclusion.  
7 If the condition be mixed, than it is sufficient that the same was once accomplished.  
8 Example of this conclusion.  
9 What if the condition endure not by the fault of the party by whom it is to be accomplished.  
10 What if the party be already married, to whom any thing is bequeathed conditionally, (If he shall marry.)  
11 What if the executor or legatary were once willing and afterwards unwilling; whether shall the condition be reputed for accomplished?  
12 In this last Q. either hath divers authors.  
13 The opinion of the author of this book.  
14 An answer to an objection.  
15 divers limitations of the former conclusion, whereunto the author of this book did subscribe.  
§. x.  
Many † cases there be wherein it is sufficient for the performance of the condition, that the same was once accomplished, albeit the same do not still endure in the same estate 
a) jas. in L. si quis haeredem. C. de Instit. & sub. ubi tradita est regula non paucis ampliationibus & limitationibus illustrata. : other cases there be, wherein it is not sufficient once to have performed the condition, unless there be a continuance of the performance 
b) jas. in L. in substitution. ff. de vulg. & pupil. sub. ubi regulam tradidit sex fallentijs exornatam. .  
But because it would grow to an infinite matter to recite every particular case 
c) Qua in re nimium desudasse videtur jason. ut refert Ber. Diaz. Tract. reg. & fall. verb. conditio reg. 110. , it is meet to set down some general conclusions or distinctions, whereunto and whereby all those particular cases may be reduced and decided.  
First † of all therefore we are to inquire the nature of the condition, whether it be casual, arbitrary, or mixed 
d) De quibus supr. ead. part. §. 5. & Bar. in L. 1. de Instit. & sub. C. Mincing. & Vigl. in §. pen. Instit. de haered. instit. .  
If † the condition be mere casual, that is to say, such a condition whereof the event is to us uncertain 
e Supr. ead. part. §. 5. n. 14. Spiegel. Lexic. verb. fortuitum. , than it is sufficient that the same was once accomplished, though it do not continue still in the same state 
f) L. si quis haeredem. C. de Instit. & sub. : as † for example, the testator maketh thee his executor or giveth thee a hundred pound, if A.B. shall be proctor of the university of Oxford 
g) d. L. si quis haeredem. cuius exemplum est. Si Titius fuerit Consul vel Praetor, etc. cui nostrum exemplum non est dissimile. : now if at any time after the making of this will A.B. be proctor, whether after the testators death or before, or whether he continue still Proctor or not, it is not material 
h) d. L. si quis haeredem. : yea though he were deposed from his office, it skilleth not, it is sufficient that once he was Proctor, the condition being casual, and so thou art to be admitted to the executorship, and mayest obtain the legacy, as though A.B. were Proctor still 
i) Sichard & alij in d. L. si quis haeredem. . So it is if the testator make thee his executor, or give thee a hundred pound if A.B. shall be Doctor of the civil law, though afterwards he be degraded 
k) Zas. in L. in substitution. ff. de vulg. sub. n. 11. . Likewise if the testator doth make thee his executor or give thee a hundred pound if his daughter shall be widow: In this case if his daughter happen at any time to be widow, thou mayest be admitted to the executorship or obtain the legacy, albeit she do afterward take a new husband 
l) Bald. in L. fin. de indict. vid. C. Grass. Thesaur. come. op. §. legatum. q. 53. referens ibi hanc op. esse veram. cui concinnit Mantic. de conject. vlt. vol. lib. 12. tit. 19 .  
If † the condition be arbitrary, that is to say, such a condition as the law esteemeth to be in our power 
m) Sichard. in Rub. de Inst. & sub. C. Viglius et Mincing. in §. pen. Instit. de haered. instituend. ; than it is not sufficient that it be once accomplished, unless it do continue 
n) Bar. in L. 2. de cond. et daemon. ff. Sichard. in L. si quis haeredem. de Instit. et sub. C. quorum opinio communis est. ex relatione Grassi Thesaur. come. op. §. legatum. q. 57 n. 3. : As † for example, the testator maketh thee his executor, or giveth thee a hundred pound if thou pay to A.B. ten pound, thou payest ten pound to A.B. and when thou hast so done, thou takest it from him again, this payment is no payment, because thou didst not suffer the money to continue with him, and therefore in this case thou art worthily repelled from being executor, or obtaining the legacy 
o) L. si soluturus. ff de soluc. et Angel. ibid. Sichard. in d. L. quis haeredem. n. 6. . So it is if the condition do include a continuance of time: as for example, the testator maketh thee his executor or giveth thee a hundred pound, if thou permit A.B. to have a way through thy ground: in this case it is not sufficient, that thou permit him to have a way or to pass through thy ground for a day or two, but thou must suffer him so long time as the testator hath assigned, otherwise the condition is not said to be complete 
p) Dec. et Sichard. in d. L. si quis haeredem. de Instit. et sub. C. . But what if the testator make thee his executor or give thee a hundred pound, if thou give ten pound to A.B. thou of pity & compassion givest him ten pound, being ignorant of this condition: whether is it sufficient that thou didst once give him ten pound? In this case the condition is not reputed for accomplished, and therefore if thou wilt be executor or obtain the legacy, thou must once again give him ten pound, as else where I have declared 
q) Supr. ead. part. §. 7. in prin. per gloss. et DD. in d. L. si quis haeredem. et Grass. Thesaur. come. op. §. legatum. q. 52. : for where the condition is arbitrary, it must be observed precisely 
r) Supra ead. part. §. 7. , unless it be in such a case as it can not be iterated 
s d. L. si quis haeredem. et p. Sichar. ibid. n. 3. : For example, thou art made executor or hast a hundred pound bequeathed unto thee, if thou manumit thy bondman, or if thou remit to A.B. ten pound which he oweth thee: in which case if thou shalt grant liberty to thy servant, or release the said debt of ten pound, before thou know of the conditional disposition, this act shall be accounted for an accomplishment of the condition, because now thou canst not do it again 
t) Sichard. & alij in d. L. si quis haeredem. de Instit. & sub. C. .  
When † the condition is a mixed condition, than it is sufficient that the same was once accomplished, though it do not so continue 
v) d. L. Squis haeredem. : for † example, the testator maketh his daughter executrix, or giveth her an hundred pound if she marry; she marrieth; afterwards her husband dieth, or they are divorced by occasion of his fault: In this case she is to be admitted to the executorship, or may obtain the legacy, as if the marriage had not been dissolved, by death or divorce 
x) DD. in d. L. si quis haeredem. . But if † the fault were the occasion of the divorce, it is more doubtful whether the condition shall be accounted for complete to her benefit 
y) DD. in d. L. si quis haered. quorum Bald. Sal. & Alex. in ea opinione sunt, ut conditio non sit completa: sed Ang. jas. Dec. & mother ni ferè omnes contrarium defendunt. : In which case nevertheless, their opinion seemeth the truer & sounder, who hold that the law doth exact no more at her hands by reason of this former condition, but that she marry, not that she should commit no fault whereby the marriage must be dissolved 
z) Hoc tutius esse refert jason, verius esse refert Dec. in d. L. si quis haeredem. quia viz. Lex illa loquatur indistinctè. : and therefore having performed the condition by marriage, the divorce doth not repel her, the rather because she did not offend of purpose, to infringe the condition 
a) Dec. in d. L. si quis haeredem. cuius opinio faciliùs admitti debet, quandoquidem apud nos pro crimine solum ipsum matrimonij alias debitè ritéque contracti, vinculum non dissoluatur; sed separatio tantum sit à mensa & à thoro. . In deed if she did marry only to obtain the executorship or legacy, not with purpose to continue a dutiful wife, & afterwards commit adultery, whereby she is separated; the condition is not satisfied by that marriage, and consequently she can neither be executrix nor obtain the legacy 
b) Dec. Sichard. & alij in d. L. si quis haeredem . But how may it be known, whether she did marry with purpose only to obtain the benefit of the disposition, or with purpose to continue a dutiful wife? the shortness of time betwixt the marriage and the committing of the fault doth declare, for if she marry on the one day, and commit the crime on the next, this is a testimony that she had not a meaning to endure the yoke of marriage 
c) Sichard. ubi supr. Arg. L. ventri §. ●in. ff. de privileg. cred. : furthermore if the marriage were not lawful from the beginning, either by reason of the minority of the person, or by reason of consanguinity or affinity, the condition is not reputed accomplished 
d) L. pen quando dies leg. ced. L. haec conditio. de cond. & daemon. ff. Mantic. de coniect, vlt. vol. lib. 11. tit. 18. n. 22. .  
What † if the party whom the testator maketh executor, or doth bequeath any legacy unto conditionally (If she shall marry) be already married at the time of the will making, whether by this marriage is the condition said to be complete? If the testator were ignorant of the marriage, the condition is said to be accomplished, otherwise not; 
e) L. si ita scriptum. §. si pater. ff. de leg. 2. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 16.  as hereafter is more fully declared.  
What † shall we say to this question, the testator maketh A.B. his executor, or giveth him a hundred pound if he marry his daughter. A.B. offereth to marry her, she refuseth: afterwards she being willing consenteth, and then he refuseth: whether in this case aught A.B. to be admitted executor and may recover the legacy, as if he had married her, yea or no? In deed if she had never been willing or consenting to be married, it were a clear case, that seeing it stood not by him, wherefore the condition was not accomplished, but by her, than the condition should have been reputed in law to have been accomplished 
f) c. cùm non stat. c. imputari. de reg. iur. 6. , as hath been heretofore declared 
g) Supr. ead part. §. 8. . But the case being altered, and she which was unwilling before, being now at length become willing and consenting, the question is more doubtful 
h) ut per DD. in L. 1. de Instit. & sub. C. & per Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 38. : wherein very † many do hold the affirmative, esteeming that the condition being once accomplished by her refusal it is sufficient, though it do not so endure, and that in this case, we are to respect the beginning and not the success 
i) Bald. Sal. Alex. Sichard. in d. L. 1. G. de Instit. & sub. & Molin. in Apostil. ad Dec. in eand. L. . Others do hold the negative, supposing that the condition ought not to be accounted for accomplished, unless he that is to reap the benefit by the performance thereof, do continue and persever in readiness and willingness to perform the same, and that the last delay is ever hurtful 
k) Petr. Cyn. Fulgos. & alij in d L. 1. .  
Either opinion hath many authors of great authority, and albeit it may seem, that this condition being a mixed condition, not consisting in his own power alone on whom it is imposed, but in hers also, that therefore being once accomplished it is sufficient, though it do not so continue: as in the former examples of being Proctor, Doctor, wife, or widow, where the conditions be reputed for fully performed, howsoever afterwards the Proctor be deposed, the Doctor degraded, the wife divorced, or the widow married.  
Yet notwithstanding for mine † own part, I do rather cleave to them which do hold the negative opinion 
l) non tamen indistinctè ut infra hoc ipso §. in fin. , and so that howsoever in this case, A.B. were at the first willing and ready to have accomplished the condition, and that it did not then stand by him wherefore the same was not performed, yet afterwards she consenting and he dissenting, it is in effect, as if he had been unwilling at the beginning, and consequently, that he is not to be admitted executor, nor to recover his hundred pound by virtue of this disposition.  
To † the former objection, that is sufficient that a mixed condition be once accomplished, though it do not so endure: as appeareth by those late recited examples. It may be answered, that there the condition was once actually complete, which was all that the testator seemed to require 
m) jas. Dec. Sichard. & alij in d. L. 1. d● Instit. & sub. C.  in those cases: but here the condition was never in act, and so the performance thereof came short of the testators desire 
n) Id quod clarè mihi constare videtur ex verbis testatoris dicentis (si duxerit filiam meam,) nec obijcias per eum non stetisse, ex quo nunc stat. Sin adhuc urgeas conditionem, tunc primùm pro impleta haberi, quando per eum non stetit. Respondeo illud plus habere subtilitatis quàm aequitatis, quip qui non credam satisfactum esse voluntati testantis unica nuptiarum oblatione, muliere postea consentiente, ita ut non subsecutis nuptijs legatum iure posci non possit. . Wherefore as I said before, I do rather subscribe to their opinion, who do hold that in this case the condition is no more reputed for complete in law, than it is in fact: and consequently that he can reap no benefit thereby, by whom it ought to have been performed 
o) Fateor tamé contrariam opinionem dici communem, teste Sichardo in d. L. 1. de Instit. & sub. & quidem attenta juris subtilitate, eandem opinionem magis ferendam esse non prorsus nego, sed inspecta testatoris voluntate, non ita. .  
And this opinion I suppose to be more agreeable to the meaning of the testator, and therefore to be preferred 
p) Mens autem testatoris quàm diligentissimè investiganda, & tanquàm regina colenda est, ut ait Sichar. in Rub. de testa. C. , certain cases excepted. † One case is where the executor or legatary upon the refusal of her offer, doth marry an other woman, for than it is too late to repent, seeing from that time he hath just cause to refuse her offer after he hath married an other woman 
q) Socin. in L. in teston. el. 2. ff. de cond. & daemon. Mantic. de conject. vlt. vol. lib. 11. tit. 18. n. 38. . another case is, when the testator remitteth a debt which is due unto him: as for example, the testator remitteth to A.B. a hundred pound which he oweth him if he marry his daughter: A.B. is willing and offereth to marry her; she refuseth, afterwards she is willing: this new willingness doth not hinder the legatary, being before delivered, and the action extinguished by her refusal 
r) Mantic. ubi supr●. . another case is like unto this, when after the refusal made by the woman, and before her repentance, he whose offer was before refused is admitted to the executorship, and doth obtain his legacy, and is possessed thereof, for notwithstanding her repentance and new willingness, he may retain that whereof he was possessed 
s) Mantic. ubi supra. post Socin. in d. l. in testo. el. 2. de cond. & daemon. ff. . another case seemeth to be this, namely, when some special thing is bequeathed: as for example, the testator doth bequeath unto thee his white horse, or a hundred pound lying in his chest, if thou marry his daughter, for strait way by her refusal thou hast gotten a certain right in the thing bequeathed 
t) Socin. ubi supr. huc pertinent quae superiùs dicta sunt. ead. part. §. 4. in fin. Brook Abridg. tit. devise. n. 6. 30. Bald. Sal. & Alex. in L. 1. de Instit. & sub. C. . If there be any other cases wherein the affirmative hath place, they are more strange, nor easily like to happen, and therefore not so necessary to be known.   

Of divers conditions which may seem doubtful, whether they be lawful or unlawful, and first of those conditions, whereby the liberty of making testaments is hindered, how far the same are lawful, or unlawful.  
1 Certain conditions whereof it may be doubted of some, whether they be lawful or unlawful.  
2 Captious conditions destroy the testament.  
3 Captious conditions wherefore they be so termed.  
4 Testaments are to be made with all freedom, not only without fear of loss, but also without hope of gain.  
5 This proposition that captious dispositions are void, diversly extended.  
6 The same proposition diversly limited.  
7 An other kind of condition against the liberty of making a testament.  
8 The testament improperly termed captious, which is referred to the will of an other.  
9 The testators will may not depend of an other man's will, and what is the reason thereof.  
10 What if he to whose will the testator did refer his own will, should make a will in the name of the testator.  
11 As an other man's soul is not my soul, so his will and testament is not my will and testament.  
12 It is lawful for the testator to refer his will to the will of an other being joined with a fact.  
13 So is it when the testator doth refer his will to the limited will of an other.  
14 When is the testator said to refer his own will to an others absolute will, and when to his limited will.  
15 The declaration of the testators will may be referred to an other.  
16 What if relation be made to the will of the executor or cegatarie.  
17 In favour of liberty the disposition may be referred to an others will.  
18 So may the disposition which is made ad pias causas.  
19 He that doth commit all his goods to the disposition of an other, doth not die intestate.  
§. xj.  
FOr as much † as there be divers conditions which be neither simply lawful, nor simply unlawful, but in divers respects lawful and unlawful, especially those conditions whereby the liberty of making a testament 
a) de qua conditione statim subijcitur hoc ipso §. , or the liberty of marriage 
b) De qua infr. §. prox. , or the liberty of alienating the thing disposed 
c) De qua infr. ead. part. §. 13. , may seem to be hindered or restrained: I thought it convenient in this place to show how far, and in what cases these conditions be lawful or unlawful, and what effect they have.  
And first of all † concerning those conditions which do impugn and hinder that liberty, which ought to be had in making of testaments, and whereby the disposition of the testator is said to be captious, or to depend of the will of some other person: such conditions are unlawful, and do destroy the force of the disposition 
d) L. Captatorias. de haered. instituend. L. captatoriae. de leg. 1. ff. L captatorias. de mil. teston. C Covar. in c. cùm tibi de testa. ext. ; and † therefore if the testator make thee his executor upon condition, if thou shalt make him thy executor, or give thee a hundred pound by his testament conditionally, if thou shalt give him a hundred pound in thy testament: this kind of disposition is said to be captious 
e Illa enim voluntas propriè dicitur captatoria, quae fit sub spe reciprocae voluntatis. Covar. in c. cùm tibi. de testa. ext. Sichard. in I. captatorias. de mil. teston. C. , because hereby the testator goeth about to catch or entrap thee to make him thy executor, or to give him a hundred pound, in case thou die first 
f) Alciat. Perergon. lib. 2. c. 31. August. lib. 4. Emendac. c. 15. , and to hinder that liberty which thou shouldest enjoy in making of thy testament. For when thou hast made him thy executor and diest, then hath he that which he looked for, he is now thy executor, and thou on the contrary, art frustrated of that which thou perhaps didst look for, for being dead thou canst not be his executor 
g) Vide Mincing. lib. 1. obseru. c. 8. : and therefore † as in marriages the same aught to be free, not only from fear of suffering loss, but also from fear of not obtaining gain 
h) c. Gemmae. de spons. extra. : so in testaments, the same aught to be made withal freedom, not only without fear of punishment of loss, but also without hope of gain or reward 
i) Sichard in L. captatorias. C. de mil testo. n. 6. .  
And in this consideration, † these captious wills, whereby many under pretence of making others their executors, or gratifiing them with legacies do subtly procure themselves to be made executors, or otherwise to be benefited by the dispositions of others, are so odious, that they are utterly void 
k) L. illa. L captatorias. de haered. instituen. L. captatorias. de leg. 1. ff. , albeit they be military testaments 
l) L. captatorias. de mil teston. C. , or of the father amongst his children 
m) Vasq. de success. crea. lib. 2. §. 17. n. 28. , or of a stranger 
n) Vasq. ibidem. , or testaments ad pias causas 
o) Nam quod dicitur captatoriam dispositionem valere quoad piam causam, (ut in c. cum tibi de testa. extr.) Id verum est in captatoria dispositione impropriè sic dicta, quae viz. pendet ex alieno arbitrio, prout in d. c. cùm tibi. & Covar. ibid. n. 2. & statim subijcitur, non autem quando dispositio fit sub spe remunerationis. Sarmientus. lib. 2. select. op. c. 4. n. 8. c. 6. n. 33. Sichar. in d. L. captatorias. , or testaments made in time of wars 
p) Vasq. de success. crea. lib. 2. §. 17. n. 83. , or testaments made in the time of pestilence 
q) Vasq. ubi supr. , or testaments made in the person of a tyrant 
r) Ibidem. , or in place wherein is want of witnesses 
s) Ibidem. , or before the prince 
t) Ibidem. , or whether it be testament or codicil 
v) Ibidem. , for in all these cases and divers others such captious wills be void 
x) Ibidem. .  
Notwithstanding † if the condition be not referred to the time to come, but to the time paste, or present, the condition is not unlawful nor the disposition void: and therefore if the testator make thee executor of his testament, if thou hast named him executor in thy testament, or giveth thee an hundred pound in his will, if thou hast given him a hundred pound in thy will, this condition is not unlawful 
y) Sichard. in L. captatorias. de mil teston. C. , for two persons may make either other executors, or otherwise benefit one an other by their testaments, so it be done in regard of good will, and affection, and not in hope of gain or remuneration 
z) Alciat. Perergon. lib. 3. c. 31. Covar. in d. c. cùm tibi de testa. ext. n. 1. .  
Besides this former kind of disposition which by reason of the cunning condition appeareth to be made in hope of gain, and is therefore properly termed captious: there † be other like dispositions which be repugnant to the liberty of making testaments, which also are said to be captious: that is to say, when the testators will doth depend of the will of an other 
a) Covar. in d. c. cùm. tibi. de testa. ext. : as for example, the testator maketh thee his executor or giveth thee a hundred pound if A.B. will, or thus. The testator maketh that person his executor, or giveth him a hundred pound whom thou wilt appoint 
b) Canonistae. in d. c. cùm tibi. de testa. ext. Legistae. in d. L. captatorias. de mil. teston. C. : In both these cases † the disposition is said to be captious 
c) DD. in d. L. captatorias. & in d. c. cum tibi. Grass. Thesaur. come. op. §. Institut. q. 18. , though not so fitly as commonly 
d) Alciat. Perergon. c. 31. Covar. in d. c. cùm tibi. Soarez. lib. rec. senten. verb. captatorias. An autem valeat huiusmodi dispositio, quaere ut infr. d. §. . Nevertheless the condition is unlawful, because it is against the liberty of making testaments, wherein † the testators will ought not to depend on the will of another 
e) L. illa institutio. ff. de haered. instituend. : For the ancient lawmakers considering, that if it should be lawful for testators to refer their wills to the wills of others, and to depend upon them, than he on whom the testator did depend, either not doing any thing at all, or else doing otherwise then the testator would, by that means the testator should remain deceived, & they to whom the testator did wish well, should be disappointed. 
f) Sichard. in L. captatorias. C. de mil. testo. n. 4.  For the avoiding of which inconveniences they did ordain, that every testament should personally depend of the testators own will, and not of the will of another, by whom the testator might be deceived. 
g) Sichard. ubi supra. Peckius. in Tract. de testa. coniug. lib. 1. c. 27.  And † thence it is that a testament is defined to be a sentence of our will, not of another man's will 
h) Supr. 1. part. §. 2. & 3. . Therefore when thou art made executor, or some legacy is bequeathed unto thee (if A.B. will) as is set down in the former instance, although A.B. should will that thou shouldest be executor, or have the legacy: notwithstanding thou couldst neither be executor 
i) L. illa institutio. ff. de haer. instit. Paris. cons. 38. lib. 3. n. 60. 73. , nor obtain the legacy 
k) L. non nunquam. de cond. & daemon. L. captatoriae. de leg. 1. ff. & est communis opinio, quam etiam defendit Covar. in d. c. cùm tibi. de testa. extr. . And even so where the testator maketh that person his executor, or giveth him an hundred pound, whom thou wilt appoint (as in the second instance) though thou shouldest appoint one, yet this appointment should not benefit him 
l) Bar. in L. quidam. de Reb. dub. ff. n. 7. 8. Bald. in L. executorem, C. de execu. rei iud. n. 5. Paris. cons. 38. vol. 3. n. 6. Grass. §. Institutio. q. 18. n. 4. : For † as thy soul is not the soul of the testator, no more is thy will his will, nor thy testament his testament 
m) Bald. & Angel. in L. captatorias. C. de mil. test. Vasq. de success. create. lib. 2. §. 17. n. 81. Peckius. Tract. de testa. coniug. c. 27. n. 3. Paris. d. consil. 38. , neither is it in the power of the testator to refer the substance of his will to the will of an other, 
n) d. L. illa institutio. ff. de haered. instit. Bar. in L. quidam de reb. dub. ff. Peckius. Tract. de testa. coniug. lib. 1. c. 27. n. 3.  being such a quality as cleaveth to his own person, and cannot be committed to another 
o) Sarmientus. lib. 2. select. interp. c. 6. n. 2. , except in certain cases.  
The first is when † the testator doth not refer his disposition to the sole only will of another person, as in the former example, viz. if A.B. will; but to the concreate will, or will joined with fact 
p) L. nonnunquam. ff. de cond. & daemon. : as for example, the testator maketh thee his executor, or giveth thee an hundred pound, if his son shall go to the Church, this is a lawful condition, and therefore the condition being complete, thou art to be admitted executor, or mayest obtain the legacy 
q) d. L. nonnunquam. Sarmient. lib. 2. select. interp. c. 6. n. 28. : And yet there seemeth but a little difference betwixt these conditions (if A. B. will) or (if A.B. shall go to the Church) for that it is in his will, whether he will go to the Church or not. But many things do greatly hurt being expressed, which not expressed do no harm 
r) d. L. nonnunquam. .  
another case is this, when † the testator doth not refer his will to the mere absolute will of another (as if A. B. will) but to his limited will 
s) Sichard. in d. L. captatorias. C. de mil. testo . As for example, the testator doth make thee executor, or giveth thee a hundred pound (if A.B. shall esteem it convenient.) In which case, if A.B. shall esteem it meet or convenient that thou be executor or have the legacy of an hundred pound, than thou art to be admitted to the one 
t) Sichard. ubi supr. quamuis quoad haeredis institutionem istud non procedit sine difficultate maiori iure civili. Sarmient. lib. 2. select. interp. c. 6. n. 4. , or mayst obtain the other 
v) L. si sic. de leg. 1. L. 1. de leg. 2. L. fidei commissa de leg. 3. ff. . The † testator is said to refer his disposition, to the mere absolute will of another, when he committeth the same to his will, to his lust, to his appetite 
x) Menoch. de Arb. jud. sentent. lib. 1. q. 7. : to his limited will, when he referreth the same to his discretion, judgement, wisdom, good pleasure, disposition, and conscience 
y) jas. in L. si sic. de leg. 1. ff. Menoch. d. lib. 1. q. 8 .  
Thirdly, when † the substance of the testators will is not referred, but only a declaration or election 
z) L. utrum. §. cùm quidam. ff. de reb. dub. Bar. in L. quidam. eod. tit. n. 8. Peckius. de testa. coniug. lib. 1. c. 27. : as for example, the testator maketh one of his servants his executor, or giveth him an hundred pound, whom thou shalt choose. In this case he whom thou shalt choose of the testators servants shall be executor, or recover the legacy. 
a) L. fidei commiss. de fidei come. lib. in fin. ff. Paris. cons. 38. lib. 3. Grass §. Institutio. q. 18. n. 6. ubi. ait hanc opinionem esse. come.  Another † case is when the disposition is referred to the will of the executor touching the executorship, or of the legatary, touching the legacy: as for example, the testator maketh thee his executor, if thou wilt, or doth give thee a hundred pound, if thou wilt, for this condition is not only permitted, but is necessarily required 
b) Supr. ead. part. §. 6. .  
Another case † is in favour of liberty or freedom from bondage, and therefore if the testator do manumit his villeine, if his executor will, it is as effectual, as if he had referred the same to the discretion, or wisdom, or conscience of his executor 
c) L. fidei commissa. de fidei commiss. lib. ff. Sichard. in L. captatorias. C. de mil. teston. .  
And further, † when the disposition is made ad pias causas, than it is also lawful for the testator to commit the very substance of his will, to the free and absolute will of another, 
d) Paul. de Castr. & Alex. in d. L. captatorias. Abb. cons. 32. lib. 2. Boic. & Covar. in d. c. cùm tibi. Bald. in c. in causis de elect. extr. quorum opinio est come. Grass. §. Institutio. q. 18.  and therefore if the testator make the poor of the parish his executor, or give them an hundred pound, if A. B. will, this is a good disposition 
e) Et hoc procedit iure Can. non solùm quo ad legata, sed etiam quoad institutionem. Covar. in d c. cùm tibi. n. 12. referens hanc op. esse veriorem. Tu add Gabr. lib. 6. come. conclus. Tit. pia causa. concl. 3. ubi pulcherrimè hanc conclusionem ornat varijs ampl. & limitac. .  
Finally † if the testator commit the disposition of all his goods to another, this is lawful, and he to whom the disposition is committed, is understood to be made executor, to distribute all the said goods in pios usus 
f c. cùm tibi. de testa. extr. & ibi Covar. n. 10. Grass. d. §. Institutio. q. 18. Peckius. de testa. coniug. lib. 1. c. 27. quorum testimonio haec opinio est communis. : so it is, if the testator commit his soul and all his goods to the hands of another, as hath been heretofore delcared 
g) Supr. ead part. §. 4. .   

Of those conditions whereby the liberty of marriage is restrained, viz. how far the same be lawful or unlawful.  
1 Of conditions against the liberty of marriage, some are lawful, some unlawful.  
2 Conditions against the liberty of marriage, are all unlawful, except in certain cases.  
3 The reasons wherefore the conditions against the liberty of marriage, are unlawful.  
4 The prohibition of the first marriage more odious then of the second.  
5 The condition of marrying with the arbitrement, will, or consent of another is unlawful.  
6 The reason wherefore the former condition is unlawful.  
7 The condition prohibiting marriage for a short time is not unlawful.  
8 The condition prohibiting marriage with some persons, is not unlawful.  
9 Whether the condition prohibiting marriage have respect only to the first marriage.  
10 An occasion of doubt, whether the former conclusion be true.  
11 An answer to the same doubt, distinguishing whether the conditions be affirmative, or negative.  
12 The condition prohibiting marriage in some place, is not unlawful.  
13 The condition having relation to the marriage of a third person, is not lawful, saving where that third person is of kin.  
14 The condition prohibiting marriage, is not rejected where pia causa is substituted.  
15 Affirmative conditions about marriage are not rejected but in some cases.  
16 Some affirmative conditions of marrying, harder than the negative of not marrying.  
17 The condition of marrying with the advise or counsel of another, is not unlawful.  
18 The condition of marrying with the consent of an other, is to be observed in part.  
19 Difference betwixt these phrases, If he do not marry, and, so long as he doth not marry.  
20 The condition of not marrying doth not hinder restitution simply imposed.  
§. xii.  
ALbeit † all those conditions whereby the liberty of marrying is wholly taken away, are generally disliked 
a) L. quoties. de cond. & daemon. L. servo. §. si testator. Ad. Treble. ff. : nevertheless, where the conditions be such whereby marriage is not altogether prohibited, but in part restrained, as in respect of time, place, or person, they are not to be utterly rejected 
b) L. cùm ita. L. hoc modo. L. sed si. §. cùm vir. de cond. & daemon. ff. & infr. hoc §. .  
Wherefore, that we may the better know when these kind of conditions be admitted or not, I thought it best, and the most easy way to set down a rule, with ampliations and limitations of the same, according to the diversity of cases, incident to that purpose.  
The † rule shall be this, that all conditions against the liberty of marriage are unlawful 
c) Eand. reg. tradit Vigelius in sua methodo exactissima iu●is civilis. part. 4. lib. 14. c. 3. cum decem exceptionibus. Et licèt idem Vigelius postea existimet contrarium iure novo constitui, & ita superuacaneas esse illius regulae exceptiones, pace tamen tanti viri, nihil novi statuitur in primis nuptijs, in quibus vel hody ius antiquum obtinet, ut verè attestatur Mantica de conject. vlt. vol. lib. 11. tit. 19 in prin. Cui concinnit Grass. Thesaur. con. op. asserens conditionem qua in totum prohibetur matrimonium in virgine turpem, contra bonos mores, atque adeo de iure impossibilem esse, denique communi Doctorum calculo reiectam. §. legatum. q. 50 ; and that whensoever the testator doth appoint his executor, or make any bequest upon such condition, that then the condition is void, as if it were not written; and that he who is made executor, or to whom any legacy is given upon such condition, may be admitted to the executorship, or may obtain the legacy, as if the disposition had been simple 
d) L. quoties. L. sed si. §. fin. L. cum tale. §. Meviae. de cond. & daemon. ff. L. 2. C. de indict. vid. .  
The † reason which the lawyers do yield, (I mean) of the unlawfulness of this condition, is, because it is contrary to the procreation of children, and repugnant to the law of nature, and hurtful to the common wealth 
e) Mantic. de coniect. vl. vo. li. 11. tit. 19 in prin. : whereunto it may be added, that howsoever virginity is commended, yet marriage is not thereby condemned, and therefore (as I said before) if the testator make one his executor, or give him an hundred pound, if he do not marry, this condition is unlawful, and as if it were not written 
f) L. quoties. L. hoc modo. L. cùm ita legatum. de cond. & daemon. ff. : which † thing is rather true, if the executor or legatary were never married before, for the prohibition of the first marriage is much more odious in law then the second 
g) Istiusmodi siquidem conditio, si permanserit vidua, vel castè vixerit, in ijs non reijcitur, in alijs secus. Auth. cui relictum. C. de indict. vid. Covar. Epiton. de sponsal. c. 2. §. 9 n. 11. Grass. Thesau. come. op. §. legatum. q. 50. quamuis eam non modo duram, sed & iniquam existimavit Peckius. Tract. de testam. coniug. lib. 1. c. 24. : for albeit it be commonly and truly said, that the common wealth hath an interest that testaments should be executed 
(h) L. Gallus. §. quid si is. de lib. & posthu. L. vel negare. quemad. testa. app. ff. , yet the common wealth hath a greater interest, that it should be thoroughly peopled, and therefore marriage not to be prohibited 
i) L. 1. sol. matr. L. cùm ratio. §. si plures. de bon. dam. ff. Mantic. de conject. vlt. vol. lib. 11. tit. 19 in prin. .  
And in consideration hereof, this rule is extended, that if † the testator make some person his executor, or give him any legacy, if he marry according to the appointment, arbitrement or consent of some other; this condition is rejected as unlawful 
k) L. cùm tale. §. si arbitratu. d. §. si Meviae. Gravetta. consil. 1. n. 3. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 8. . And therefore in this case if he that is made executor, or to whom any legacy in such sort is given, do marry contrary to the said restraint, mentioned in the testament, he is to be admitted to the executorship, and may obtain the legacy, as if no such condition had been expressed 
l) d. §. si arbitratu. L. turpia. §. si Titiae. de leg. 1. ff. Gravetta. & Mantic. ubi supr. Peckius de testa. coniug. lib. 1. c. 24. n. 6. ubi dicit hoc procedere in virginibus, non in viduis, ob novellam justiniani constitutionem, qua ꝑmittitur conditio viduitatis: quod etiam alijs placet. ut Grass. d. §. legatum q. 50. n. 10. .  
The † reason of the unlawfulness of this condition is, lest he whose arbitrement were to be followed, or whose good will were to be procured, might make an hard choice for the executor or legatary, either by reason of the dislike of the parties 
m) Quam rationem communiter esse receptam refert Grass. Thesaur. come. op. §. legatum. q. 50. n. 9 post DD. in d. L. turpia. §. si Titiae. , inequality of age, disparity of kindred, disagreeing in manners or such like, which, if it were suffered, would breed greater mischief, then may be in a case of that quality tolerated or endured.  
Moreover, if the testator do bequeath any legacy to a woman conditionally, if she do not marry, willing her to restore the same to some other, if she do marry: Albeit in this case the woman do marry, she may obtain the legacy, neither is she bound to restore the same 
n) L. quoties. de cond. & daemon. ff. Mantic. de coniect. vlt. vol. lib. 11. tit. 19 n. 4. Grass. Thesaur come. op. §. legatum. q. 50. n. 7. 8.  unless it were the meaning of the testator not to forbid marriage, but to grant the use of the thing bequeathed until the legatary did marry 
o) Peckius de testa. coniug. lib. 1. c. 24. L. sed si §. cum vir. de cond. & daemon. ff. . Other extensions there be also of this rule, but let us return to the limitations.  
The first limitation therefore is, when † the condition is not perpetual, but temporal 
p) L. sed si §. cùm vir. ff. de cond. & daemon. , as if the testator make his daughter executrix, or bequeath her a hundred pound, if she do not marry before the age of 20. years: this condition is to be performed 
q) jas. in Auth. cui relictum. de indict. vid. C. Mantic. de coniect. vlt. vol lib. 11. tit. 18. n. 8. : Howbeit if the time of the prohibition be such, that it is very like, if she should continued a maid during that space, that her marriage should be greatly hindered, the condition is rejected, as being made in fraud of marriage 
r) jas. in d. Auth. cui. n. 3 per L. cùm tale. ff. de cond. & daemon. Fran. de Are. consil. 67. Mantic. de coniect. vlt. vol. lib. 11. tit. 19 n. 8. .  
The second limitation is when † the prohibition doth only exclude some persons: as for example, the testator doth make thee his executor, or giveth thee an hundred pound, if thou do not marry a widow; this condition is not unlawful 
s) L. cùm ita legatum. ff. de cond. & daemon. Peckius de testa coniug. lib. 1. c. 24. n. 4. : And therefore if at any time after thou do marry a widow, thou canst not be executor, nor obtain thy legacy: In so much that † if thou shouldest marry a maid, & after her death shouldest marry a widow, all thy hope of being executor, or obtaining thy legacy is extinguished, by this thy second marriage 
t) Oldrad. consil. 16. Alciat. in L. boves. § hoc sermone. de verb. sig. ff. & Tiraquel. in d. §. limitac. 7. , much more is the condition lawful, if the testator make thee his executor, or give thee any legacy, if thou do not marry this, or that particular woman 
v) d. L. cum ita legatum. Mantic de coniect. vlt. vol. lib. 11. tit. 19 n. 9 Pecki● de testam. coniug. lib. 1. c. 24. , for here thou hast greater liberty, and more choice, then in the former. Where † I said that the hope & interest of the executor or legatary is extinguished, if at any time he marry contrary to the prohibition of the testator, whether it be the first or the second marriage, this may seem doubtful: for that when mention is made of marriage, it is to be understood of the first marriage only 
x) d. L. boves. §. hoc sermone. . And therefore if the testator make thee his executor, or giveth thee an hundred pound if thou marry his daughter; if thou after the making of this will, shouldest first marry some other woman, and after her death shouldest marry the testators daughter 
y) Paul. de Castr. in L. hoc genus. ff. de cond. & daemon. : yet couldst thou not be executor, nor obtain the legacy: for in this case, the testator is presumed to mean of the first marriage, not of the second marriage 
z) Tiraquel. in d. §. hoc sermone. n. 3. 4. facit L. matrimonij. ff. qui & à quibus. ma. . How then cometh it to pass, that thou being made executor, or having any thing bequeathed unto thee, if thou do not marry the testators daughter, losest all thy hope and interest, whensoever thou dost marry her, supposing thou hadst married one, two or three before. The † answer is this, when the condition is affirmative, than it is to be understood of the first act only: but when the condition is negative, than not only the first act, but the second, third, and every other act is perpetually forbidden 
a) Oldrad. d. consil. 16. Alciat. & Tiraquel in d. §. hoc sermone. Bar. & Paul. de Castr. in d. L. hoc genus. ff. de cond. & daemon. , the reason of the difference is, because there is greater force in the negative then in the affirmative 
b) Pius negat negatio quam affirmat affirmatio, inquit Paul. de Castr. in d L. hoc. genus. .  
The third limitation is, † when the condition is limited, only in respect of some place, as if thou dost not marry in the City of York 
c) L. hoc modo. ff. de cond. & daemon. Grass. Thesaur. come. op. §. legatum. q. 50. Peckius. de testa. coniug. lib. 1. c. 24. n. 10. .  
The fourth limitation is, when † the condition of not marrying, is not referred to the executor or legatary, but to some other person: as for example, the testator maketh thee his executor, or giveth thee an hundred pound, if his daughter do not marry: in this case the condition is not rejected, wherefore thou art to expect the event thereof 
d) L. 1. C. de indict. vid. Mantic. de coniect. vlt. vol. lib. 11. tit. 19 n 5. , for if she marry thou art excluded, if she die unmarried thou art to be admitted 
e) DD. in d. L. 1. C. de indict. vid. . But if the testator make thee his executor, or give thee an hundred pound, if thy daughter do not marry: this condition is unlawful 
f) L. haeres meus. §. vlt. de cond. & daemon. ff. , for where the person whose marriage is prohibited, is of thy near kindred which art made executor or legatary, it is likely that such person will by thy persuasions abstain from marriage, to enrich thee by the testament 
g) d. §. vlt. & ib. Bar. & Paul. de Castr. , and therefore the law to prevent such fraud, hath rejected that condition 
h) Mantic. de coniect. vlt. vol. lib. 11. tit. 19 ubi tradit alias limitationes. .  
The fift limitation is, when † that which is given with condition of not marrying, is to be distributed in pios usus, in case the condition be not observed: as for example, the testator doth bequeath unto thee an hundred pound, if thou do not marry; and if thou dost marry, than he doth will that the same be distributed amongst the poor scholars of Oxford. In this case the condition is not rejected as unlawful, and so if thou shalt marry, thou losest thy hundred pound, and the same is to be distributed amongst the said poor scholars 
i) Paul. de Castr. in I. Titio. §. vlt. de cond. & daemon. ff. Mantic de coniect vlt. vol. lib. 11. tit. 18. n. 9 , the reason is, for that the law doth more favour piety than the liberty to marry 
k) Mantic ubi supr Imol. in d. L. Titio. §. vl. Tiraquel. de privileg, piae causae. priu. 18. .  
The sixth limitation is, when † the condition is conceived affirmatively, not negatively: for example, the testator maketh thee his executor, or giveth thee an hundred pound if thou marry his daughter 
l) L. uter. de cond. & daemon. ff. Mantic. de conject. vlt. vol. lib. 11. tit. 18. n. 2. , or if thou marry a maid 
m) Peckius. Tract. de testa. coniug. lib. 1. c. 24. , or if thou marry within a month 
n) Mantic. d. tit. 18. , or if thou marry at London 
o) Peckius. d. c. 24. n. 5. in fin. , for albeit in these affirmative conditions, is also included a negative, that is to say; if thou do not marry another woman, nor at any other time, nor in any other place: nevertheless, these conditions are not unlawful, seeing the included negative is not universal but particular 
p) L. cùm ita. L. hoc modo. ff. de cond. & daemon. .  
But if † the woman appointed by the testator be such as thou canst not with honesty marry her 
q) d. L. cùm ita legatum. , then howsoever the condition be affirmative, yet in very truth it is a harder condition, and more against the liberty of marriage, than this negative (if thou do not marry;) for by this affirmative, thou art not only excluded from marrying any other, but thou art, as far as is in his power, enforced to accept her, whom thou canst not with thy credit marry 
r) d. L. cùm ita in fin. Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 5 & Bar. in d. L. cùm ita, ubi respondit, quae persona sit indigna tuis nuptijs, nempè illa, cui non potes sine dedecore nubere, inspecta natalium qualitate: Ne dum si iure vel civitatis moribus prohibeantur huiusmodi nuptiae, indigna erit persona, & inutilis conditio. . And the like may be said, if the time or place be not convenient, for then also the condition is rejected 
s) Mantic. & Peckius. ubi supra. .  
The seventh limitation is, when † by the condition the executor or legatary is not to marry without the counsel or advise of another person 
t) Castrens. & Alex. in L. Turpia. §. si Titiae. de leg. 1. ff. Bar. in L. 1. §. si plures. de exercit. action. ff. Mantic. de conject. vlt. vol. lib. 11. tit. 18. ●▪ 10. : as for example, the testator doth make thee his executor, or give thee an hundred pound, if thou do marry with the counsel or advise of his brother; for if thou do marry without his counsel or advise, thou art excluded 
v) Mantic. ubi supr. Ay●. Gravet. consil. 1. Covar. de sponsal. 2. part. c. 3. §. 8. n 3. : Nevertheless, in this case thou art not bound to follow his counsel or advise, but to request the same 
x) Paul. de Castr. consil. 300. vol. 1. Felin. in c. ex part. de constit. extr. col. 2. Grass. Thesaur. come. op. §. legatum. q. 50. n. 11. licèt impressio in illo loco sit corrupta. .  
The eight limitation is this, where † it is said before, that the condition of marrying with the consent, good will, and arbitrement of an other is void, (so that the executor or legatary, to whom the condition is imposed, is neither bound to obtain, nor yet to crave the consent, good will, or arbitrement of that other) yet the person on whom the condition is imposed, cannot be executor, nor get the legacy, unless he do marry 
y) Alex. & Paul. Castrens in d. L. turpia. §. 1. ff. de leg. 1. , for though he need not so much as to crave the consent, or good will of any third person in this case, seeing that part of the condition is unlawful; yet must he marry ere he can pretend any title to the executorship or legacy, seeing that part of the condition is not unlawful 
z) Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 8. post Alex. & Castrens. in d §. 1. .  
The ninth limitation is, when † the prohibition of marriage is not made conditionally by this word If, (as I make thee my executor if thou dost not marry) but by other words or adverbs of time, as when the testator willeth, that his daughter or wife shall be executrix, or have the use of his goods, so long as she shall remain unmarried 
a) L. legatum ita est. de an. leg. ff. Peckius. de testa. coniug. lib. 1. c. 24.   
The tenth limitation is, when † the person on whom the condition is imposed, is simply charged to restore the thing bequeathed 
b) L. non dubium. ff. de leg. 3. : As for example, the testator doth bequeath to thee an hundred pound, if thou do not marry, and he doth will thee to restore the same to his son when he shall come to lawful years: In which case thou art by law to restore the same accordingly 
c) d. L. non dubium. Mantic. de coniect. vlt. vol. lib. 11. tit. 19 n. 4. Grass. Thesaur. come. op. §. legatum. q. 50. , neither is this limitation contrary to the former ampliation of the rule, for here thou art charged with restitution simply, there conditionally 
d) Mantic. d. tit. 19 n. 4. .   

Whether the condition forbidding alienation of goods bequeathed, be lawful or unlawful.  
1 Prohibition of alienation is sometimes to be observed as lawful, sometimes not.  
2 Prohibition appareled with a cause is lawful.  
3 Naked prohibition doth not bind the executor, or legatary.  
4 Whether the feoffee may be prohibited to alienate.  
5 Whether the dower of lands in tail may prohibit alienation.  
6 As it is lawful to prohibit alienation in favour of some people, so in disfavoure of others.  
7 Of those causes wherewith the prohibition is said to be appareled.  
8 In what cases the executor or legatary may alienate the thing devised, notwithstanding the appareled prohibition.  
9 Bond ought to be put in where there is a condition prohibiting alienation.  
§. xiii.  
THe † prohibition of the testator, forbidding the executor or legatary to alienate the goods bequeathed, is sometimes to be observed as lawful, sometimes not.  
The prohibition is then † lawful and to be observed, when it is made in favour of some other person, who is to enjoy the thing disposed, after the executor or legatary, or when there is some special 
a) L. filiussamilias. §. diui. de leg. 1. ff.  cause whereupon this restraint is grounded.  
The † condition is not of any force, when it is without cause, or not made in favour of any other person, save only of the executor or legatary 
b) d. §. diui. . In which case they may renounce this favour, and alienate the thing devised, notwithstanding such single prohibition, which is rather said to be a counsel, than a commandment 
c) jas. in d. §. diui. n. 1. : For the law doth deem it an absurd matter, that a man should be lord and owner of a thing, and yet should not at pleasure alienate the same 
d) jas. in d. §. diui. n. 9 Doct. & Stud. lib. 1. c. 24 . In which point also I suppose that † the temporal laws of this realm have the same effect in lands, which the laws ecclesiastical & civil have in goods. And therefore if a feoffment be made of lands in fee simple, upon the condition that the feoffee shall not alienate or put away the same: this condition is void, because the feoffee is without any cause wholly restrained of that power which the law yieldeth unto him in such a case 
e) Brook Abridg. tit. condition. n. 135. Fitzherb. tit condition. n 4. Principal grounds. fol. 28. Doct. & Stud. lib. 1. c. 24. Litleton. tit. estates upon conditions.   
But when the prohibition hath a cause annexed, or the same is made in favour of some other person, who is afterwards to enjoy the lands; then this condition of not alienating the same, is good and effectual in the law, as may appear by the gifts of land in tail. For if † lands be given to a man, and to the heirs of his body lawfully begotten, upon condition, that neither he nor his heirs shall alienate the lands to any other person: this condition is good and effectual. In which case, if he or his heirs to whom the land is given, alienate the same, than the giver or his heirs may lawfully enter and retain the lands for ever 
f) Fitzherb. Abridg. tit. condition. n. 4. Litleton. tit. estates upon conditions. fol. 77. . And † as it is not lawful to alienate from particular persons, in whose favour the prohibition is made: no more is it lawful to alienate to those particular persons, in whose disfavour the prohibition is made 
g) Alex. in d. L. filiussamilias. §. diui. ff. de leg. 1. n. 1. . In which case also concerning lands, the laws of this realm, do not differ from the civil and ecclesiastical laws concerning goods: for howsoever it is not lawful for the feoffer to cut off the whole power of the feoffee, yet he may abridge or restrain some part thereof, by condition that he shall not alienate his lands to such or such persons 
h) Brook Abridg. tit. cond. n. 135. Litleton. tit. estates upon condition. fol. libri mei. 77. .  
The † cause wherewith the prohibition is said to be appareled, besides these former respects of the favour and disfavour of persons, ariseth for the most part of the testators affection, towards the thing bequeathed: as when the testator doth bequeath some cup of gold which was his ancestors, forbidding the executor or legatary to alienate the same, but to keep it for a memorial 
i) L. si in emption. de Minor. ff. Paul. de Castrens. in d. §. diui. : or when he doth bequeath some jewel, or other ornament being the gift of the prince 
k) Alex. & Ripa. in d. §. diui. , and for that cause doth prohibit the alienation thereof; or when he doth bequeath some prize by him gotten in the wars, as a sword or an helmet, and therefore doth forbid the alienation thereof 
l) Alex. & Rip. ubi supr. .  
Which prohibition in this sort is to be observed, as well as if it were in regard of some other person 
m) d. L. filiusfa. §. diui. , except it be in certain cases, for it is not perpetually true, that the prohibition upon a cause, or made in respect of some person is to be observed.  
The first exception therefore of this rule is, when the alienation is necessary, not voluntary, that is to say, when the rest of the testators goods will not suffice to pay his debts: for than it is lawful for the executor to sell the same goods prohibited to be sold 
n) d. §. diui. in fin. L. peto. §. praedium. ff. de leg. 2. jas. & Ripa. in d. §. divi .  
The second, when the alienation is momentany, or of a short time, not perpetual, with a covenant to restore the thing alienated again 
o) Angel. in L. voluntas. C. de fideicommiss. Ripa. in d. §. diui. n. 10. ubi limitat hanc exceptionem duobus modis. .  
The third exception is, when the thing bequeathed is in place far distant from him to whom it is bequeathed, and who by reason thereof, cannot have any benefit thereby, if he should not alienate the same: for then the prohibition of alienation, being made in his favour, it seemeth that he may alienate the same 
p) Bald. in L. voluntas. C. de fideicommiss. .  
The fourth is, when the alienation is made by him who is the last of the family, in whose favour the testator did prohibit the thing bequeathed to be alienated 
q) jas. & Ripa. in d. §. diui. .  
The fift is, when the executor being prohibited to alienate the thing bequeathed, except to certain persons, and the offering to sell the same unto them, they refuse to buy it. In which case he may sell the same to others, notwithstanding the prohibition 
r) jas. in rep. d. §. diui. n. 8. per L. qui Romae. §. cohaeredes. ff. de verb. ob. .  
The sixth is, when the thing bequeathed was first sold to the person permitted by the testator, for afterwards it may be simply sold to any other 
s) jas. in rep. d. §. diui. n. 76. per. L. pater. §. quindecim. ff. de leg. 3. .  
The seventh is, when the executor or legatary doth sell the fruits and commodities of the things bequeathed, during his his life 
t) jas. in rep. d. § diui. n. 84. post. Bar. in L. codicillis. §. Institutio. ff. de leg. 2. .  
divers other exceptions there be 
v) De quibus jas & Ripa. in d. §. diui. & Vig. in sua methodo iur. civil. part. 4 lib. 14. c. 11. in prin.  concerning this present purpose, because I do not see how there can be any great use thereof in the ecclesiastical Court, I have omitted the same, aiming especially at these cases whereof there is like to be most use, and most benefit to the reader: Only this thing I thought good to add in this place, that where † the testator doth make an executor, and give him the residue of his goods conditionally, if he do not alienate the said residue of goods, the executor cannot be admitted to the executorship, unless he first enter into bonds not to alienate the same 
x) L. 4. §. idem julianus. ff. de cond. Instit. & ibi Bald. jas & Ripa. in d. §. diui. quae sententia firmior erit existent cohaerede, seu coexecutore. Cui Mutiana praestari possit cautio.    

Within what time the condition may or ought to be performed, no certain time being limited by the testator.  
1 In this question, three times, and three conditions, are to be considered.  
2 Whether the condition may be performed before the making of the will.  
3 When the condition is arbitrary, the same must be performed after the death of the testator.  
4 What if the arbitrary condition be such as the same cannot be iterated.  
5 What if the arbitrary condition have relation to the time past.  
6 Casual and mixed conditions may be performed before the making of the testament, if the testator were ignorant of the performance.  
7 If the testator did know of the former performance, it must be performed again if it be possible.  
8 Whether the condition may be performed during the time betwixt the making of the testament, and the death of the testator?  
9 Within what compass of time, may or ought the condition to be performed after the death of the testator.  
10 The condition being arbitrary, it is material whether the condition be imposed on the executor or legatary.  
11 The executor may at any time accomplish the arbitrary condition after the testators death.  
12 Whether the ordinary may limit a certain time for performance of the condition.  
13 The legatary must perform the arbitrary condition, so soon as he can.  
14 The reason wherefore the executor hath longer time of performing an arbitrary condition, than the legatary.  
15 No time doth prejudice the legatary, whiles he is ignorant of the condition.  
16 If the condition be casual, it may be accomplished at any time.  
17 What if the condition be extant after the death of the legatary.  
18 If the condition be mixed, it may be performed at any time.  
19 What if the condition do concern marriage, whether ought it to be performed within three years?  
§. xiv.  
IF † we will understand within what compass of time the condition whereupon the executor is made, or any legacy bequeathed, may be or aught to be performed, where there is not any certain time limited by the testator, we are to consider three several times, and three several sorts of conditions.  
Of the three times, the first is the time before the making of the testament: the second is the time betwixt the making of the testament, and the death of the testator: the third is the time after the death of the testaior 
a) L. ●i iam facta. ff. de cond. & daemon. .  
Touching the conditions we are to consider, whether the same be arbitrary, casual, or mixed 
b) L. vnic. §. sin autem. C. de cad. toll. & supra ead. part. §. 5. . For the † time before the making of the testament, if any do inquire whether within that time, the condition may be performed: It is to be answered, that † if the condition be arbitrary, that is to say, such as doth consist in his power on whom it is imposed, the same cannot be performed but after the death of the testator 
c) L. 2. de condic. & daemon. ff. L. si quis haeredem. de instit. & sub. C. . For example, the testator maketh thee executor, or giveth thee a hundred pound, if thou wilt go to the Church, or if thou wilt give ten pound to the poor: In this case it is not sufficient that thou didst go to the Church, or that thou didst give ten pound to the poor at any time before the making of the testament, or yet after the making of the testament, before the death of the testator: for an arbitrary condition must be performed after the testators death 
d) Gloss. & DD. in d. L. si quis haeredem. & hoc etiam fieri debet, non fato aut casu, sed animo & study implendi conditionem, ut habet communis omnium Interpretum sententia. teste Grasso. Thesaur. come. op. §. legatum. q. 57 & huc faciunt quae superiùs dicta sunt ead part. §. 7. in princ. , saving in some cases. One † is when the condition cannot be iterated: for than it is sufficient that the same was performed in the life time of the testator, even before the making of the testament 
e) L. si iam facta. L. haec conditio. ff. de cond. & daemon. Paul. de Castr. in d. L. si quis haeredem. n. 4. : for example, the testator maketh thee executor, or giveth thee an hundred pound, if thou shalt remit unto A.B. the debt which he oweth thee, and burn the obligation; which thing is by thee already done: In this case it is sufficient that thou hast done it, seeing it cannot be iterated 
f) L. haec conditio. el. 1. ff. de cond. & daemon. Bar. in L. 2. de cond. & daemon. Paul. de Castr. & Sichard. in L. si quis haeredem. de instit. & sub. C. . And this I suppose to be true, not only if the testator be ignorant of the performance of the condition 
g) d. L. si iam & facta. & L. haec conditio. el. 1. ff. de cond. & daemon. & eo loci Interpretes.  (for it is not likely that he would have imposed any condition to have been performed, if he had known the same to have been performed before, and that it could not be performed again) but also, if he did know the condition to have been performed before, in which case the condition not being iterable, is impossible, and so rejected, the disposition remaining pure and simple 
h) Grass. Thesaur. come. op. §. legatum. q. 57 in fin. per L. quae sub conditione. §. quoties. ff. de cond. instit. . Another exception is, when † the condition is referred to the time past: For example, the testator maketh thee his executor, or giveth thee some legacy, if thou hast done this or that thing 
i) L. talis institutio. de cond. instit. L. cum ad praesens. si cer. pe. ff. . In which case it is not only sufficient, that the condition was performed before the making of the testament, but it is necessary that it should so be, for obtaining the executorship or legacy 
k) d. L. Institutio talis. .  
But if † the condition be not arbitrary, but either casual or mixed, that is to say, either wholly without the power of the person on whom it is imposed, or partly in his power, & partly in the power of some other 
l) Bar. in L. 1. C. de Inst. & sub. supr. cad. part. §. 5. in fin. ; than it is material whether the testator were ignorant of the accomplishment of the condition when he made his testament, or not: for if the testator, when he made his testament, were ignorant that the condition was performed before, the same is deemed to be sufficiently complete 
m) d. L. si iam facta. ff. de cond. et daemon. d. L. siquis haeredem. C. de instit. et sub. . Example of the casual condition, the testator maketh thee his executor, or giveth thee an hundred pound, if his ship shall return from Venice: this ship is returned already, but the testator is ignorant thereof, at the time of making his testament. In this case the condition is sufficiently extant, as if the same had returned after his death 
n) L. haec conditio. §. si sic. ff. de cond. et daemon. et d. L. si quis haeredem. . Example of the next condition: the testator doth make thee his executor, or giveth thee an hundred pound, i● thou take a wife; thou hast a wife already, but the testator did not then know so much, when he made this condition. In this case also thou art reputed to have sufficiently accomplished the condition 
o) Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 16. per d. L. si quis haeredem. et d. L. si iam facta. .  
But if † the testator were not ignorant thereof, but did know of the return of his ship, and of thy marriage, at the time when he did impose the condition, than the condition is not reputed to be extant or accomplished: but it is to be understood of the next return, and of thy next marriage 
p) L. si ita scriptum. ff. de leg. 2. Mantic. de coniect. vlt. vol. tit. 18. lib. 11. n. 16. . Howbeit, if the condition were such, that the same could not be iterated, than it should be reputed for extant and accomplished: albeit the testator at that time when he did impose the condition, were not ignorant of the accomplishment thereof: For example, the testator maketh thee his executor, or giveth thee an hundred pound, if thou shalt be baptised, or if thou shalt take his daughter to wife: for it is sufficient, albeit the testator did know thee to be baptised before, or that thou hast taken his daughter to thy wife before, seeing the condition cannot be iterated 
q) L. quae sub conditione §. quoties. de cond. inst. L. haec conditio. el. 1. et L. si iam facta. de cond. et daemon. ff. L. si quis haeredem. de inst. et sub. C. et DD. in dictas LL. .  
Concerning † the second time, that is to say, the time betwixt the making of the testament, and the death of the testator; if any be desirous to know, whether the condition may be performed during this time, I refer him to that which hath been said immediately before: that is to say, either is the condition arbitrary; and than it is not sufficient to perform the same, so long as the testator liveth, unless it be such a case as cannot be iterated; or that the condition doth respect the time past; or else the condition is casual, or mixed; and than it is sufficient that it is completed whiles the testator liveth, for seeing it is sufficient, if it be performed before the making of the testament, much more if it be performed after the making of the testament.  
Concerning † the third time, which is the time after the testators death, if we would now also know within what space or compass of time immediately from his death, the condition may or must be performed, no certain time being prescribed by the testator, we must first inquire the nature of the condition, observing diligently as before, whether the same be arbitrary, casual, or mixed, for according to the diversity of the conditions, Law hath determined diversly.  
In the first case, viz. when † the condition is arbitrary, we are to consider whether the same be imposed on the executor or on the legatary. If the † condition be imposed on the executor, the same may be performed at any time, so long as the executor liveth 
r) L. si quis instituatur. §. 1. de haered. instit. ff. : For example, the testator maketh thee his executor, if thou shalt give to the poor ten pound. In this case thou mayest at any time during thy life accomplish the condition, and it is of the same effect, as if thou hadst performed the same immediately after the testators death 
s) Gloss. Bar. et Bald. in d. §. 1. Grass. Thesaur. come. op. §. legatum. q. 57 n. 2. , unless the † ordinary do appoint a certain competent time for the performance thereof, for so he may do in this case (as hereafter is more fully declared 
t) Infr. ead. part. §. 16. ) within which time if thou do not accomplish the condition, he then may commit the administration of the goods of the deceased, as of one dying intestate 
v) Bar. Bald Paul. de Castr. in d. L. si quis. §. 1. et infr. ead. part. §. 16. . If the † condition do appertain to the legatary, than the same must be performed so soon as the legatary conveniently may perform the same, or else the legacy is lost 
x) L. haec conditio. ff. de cond. et daemon. Dec. in L. 1. de instit. et sub. C. . For example, the testator doth bequeath unto thee an hundred pound, if thou wilt go unto the Church, or give ten pound to the poor. In this case so soon as thou art well able to go to the Church, or to give the ten pound after the death of the testator, thou must perform the condition, otherwise thou hast lost thy legacy 
y) Bar. in d. L. haec conditio. Alex. in L. si insulam. n. 24. Ripa. n. 103. de verb. ob. ff. quae opinio communiter est recepta, ait Grass. Thesaur. come. op. §. legatum. q. 57 n. 2. . The † reason of the difference betwixt the executor and the legatary in this respect, is, because greater prejudice may grow to the executor, by undertaking the executorship, then to the legatary by accepting the legacy. And therefore in equity the executor ought to have longer time, to deliberate of the performance of the condition, and undertaking of the burden of the executorship, than the legatary, to whom no prejudice at all may happen, or not so much, as to the executor 
z) Grass. ubi supr. Bar. Bald. Castr. & alij in L. si quis. §. 1. ff. de haered. instit. . Notwithstanding † if the legatary were ignorant of the testament or condition, so long as he is ignorant, no negligence is to be imputed unto him, nor any prejudice doth grow unto him, by not performing the condition, as otherwise it might, if he had known thereof 
a) Bald. in L. 1. C. de Instit. & sub. n. 20. .  
In the second case, that is to say, when the condition † is casual, than the event thereof is to be expected, and whensoever the same shall be extant, then may he that is made executor, or to whom any legacy is left upon such casual condition, be admitted to the executorship, or obtain the legacy, and not before 
b) L. intercidit. de cond. & daemon. L. fideicommissa. §. sic. fideicommiss. in sin. de leg. 3. ff. : As for example, the testator maketh thee his executor, or giveth thee an hundred pound, if his ship return from Venice. In this case whensoever the ship shall return from Venice, during the life of the executor or legatary, then is he to be admitted to the executorship, and may obtain the legacy, but not before 
c) d. L. intercidit. L. v. ric. §. sin autem. C. de cad. tol. Tiraquel. de retract. §. 1. gloss. 2. n. 25. . So that † if he die in the mean time, the executorship or legacy shall not be transmitted to his executors or administrators, although the condition be extant afterwards 
d) L. liber. §. si ita de haered. instituend. L. in teston. de cond. & daemon. ff. L. vnic. §. sin autem. C. de cad. tol. Zas. in L. si decem. ff. de verb. oblige. ; unless some legacy be left unto the Prince, who if he die before the condition be extant, yet is the same due to his successors, in whose time the condition is extant 
e) L. quod principi. ff. de leg. 2. , or unless it be the will and meaning of the testator, that the same be transmitted: for the testator, if he will may make the same transmissible, which otherwise is not transmissible 
f) L. in conditionibus. §. 1. ff. de cond. & daemon. Mantic. de coniect. vlt. vol. lib. 11. tit. 10. .  
In the third case, that is to say, when the † condition is mixed, than the same may be accomplished at any time, as in casual conditions, except the condition be of marriage 
g) jas. in L. 2. de Instit. & sub. C. . But if the testator † make thee his executor, or give thee an hundred pound, if thou marry: In this case very many be of this opinion, that thou oughtest to marry within three years 
h) Bar. in L. 2. §. ad filiorum. C. quando & quibus quarta pars. jas. Sichard. & alij in L. 2. C. de Instit. & sub. . Others are of a contrary opinion, and that it is sufficient to marry at any time, either within three years or after 
i) Paul. de Castr. in d. L. 2. Mantic. de coniect vlt. vol. lib. 11. tit. 18. n. 23. . In which contrariety of opinions, I suppose that if the executor be appointed upon condition, if he marry, that then he may at any time accomplish the same, not only within three years, but after 
k) Paul. de Castr. ind. L. 2. Grass. Thesaur. come. op §. legatum. q. 46. n. 18. . But if a legacy be given upon condition, if the legatary marry, than it is the common opinion of the writers, that the legatary must be married within three years, or else the condition is said to be deficient, and so is the legacy lost 
l) Bar. jas. Dec. Sichar. & alij, in d. L. 2. quorum opinio communis est, inquit Grass. Thesaur. come. op. §. legatum. q. 46. n. 18. . And albeit the other opinion is said to be truer, that the condition is sufficiently accomplished by marrying after three years 
m) Mantic. de coniect. vlt. vol. lib. 11. tit. 18. n. 23. Grass. ubi supr. , yet the judge may not easily departed from the common opinion: for whatsoever is affirmed for the truth of the singular opinion; yet that is presumed to be the truer opinion, which is more commonly received 
n) Corasius. Trac. come. op. lib. 2. cas. 14. . The reason of the difference wherefore the legatary is excluded rather than the executor, if he do not marry within three years (as is before showed) namely, for that the executor otherwise is subject to more peril than the legatary 
o)  supra in pluribus. .   

Of the understanding of this condition, viz. If he die without issue.  
1 Manifold questions by occasion of this condition, if he die without issue.  
2 Whether he be said to die without issue, whose issue is natural, but not lawful.  
3 What if the father and mother do afterwards marry together.  
4 When the issue is lawful, not natural, whether he be said to die without issue?  
5 What if the child were got by another man before marriage.  
6 If another have to do with the wife besides her husband, yet the child shall be deemed the husbands.  
7 divers extensions of this conclusion.  
8 What if the child be like the adulterer.  
9 How comes it to pass, that the child is sometimes like unto another than him which did beget it.  
10 In some cases the husband shall not be judged the father of the child begotten during marriage.  
11 Whether shall the child be the former or the second husbands, when it is uncertain whether of them did beget him.  
12 Whether he be said to die without issue, who had children, but not at his death.  
13 Difference betwixt this condition, If he die without issue, and this, If he have no issue.  
14 Whether that father is to be deemed to die without issue, whose child is unborn when he dieth.  
15 Whether he be deemed to have died without issue, whose child dieth so soon as it is borne.  
16 If the child be heard to cry, the father shall be tenant by the courtesy.  
17 What if the child were not heard to cry.  
18 What if the issue be borne dead, or dieth as it is borne.  
19 What if a monster be borne, whethr shall the parents be judged to have died without issue.  
20 What if the child in the mother's womb, being made executor, she be delivered of divers children at one birth, whether shall every of them be executors?  
21 What is to be observed in legacies, where more are borne at one birth.  
§. xv.  
AS there † is no condition more usual than this, (If he die without issue) so there is none that doth minister more questions (although some of them be not altogether so difficult) which thing that it may the better appear, let us first suppose that the testator doth make thee his executor, or doth bequeath unto thee an hundred pound, if he die without issue. This case doth minister all these questions, What if the testator have issue natural, but not lawful? Or what if he have issue lawful, but not natural? What if he have issue both natural and lawful, but the same dieth before the father? Or what if he beget his wife with child, and then die before the child be borne? Or what if the child die before it be borne? Whether shall the testator be judged to die without isse; yea, or no? All these and many more like questions, may be demanded by reason of that condition (If he die without issue) whereunto I shall answer in order as they be propounded: presupposing that to have issue, is to have a child, or children: and to die without issue is to die with out any child.  
When † the issue is natural, but not lawful, if the will and meaning of the testator do not appear, the testator is deemed to have died without issue 
a) L. in conditionibus. de cond. & daemon. L. ex facto. §. si quis rogatus. ad Trebel. L. vulgo de statu hom. ff. Mantic. de coniect. vlt. vol. lib. 11. tit. 9 in prin. Sichard in L. generaliter. §. cum autem. C. de Instit. & sub. Bract. de leg. & consue. Angl lib. 5. c. 30. n. 10. in sin. : for it is not likely that an honest person speaking of children, did mean of bastards, but of lawful children 
b) Ripa. in d. L. ex fact. §. si rogatus. ad Trebel. ff. n. 16. Grass. Thesaur. come. op. § fideicommis. q. 37. n. 6. : Insomuch † that if the testator do beget a child, and after the birth of the child marry the mother: yet in this case I am of this opinion, that by the laws of this realm he shall be judged to have died without issue. For thou shalt understand that in the time of King Henry the third 
c) Merton. c. 9 an. 20. H. 3. , this question being propounded in the Parliament, Whether one borne before matrimony might inherit, as one borne after matrimony? All the Bishops answered, and said, that it was against the common order of the Church, that such should not inherit 
d) Per c. 1. etc. tanta. qui filii sunt le git. extr. §. vlt. Instit. de nuptijs. c. nullum. 3. q. 5. : and they all instanted the Lords temporal and Barons then assembled in Parliament that they would consent, that all they that were borne before matrimony, should be legitimate, as well as they that were borne within matrimony, concerning the succession of inheritance, for as much as the Church accepted such as legitimate. But they all with one voice answered, that they would not change the laws of this realm, which hitherto had been used and observed 
e) Merton. c. 9 an. 20. H. 3. .  
When † the issue is lawful, not natural: By lawful issue in this place, I understand that child which is begotten of a married woman, by another than her husband 
f) Bracton. de consuet. Angl lib. 2. c. 29. n. 4. verb. & licet. , (for of adoption, arrogation, or any other means to make children lawful, except marriage, we have no use here in England 
g) Tract. de repub. Ang. lib. 3. c. 7. ,) In this case, first of all, the meaning of the testator is to be regarded 
h) d. §. si quis rogatus. L. vlt. C. de his qui vaen. aetat. imp. L. Sancimus. de nuptijs. C. Mantic. de coniect. vlt. vol. l.b. 11. tit. 8. in prin. , the which if it do not appear, than it seemeth by the laws of this realm, that he is reputed not to have died without issue, but as if he had got it himself: because by the same laws 
i) Bract. ubi supr. Fitzh. Abridg. tit. bastardy. n. 1. 4. Brook. eod. tit n. 43. in sin. Tract. de repub. Ang. lib. 3 c. 6.  it is provided, † that if a man take to wife a woman, which is great with child by another that was not her husband, and after the child is borne within espousals or marriage; he which married the woman, shall be said to be the father of the child, and not he which did beget the same, although the child were borne the next day after the marriage solemnized 
k) juxta illud, pater est quem nuptiae demonstrant. : for whose the cow is, as it is commonly said, his is the calf also 
l) Quod tamen non est simpliciter verumin viduis, ut per Terms of law. verb. bastardy. etinfr. d. §. .  
Much more † if after the marriage an other man have carnal conjunction with his wife shall the husband be deemed the father of that child, which is not only borne, but begotten during marriage: for then by all laws the husband is presumed to have begotten the child himself, and not the adulterer 
m) L. filium. de his qui sunt sui vel alien. iur. L. miles. §. defunct. de adul. ff. & ibi Legistae. c. Michael. de sil. praesbit. c. per tuas. de probac. ext. & ibi Canonistae. Bract. de leg. & consuetud. Angl. lib. 2. c. 29. , albeit another had to do with her besides her husband. Which † conclusion because it is in favour of matrimony, and tendeth to the benefit of children, is diversly extended.  
First therefore, although the mother do cohabit with the adulterer, yet if the husband have free access unto her, he is presumed to be the father and not the adulterer 
n) Bald in L. si à matre. C. de suis & legit. Abb. in c. accedens de purge. cano. ext. Mascard. de probac. verb. filius. concl. 788. . For albeit it be likely that the adulterer did beget the child, yet seeing it is possible that the husband did beget it: Honest possibility is preferred before that other possibility, which is linked with dishonesty 
o) Bald. in d. L. filium. de his qui sui, vel alien. iur. ff. Palaeotus de Noth. & spur. c. 24. . Secondly, albeit the wife were as common as the Cart-waie, making an open profession of her filthiness, yet the husband, if she be not altogether out of his guard, shall be judged the only father 
p) Cyn. post jac. de Butr. in L. si minus. C. de nup. Gab. lib r. tit. de praesump. concl. 14. n. 9 Mascar. de ꝓbac. d. concl. 788. n. 39 . Thirdly, albeit the mother had been barren a long time before, yet the child is presumed to have been begotten by the husband, and not by the adulterer 
q) Ab. in c. per tuas. de ꝓbac. ext. Alcia. de praesump. reg. 3. praesump. 37. Gabr. d. concls. 14. n. 8 . Fourthly, albeit the mother do confess that the adulterer did beget the child, yet her sole confession doth not hurt the child 
r) Abb. in c. officij. de poeniten. extr. quod procedit etiam si patris confessio accederet Palaeot. de Noth. & Spur. c. 24. n. 2. Alciat. de praesump. reg. 3. praesump. 37. n 6. Petr. Duen. Tract. reg. & fall. verb. filius. reg. 344. contra Bald. Anch & Alex. de quibus Gabr. d. concl. 14. n. 13. .  
Fifthly, albeit the child be borne blind, or lame, yet is the husband presumed to have begotten the same, and not the adulterer 
s) Covar. epitome de sponsal. 2. part. c. 8. §. 3. n. 8. Mascard. d. concl. 788. n. 18. Petr. Duen. d. reg. 334. limit. 2. . In which case, nevertheless some have been of this opinion, that this child was begotten in adultery 
t) Barba. in c. praesentia de probac. extr. & in cons. 68 in prin. vol. 4. Alex. cons. 157. vol. 5. Dec. consi. 183. Hyppol. Sing. 530. ubi alios citat huius opin. Authores quamplures. Quibus si placeat, add Ed. Fenton. Anglun. Tract. de mirabil. secret. naturae. c 5. , being so borne (as they imagined) by God's providence and justice, because of the sin of the parents: whose rash opinion is by others refelled as erroneous and blind 
v) Covar. de spons. c. 8. §. 3. n. 8. 2. part. Duen. d. reg. 344. in fin. , having no better ground than had their conceit, who asked of our Saviour Christ (as he passed by a blind man) who had sinned, he or his parents, that he was borne blind 
x) Euangel. S. johan. c. 9 in prin. : To which demand our Saviour answered: neither he nor his parents, but that the power of God might be made manifest 
y) eod. c. 9 vers. 3. .  
Sixtly, albeit † the child be very like the adulterer, yet shall the husband be deemed the father 
z) Bald. in L. Gallus. de lib. & posthu. ff. n. 13. Paul. de Castr. consil. 257. vol. 3. Alciat. d. praesump. 37. n. 3. . Wherein diverse (I confess) of no small authority have contended mightily, that this child is to be adjudged the adulterers 
a) Alberic. in L. 7. ff. de stat. hom. Paris. consil. 10. vol. 2. n. 59 Bald. cons. 390 vol. 2. Fulgos consil. 212. col. 3. Coras. L 2. Miscel. c. 22. n. 5. , fortifying their assertion with this reason especially, because in other creatures nature hath so provided, that each thing doth beget that which is like unto itself 
b) Paris. Coras. & alij, ubi supr. Tiraquel. de leg. Conub. leg. 7. Masc. de ꝓbac. concl. 79●. n. 2. : yet contrariwise, their opinion hath prevailed (as being armed with arguments of the invincible truth,) who defend that the husband ought to be judged the father of that child which is so like the adulterer, and so unlike himself 
c) Bar. jas. & communiter DD. in L. Gallus. ff. de lib. & posth. quam sententiam propiùs ad veritatem accedere resert Mascard de probac. d. conclus. 792. n. 7. . Neither is that other reason of such force as is pretended because † this form or similitude may happen to the infant by the mother's serious cogitation or firm imagination at the time of the conception 
d) Alciat. d. praesump. 37. post Bald. in d. L. Gallus. unde mulieres simulachra saepissime statuasque in delicijs habuisse legitur, similesque ijs partus enixas. Coras. d. c. 22. n. 2. : For proof whereof we may read in the holy Scriptures, how by jacobs' device of the spotted sticks being laid before Laban's sheep at the ramming time, the lambs became spotted 
e) Genes. c. 30. . Famous also is that accident (registered in the books of sundry writers 
f) jas. in L. Gallus. ff. de lib. & posthu. a 69. Coras. lib. 2. Miscel. c. 22. Fenton. de secretis naturae. c. 5. ) of a beautiful lady, who having a husband of a fair and white complexion, was delivered of a child as black as pitch, like unto a Moor or Ethiopian: and hereupon being accused of adultery, she was acquitted and absolved, for that by the opinion of the best learned in physic and philosophy, the same did so come to pass by reason of the picture of a black boy, or little Nigro, which did hang in the bedchamber at the time of the conception. Like unto this is that credible history of another woman in the time of Charles the fourth, Emperor and king of Boemia, who because she had too much regard to the picture of Saint john clothed in a Camel's skin, which did hang at the bed's feet during the conception, she brought forth a child all rough, covered with hair like unto a Bear 
g) Coras. in annotac super quodam Arresto Tholoss. fol. 31. Fenton. ubi supra. . The histories are full of these kind of accidents, I shall content myself with one more, which did befall in the time of the Emperor Maximilian, in a town in Brabant 
h) Coras. in d. annotac. eod. fol. 31. Ludovic. Vives in 12. lib. Augus. de civitat. Dei. : There in a public play or spectacle, a certain man whose part was to play a dancing devil, assoon as the play was ended, ran home to his wife in his devils attire: and being moved in spirit, catched his wife hastily in his arms, and must needs etc. in that habit, saying he would beget a devil; and so it came to pass, that at her child's birth she was delivered of a devilish monster, which as soon as it was borne, began to leap and dance like to the father. Which examples (with diverse other like experiments) being made notorious, many women (that they might bring forth beautiful children) have gotten beautiful pictures, and fixed the same nigh to their beds, and have in deed oftentimes brought forth children like unto those pictures, in the sight whereof they were formerly most delighted 
i) Plutarch. de placitis. philos. lib. 5. c. 12. Coras. in d. c. 22. n. 2. lib. 2. Miscel. . Seeing then the conceit or imagination of the woman is of such force in the act of generation, that whose form or similitude is then in their mind, the same is not seldom represented in the child 
k) Gloss. in L. quaeret aliquis. de verb. sig. & in L. non sunt. de stat. hom. ff. : What marvel then if the child which is begotten by the adulterer be like unto the husband, when the adulteress fearing to be interrupted by his return, who would take but small pleasure at such sport, cannot but still have an eye to that door, until the peril be passed 
l) Alciat. de praesump. reg. 3. praesump. 37. jas. & alij in d. L. Gallus. ff. de lib. & posthu. ? And wherefore then also should we wonder, that the child which is begotten by the husband, should be like to the adulterer 
m) Bald. in d. L. Gallus. Mascard. de probac. verb. filius. concl. 792. , upon whose face and favour her mind is fully fixed, who in the midst of her delights imagineth the stolen water to be the sweeter 
n) Proverb. Salom. c. 9 vers. 17. ? Nay rather, it is to be marveled that it should be otherwise, but that the almighty doth still reserve his prerogative, beside and contrary to the course of nature, bestoweth what forms it best liketh him, upon every creature. Other extensions there be of this rule 
o) de quibus Mascard. de probac. d. concl. 788. Petr. Duen. Tract. reg. & fall. reg. 344. Alciat. de praesump. 37. Menoch. de Arb. jud. sent. 89. Gabriel. de praesump. concl. 14. , but let us return to the limitations.  
The first limitation is this †, when the husband was not within the four seas at such time as the child was conceived 
q) Bract. de leg. & cons. Angl. lib. 1. c. 9 in fin. & lib. 2. c. 29. n. 3. & 4. kitchen. tit. descent. fol. 108. Brook. tit. bastardy. n. 4. , or at the least was so far absent from his wife, or imprisoned the same time, that thereby it was impossible for him to have begotten the same child 
r) c. ex tenore. de testib. extr. & Panor. ibid. Paris. consil. 64. vol. 3. n. 6. 7. & consil. 10. vol. 2. n. 36. 78. Mascard. de probac. concl. 788. n. 40. Petr. Duen. d. reg. 344. limb. 3. Brook Abridg. tit. bastardy. n. 4. . Which time of conception when it was, may best be known by relation to the birth of the child: For a woman cannot bring forth a perfect child, before the beginning of the 7 month 
s) L. septimo. de stat. hom. ff. ex sententia Hyppocratis. lib. de partu septimestri, à quo non dissentiunt Aristotel. lib. 1. de natura animal. Plutarch. lib. 5. de placit. philos. c. 18. Plin. lib. 11. natural. histo. c. 31. : neither can she bear a child in her womb after the end of the tenth month from the time of the conception at least by presumption of law 
t) L. intestato. §. vlt. ff. de suis, & legit. & §. vlt. Tiraquel. in rep. L. si unquam. C. de revoc. done. verb. susceperit. ubi multa scitu non indigna de partu septimestri & decimestri, ex Hyppocrate, Aristotele, & alijs, tùm Medicis, tùm Philosophis deprompta, videre licet. Sed prae caeteris Legistis, praeclarissimè, & copiosissimè de nascendi tempore, scripsit Gentilis noster. , except it be for one, two or three days more at the very farthest 
v) Accurs. in d. §. vlt. Auth. de restit. & eaquae parit, etc. Salmo in L. Gallus. de lib. & posthu ff. Menoch. de A●b. iud. quest. lib. 2. cal. 89. n. 41. : So that if the husband did departed from his wife above ten months with those few days added thereunto, nor retuned until within six months next before her delivery, it is impossible for him to be the father of this child, being otherwise a perfect child.  
Secondly, if the husband were not able to beget a child, at such time as his wife did conceive, he is not to be deemed the father of that child 
x) L. filium. ff. de his qui sunt sui, vel al. iur. & DD. ibidem. Gabr. lib. 1. come. concls. tit. de praesump. concl. 14. n. 19 Pract. Andr. Gail. lib. 2. obseru. 97. n. 15. : For seeing law is but an art of right and good 
y) L. 1. ff. de Instit. & iur. , by imitation of nature 
z) §. minorem. Inst. de adop. Paris. consil. 10. vol. 2. , it were against all right and reason that he should be judged the father of that child, by fiction of law, which he could not beget by possibility of nature 
a) Paris. d. consil. 10. & consil. 29. vol. 2. Bar. in L. si is qui ff. de usucap. n. 22. : whether he were disabled by grievous sickness 
b) L filium. ff. de his qui sunt sui, vel alien. iur. Mascard. de probac. concl. 788. n. 40. 41. 42. Abb, & Felin. in c. per tuas. de probac. extr. Bracton. de leg. & consuetud. Angl. lib. 2. c. 29. n. 5. & lib. 1. c. 9 in sin. , (especially such whereby those parts of the generation are affected 
c) Menoch. de Arb. iud. quaest. cas. 89. n. 53. Paris. d. cons. 29. n. 80. ) or it were by reason of old age 
d) Mascard. de probac. concl. 788. n. 43. 44. Palaeot. de Noth. & Spur. c. 24. n. 3. & ante eos scripserunt Bald. & Cyn. in d. L. filium. . For howsoever it may seem a paradox to some, yet is it commonly received for a true conclusion amongst the learned, that as a woman in process of time becometh barren, namely after fifty years: so a man also is at the length deprived of the ability of begetting a child 
e) De hac re, ut de re qualibet praeclare Tiraquel. de leg. conub. Lege 5. sub finem. verb. Nec erit intempestiwm. , that is too say, at fourscore years, if not before: 
(f) Socin. consil. 65. vol. 3. Paris. consil. 29. vol. 2. Menoch. d. cas. 89. n. 57 Attamen in hoc regno Angliae vulgò creditur, senes etiam plus quàm octogenarios, hac potestate non esse penitùs orbatoes, eorúmque liberi communiter reputantur legitimi, & proinde succedunt ijs ac reliqui, hoc impedimento non obstante.  neither is that contrary where I said before, that by the laws of this realm, if a man take to wife a single woman great with child by an other man, than he which married her shall be the father of the child, albeit she were delivered the next day after the marriage solemnized: For there it is possible for the husband to have begotten the child: here impossible 
g) d. L. filium. quo etiam tendit quod Bractonus jurisconsultus Anglus, non minùs peritus, quam antiquus scriptum reliquit. Legitimus (inquit) & haeres iudicabitur, qui nascitur ab uxore, dum tamen praesumi possit, quòd maritus potuit ipsum genuisse. . Now the law doth often presuppose or allow that for true which is false, because it may be true 
h) Bar. Angl. & alij, in L. si is qui pro emptore ff. de usucap. Menoch. de praesump. lib. 1. q. 8. : but the law doth never presuppose or feign that thing to be which is impossible so to be, for that were unreasonable, and against nature which directeth art 
i) Bar. in d. L. si is qui. n. 22. Alciat. de praesump. in princ. . Again, in that case he is worthily the father of another's bastard, because he when he is free, yet willingly taketh her with all her faults, whom he knoweth to be another's whore: But here an honest man is greatly beguiled by her to whom he is already tied, and therefore less worthy to be further afflicted 
k) Afflictio afflicto non est infligenda. Bar. in L. 2. ff. de no. op. nun. Bald. in L. praecibus. C. de impub. & al. sub. . But is it not manifest that many have succeeded in the inheritance as lawful & natural children of those persons, who neither were principal, neither accessary, nor any way privy to the begetting either of a leg or an arm, no not so much as of the little finger of that issue? Indeed no marvel, when there is not due proof of impossibility 
l) Nam cùm par militet in utroque casu ratio, cur non idem ius? cur quaeso magis favendum est absenti, ne habeatur pro patre illius quem genuit alter, quam qui morbo, vel senio confectus generare nequeat? Quod si dixeris difficiliùs probari generandi impotentiam, quàm absentiam: Attamen probatâ hac impotentia, eadem tunc prorsus manet hinc, ac indè ratio. , the defect is not in law, but in proof 
m) L. duo sunt Titij. ff. de testa. tutel. , which proof is said to be the chariot wherein the judge doth ride towards his sentence 
n) Mantic. de coniect. vlt. vol. lib 4. tit. 11. n. 43. : Or howsoever such issue is admitted to the succession by interpretation of the laws of this realm 
(o) Immo non admittitur probatâ gignendi impotentia, si Bractono fidem adhibeamus. lib. 2. c. 29. n. 4. in fin. ubi non aliter ab alio genitum, pro marit● filio judicandum fore censet, quam si praesumi possit, eum à marito gigni potuisse. : Yet when the testator speaketh of issue, it is not likely that he did mean of such issue, which is not aswell natural as lawful 
p) Mantic. de coniect. vlt. vol. lib. 11. tit. 8. n. 2. per L. vlt. de his qui vaen. aetatis. , which meaning of the testator as in other cases, so in this also aught to be observed 
q) L. in conditionibus. ff. de cond. & daemon. L. cùm quaestio. C. de lega. §. disponat in Auth. de nup. Dec. cons. 399. .  
diverse other limitations there be of this former rule, showing that the child is not to be ascribed to the husband, but to the adulterer 
r) Quas videre est apud Gabr. lib. 1. come. concls. 14. Mascard. de probac. con. 788. : namely, when the wife doth make an elopement from her husband 
s) Brook. tit. bastardy. n. 4 Alcia. de praesump. reg. 3. praesump. 37. n. 11. Paris. consil. 10. n. 34. vol. 2. Mascard. de probac. concl. 788. n. 11. , and doth altogether cohabit with the adulterer, and especially if then also the child be borne blind, or lame, or be like unto the adulterer, for than it seemeth that the adulterer shall be judged to be the child's father, unless it be proved that the husband had free & often access unto the mother: but because I doubt of the truth of these limitations, I dare not deliver them for currant: nevertheless in testaments, the will and meaning of the testator is to be regarded, and so the husband is to be judged to have had issue, or not to have had issue accordingly 
v) Mantic. ubi supra. Paul. de Castr. consil. 30. vol. 1. . What if the wife be married to another husband very shortly after the death of her former husband, and after her second marriage be delivered of a child, whose issue shall this be, the former or the second husbands? If the wife were great, or apparently with child at the death of her former husband, than there is no question, but that the issue is to be ascribed to the former husband 
x) DD. in L. Gallus. ff. de lib. & posthu. Terms of law. verb. bastardy. kitchen. in tit. descent. fol. 108. . But if she were not apparently with child, so that by possibility of nature, it might be the child, either of the former or the second husband, for that perhaps she is delivered within eight or nine months after the death of her former husband; yet not before the seventh month next after her second marriage, than the question is much more doubtful 
y) De qua. Bar. Bald. Alex. jas. & alij. in L. Gallus. ff. de lib. & posth. Alciat. de praesump. reg. 3. praesump. 37. in fin. : wherein how many heads, so many wits; how many men, so many minds; and no man which hath not somewhat to say, as well for the defence of his own opinion, as for the confutation of the contrary. But I will not trouble you with their tedious disputations 
z) Si quis horum altercationes & pugnas videre cupiat, legate jas. in d. L. Gallus. & jacob. de Beluis. in quadam disputatione, quam habet in L. 1. de bon. poss. secundum Tabul. , I will briefly repeat their opinions touching this question: Some therefore do hold that the former husband ought to be judged the father 
a) Multos in hac sententia stetisse refert Coras. in annotac. ad Arrestum quoddam Tholoss. fol. 33. : some that the second husband 
b) Anto. Vacca. in L. 7 ff. de stat. hom. post Imol. in d. L. Gallus. : Others that both 
c) Angel. in L. duo. de haered. instituend. ff. : and others again that neither 
d) jac. de Beluis. in d. disputac.  is to be deemed the father of the issue. Some say that the mother is to be credited 
e) Alciat. d. praesump. 37. n. 15. per L. etiam. ff. de probac. , which of them is the father: and some say that it is in the child to elect and choose 
f) Alex. in d. L. Gallus. n. 14. vers. hoc tamen dictum. & cum eo consentit Berry justiciarius Angliae, de quo Brook. tit. bastardy. n. 18. in fin.  whether of them he will for his father: Others are of this mind, that he shall be deemed the father by whom the child may receive the greater benefit 
g) Dec. in c. per tuas. de probac. extra. n. 2. vers. 4. : And others, that he shall be the father, unto whom the child is more like in favour, complexion and proportion of body 
h) Coras. lib. 2. Miscel. c. 22. : Many do leave it to the discretion of the circumspect judge, who is not tied to any one opinion alone, but according to the variety and probability of circumstances (together with the advise of Physicians, Midwives, & especially such as be skilful in astrology 
i) Apostil. ad Alex. in d. L. Gallus. ubi Astrologi longè praeponuntur medicis.  is to decide the controversy 
(k) Bar. in d. L. Gallus. cuius opinio & verior, & crebrior, & tutior esse dicitur, attento iure civili. jas. in d. L. Gallus. n. 72. & Alex. in fin. . Finally, by the laws of this realm, at least in cases of succession of land, it seemeth that the second husband shall be the father of this child 
l) Tract. de repub. Ang. lib. 3. c. 6. Terms of law. verb. bastardy. Kitchen. tit. descent. fol. 108 , because it being certain that the child is borne during the marrying and cohabitation betwixt the second husband and the mother, and uncertain whether he were begotten before, it were very hard and dangerous to adjudge him to be another man's child, rather than the second husbands, who by possibility of nature may be his father 
m) Apostil. ad Bar. in d. L. Gallus. , and to whom it is to be imputed, that he adventured so soon upon an other man's widow 
n) Anto. Vac. in L. 7. de stat. hom. ff. .  
When the issue is both natural and lawful, but † dieth before the father: In this case the father is said to die without issue 
o) L. ex facto. §. si quis autem. ff. ad Trebel. Bar. in L. haered. eod. tit. Zas. in L. in substitution. de vulg. & pupil. sub. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 3. . And therefore he that is made executor, or to whom any thing is bequeathed upon condition, if the testator die without issue, may in this case be admitted to the executorship, or obtain the legacy 
p) d. §. si quis autem. : for albeit the testator may be said to have had issue, yet can it not be denied, but that he died without issue, because at the time of his death he had no issue 
q) Bar. in d. L. haeredibus. Zas. in d. L. in substitution. Mantic. in d. tit. 6 Grass. Thesau. come. op. §. fideicommiss. q 35. . Indeed † if the testator make thee his executor, or bequeath unto thee a hundred pound upon condition, if he shall have no issue: then if the testator after the making of the will had issue, although the same were not extant, nor living at the time of the testators death, it is sufficient to exclude thee from the executorship and legacy 
r) jac. de Arc. Alberic. de Rosa. in d. L. ex facto. §. pen. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 5. , unless it do appear that the testator did mean of having children at the time of the death 
s) Mantic. ubi supr. Zas. in d. L. in substitution. n. 15. : which meaning is said to appear sometimes by this word (then 
t) L. si his. §. si ita. de cond. & daemon. ff. Zas. in d. L. in substitution. n 15. fol. 3. 0. ,) as when the testator saith, If I have no issue, than I will that A.B. be my executor, for this word (then) is said to signify extremity of time, so that it is not sufficient that the testator had issue in the mean time 
v) d. §. si ita. , unless even than he had issue when his testament should take effect, which it can not do so long as the testator liveth 
x) Mantic. post. Bar. & Alex. d. lib. 11. de coniec. vlt. vol tit. 6. n. 5. .  
When † the child is in the mother's womb at such time as the father dieth; If we would in this case know, whether that man is to be judged to have died without issue, we must consider whether it be for the benefit of the child that the father should be accounted to have died without issue, or not: For howsoever the rule be, that he is not said to die without issue, whose wife is with child at his death 
y) L. si quis praegnantem. de reg. iur. ff. L. jubemus. §. si quis autem. C. add Trebel. ; yet that rule ought to take place when it tendeth to the benefit of the child 
z) L. qui in utero. ff. de stat. hom. , not when it tendeth to the prejudice of the child, or only benefit of another 
a) d. L. qui in utero. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 9 . Wherefore, if the testator make thee his executor, or give thee an hundred pound, if he die without issue, after which will made, he dieth, leaving his wife with child: In this case he is reputed to die without issue; and so thou art to be admitted to the executorship, & mayst recover thy legacy 
b) Mantic. d. tit. 6. n. 9 post. Bald. in d. L. qui. in utero. el. 2. , unless it be more beneficial to the child, that his father should have been reputed to have died without issue: for than thou art excluded 
c) L. jubemus. §. pen. C. ad Trebel. & ibi Paul. de Castr. .  
When † the child dieth so soon as it is borne, we must consider whether it were borne in due time or not: if it were borne in due time, so that by possibility of nature it might have lived longer (as in the seven. ix. or x. month 
d) L. septimo mense. de stat. hom. L. Gallus. in princ. de lib. & posthu. L. intestat. §. vlt. de suis & legit. ff. ) the father is judged to have issue, especially † if the child were once heard to cry 
e) Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 10. Mascard. Tract. de probac. verb. Natus. concl. 1088. n. 9 & 10. per L. quod certatum. C. de posthu. haered. instituend. & Sichard. in d. L. n. 4. : for then also by the laws of this realm, that man whose wife was seized in fee simple, or in fee tail general, or as heir in fee tail special, shall be said to have had issue, and by reason thereof after the decease of his wife, shall hold the same land during his life, and shall be called tenant by the courtesy of England, for that it is thought, that the same law is not used in any other Country, saving only in England 
f) Litleton. tit. courtesy d'engleterr. . But † if the child which he had by his wife were not heard to cry, it is thought that he cannot be tenant by the courtesy 
g) Bract. de leg. & consuet. Angl. lib. 5. tit. de excep. c. 30. n. 7. & 8. . Which opinion, though ancient, hath been strongly encountered of late, and shrewdly shaken by men of deep judgement, and reverent authority 
*) Dyer. fol. 25. n. 159. post Fitzh. ; and so the same not being free from contradiction, cannot be utterly void of doubt: and therefore, (as it becometh me) I do very willingly refer the determination thereof, to the learned and expert in the study and practise of the laws temporal of this land. Nevertheless, to other purposes and testamentary effects determinable in the ecclesiastical courts, I suppose he shall not be reputed to have died without issue, although his child did never cry, so that it did sensible breath or move 
h) L. quod dicitur. ff. de lib. & posthu. L. 2. & 3. C. de posthu. Felin. in c sicut. de homicide. ex●r. Mascard. Tract. de probac. verb. natus. conclus. 1088. sub finem. ; for what if the child were borne dumb 
i) d. L. quod dicitur. & d. L. 2. & 3. & DD. ibid. . Therefore I say by the civil and ecclesiastical laws, concerning testamentary effects, the father shall not be accounted to have died without issue, if the child did but breath, and though it did not, nor could not cry, but died in the hands of the midwife 
k) d. L. 3. C. de posthu. , for crying is not an only proof of life 
l) L. quod certatum. C. de posthu. & ibi Sichar. n. 4. Mascard. de ꝓbac. conclus. 1088 n. 10. , since it may be proved by other means, as by motion, breathing, and such like 
m) L. si magister. C. de Instit. & sub. Mascard. d. concl. 1088. sub finem. Sichard. in d. L. quod certatum. . In deed † if the child be borne dead 
n) L. qui mortui. ff. de verb. signif. , or being half borne alive, yet dieth before it be wholly borne 
o) Alciat. in d. L. qui mortui. Cui add Tiraquel. in rep L. si unquam. C. de revoc donac. verb. susceperit. n. 132. ubi etiam disputat an talis baptizari possit, cuius tantum caput in partu apparet. , he shall not be reputed to have issue 
p) d. L. 3. in sin. d. L. qui mortui. & DD. in LL. . Likewise in the other case, that is to say, when the child is not brought forth in due time, as (perhaps before the seventh month, or in the eight month) so that it is impossible for the same to live: the parents for and concerning testamentary effects, shall not be accounted thereby to have had issue, howsoever the child for a while after the birth did sensibly breath and move 
q) L. 2. C. de posthu. Socin. sen. cons. 275. n. 20. vol. 2. Mantic. de conject. vlt. vol. lib. 11. tit. 6. n. 10. Grass. Thesaur. come. op. §. fideicommissum. q. 33. in fin. .  
If † the testator make thee his executor, or do bequeath unto thee any legacy conditionally, if he shall have no issue, and afterwards his wife do bring forth a monster, or misshapen creature, having peradventure a head like unto a dogs head, or to the head of an ass, or of a Raven, or Duck, or of some other beast, or bird: such monstrous creature, though it should live (as commonly none do) yet is it not accounted amongst the testators children 
r) L. non sunt. ff. de stat. hom. Olden. in eand. L. & Sichard. in d. L. 3. C. de posthu. , for the law doth not presume that creature to have the soul of a man, which hath a form and shape so strange and different from the shape of a man 
s) Bald. in d L. non sunt. Sichard. in d L. 3. n. 5. . But if the creature brought forth, do not vary in shape from a man or woman, but have somewhat more than God by the ordinary course of nature alloweth, as having six fingers on either hand 
t) DD. in d. L. 3. C. de posthu. & in d. L. non sunt. & in L. ostentum. & in L. quaeret. ff. de verb. sig. Idem quoque juris est si quis habeat tres testes. Alciat. in d L. quaeret. n. 9 ; or on the contrary, wanting some of the ordinary members, as having but one hand, or one foot 
v) Bald. & Aug. in L. quod dicitur. ff. de lib. & posthu. : such creature is not excluded, but is to be accounted for the testators child. What if there be duplication of notable members, as to have four arms, or two heads, or disorder in the principal members, as the face standing backwards, or in the breast? In this case I suppose much to be attributed to the discretion of the judge 
x) Sichard. in d. L. 3. C. de postu. n. 5. verb. cum autem. . And albeit the writers seem rather to incline to this opinion, that they be monsters, & so not to be accounted as children 
y) L. ostentum. ff. de verb. signif. DD. in d. L. quod dicitur. : notwithstanding, if any legacy be left, not by the parents to another, but to the parents by another, upon condition, if they shall have issue: in this case it seemeth that it doth not hinder the parents, though the father did beget, and the mother bring forth a monster, when it cannot be imputed to their fault, wherefore the issue was monstrous 
z) d. L. quaeret. de verl signif. & Alciat. ac Rebuff●bid. .  
If † the testator make the child in the mother's womb his executor, & the mother bring forth two or three children at that birth, whether are they all to be admitted executors? Likewise † the testator bequeathing to the child in the mother's womb, if it be a man child, a greater sum, if a woman child, than a lesser sum: the mother bringing forth both a son and a daughter at one burden, how much is to either? These questions are elsewhere absolved 
a) Inf. ead. part. §. 20. sub sinem. .   

What order is to be taken concerning the administration of the goods of the deceased, whiles the condition of the executorship dependeth unaccomplished.  
1 Of the remedy which creditors and legataries have during the suspense of the condition of the executorship.  
2 The first remedy, is to commit the administration to him that is conditionally assigned executor.  
3 The effect of this administration.  
4 What if the executor will not meddle with the administration or possession of the goods in the mean time.  
§. xuj.  
FOrasmuch † as the nature of every honest and possible condition is such, as it doth suspend the execution and effect of the disposition 
a) L. qui haeredi. de cond. & daemon. L. si quis sub conditione. Si quis omissa causa testa. L. cedere diem. de verb. sig. ff. Grass. Thesaur. come. op. §. legatum. q. 52. & supr. ead part. § 6. , so that in the mean time the party deceased cannot be judged to have died either testate, or intestate; and consequently he that is made executor, is neither to be received nor repelled in the mean time to or from the executorship 
b) L. quamdiu. ff. de acquir. haered. Minsin. in § haeres. Instit. de haered. instituend. : It shall not be amiss to show what order is to be taken, for and concerning the possession and administration of the goods of the deceased, and what remedy the creditors and legataries have, for the obtaining of their debts and legacies, which are due presently after the death of the testator, whiles the condition of the executorship dependeth 
c) Quod autem iure civili non possunt legata peti pendente conditione institutionis, ut in qua tota vis testamenti collocata sit, non obseruatur in Anglia, prout alias pleniùs diximus, infra part. 6. : For it seemeth not only inconvenient, but unjust also, that they, especially the creditors 
d) Creditores enim de damno vitando: Legatarij autem de lucro captando certare dignoscuntur. L. scimus. §. & si praesatum. C. de iure delib. , should be remediless all that while, during the suspense or expectation of the performance of the condition, until that be performed by the executor, which perhaps would not, nor could not be effected in seven years.  
The first † remedy therefore is this, considering that he which maketh an executor conditionally, cannot be judged to have died intestate, the condition depending, or so long as the testament may take effect 
e) d. L. quam diu. ff. de acquir. haered. : and so the administration of the goods cannot be committed according to the statutes of this Realm, which provide only in that case, where a man dieth intestate, or where the executor doth refuse to prove the testament 
f) Stat. H. 8. an. 21. c. 5. & stat. Ed. 3 an. 32. c. 11. . It is provided by the civil & ecclesiastical laws, that it shall be lawful for the Ordinary, to commit the administration and possession of the goods of the deceased, to him that is made executor, only for and during so long time as the condition dependeth, and is not extant, or else deficient 
g) L. si quis instituatur. §. 1. & §. 2. ff. de haered. instituend. : By † virtue of which administration, or decree of possession, the said executor may enter to the said goods, and may administer and sell the same for the satisfying of the debts due by the testator, and payment of his legacies simply bequeathed, and may be convented by them, if he make delays during the time aforesaid 
h) d. L. si quis. Quae lex etsi creditoribus tantum praebeat remedium, tamen iure quo utimur, legatarijs quoque succurritur, utpote quibus legata omnino debeantur, etiamsi deficiat institutionis conditio. nec aliquis existat haeres, seu executor (infr. part. 7. §. 19) nedum ubi pendeat adhuc conditio. : And if afterwards the condition be performed or extant, then may he still retain the goods of the deceased, as executor to the will 
i) Dum tamen probatum sit testamentum. & ab Ordinario approbatum. : But if the condition be infringed or deficient, then ought he to make restitution to the next of kin to the deceased, or to those that shall have administration of his goods 
k) L. 2. § si sub conditione. ff. de bon. poss. secundum Tabul. Grass. Thesaur. come. op. §. bon. poss q. 5. n. 7. : For by breach or defect of the condition, the deceased is reputed to have died intestate, or as he had never made executor 
l) L. haeres. de acquir. haered. L. quod dicitur. de mil. test. ff. , and the former administration is finished, and a new may be committed 
m) d. L. si quis instituatur. ff. de haered. instit. .  
If he † that is made executor conditionally, will not meddle with the administration of the goods of the deceased, ne yet perform the condition, the next remedy is this: you must consider the nature of the condition, that is to say, whether the performance of the same do consist in the power of the executor or not 
n) d. L. si quis. §. 1. & 2. : If it be such a condition as he may easily perform, then may the ordinary assign unto him a competent term, for the accomplishment thereof 
o) Fortasse 100 dies extraneis, & annum defuncti liberis, secundum Bar. & Bald. in d. §. 1. ; within which time, if the executor do not perform the same, it is reputed for infringed or deficient 
p) Bar. & Paul. de Castr. in d. §. 1. ; and so the administration may be committed according to the statute, in this case, as of one dying intestate 
q) Stat. H. 8. an. 21. c. 5. : And the executor shall be excluded, if he do not purge his delay, before the administrators do meddle with the goods 
r) Bald. & alij. in d. §. 1. . If the condition consist not in the power of the executor, 
s) d. §. 1. & DD. ibid.  then may the ordinary at the petition of the creditors, appoint a time to the executor to undertake the administration & possession of the goods, during which time, if he refuse or neglect to undertake the same administration; then may the ordinary commit the same to such as have interest, until such time as the condition be either extant or deficient 
s) d. §. 1. & DD. ibid. .   

Of the making of an executor, to or from a certain time.  
1 An executor may be ordained, either for a time, or from a time.  
2 The Ordinary may commit administration until there be an executor, or after the executorship is ended.  
3 Whether a man may die partly testate, and partly intestate.  
4 Whether he is said to die partly testate, and partly intestate, which appointeth an executor, to or from an uncertain time.  
5 A legacy may be given to or from a certain time, or to or from an uncertain time.  
6 That legacy is not transmissible, which is given from an uncertain time.  
7 What if the uncertainty be not about the question whether, but about the question when?  
8 What if the uncertainty be not joined to the substance of the legacy, but to the execution.  
9 The legacy is not transmissible, when the question is only when, not whether.  
10 The testator may make that transmissible, which otherwise is not transmissible.  
11 Whether that legacy be transmissible, which is given after a certain age.  
12 Difference whether the legacy be joined to the substance, or to the execution of the disposition.  
13 Certain cases wherein a legacy is transmissible, albeit the age be joined to the substance of the legacy.  
§. xvij.  
ALbeit † by the civil law Haeres the heir cannot be instituted, either from a certain time, or until a certain time 
a) L. haereditas. ff. de haered. instituend. §. haeres instit. eod. tit. , lest the deceased might seem to die, partly testate, & partly intestate 
b) Llus nostrum. de reg. iur. ff. cuius regulae rationem assignat Porcius. in §. & unum Inst. de haer. instituend. : yet where an executor is ordained, howsoever the executor be, quasi haeres 
c) Supr. 1. part. §. 3. n. 19 Haddon. de reform. leg. ecclesiast. Ang. Doct. & Stud. lib. 2. c. 11. Tract. de repub. Ang. li. 3. c. 19 ; at least by the laws of this realm, he may be appointed either from a certain time, or until a certain time 
d) Brook Abridg. tit. exec. n. 155. tit. admistr. n. 45. Ploughed. in cas. inter▪ Greisbr. & Fox. : For example, the testator maketh thee his executor after the expiration of five years next after his death, or he doth make thee his executor, for and during five years next after his death: This assignation is lawful by the laws of this realm 
e) Brook ubi supra. . And the † Ordinary may commit the administration of the goods of the deceased to the next of kin in the mean time, during which time, the act of the administrator is good, and cannot be avoided by the executor afterwards 
f) Ploughed. in casu inter Greysb. & Fox. ; for in the mean time he dieth intestate: And likewise he may commit the administration of the goods of the deceased unadministred by thee, after the expiration of the time of thy executorship, where thou art appointed executor but for a time. For after the term be expired, he is said to be intestate 
g) Brook. Abrid. tit. administ. n. 1. & n. 45. .  
Where † it is said that a man cannot die partly testate, and partly intestate, that is true where the strictness of the civil law is observed 
h) Dec. Cagnol. & high ro. Franc. in d. L. ius nostrum. de reg. iur. ff. : But where the testator is not tied to such strict observance, whether it be by reason of legal privilege, as in military testaments 
i) L. miles. ff. de mil. teston. Cagnol. & Dec. in d. L. ius nostrum. , and in testaments ad pias causas 
k) Bar. in L. 1. C. de sacrosan. eccle. Hyero. Franc. in d. L. ius nostrum. in fin. , or whether it be by custom of the place, where the testator abideth 
l) Hyero. Franc. in d. L. ius nostrum. , as in England, where we enjoy all immunity, nor be tied to any other observance in making of testaments, then that which is juris gentium 
m) Supr. 1. part. §. 10, in prin. Tract. de repub. Angl. lib. 3. c. 7. , in these cases and places, a man may die partly testate, and partly intestate 
n) Brook & Ploughed. ubi supr. add Socin. Tract. reg. & fall. reg. 400. ubi tradidit 20. casus, in quibus potest quis decedere pro part testatus, pro part intestatus. .  
If the † testator do ordain, or make an executor, from or until an uncertain time, as from or until the death or marriage of his son: this assignation is good and sufficient, even by the civil law 
o) L. in tempus. ff. de haered. instit. L. extraneum eod. tit. C. gloss. in §. haeres. Instit. de haered. instituend. Grass. Thesaur. come. op. §. Institutio. q. 24. n. 4. , neither is the testator in this case said to die partly testate, and partly intestate 
p) Hyero. Franc. in d. L. ius nostrum. : for an uncertain time is compared to a condition 
q) L. dies incertus. ff. de cond. & daemon. jas. in L. si cui legetur. de leg. 1. n. 6. Cuiac. obseruac. lib. 18. c. 1. , which if it come to pass, and be extant, the testator is reputed to have died wholly testate 
r) L. haeres quandocunque. de acquir. haered. Hyer. Franc. in d. L. ius nostrum. de reg. iur. ff. : for a condition purified hath reference back ward, & is understood, as if it had been accomplished immediately upon the death of the testator 
s) L. quod dicitur. de mil. teston. L. haeres quandocunque de acquir. haered. ff. Mincing. in §. haeres. Instit. de haered. instituend. Tiraquel. de retract. §. 1. gloss. 2. n. 27. , neither can the testator be said to die intestate in the mean time before the event, or whiles the condition dependeth in expectation 
(t) Mincing. in d. §. haeres. n. 4. : But if the condition be infringed, or become deficient, then is the testator to be adjudged to have died always intestate, and not from the time of the breach, or defect of the condition 
v) Hyero. Franc. in d. L. ius nostrum. de reg. iur. ff. , which is the cause wherefore in condicional assignations, the administration cannot be committed to the next of kin, as in case of one dying intestate, so long as the condition is in suspense, as hath been before declared.  
And here † note, that as an executor may be appointed from a certain time, or until a certain time: so a legacy may be bequeathed either from a certain time, or until a certain time 
x) Grass. Thesaur. come. op. §. ●egatum. q. 43. . And albeit where † a legacy is given from or after a certain time, the legatary dying in the mean while, before the time be come, the executors or administrators of that legatary may demand and recover the legacy, after the day be past, as might the legatary himself if he had lived 
y) L. 5. ff. quando dies. leg. c●d. Grass. d. q. 43. Vasq. de success. progress. lib. 3. §. 29. n. 2. : unless the meaning of the testator be contrary 
z) L. in conditionibus. de cond. & daemon. ff. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8 , or unless it be such a thing as cannot be transmitted to the executor, as personal service 
a) L. si post. in princ. ff. Quando dies. leg. ced. & ibi Bar. : Yet † if the legacy be given after an uncertain time (for so also it is lawful for the testator to do 
b) Grass. d. q. 43. ) the legatary dying in the mean while, the executors or administrators of the legatary deceased cannot demand the same, but are utterly excluded 
c) d. L. si post diem. L. si Titio. ff. Quando dies. leg. ced. Grass. d. q. 43. : and that † not only when it is uncertain, whether it shall happen 
d) L. cum testator. C. de manumiss. test. , but also when it is uncertain when it shall happen 
e) L. si Titio. ff. quando dies. leg. ced L. si cui. §. 1. de leg. Grass. d. q. 43. : for example, the testator giveth thee an hundred pound when his daughter shall be married. This is uncertain whether 
f) Alex. consil. 55. vol. 2.  it shall happen at all or no: or the testator giveth thee an hundred pound when his son shall die. This is uncertain when 
g) Cuiac. obseruac. lib. 18. c. 1. Vasq. de. success. ꝓgress. lib. 3. §. 27. n. 11. &. §. 29. n. 3. in fin.  it shall happen, not whether it shall happen, for it is certain we must all die. In both which cases, if thou die before the day be come, that is to say, before the marriage of the testators daughter, or death of his son, the legacy is utterly extinguished, or as if it had been conditional 
h) L. si Titio. quando di es. leg. ced. L. quibus diebus. §. 2. de cond. & daemon. ff. Bar. in L. si cui legetur. §. 1. de leg. 1. Vasq. ubi supra. . Neither † is it material whether the uncertainty be joined to the substance of the disposition, or to the execution thereof: for in both cases the legacy or disposition is reputed conditional 
i) Alex. in L. senis. ad Trebel. ff. jas. post Bald. & Paul. de Castr. in d. L si cui. §. 1. de leg. 1. Grass. Thesaur. come. op. §. legatum. q. 43. Vasq de success. ꝓgress. lib. 3. §. 29. n. 4. quae opinio scilicet quod legatum huiusmodi non fit in diem, sed conditionale, ubi dies est incertus. quando (veluti post mortem alterius) ut communior, ita & est verior, ex relatione Grass. §. legatum. q. 43. n. 8. cui subscribit Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 3. : and so it is not material, whether the testator say, I give to A.B. an hundred pound when my daughter shall marry, or when my son shall die: In which case the uncertainty is said to be joined to the very substance of the disposition: or whether the testator say, I give to A. B. an hundred pound, and I will that the same shall be paid when my daughter is married, or my son dieth 
k) DD. in L. si cui. §. 1. de leg. 1. ff. : In which case it is said to be joined to the execution of the disposition 
l) Bar. Paul. de Castr. Lancel. Dec. in d. §. 1. . For as well in the one case as in the other, if the legatary die before the marriage of the testators daughter, or death of the testators son his executors or administrators cannot demand the legacy 
m) Vasq. de success. progress. lib. 3. §. 29. n. 4. Mantic. de coniect. vlt. vol. lib. 11. tit, 20. n. 3. .  
But in very truth (if we look a little nearer unto the cause) the time of another's death is not only uncertain, in respect of the question when, but also in some respect of the question whether 
n) L. haeres meus. ff. de cond. & daemon. & Bald. in d. L. : for who is certain whether that the other shall die before the legatary? and this I suppose to be the principal cause, wherefore the legacy which is given, or is to be performed after the death of another, is reputed to be conditional: namely, because it is uncertain whether that time shall happen during the life of the legatary 
o) Bald. in d. L. haeres. Cuiac. lib. 18. obseruac. cap. 1. Mantic. de coniec. vlt. vol. lib. 11. tit. 20. n. 4 . For † if the question be only when the time shall happen, and not whether it may happen during the life of the legatary, than the legacy in respect of transmission, is said to be pure and not conditional 
p) d. L. haeres meus. & ibi Bald. cum Paul. de Castr. : As for example, the testator giveth thee an hundred pound to be paid the day before thy death: here the uncertainty is only when the time shall happen, not whether it shall happen during thy life: wherefore in this case, after thy death, thy executors or administrators may recover the legacy 
q) d. L. haeres meus. L. 4. ff. quando dies. leg. ced. , and that without distinction, whether the uncertainty be joined to the substance of the legacy; as I give thee an hundred pound the day before thy death; or whether it be joined to the execution of the legacy; as I give thee an hundred pound to be paid the day before thy death 
r) d. L. haeres. Et licet in illius legis exemplo incertitudo videri possit adiungi praestationi legati, & non substantiae tamen cùm ratio illius legis sit generalis, & in utroque casu militet, nempe quia dies non potest non cedere vivente legatario, vis legis non est per unicum exemplum angustanda .  
Wherefore where it is said, that when a legacy is given after an uncertain time, if the legatary die in the mean while, his executors or administrators are excluded from demanding the same legacy, albeit the uncertainty be about this question when; that conclusion hath diverse limitations. The first limitation or restraint is, in case also it be uncertain whether the same shall happen during 
s) Bald. in d. L. haeres. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 4. Cuiac. lib. 18. obseruac. c. 1. jas. in L. si cui. §. hoc autem. de leg. 1. n. 7.  the life time of the legatary: otherwise, if it must needs happen during the life of the legatary, than the executors or administrators of the legatary are not excluded, although it be uncertain when it shall happen 
t) d. L. haeres meus. ff. de cond. & daemon. . Another limitation is, when † it is the meaning of the testator, that the executors or administrators of the legatatie shall have the legacy, notwithstanding the death of the legatary in the mean time, for then the uncertainty of the time doth not make the disposition conditional, because the testator may if he will, make that transmissible, which otherwise is untransmissible 
v) L. in conditionibus. ff. de cond. & daemon. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8. Vasq. de success. progress. lib. 3. c. 29. n. 15. 16 .  
What † if the testator doth bequeath some legacy, when the legatary or some other person hath accomplished a certain age, whether (if the legatary, or that other person die before that age) may the executors, or administrators of the legatary obtain the legacy 
x) De hac q. uberrimè scripsit Vasq. de success. progress. lib. 3. c. 29. & generaliter DD. in L. si cui. §. hoc autem. ff. de leg. 1. ? This question I suppose is thus to be answered.  
If † the time be joined to the substance of the legacy, them the executors or administrators of the legatary deceased before the accomplishment of that age, are without hope of obtaining the legacy 
y) L. si Titio ff. Quando dies. leg. ced. d. L. si cui. §. hoc autem. de leg. 1. : For example, the testator doth give thee an hundred pound, when thou shalt be of the age of 21. years, thou diest before that time, thy executors or administrators cannot obtain the hundred pound 
z) DD. in d. §. hoc autem. : except in certain cases, whereof the first † case is, when relation is made to the age of the executor, who is charged with the payment of the legacy, and not to the age of the legatary, or of any third person 
a) Bar. in d. §. hoc autem. : For example, the testator doth will or charge his executor to pay unto thee an hundred pound, when he shall be of the age of xxi. years, before which time the executor dieth. In this case (by the opinion of diverse 
b) Par. Angel. Paul. de Castr. & Lancel. Dec. in d. §. hoc autem. per L. libertis quos. §. ab haeredibus. ff. de Alimen. & cibar. leg. ) thou mayst recover thy legacy against the executor of that executor dying at such time, as the former executor, if he had lived, should have accomplished the age prescribed in the testament: Their reason is, because the testator is presumed to bear greater love to his own executor, on whom he hath bestowed the residue of his goods, then to the executor's executor, whom peradventure he did not know 
c) Bar. & Lancel. Dec. in d. §. hoc autem. : Wherefore seeing the testator charged his own executor whom he more loved, the rather than is he presumed to charge his executor's executor whom he less loved 
d) Arg. à maior. ad mi. . Howbeit if the testator charge his executor with the payment of the legacy by this word if, as if the testator command his executor to pay unto thee an hundred pound, if he shall accomplish the age of xxi. years: Here the legacy is condicional, and therefore if the executor die in the mean while, the legacy dieth together with the executor 
e) Bar. in d. §. hoc auton. per L. si servus. ff. de stat. lib. . And so it is if the executor be charged with the payment of the legacy after he be of such age 
f) L. fideicommissaria. el. 1. §. etiam. ff. de fidecommiss. Lib. & Bar. cum Paul. de Castr. & Lancel. Dec. in d. §. hoc autem. ff. de leg. 1. : Nay more (contrary to that which is said before) although the testator do charge his executor with the payment of the legacy by this word when, as in the first example; even there also by the received opinion of the more part, the legacy is concluded to be condicional 
g) Din. Sal. Imol. Raph. Cuma: Alex. Aret. & jas. in d. §. hoc. autem. quorum opinio communis est contra Bar. & eius sequaces, ait jas. ubi supra. : and therefore if the executor die before that age, the legacy cannot be recovered against the executor of the executor deceased 
h) L. intercidit. ff. de con. & daemon. ff. L. vnic. §. sin autem. C. de cad. ●ol. , no more than where it is given after his executor have accomplished such an age, for albeit this word (after) doth import a more full perfection of time than doth this word when 
i) jas. Alex. & alij. in d. §. hoc autem. , yet they differ not in making the disposition conditional: for that is done as well by the word when, as by the word after 
k) Ita contra Bar. sentiunt Salic. Imol. Alex. & jas. ac Mother. in d. §. hoc autem. . What if the executor being charged with the payment of the legacy, when, or after he have accomplished a certain age, the legatary himself do die, the executor still living, whether may the executors or administrators of the legatary deceased recover the thing bequeathed of the executor then living, after he have accomplished the age limited in the testament? It seemeth that he may 
l) Paul. de Castr. in d. §. hoc autem. in lect. pad. verse. & multo fortius. , because the condition is here extant: notwithstanding because it is concluded, that the legacy in this case is condicional, therefore howsoever the condition do afterwards come to pass, yet was the legacy extinguished by the death of the legatary, the condition then depending 
m) L. vnic. §. sin autem. C. de cad. tol. L. intercidit. ff. de cond. & daemon. , and so cannot be recovered by his executors or administrators, unless it be proved (for it is not presumed 
n) Nam cùm praesumitur testator magis diligere ipsum legatarium quàm eius executorem, licet velit dare primo, non sequitur quòd dabit secundo. Bar. in d. §. hoc autem. ) that the testator did mean the contrary 
o) L. in conditionibus. ff. de cond. et daemon. Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 8. Bar. in d. §. hoc autem. in fin. .  
The second case is in favour of liberty or freedom from bondage 
p) L. si ita scriptum. ff. de manumiss. testa. : For example; the testator doth manumit his villeine, when his son shall attain to the age of xxi. years. In which case albeit his son do not attain to that age, yet shall the villeine be free, at such time as he should have attained unto that age, if he had lived 
q) d. L. si ita scriptum. et DD. in d. §. hoc autem. .  
The third case is, when any legacy is left to some godly use, for then also the legacy may be recovered, notwithstanding the death of that person, to whose age the testator made relation 
r) Vasq. de success. progress. lib. 3. §. 29. n. 5. in fin. ubi conclusionem hanc varijs confirmat medijs. .  
The fourth case is, when the time tendeth to the dissolution of the legacy: For example, the testator doth give thee ten pound yearly, until his son do attain to the age of xxi. years: In which case, if his son die in the mean time, thou mayst obtain the legacy of ten pound yearly, until such time as the testators son should have attained to that age, if he had lived 
s) L. ambiguitatem. C. de usufruct. Bald. in d. L si cui. ff. de leg. 1. Vasq. de success. ꝓgress. lib. 3. § 29. n. 3. .  
The fift case is, when it is the will and meaning of the testator, that the legacy should be transmitted 
t) Bar. in d. L. si cui. §. hoc autem. in fin. Bald. in eand. L. et in L. Scius. ad Trebel. ff. Paul. de Castr. in d. L. ambiguitatem. n. 2. .  
But if the time of the age be not joined to the substance of the legacy, but to the execution or performance of the same: then the legatary dying in the mean time, his executors or administrators may recover the same when the time is expired, wherein the legatary if he had lived, should have accomplished that age 
v) Bar. et alij, in d. §. hoc autem. ꝑ L. ex his C. quando dies. leg. ced. .   

Of making an executor universally or particularly.  
1 It is lawful to appoint an executor either universally or particularly.  
2 The universal executor may enter to all the testators goods and cattles, and therefore chargeable with payment of all his debts.  
3 The particular executor may meddle with no more than is allotted unto him, and therefore not charged but according to his portion.  
4 A man may die both testate and intestate, in respect of his goods.  
5 Of a particular and universal legatary.  
§. xviij.  
THirdly †, an executor may be ordained either universally or particularly 
a) §. haereditas. Instit. de haer. instit. Grass. Thesaur. come. op. §. Institutio. q. 21. n. 1. Fitzh. Abridg. tit. executor. n. 26. Brook. tit. execute. n. 2. & n. 155. : universally, that is to say, when the testator maketh an executor of his whole will, or doth commit unto him the distribution of all his goods: or when the testator doth appoint an executor indifferently, that is to say, without any sign universal of whole or all: as I make A. B. my executor 
b) L. 3. C. de mil. teston. : particularly, that is to say, when the testator doth commit the execution of some part of his will, or the disposing of some part of his goods only; as if the testator should make thee his executor of his plate, or of his goods within the County of York, or of his debts only 
c) Fitzherb. Abridg. tit. exec. n. 26. Brook. eod. tit. n. 2. & n. 155. .  
He † that is made executor universally or simply may enter to all and singular the goods and cattles of the testator 
d) L. haereditas. de reg. iur. ff. & ibi Cagnol. Ploughed. in cas. inter Greysbrook & Fox. & infr. part. 6. §. 3. , and in that respect is universally and simply chargeable, with the payment of all and singular the debts and legacies of the testator, so far as the same goods and cattles do extend 
e) Terms of law. verb. executor. .  
He † that is made executor particularly, cannot meddle with any other of the testators goods and cattles, than such whereof he is made executor, and is only so far chargeable with the payment of the debts and legacies of the testators, as the portion of the goods to him allotted doth extend unto 
f) Fitzh. & Brook ubi supra L. si haeredes. de leg. 1. L. legatorum. de leg. 2. ff. Sichard. in L. 1. C. de impub. & al. sub. n. 4. Est enim eadem ratio partis ad partem, atque totius ad totum. : and if there be no other executor appointed, the particular executor cannot meddle with the residue as executor: for touching † the other goods, the testator by the laws of this realm, is said to die intestate 
g) Fitzherb. & Brook in locis suprascriptis. , & so may die partly testate, and partly intestate, not only in respect of time (as hath been before declared 
h) Supra ead. part. §. 17. in prin. Brook tit. administrator. n. 45. Blow. in cas. inter Greysb. & Fox. ) but also in respect of place, and of goods 
i) Fitzh. tit. executor. n. 26. Brook eod. tit. n. 155. , contrary to the civil law.  
And here note † that as an executor may be made universally or particularly; even so one may be made particular or universal legatary, in respect of some universal or particular legacy left by the testator 
k) Vide supr. 3. part. §. 17. & hac part §. 4. .  
Howbeit, where the testator doth leave all his goods, or the residue of his goods to some person, none else being appointed executor, he to whom such general legacy is made, seemeth to be appointed executor 
l) L. his verbis. ff. de haeredibus instit. & gloss. ac DD. ibid. Grass. Thesaur. come. op. §. Institutio. q. 14. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 8. , at least he hath been admitted to the administration of the goods of the deceased 
m) Et ita sae piss. practicari, obseruavi in foro Archiepiscopi Ebor. , as heretofore more largely 
n) Supra ead. part. §. 4. . But if the testator give his goods to one person, and make another executor: this executor is called Nude executor, for that he reapeth no commodity by the testament 
o) Io. de Athon. in legate. libertatem. de execute. testament. Lindw. in c. statutum. de testa. lib. 3. provinc. constit. Cant. & in c. religiosa. eod. tit. verb. de damnis. .   

Of making executors by degrees.  
1 How executors are made by degrees.  
2 He that is made executor in the first degree, is said to be instituted, the rest substituted.  
3 diverse kinds of substitutions, whereof certain have but little use in England.  
4 Of the diverse forms of a vulgar substitution.  
5 Of the effects of substitutions.  
6 So long as the executor instituted in the first degree may be executor, the substitute is not to be admitted.  
7 If any one executor in the first degree may be admitted, the substitute is excluded.  
8 What if every executor have a several substitute.  
9 The first substitute being repelled, whether the rest be repelled likewise.  
10 What if the executor in the first degree die intestate.  
11 The admission of the executor instituted in the first degree, doth not always exclude the substitute.  
12 The substitute ought to succeed in that part and quantity, which was assigned to the former executor.  
13 Where diverse be substituted to one, whether they shall succeed equally or unequally.  
14 diverse cases wherein the executors being unequally instituted, and the same also substituted, do succeed equally.  
15 Of the great difference between substituting by proper names, and substituting by names appellative.  
16 What if the substitution be made by both names.  
17 What if some be instituted by their proper names, others not.  
18 What if it be doubtful by what names they be substituted.  
§. nineteen.  
FOurthly, an executor may be made either in the first degree, or in the second degree, or in the third, fourth, 
a) L. potest quis. ff. de vulg. pup. sub. Instit. de vulg. sub. in princ. Fran. post gloss. in c. vlt. de testa. 6. Brook tit execute. n. 9  etc.  
The † testator is said to make degrees of executors, when he doth substitut one in place of another: For example, the testator maketh his wife executrix, & if she will not, or cannot be executrix, he maketh his son executor; and if his son be not executor, he maketh his brother executor 
b) d. L. potest. & ibi DD Grass. Thesaur. come. op. §. substitutio. q. 1. . In which example there be three degrees, whereof the wife is in the first degree, the son in the second degree, and the brother in the third degree: For look how many substitutions there be succeeding one another: so many degrees there be beside the principal institution, which maketh the first degree 
c) L. 1. L. potest. ff. de vulg. & pupil. sub. : and who † so is executor in the first degree 
c) L. 1. L. potest. ff. de vulg. & pupil. sub. , he is said to be instituted, and they which are executors in the second, third, and fourth degrees, are said to be substituted 
d) Zas. Tract. de substit. in princ. .  
There † be divers kinds of substitutions or sorts of placing of executors one after another 
e)  substitutio vulgaris, pupillaris, exemplaris, breviloqua, compendiosa, de quibus sigillatim & copiosè Zas. in suo praeclaro Tractatu de substitu●ionibus. ; whereof either because we have no use at all 
f)  de pupillari subst. & de exemplari? quae pupillaris subst. idcirco corruit, nempe ob defectum patriae potestatis, fine qua consistere non potest (Instit. de pup. sub. in princ) & consequenter cadit exemplaris substitutio, quum haec ad pupillaris imitationem fieri dignoscatur.  here in England, or very little 
g)  de breviloqua & compendiosa: quarum disceptatione mirum in modum involuunt se DD. à quibus nihil ferè aliud quàm quod ad fatigationem studiosorum, & ad obscuritatem rei, quae vel ultro perdifficilis est, capere valeas. ; I shall only speak of that vulgar or common kind of substitution, whereof there is more use. Concerning the which this is to be noted, that it † is lawful for the testator to make so many degrees of executors as he list 
h) Instit. de vulg. sub. in princ. L. potest. cod. tit. ff. , and he may substitute into the place of one executor, either one or more; and into the place of many executors, he may substitute one alone 
i) § plures. Instit. de vulg. sub. : likewise he may substitute or ordain many executors, and appoint to every of them a several substitute; or he may substitute one of the same executors to another 
k) d §. plures. : or the testator having instituted divers executos, may substitute executors to some of them, but not to others 
l) d. L. potest. & DD. in eand. L. .  
It is also lawful for the testator to institute an executor simply, and to substitute another in his place conditionally 
m) L. qui liberis. de vulg. sub. ff. ; or contrary wise, to institute conditionally, and to substitute simply 
n) L. sub conditione. ff. de haered. instituend. : Simply, I say, not because I deny any substitution to be conditional; for in deed every substitution is in this respect conditional, because every substitute is appointed with this condition, viz. If the person to whom he is substituted, will not or cannot be executor 
o) jas. in L. quamdiu. ff. de acquir. haered. in princ. Sichard. in Rub. de impub. & al. sub. C. : But I say simply, when no other condition is expressed or understood in the substitution, then is expressed or understood in the institution 
p) L. qui liberis. de vulg. sub. ff. .  
Very † many and infinite almost, are the divers effects issuing from the divers kinds of substitutions 
q) De quibus Zasius, Politus Fumeus, & alij, in suis Tract. de substituc. , the discourse whereof would be much more laborious than commodious: wherefore lest I should make long harvest about little corn, I shall content myself with declaration of two conclusions, whereby we may understand, when and how the vulgar substitute is to be received or repelled, to or from the executorship.  
The first and principal conclusion is this, so long † as he which is instituted executor in the first degree may be executor, the substitute or he which is appointed executor in the second degree, cannot be admitted to the executorship 
r) L. quamdiu. de acquir. haered. L. cum in testamento. de haered. Inst. ff. L. post aditam C. de impub. & al. sub Grass. Thesaur. come. op. §. sub. q. 9 : and likewise, so long as he may be executor, which is assigned in the second degree, he that is appointed in the third degree is excluded: So by the first, the second is repelled, by the second the third, by the third the fourth, etc. 
s) d. L. quamdiu. Zas. in d. Tract. de sub. c. 1. n. 5. .  
And if the † testator do institute divers executors, substituting one or more, so long as any one of them which was first instituted may be executor, the substitute is not to be admitted 
t) L. quidam de impub. & al. sub. C. Zas. in d. Tract. de substit. c. 6. vers. quinta conclusio. sed consulas Ripan. in L. 1. ff. vulg. sub. n. 187. etc. qui de hac q. pluribus disputat. ; unless † the testator do appoint to every executor first instituted, his several substitute: for then any one of those first instituted executors, not being able or refusing to be executor, his substitute is to be admitted with the other executors first instituted 
v) Zas. in d. Tract. de substit. c. 1. membro 5. conclu. 1. limitac. 3. : Whereas † otherwise any one of the executors in the first degree lawfully undertaking the executorship, all the substitutes are excluded; not only those which are placed in the second degree, but also those which be placed in the third and fourth 
x) Bar. in L. 1. de vulg. & pup. sub. ff. n. 47. & Ripa. ibid. n. 185. Dec. in L. post aditam. C. de impub. & al. sub. n. 2. . In so much that † if the executor undertaking the office, do afterwards die intestate, yet the executors instituted do still remain excluded 
y) L. post aditam. C. de impub. & all. sub. & Sichard. in eand. L. n. 1. vers. ita deinde. , & so by the laws of this realm, the administration is to be committed of the rest of the goods of the testator deceased not administered by the executor 
z) Brook Abridg. tit. admistr. n. 45. & tit. executor. n. 149. : the reason is, for that they which are substituted are made executors conditionally; that is to say, if he which is instituted executor in the first degree, will not, nor cannot be executor 
a) Odofred. & Fulgo. in d. L. post aditam. : wherefore he that was first instituted lawfully, undertaking the executorship, can not be said to be unwilling or unable; and so the condition expireth, and is become deficient, without the accomplishment whereof, that is to say, unless the executor in the first degree will not or cannot be executor, the substitute cannot claim any thing 
b) Constat aliàs à jasone, Sichardo. & alijs, in d. L. post aditam, assignari rationes, quae tamen non tanti sunt apud nos momenti; non tamen erit inutile illos in hac re consulere. . Howbeit, if † the executor instituted in the first degree, be deprived of the executorship, by reason of his negligence in not performing the will, then is the substitute to be admitted 
c) Zas. in d. Tract. de substit. c. 1. membro 5. concl. 1. limit. 1. : likewise, if the executor first instituted, notwithstanding his intermeddling, be admitted to renounce the executorship, than also the substitute is to be received 
d) Bar. in d. L. 1. de vulg. sub. n. 49. cuius opinio communis est, testimonio Grass. Thesaur. con. op. §. substitutio. q. 15. : likewise if he that is first instituted, do delay to take upon him the executorship, by the space of thirty years, he is to be excluded, and the substitute to be received 
e) jas. in L. quamdiu. de acquir. haered. ff. quam opinionem dicit esse communem. n. 9 : but I suppose he is not to be excluded by lapse of lesser time, unless the ordinary do assign a certain time, to take or refuse the executorship 
f) Vide infr. 6. part. §. 13 : likewise, if he that is first instituted cannot be executor, the substitute being appointed upon this condition, if the former will not be executor, nevertheless the substitute is to be admitted, as if the former executor had refused 
g) Bar. in d. L. 1. ff. de vulg. sub. & post eum Zas. in d. Tract. de subst. c. 1. verb. primus effectus. . And finally, wheresoever it is likely that the testator would have substituted in the case not expressed, if he had remembered the same, as well as in the case expressed; there the substitute is to be admitted, as if the same case had been expressed 
h) Bar. & jas. ubi supra. .  
The second conclusion is, that † the substitute shall succeed in such part and quantity of the testators goods, as was assigned to him that was instituted executor in the former degree, be it more or less 
i) L. 1. C. de impub. & al. sub. §. & si. Instit. de vulg sub. L. si plures. ff. de vulg. & pup. sub. : so that if the instituted person were made executor of the one half of the testators goods, the substitute shall be admitted executor of the one half; or if the instituted person were made executor of a third part, or of goods in a certain place, the substitute shall succeed and be admitted accordingly 
k) DD. in d. L. 1. Minsin. in d. §. & si plures. de vulg. sub. . And † if diverse be substituted to one, they shall succeed equally: but if the same substitutes were also instituted executors, and that unequally (for that perhaps to some more, to some less is allotted:) In this case, if any of the instituted executors, will not, or can not be executor, the portion of that executor shall not be equally distributed amongst the substituted executors, but according to the portion of the first assignation: that is to say; he that is an instituted executor of a greater part, shall be substitute of a greater part; & he that was instituted of less, shall be substituted of less 
l) Bald. Paul. de Castr. & Sichard. in d. L. 1. de impub. & alijs. sub. C. Mantic. de coniect. vlt. vol. lib. 5. tit. 1. n. 20.  (a rateable & just proportion observed) the reason is, because the same affection is presumed in the substitution which was in the institution 
m) Mincing. in d. §. & si Instit. de vulg. sub. per L. licet imperator. ff. de leg. 1. & L. publius. §. Titio. de cond. & daemon. & Mantic. ubi sup. .  
Notwithstanding, if † the executors unequally instituted, be substituted to a legatary; then in case the legatary will not, or cannot have the legacy, the same shall be equally divided amongst the substitutes 
n) L. vnic. §. sed ut manifestetur. C. de cad. tol. & ibi Paul. de Cast. Sichard. in d. L. 1. de impub. & al. sub. col. 5. ver. nec movet. .  
Or if the substitutes be equally charged by the testator, than also they shall succeed equally, notwithstanding they were unequally instituted 
o) L. quoties ad Trebel. L. utrum. §. sin. de rebus dub. ff. Dec. in d. L. 1. n 10. .  
Or if the persons instituted executors in the first degree be assigned conditionally, the substitutes assigned simply shall not be charged with the performance of that condition 
p) L. si sub conditione. de haered. instit. & ibi Bar. Bald. Imol. & alij. ff Et haec est communis sententia, ut ꝑ Mantic. de coniect. vlt. vol. lib. 10. tit. 6. n. 2. , unless they be substituted to a conditional legatary: for then the condition expressed in the former disposition, is understood to be repeated in the substitution; and therefore the substitute cannot obtain the legacy without the performance of the condition 
q) Dec. in d. L 1. de impub. & al. sub. C. in sin. L. 1. §. pro secundo. C. de cad. tol. quod tamen intellige, ut per Mantic. de coniect. vlt. vol. li. 10. tit. 6. n. 9 cum seq. .  
Or † if in the substitution, the persons substituted be not all named by one name appellative, but every one severally by his own proper name; then notwithstanding they were first instituted executors of unequal parts, the distribution amongst them as substitutes ought to be equal 
r) L. nonnunquam. ff. ad Trebel. & ibi DD. Viglius, & Mincing. in § & si. Instit. de vulg. sub. .  
By names appellative in this place, I understand every name, which is common or may comprehend divers persons, or all names except the christian name, or surname of any person, as when the testator doth substitute, his executors his children, his brethren, his kinsfolks, all which I do account names appellative in this present case 
s) Sichard. post Paul. de Castr. & alios, in d. L. 1. de impub. et al. sub. C. n. 5. in fin. Mincing. et Vigl. in d. §. si ex disparibus. : the cause of the difference (as most do think) is the force of this word and, which word being most commonly used, and almost necessary, where soever the testator doth substitute divers persons, by their several proper names, the nature and force thereof is such, as it doth make equal distribution 
t) Paul. de Castro. jas. & Sichard. in d. L. 1. de impub. & alijs. sub. C. ; without the which the substitution shall be proportionable to the institution: insomuch that if the testator do substitute divers by their proper names, without that word and; as if the testator say, I substitute the two johns at Noke. In this case, the testators being instituted unequally in the first degree, the substitutes are to succeed unequally likewise 
v) jidem Castrens. jas. Sichard. in d. L. 1. .  
But what † if the testator do substitute by both kind of names, aswell by the appellative, as by the proper names: or what if some be substituted by the proper names; others by some name appellative: what if it be doubtful by whether kind of name they were substituted: whether in this case ought the substitutes to succeed equally, or unequally, according to the proportion of the substitution 
x) Has quaestiones cum multis alijs expeditas habet jas. in d. L. 1. .  
When the substitution is made by both names jointly, we are to consider, whether the names appellative, or the proper names have the first place in the disposition: For if the appellative go before, than the substitutes are to be admitted, as if their proper names were not at all expressed, that is to say, according to the proportion of the institution: but if the proper names enjoy the first place, than the substitutes are admitted equally, notwithstanding their unequal institution 
y) jas. & Sichard. in d. L. 1. quae quaestio communis est, quam etiam adversus Curtium defendit Viglius, in d. §. & si ex disparibus. Instit. de vulg. & pupil. sub. n. 7. .  
When † some be substituted by their proper names, others by names appellative; they which be substituted by their proper names do succeed equally: the others according to the proportion of their institutions 
z) jas. post Salicet. in d. L. 1. .  
When it is doubtful, by whether names they be substituted (for that perhaps the witnesses do not remember what manner of words the testator did use) in this case, they shall succeed according to the proportion of their institution 
a) Bar. in L. 1. ff. de vulg & pupil. sub. jas. & Sichard. in d. L. 1. C. de impub. & al. sub. .   

How many may be appointed executors.  
1 Either one alone, or more persons may be appointed executors.  
2 What if the testator make all the world his executor.  
3 What if he say, I make the poor my executor, or the Church, or my kin.  
4 Where diverse be named executors, all are to be admitted, and not one without the rest.  
5 The extensions of this former conclusion.  
6 The limitations of the same conclusion.  
7 Whether the executor of the executor is to be joined with the executor surviving.  
8 What if the executor surviving die intestate.  
9 The executor of the executor, may sometimes be sued as executor in his own wrong.  
10 If the impediment be not long, the executor is to be expected.  
11 One of the executors may execute when the rest refuse.  
12 Whether the coexecutor be excluded by his refusal before the ordinary.  
13 Other causes wherein one executor alone may sue, or be sued without his fellows.  
14 Whether one executor may sue another.  
15 Certain cases wherein one executor may sue another.  
16 How the goods are to be distributed among the executors, to whom the testator giveth the residue.  
17 If the testator make the child in the mother's womb executor, and the mother bring forth two or three children at one birth, they are all to be admitted executors.  
18 If the testator do bequeath an hundred pound to the child in the mother's womb, and the mother is delivered of two or three, whether are each of them to have an hundred pound, or but one hundred amongst them.  
19 What if the testator make his wife and the child in her womb executors, willing that if it be a man child, he to have two parts of the residue of his goods, and his wife but one: and if it be a woman child, than his wife to have two parts, and his daughter but one: Admit now, the mother have both a son and a daughter at one birth, how is the goods to be distributed?  
§. xx.  
FIftly, either one person † may be appointed executor alone, or diverse persons together 
a) §. & unum. Instit. de haered. instituend. , even as many as the testator list to appoint, so that † the number be not infinite, as to say, I do make all the men of the world my executors 
b) Porcius. in d. §. & v. num. qui refert hanc pinionem esse communem, licèt Grass. Thesaur. come. op. §. Institutio. q. 13. existimet contrariam esse magis communem, nempe huiusmodi institutionem mero iure subsistere, sed re & effectu irritan, & inanem reddi. : for to appoint executors in that sort, were an argument that the testator were not of perfect mind, and memory 
c) Porcius in d. §. & unum. : Besides that it is impossible 
d) Idem Porcius. ibid. , for all to execute, and therefore a void assignation, at least in effect 
e) Gloss. in d. §. & unum. Grass. d. q. 13. . But † if the testator make the poor his executors, or the Church, or his kin, giving to them the residue of his goods, albeit he do not declare which poor, what Church, or which kinsfolks, nevertheless the disposition is not void, as elsewhere is declared 
f) Infra 7. part. §. 8. vide Dyer. fol. 160. .  
When † the testator doth make diverse persons executors, they are all to be admitted to the executorship, and not one alone without the rest 
g) c. religiosa. §. sanc. de testa. lib. 6. , which conclusion is diversly both extended and limited.  
The † first extension is, that albeit the testator do appoint his own son, and a stranger his executors; the stranger if he can and will, is to be admitted with the testators son: for howsoever in this case by the civil law, the testators son is understood to be instituted in the first degree, and the stranger no more but substituted, or appointed in the second degree, and so to be admitted, in case the son cannot or will not be executor 
h) Gloss. & Bar. in L. Gallus. §. quidam rectè. ff. de lib. & posthu. Grass. Thesaur. come. op §. Institutio. q. 20. n. 6. , yet by the laws and customs of this realm it is otherwise, & both are to be admitted alike 
i) Quip cessant causa. & ratione juris civilis nimirùm instituendi necessitate, cessat & ipsius legis effectus. c. cum cessant. de app. extra. .  
The second extension is, that although the executors be appointed alternatively, or disiunctively: As for example, the testator maketh A.B. or C.D. his executors: In this case both the persons are to be admitted executors 
k) L. quidam. C. de verb. sig. Mantic. de coniect. vlt. vol. lib. 4. tit. 3. n. 19 , and this word, or, in favour of testaments is taken for and 
l) d. L. quidam. & ibi Bar. & jas. , and so it is in effect, as if the testator had said, I make A.B. and C.D. my executos, saving in certain cases else where expressed 
m) Infr. 7. part. §. 9 & ibi tres extant limitationes. .  
The third extension is, that where there be diverse executors, the action commenced by them, or against them, aught to be commenced in all their names, and not in the name of some of them only 
n) Io. de Athon. in legate in. libertatem. de execu. testa. Brook abridge. tit. exec. n 117. Intellige in executoribus haereditatem adeuntibus, alias indistinctè in utroque casu non est verum. .  
The † limitations of the former conclusion are many, but they may all almost be reduced to two, whereof the first is, when the other coexecutor cannot be executor 
o) c. religiosa. §. sane. de testa. lib. 6. : the second is when he will not undertake the executorship 
p) d. §. sane. & ibi Domi. & Phil. Franc. . For the better understanding of the which two limitations, First, concerning the former of them, we are to note, whether the impediment be perpetual or temporal.  
If the impediment be perpetual, because perhaps the coexecutor is dead, or perhaps such a person as is utterly incapable of an executorship, than he that is living and able to execute, may be admitted to the executorship; notwithstanding the impediment of the coexecutor 
q) d. §. sane. & ibidem Franc. et alij. , unless the testator did will expressly, that the one should not execute without the other 
r) Eod. §. sane. in sin. : otherwise if † two be appointed executors, and the one maketh his testament, wherein he nameth his executor, and dieth, his executor surviving: In this case the executor of the executor, is not to be joined with the executor surviving: neither in the execution of the will 
s) d. §. sane. et ibi gloss. ; nor in suits or actions 
t) Brook Abridg. tit. executor. n. 92. 160. . And if the executor of the executor, have any goods or cattles in his hand, which did belong to the first testator, the executor of the same testator surviving, may have an action against the executor of the executor for the same 
v) Brook, tit. executor. n. 99 : In so much that if the † executor surviving, do afterwards die intestate, yet may not the executor of the executor meddle with the goods of the former testator: for the power of the executor who died first, was determined by his death, the other then surviving 
x) Brook. tit. executor. n. 149. : and the ordinary in this case may commit the administration of the goods of the surviving executor, who died afterwards intestate, to the widow, or to the next of his kin: and may also commit the administration of the goods of the former testator not before administered, to the widow, or next of kin to the same testator 
y) eod. n. 149. . And † if the executor of the executor who died first, meddle with the goods of the first testator, he may be sued by the creditors of the first testator, as executor in his own wrong 
z) Brook Abridg. tit. exec. n. 29. 99 .  
If the † impediment be not perpetual, but temporal; then we are to consider, whether the same be like to endure for a long time or but for a short time: If the impediment be like to continue long, for that perhaps the coexecutor is beyond the seas, or in some by place far distant 
a) Io. And. et Phil. Franc. in d. §. sane. , or for that peradventure the coexecutor is yet unborn, or but a babe (for such persons may be named executors 
b)  infr. part. 5. §. 1. :) then the other executor is to be admitted in the mean time 
c) d. §. sane. et DD. ibid. , for the law would not that men's testaments or last wills should be deferred, but with all convenient speed executed and performed 
d) Franc. in d. §. sane. : But if the impediment be but of a short time, than the one executor is to expect his fellow, and is not in the mean time to be admitted alone to the executorship 
e) Idem Francus post Io. And. in d. §. sane. .  
When † the executor may undertake the executorship, but doth refuse so to do, then is the other executor to be admitted alone, and may execute the will, or commence any suit, or be sued alone, as if none other had been named executor 
f) d. c. religiosa. §. sane. de testa. lib. 6. ▪ which conclusion is true, if the executor refusing do still persever in his unwillingness: but † if he altar his mind, and afterwards become willing, then so long as the executor who proved the will is living, (his former refusal before the ordinary notwithstanding) he may by the laws and customs of this realm, join with the other executor, who proved the will 
g) Brook Abridg. tit. exec. n. 38. & n. 117. . And if he release any debt due to the testator, the release is as sufficient, as if he had never refused 
h) Brook. d. tit. n. 117. & n. 177. . To these two limitations may a third be added, whereby one executor may sue or be sued, without the other coexecutor: namely, † when no exception is made against the proceed by the party 
i) Io. de Athon. in legatin. libertatem. de execute. testam. : hereunto also may be added a fourth limitation, that is to say, when any one of the executors, doth sell some of the testators goods for a sum of money, for then that executor which sold the goods, may himself alone sue for the money due for the same goods 
k) Brook Abridg. tit. exec. n. 66. .  
Furthermore it is to be noted, that when the testator doth make divers executors, if † any of them do get the possession of the goods of the testator, the other executor hath no action for recovery of the same goods, or any part thereof 
l) Brook. tit. exec. n 98. : for one executor can not sue another 
m) Infr. part. 6. §. 3. . Howbeit † if the testator make diverse executors, and do bequeath to the one of them the residue of his goods; it is not only lawful for him to whom they are bequeathed, to retain the same; but also if the other executor enter thereunto, he is subject to an action of trespass 
n) Brook. d. tit. execute. n. 104. . Likewise, if the testator do bequeath unto all his executors the residue of his goods, the same aught to be equally distributed amongst them: In which case I suppose the office of the ordinary to whom they are accountable, is of great authority, if one of them seek to defraud another 
o) c. tua nos. de testam. extr. Brook Abridg. tit. account. n. 8. .  
But † what if the testator make many executors, giving them the residue of his goods, of which executors he nameth one by his proper name, the rest by a name collective: As for example, the testator saith, I make my brother and his children my executors, to whom I bequeath the rest of my clear goods: whether in this case ought the father to have as much as all his children, or whether ought every child to have as much as the father: I suppose that in this case the residue of the deaths part ought to be divided into two parts, and that the father ought to have as much as all the children 
p) jas. in L. fin. de impub. & al. sub. C. Dec. consil. 236. & cons. 254 : for it is delivered for a rule, that where diverse persons be comprehended under one name collective, with another third person, than all they which be included under that one name, do represent one only person 
q) jas. in d. L. fin. Mantic. de coniect. vlt. vol. lib. 4. tit. 9 quem operepretium crit videre. . Of which rule, nevertheless there be divers exceptions: One is, when the testator willeth the said goods to be equally divided amongst them 
r) L. interdum. & ibi Paul. de Castr. ff. de haered. instit. Dec. consil. 597. . Another is, when the children were not borne at the time of the making of the testament 
s) jas. in d. L. fin. per L. quidam. §. si tibi de reb. dub. ff. . The third, and that is general, is when the testator meaneth that every person shall have a like portion 
t) jas. in eand. L. fin. quem velim videas, nam ibi tradidit regulam septem limitationibus dotatan. : for in those cases the rule ●oth not hold, but distribution is to be made according to the number of the persons: that is to say, if there be three persons, than the residue of the deaths part is to be divided into three parts, & if there be four persons, then into four parts, and if there be more, then into more parts, every part equal for every person.  
If † the testator do appoint the child in the mother's womb his executor, and it falleth out that the mother doth bring forth two or three children at that one burden, they are all to be admitted executors 
v) jas. in L. placet. ff. de lib. & posthu. Mantic. de coniect. vlt. vol. lib. 4 tit. 8. n. 4. : And as they are all to be admitted to the executorship, so are they all to enjoy the legacy. And therefore if the testator say, I do bequeath an hundred pound to the child in the mother's womb, and if she doth bear two or three children, the legacy is to be divided amongst them 
x) Paul. de Castr. in L. qui filiabus. §. 1. ff. de leg. 1. . But if the testator say, if my wife shall bring forth any child, I give to the same an hundred pound: and she bring forth two or three children; in this case every child may obtain an hundred pound, if the testators goods do suffice to satisfy the same 
y) d. L. qui filiabus. §. 1. & DD. ibid. , unless it be proved, that it was the testators meaning that they should have no more but an hundred pound amongst them 
z) Text. in d. §. 1. .  
What shall we say to this question, The † testator maketh the child in the mother's womb executor, and willeth that if it be a man child, he shall have two parts of the residue of his goods, and the mother but one; and if it be a woman child, that then the mother shall have two parts of the said residue, and the daughter but one: The will being thus framed, the mother bringeth forth a son & a daughter, how much of the testators goods is due to each person? In this case every person is to have a portion of the testator 
a) L. si ita. ff. de lib. & posthu. : that is to say, the son shall have twice so much as the mother, and the mother twice so much as the daughter: for example, the residue of the testators goods arising to seven score pounds, the son ought to have fourscore pounds, the mother forty, and the daughter twenty: so the mother hath double so much as the daughter, and the son hath double so much as the mother.  
But what † if the will being such as before, viz. that the issue being masculine, shall have two parts, and the mother but one: and being feminine, to have but one part, and the mother two: the mother doth bring forth an Hermaphrodite, or person having the part both of a man & a woman: whether shall this Hermaphrodite have so much as if two children male & female had been both borne? The Hermaphrodite can have but one portion: that is to say, the portion due to that Sex, whereof the Hermaphrodite doth most participate 
b) L. quaeritur. ff. de stat. hom. : and if that also be doubtful, it is to be presumed according to the more worthy kind 
c) Addic. ad Bar. in d. L. quaeritur. .   

Of those things which do appertain to the appearance of the testament.  
1 Every testament is to be proved by witnesses, or by writing.  
2 Two witnesses needful, and two sufficient.  
3 What if the witnesses be not free from all exception, whether doth the number supply the defect.  
4 Sometimes one witness is sufficient.  
5 Every one may be a witness which is not forbidden.  
6 Three especial causes, which do minister exceptions against witnesses.  
7 Who are excluded for their dishonesty.  
8 All malefactors are not repelled from witnessing.  
9 Who are excluded for want of judgement, and how long.  
10 Who are excluded for affection, and how far.  
11 Whether a legatary may be a witness.  
12 Whether a woman may be a witness.  
13 Whether a poor man may be a witness.  
§. xxj.  
Having spoken of the general internal form, common to every testament, that is to say, of the making of an executor: now let us return to the general external form, that is to say, the form whereby every testament may lawfully appear.  
Wherefore † that wills and testaments may lawfully appear, it is requisite that there be sufficient proof, either by witness, or by writing 
a) Mascard. Tract. de probac. verb. testamentum. alioquin praesumi quemlibet ab intestato decessisse confirmat, Mantic. de con. iect. vlt. vol. lib. 2 tit. 1. .  
Of proof by writing, it followeth afterwards, in the handling of the particular form of written testaments 
b) Infr. ead. part. §. 25. .  
Concerning proof to be made by witnesses, two things are especially to be examined: First, how many witnesses are required for the full proof of a testament or last will: Secondly, what manner persons may be received for witnesses.  
For the number, By † the laws and customs of this realm, two witnesses are needful 
c) Ius autem civil exigit septem. §. sed cum paulatim. & §. fin. Instit. de testa. ordin. , and again two are sufficient 
d) Lindw. in c. statutum. verb. probatis. de testa lib. 3. provinc. constitu. Cant. Peckius. in c. privilegium. de reg. iur. 6. n. 7. : So that as it is not necessary to have any more than two; so it is vain to have no more but one 
e) jas. in L. cunctos. C. de summa Trinitate. Hyppol. Singul. 102. : For the better understanding of the which twofold conclusion:  
First, where it is affirmed that two witnesses be sufficient: that is to be understood, in case the same two witnesses be without cause of exception 
f) c. relatum. el. 1. de testa. extr. Lindw. in d. c. statutum. verb. ꝓbatis. Mantic. de coniect. vlt. vol. lib. 6 tit. 3. n 5. 6. : but if they be not lawful witnesses, two alone are not sufficient for the proof of a last will 
g) d. c. ●elatum. etc. cum esses. de t●sta. ext. & ibi DD. , at the least where the same is to be proved in form of law.  
But what if † the witnesses be not free from all exception, but yet are more in number then two, suppose three or four: whether be they sufficient for the proof of the will? It may be answered; that if the exceptions whereunto the witnesses are subject, be light or slender, such as do in part diminish the credit of their testimony, as the exception of friendship, domesticitie, or of suspicion of some small fault; there the number doth supply the defect, and so the testimony of three witnesses, not altogether clear from those exceptions, is as the testimony of two witnesses without all exception 
h) Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n 8. : But when the exceptions whereunto the witnesses be subject, are great and heinous; as the exception of perjury, which doth utterly extinguish all the credit of the deposition 
i) Mascard. de probac. verb. periurus. Ampl. 1. Alciat. de praesump. reg. 2. praesump. 10. ; or when the witnesses are subject to double exception 
k) Soarez. lib. recep. sen. verb. testis n. 215. Gabr. lib. 1. come. concls. tit. de testib. conclus. 7. n. 13. Hyp. de Marsil. Sing, 385. Menoch. de arbr. iud. lib. 2. cas. 99 Gravetta. cons. 249. ; or when the law doth resist the examination 
l) Felin. in c. dilecti. de accus. extr. Paris. consil. 58. n. 52. vol. 4.  of the witnesses, as of those that be perpetually mad, or have no understanding; or when the defect is not in the person, but in the deposition 
m) Ruin. cons. 149. 150. vol. 5. Gabr. lib. 1. come. conclus. tit. de testib. concl. 6. n. 9 ; in these and like cases the number doth not supply the defect, but the testimony of them all is as the testimony of none 
n) Vide eund. Gabr. d. concl. 6. .  
Secondly, where † it is affirmed that one witness is as none; yet such is the power and authority of the testator, that he may ordain that that one witness shall make a full proof, as if the testator commit somewhat in secret unto him (being loath perhaps that any other should know thereof) and willeth in his life, that that person alone shall be credited for the declaration of his will: In this case that one person alone is sufficient to prove the contents of the last will and testament of the person deceased 
o) L. Theopom. ff. de dote praeleg. Olden. de probac. fol. 286. b. .  
For the second question; that is to say, what manner of persons are to be received for witnesses: This may be delivered for a rule, that † whatsoever person is not by law forbidden to be a witness, the same person is to be admitted 
p) L. 1. §. 1. ff. de testib. . This rule is short; but if we should descend to the exceptions, and show in particular, what persons are in this case forbidden to bear testimony by the civil and ecclesiastical laws, we should find it a matter of such discourse, as the same should far exceed the quantity of this small volume: for there be many volumes of this argument only 
q) Id quod plusquam manifestum est per illum lib. qui inscribitur Tractatus de testibus probandis, vel reprobandis. Var. authorum. etc. . Besides it is a matter wherein very much is left to the discreet consideration of the circumspect judge 
r) L. 3. §. 1. de testibus. ff. , so that it is very hard also, to prescribe any certainty in this behalf 
s) Bar. Bald. & alij ind. L. 3. §. 1. : only I will remember three † special causes whereby the witnesses are not omni exceptione maiores: the first is dishonesty in manners: the second is want of judgement or understanding: the third is affection more to the one party then to the other 
t) Has causas veluti praecipuas prosequitur Albericus in Tract. de testib. part. 1. .  
The first † cause doth minister exception, not only against perjured or forsworn people 
v) De periuri testimonio latè Mascard. de ꝓbac. verb. periurus. concl. 1168. , but also against all other malefactors, or law-breakers 
x) De teste criminoso idem Mascard. de probac. verb. criminosus. concl. 469. , which by any crime by them committed become infamous 
y) De infamibus, sive juris, sive facti. optimè jas. in L. cunctos. C. de summa Trinitate. : for it is said to be a dignity to be a witness 
z) Aufrer. Tract. de testibus. verb. dignitas. . But all such persons, as are infamous by their evil life, the law esteemeth unworthy of any dignity 
a) c. infamibus. de reg. iur. 6. , which also pondereth the credit of each man's saying, with the gravity of his life 
b) L. 2. & 3. ff. de testibus. ; and therefore light life, light credit also. Howbeit † amongst many limitations of this exception, drawn from the evil life of the witness 
c) De quibus Mascard. & jas. ille. conclus. 464. & conclus. 1168. hic in L. cunctos. C. de summa Trinitate. , this is one, that if any man having committed any crime, (perjury excepted 
d) Mascard. de probac. concl. 1168. n. 16. ) hath reform his manners, clear from his former fault, & hath lived honestly & laudably by the space of three years before his said production, such a person is not repelled from being a witness 
e) c. testimonium. de testibus extr. .  
The second † cause doth comprehend children 
f) §. testes Instit. de testa. ord. , idiots 
g) Rebuff. de reprobac. & saluac. test. verb. furiosus. Campeg. Tract. de testib. reg. 114. Bar. Tract. de testib. n. 98. ubi constituit diff●rētiā inter stultos & fatuos. , lunatic persons 
h) d. §. testes. & Minsin. in §. furiosi. Instit. de Curator. ubi distinguit inter furiosum & mente captum. , and such like, of whom it may be said as of the former: that as they which reform their evil manners, and afterwards live an honest and commendable life are not to be repelled, so these persons being altered in their knowledge, that is to say, the child being grown to years of discretion, the idiot made wise, or the lunatic person not distracted by his fit, or frenzy; then their testimony is to be received even of those things which were done during the time of their minority 
i) Angel. Ate. in d. §. testes. Alberic. Tract. de testib. c. 5. n. 18. , or madness 
k) Mascard. Tract. de ꝓbac. verb. furiosus. concls. 828. , so that they were not utterly void of understanding in those former estates 
l) jul. Clar. pract. crial. q. 24. Alberic. d. Tract. c. 5. n. 24. .  
The third † cause, which is affection, doth reach unto those witnesses which be of kindred or alliance 
m) De quibus Alberic. ● Tract. 〈◊〉. & Hector Aemilius. Tract. de testibus. verb. assinis. , or which be tenants, servants, or of the household of the party producting them 
n) De his te●tibus. idem Alberic. d. Tract. c. 2. , and to the enemies of the party against whom they are producted 
o) Inimicus quatenus repellendus, docet Mascard. in d. Tract. de probac. concl. 899. quatenus verò recipiendus, Campegius. Tract. de testibus. reg. 23. : Item to all those which are to reap any benefit by their deposition 
p) Albericus. Tract. de testibus. c. 4. : wherein (as in many things else) very much is attributed to the discretion of the judge, who as the kindred or affinity betwixt the witnesses and the party, is near or far off, the fear of the tenant or servant, of the displeasure of his Lord and master, great or little, the enmity betwixt the witness and the adverse party, hot or cold, or the commodity of the witness is to reap, more or less: So the wise judge ought to give more or less credit to their sayings and depositions 
q) De huiusmodi testibus, Hector Aemilius. Tract. de testibus. verb. affectionem habens. Gabr. lib. 1. come. concls. tit. de testib. concl. 9 10. 11. 12. 13. 14. 15. 16. Panor. in c. super eo. de testib. extr. n. 8. Rebuff. de reprobac. & saluac. testium. verb. inimicus. verb. domesticus. & verb. consanguineus. .  
What shall we say of the testimony of these persons? namely, of a legatary, of a woman, and of a poor man.  
I suppose the † testimony of the legatary to be good for the rest of the will 
r) §. legatarijs. Instit. de testam. ord. , but not for his own legacy 
s) Porcius. in d. §. legatarijs. : and therefore where there be but two witnesses of a will, wherein either of them hath somewhat bequeathed unto him, this will is not sufficiently proved for those legacies 
t) Bar. in L. omnibus. C. de testibus. & Porcius in d. § legatarijs. , but for the rest of the will it seemeth to be sufficiently proved 
v) Albericus. Tract. de testib. c. 4. n. 57 vers. in hoc ar̄. .  
A woman † is also a good witness in this case by the laws Ecclesiastical 
x) Panor. & Covar. in c. cum esses. de testa. extra. : And whatsoever divers do write, that a woman is not without all exception 
y) Dec. in L. faemina. de reg. iur. ff. Gravetta. consil. 99 n. 5. , because of the inconstancy and frailty of the feminin Sex, whereby they may the sooner be corrupted 
z) c. sorus. de verb. signif. extr. : yet I take it that their testimony is so good, that a testament may be proved by two women alone, being otherwise without exception 
a) Sichard. in L. hac consultissima. § ex imperfecto. C. de testa. Ripa. Tract. de pest. c. 2. n. 24. quae sententia communis est. Covar. in d. c. cum esses. n. 14. .  
A poor † man likewise, being an honest man is not forbidden to be a witness 
b) Vivius Thesaur. con. op. verb. testis. Tu verò justinianista, vide Gab. lib. 1. come. conclu. tit. de testib. concl. 18. ubi tradita est regula de paupere teste, variè tùm ampliata, tùm limitata. .   

Of the particular forms of Testaments.  
1 So many particular forms, as kinds of Testaments.  
§. xxij.  
THe † particular forms of testaments be no fewer in number, than are the several kinds of testaments: For every kind hath his particular form, by the which it differeth from the rest 
a) L. julianus. §. si quis. ff. ad exhibendum. .  
The several kinds of testaments are these: that is to say, Some be solemn testaments, and some be unsolemn: some written, and some nuncupative: some privileged, and some unprivileged 
b) Supra prima part §§. 8. 9 10. 11. 12. 13. etc. . Of the particular forms of every which kind, albeit I have already said something in their several definitions: yet now also it shall not be in vain to add thereunto these things following.   

Of the form of a solemn testament.  
1 divers things ought to concur to the form of a solemn testament.  
2 No man tied to the observation of this solemn form.  
§. twenty-three.  
IN the making of solemn testaments many things are requisite, whereof if any one be wanting, it is not reputed a solemn testament 
a) §. sed cum paulatim. Instit. de testa. ordin. & ibi Mincing. . First † it is requisite that there be seven witnesses present at the making thereof 
b) d. §. sed cum paulatim. : Secondly, they must all be required, neither is it sufficient, that they be present by chance, or vnrequired 
c) Auth. rogati. C. de testa. L. haeredes palam ff. de testam. : Thirdly, it is required, that every witness do subscribe his name with his own hand, if he can write, or else two or three others for him 
d) L. singulos. de testa. ff. & Mincing. in d. §. sed cum paulatim. : Fourthly, it is requisite, that the testator do with his own hand write his name, whom he will shall succeed, and have all his goods; and if he cannot write, that then he name him before those witnesses 
e) L. jubemus. L. cum antiquitas. C. de testa. Non tamen ita necessaria est nominatio haeredis, ut proprio testatoris ore fiat, quin sufficit, si testator, alio interrogante, an velit talem fore haeredem? Respondeat ita. DD. in d. L. jubemus. Grass. Thesaur. come. op. §. Institutio. q. 17. : Fiftly, it is requisite that the witnesses be such as are not forbidden to bear testimony in that behalf 
f) §. testes. Instir. de testa. ordin. : Sixtly, it is necessary that the witnesses do see and behold the testator, and not hear him only 
g) Menoch. de arbitr. jud. q. lib. 2. cent. 5. cas. 475. n. 23. Mincing. in d. 5. sed cum paulatim. . It is also necessary that the witnesses do seal the testament, either with their own seals, or with the seal of another 
h) d §. sed cum paulatim. . Finally, it is necessary that the testament be made at one time, without any intermission, except natural, such as cannot be avoided 
i) Eod. §. & ibi Mincing .  
A will thus † made is called a solemn testament, which form if men would observe, (but no man is necessarily tied thereunto here in England 
k) Supr. part. 1. §. 9 ) it were a more safe way, aswell against the forging of false wills, as suppressing of true wills.   

Of the form of an unsolemn testament.  
1 What is requisite in the making of an unsolemn testament.  
§. xxiv.  
IN the † making of an unsolemn testament, it is not precisely necessary to use any of the foresaid ceremonies: This only is needful here with us in England, that the testator do appoint his executor, and declare his will before two or three witnesses, whose testimony, partly by the laws ecclesiastical 
a) C. cum esses. c. relatum. el. 1. de testa. ext. , and especially by the general custom of this realm 
b) Lindw. in c. statutum. verb. probatis. lib. 3. provincial. constit. Cant. Tract. de repub. Angl. lib. 3. c. 7. Peckius. in c. privileg. de reg. iur. 6. , is sufficient for the probation and approbation of the same will, concerning the appointing of an executor, or the disposing of goods and cattles 
c) Atque huc tendit quod scriptum reliquit Mincing. in Rub. de mil. test. n. 6. videlicet, apud eas gentes, quae juris civilis observatione non tenentur (quarum Anglia est praecipua) ius militar●s tes●●menti obtinere, si nulla, propria lex extet. .   

Of the form of a written testament.  
1 divers things considerable in a written testament.  
2 In what matter or stuff the testament is to be written.  
3 In what language the testament is to be written.  
4 In what hand may the testament be written.  
5 With what notes or characters is a testament to be written.  
6 Limitations of the former conclusion.  
7 Of the words and sentences of a written will.  
8 Whether it be necessary that there be witnesses in a written will.  
9 How the witnesses are to depose in proving the will to be written by the testator.  
10 What if the testament be found in the testators Chest.  
§. xxv.  
WE have heard elsewhere, in what cases it is needful that the testament be written 
a) Supr. 1. part. §. 11. , namely where the testator doth devise any lands, tenements, or hereditaments 
b) Stat. H. 8. an. 32. c. 1. , and also when the same aught to be written: that is to say, in the life time of the testator 
c) Eodem stat. , with diverse other questions there absolved: Now † let us hear of some other things which may seem to appertain to the form of a written testament, namely in what matter or stuff the testament is to be written, in what language, with what hand, letter's, notes or characters, with what words or sentences, and whether it be always necessary that there be witnesses of a written testament  
For the † matter wherein the testament is written, the law regardeth not whether it be paper, or parchment, or other like stuff apt for writing 
d) §. nihil Instir. de testa. ordi. Spec. de Instr. edit. §. 8. n. 21. Sed quid si quis scripserit voluntatem suam in pulvere? numquid valebit testamentum ut scriptum? Et videtur quod sic per L. milites. C. de testa. Hoc uno subaudito, nimirum nostratium testamenta, omni immunitate, atque adeo iure militari gaudere, ut scriptum reliquit D. Smitheus. Tract. de repub. Angl: lib. 3. c. 7. Contrarium tamen scilicet non valere huiusmodi testm. tanquam in scriptis conditum, existimo: Saltem ad effectum illum, de quo sit mentio in d. stat. H. 8. an. 32. c. 1. id quod ex mente illius statuti sacile colligere licet. Et huc pertinet quod scriptum reliquit Molin. in L. 1. §. eod. ff. de verb. ob. n. 9 .  
Neither is it material in what † language 
e) Mincing. in d. §. nihil.  the same be written, either Latin, French, or any other tongue.  
For the † hand or letters wherewith the testament is written, the law is indifferent whether it be Secretary hand, Roman hand, Court hand, or any other hand, either fair, or otherwise, so that the same may be read and understood 
f) DD. in L. quoniam. C. de testa. .  
For the † notes or characters it skilleth not whether the same be usual or unaccustomed 
g) Hoc intelligant justinianistae ꝑcedere iure gentium quo nos utimur. Nam iure civili testm. in scriptis fieri non potest per notas aut zypheras inusitatas, ut tenent Bar. Bald. Angel & alij, in L. quoties. §. 1. ff. de haered. instituend. praeterquam in casibus exceptis, veluti in testamento militis, ad pias causas, etc. de quibus Vasq. de success. create. lib. 2. §. 15. requisite. 16. Tiraquel. de privileg. piae causae. c. 13. Grass. Thesaur. come. op. §. testm. q. 10. . Usual or accustomed notes be these, xx. s. for twenty shillings. Cl. li. for an hundred and fifty pounds, 1590. for a thousand five hundred fourscore and ten, with such like, whereof I might bring infinite examples: unaccustomed notes and characters be, as when the testator doth use the figure (1) in stead of the letter (A) the figure (2) in stead of the letter (B) the figure (3) in stead of (C) &c. or perhaps some other more strange characters than these in place of letters. Howbeit † if the characters be such as the same cannot be read or understood, the testament is as if it were not written 
h) L. 1. ff. si Tabul. testa. Vasq. d requis 16. ; or if they may be read and understood, either by the same, or by some other writing, or by any other means: yet if that writing were but a draft, or preparation to the testament, and not the testament itself, it is without any force 
i) L. ex ea scriptura. ff. de testa. L. fidei commiss. §. 1. de leg. 3. .  
Words † and sentences, are not required for the form of a testament, but for the expressing of the will and meaning of the testator 
k) L. quoniam indignum. C. de testa. Molin. in L. 1. §. eodem. ff. de verb. ob. n. 8. in sin. ; and therefore if the writer by error omit some words, whereby the sense is unperfect: As for example, the Notary doth write thus (I make my wife my, of this my last will and testament) leaving out this word (executur:) in this case the error of the writer ought not to prevail against the truth of the testament 
l) L. errore. C. de testa. : for the law presumeth that more was spoken, though less was written 
m) d. L. errore. Ita ut in hoc exemplo non sit necessaria aliqua probatio quòd Scriba erraverat, vel quod testator omnia nuncupaverat, cùm lex ipsa sit loco probationis. Sich. in d. L. errore. Attamen necesse est probare mulierem istam esse testatoris uxorem, quam vult esse suam executricem. jas. in d L. in sin. : much less ought it to be prejudicial to the testament, where in steed of the words omitted, other words of the same sense to such purpose are used and expressed 
n) L. quontam. C. de testam. : For example, suppose that in the testament it is written, that the testator doth bequeath such lands to such person, to have and to hold to him and to his assigns for evermore. How soever in this devise there is not any mention of heirs, without which word an estate of inheritance cannot pass, by any deed or gift made whiles a man yet liveth; yet because in testaments, the will and the intent of the testator is preferred before formal or prescript words, an estate of inheritance doth thereby pass, as if he had made express mention of his heirs 
o) Supr. ead. part. §. 4. . Other examples to the same effect are extant in other places of this book, which to repeat were superfluous.  
Concerning the last question, viz. whether † it be necessary that there be witnesses of a written will; this is the answer, that if it be certain and undoubted, that the testament is written or subscribed with the testators own hand: In this case the testimony of witnesses is not necessary 
p) Auth. quod sine. C. de testa. & DD. ibid. Io. dilect. de arte testandi. tit. 2. c. 2. in sin. Mascard. de probac. verb. testmt. 1352. n. 60. etc. : But if it be doubtful, whether the testament were written or subscribed by the testator; in this case the testimony of witnesses is necessary, to confirm the same to be the testators own hand 
q) Bar. in L. si ita scripsero. ff. de cond. & daemon. Alex. consil. 76. vol. 3. n. 2. 3. Paris. consil. 19 vol. 3. n. 26. Covar. in c. cùm tibi. de testa. extr. n. 5. . But † it is not enough for the witnesses to say this is the testators own hand, for we know his hand 
r) Sichard. in d. Auth. quod sine. Alex. d. consil. 76. n. 3. 4. Menoch. de arbitr. jud. q. lib. 2. cas. 114. n. 22. Afflict. decis. 181. n. 7. , neither is it sufficient (in the opinion of divers) to bring forth other writings of the known hand of the testator, and so prove the will to be written or subscribed by the testator, by comparing such writings with the testament 
s) Sichard. in d. Auth. quod sine. Alex. d. consil. 76. vol. 3. Molin. in addic. ad Alex. consil. 114 vol. 7. : For the witnesses may be deceived (the testators hand being easy to be counterfeited,) and therefore proof by similitude of hands is not a full proof 
t) Bar. & ali●. in L. admonendi. ff. de iureiur. afflict. decis. 181. Mascard. Tract. de probac. verb. comparatio. , saving in those courts where the style or custom doth approve such testimony for a full proof 
v) Vestrius. pract. cur. Rom. lib. 6. c. 1. , or when the testament is to be proved in vulgar form: nevertheless in this case where it is doubtful whether the testator did write or subscribe the testament, if the witnesses do depose that they did see the testator write or subscribe the testament, and being learned know the same to be his hand 
x) Sichard. i●n d. Auth. Alex. d. consil. 76. & consil. 123. vol. 1. n. 5. , or else that they did hear the testator confess that he had made his testament, or that the same was in the hands of such a person 
y) Bar. Imol. & alij, in L si ita scripsero ff. de cond. & daemon. quorum opinio magis est communis, teste Grasso, Thesaur. come. op. §. Institutio. q. 16. n. 5. & §. testm. q. 16. in fin. ; or if the testament were found in the testators Chest amongst his other writings: In these cases the proof made by comparing of hands, albeit the testament be to be proved in form of law, is a full and sufficient proof 
z) Natta. in d. Auth. quod sine. Grass. Thesaur. come. op. § testm. q. 16. in fin. Mascard. de probac. verb. testmt. 1352. n. 66. : Or if there be none of these helps by likely circumstances, yet if on the contrary there be no suspicion of fraud or fear of subornation, I am of their opinion who do hold that the circumspect judge may allow the proof made by comparing of hands for a full proof 
a) Alex. consil. 114. vol. 7. n. 4. 5 Natta. in d. Auth. quod sine. et. Grass. Thesaur. come. op. § Institutio. q. 16. n. 6. Dec. consil. 219. in fin. Socin. consil. 162. n. 4. & hanc opinionem ego non falsam, cum Molineo, immo communem, cum Alex. periculosam tamen cum Mascardo: ideoque in arbitrio judicis positam esse, cum Decio, sentio. : But then also the writings so found in the testators Chest, must be so written, as it may appear, not to be a draft or preparation of a will, but the testament itself 
b) Bar. in d. L. quoties. §. 1. ff. de haered. instituend. Mascard. d. concl. 1352. n. 63. Non tamen opus esse puto, ut seruentur illa requisita, de quibus in d Auth. quod sine. videlicet dici expressionem, extensam scriptionem, liberorum nominationem, etc. Quorum sine observatione, nec inter liberos, nec ad pias causas testamentum valet, etiamsi constet de manu testatoris: nam ista requisita inducta sunt à iure civili, nec sunt sublata iure canonico, ut author est Euerard. Verum autem, inspecto iure gentium, quo iure nos Angli, haud aliter ac Romani milites, liberè fruimur, non est necessaria vel dici expressio, vel extensa scriptio, etc. Illud solùm exigitur, ut constet scripturam manu testatoris exaratam fuisse, vel subscriptam sine alia quavis solennitate, dum tamen huiusmodi scriptura non sit praeparatio ad testandum, sed ipsa dispositio, ut aliàs inpradictum est, & infra dicendum part. 7. §. 13. in fin. .  
But what if † the testament be found in the testators Chest, or safely kept amongst other writings, which testament is neither written by the testator, nor by him subscribed, but altogether of another man's hand: whether shall this writing prevail as the last will and testament of the deceased or not? It shall not 
c) jas. in d. Auth. quod sine. C. de testa. jul. C ar. §. testm. q. 14. n. 5. ubi dicunt hanc opinionem esse communem. , unless it be proved that the same was written by the commandment of the testator 
d) jas. in d. Auth. Mascard. de probac. d. concl. 1352. n. 67. , or unless it be sealed with the seal of the testator 
e) c. 2. de fide Instr. extr. Et licet Decius ibidem teneat contrarium, nisi Sigillationi, accedat etiam subscriptio. Quia tamen haec opinio fundata est in solennitate juris civilis, nobis ius gentium attendentibus, opinor hanc Deccis. sententiam non audiendam fore in foro nostro. .   

Of the form of a Nuncupative testament.  
1 Of the form of words in a Nuncupative testament.  
2 Obscurity and ambiguity to be avoided.  
3 Obscurity what it is, and how it may be avoided.  
4 Ambiguity what, and how it may be avoided.  
5 The difference betwixt obscurity and ambiguity.  
6 Wills favourably interpreted.  
7 In contracts interpretation to be made against the party.  
§. xxuj.  
IN the making of a Nuncupative will or testament, this is chief to be observed, that the testator do name his executor, and declare his mind by words of mouth, without writing before witnesses 
a) §. fin. Instit. de testa. ordin. Auth. hoc inter. §. per nuncupationem. C. eod. tit. numerum tamen septinarium testium. de quo in d. §§. non esse necessarium supra diximus. . As † for any precise form of words, none is required 
b) Molineus. in L. 1. §. eodem. ff. de verb. ob. n. 8. in fin. , neither is it material, whether the testator do speak properly or unproperly 
c) L. quoniam indignum. C. de testa. , so that his meaning do appear, as hath been heretofore confirmed by divers examples 
d) Supra ead. part. §. 4. . But it is not sufficient for the testator to leave a sound in the ears of the witnesses, unless he do leave some understanding also of his will and meaning 
e) L. sed & si. §. proscribere. de Instit. action. L. aetate. §. nihil. de inter. action. ff. .  
And although in written testaments it be also required, that the words and sentences be such as thereby the testators meaning may appear 
f) Supra §. prox. praeceden. : yet more specially it is required in a Nuncupative testament, for more supply may be made in written testaments then can be made in Nuncupative testaments concerning the testators meaning 
g) Auth. quod sine. C. de testa. .  
Wherefore † that the testator may the better perform this thing, and that his meaning may be the better understood, he must as much as he can avoid obscurity, and ambiguity 
h) De obscuro & ambiguo. vide Spiegel. Lexic. verb. ambiguum. & verb. obscurum. .  
Obscurity † is avoided by speaking plainly; for an obscure speech is that which either cannot be understood at all, or very hardly by reason of the cloudy darkness thereof, or want of the light of plain utterance 
i) Spiegel. Lexic. verb. obscurum. Cagnol. in L. semper. de reg. iur. ff. .  
Ambiguity † is avoided by speaking simply and certainly: for an ambiguous speech is that which yieldeth divers senses to the hearer, who remaineth doubtful in whether sense the speaker is to be understood 
k) Spiegel. & Cagnol. ubi supra. .  
The † difference betwixt obscurity and ambiguity is this. By obscurity, the hearer is made like to him which walketh in a dark place, not knowing where the way lieth, whether on the right hand, or on the left; before him, or behind him; or whether he be in the way, or out of the way: By ambiguity, the hearer is made like unto him, who walking in the light, meeteth with two or three ways, and knoweth not which way to take, nor which of those ways leadeth to that place whereunto he ought to go 
l) Zafius in L. veteribus. ff. de pactis. Spiegel. & Cagnol. ubi supra. Fateor tamen alias ab aliis differentias excogitari, & quandoque etiam confundi. : both of them are to be avoided.  
And albeit † the law hath provided favourable interpretations, to sustain the testament where the disposition is obscure, ambiguous, or uncertain 
m) L. in testamentis. de reg. iur. ff. & DD. ibid. , contrary to the † nature of contracts, where he that speaketh obscurely or ambiguously, is said to speak at his own peril, and that such his speeches are to be taken strongly against himself 
n) L. veteribus. ff. de pactis. : nevertheless how favourable soever the law be towards dead men's wills, the lawyers are not so favourable to their clients, and therefore if it were but to avoid long and costly suits, it is meet that the testator utter his mind, as plainly and certainly as he can.   

Of the particular forms of other testaments or last wills.  
§. xxvii.  
COncerning the forms of testaments privileged or not privileged, or of other kinds of wills, as of codicils, or of gifts in case of death, I refer the reader to those places where special mention is made of every of them, and of their differences of forms 
a) Supra 1. part. §§. 5. 6. 7. etc. .  
And chief concerning the forms of legacies, I wish the reader to peruse the manifold forms of making an executor: For as I have often said 
b) Supra ead. part. §. 3. & §. 4. n. 18. cum seq. , by understanding after how many sorts an executor may be appointed, it is an easy matter to collect how diversly a legacy may be left also.    

THE FIFTH PART OF THIS TESTAMENTARY TREATISE, WHEREIN APPEARETH WHO may be Executor, and is capable of a legacy, and who not.  

The Paragraphes or Chapters of the fifth part.  
WHat persons may be appointed executors or be capable of a legacy. §. 1.  
Of an heretic. §. 2.  
Of an Apostata. §. 3.  
Of traitors and felons. §. 4.  
Of him that is outlawed. §. 5.  
Of an excommunicate person. §. 6.  
Of Bastards. §. 7.  
Of him that is mad. §. 8.  
Of an unlawful college. §. 9  
Of a libeler. §. 10.  
Of usurers, Sodomites, and other vicious persons. §. 11.  
Of an uncertain person. §. 12.   

●HAT PERSON ●AIE BE EXECUTOR OF 〈◊〉 TESTAMENT, OR IS CApable of a legacy.  
The fifth part.  
Every one may be executor which is not forbidden.  
The testator may omit or exclude his own child, and make others executors.  
The testator may make executors either bond men or free.  
Not only lay men but clerk also may be made executors.  
Women as well as men may be executors.  
Infants as well as those of full age may be made executors.  
The testator may make his executors either known or unknown persons.  
The testator may appoint executors either one person or many.  
§. j  
IN the fift principal part of this Testamentary treatise is declared, what persons may be appointed executors, and are capable of a legacy, and what persons are incapable of an executorship or legacy.  
Wherein forasmuch as the law doth give liberty to the testator to appoint whom he will to be his executor 
a) Tit. de haered. instit. lib. 2. Instituc. in princ. Benedict. de Capra. Tract. regul. & fall. verb. executor. , and likewise to give legacies to whom he will, certain persons excepted 
b) §. legari. Instit. de lega. : This may be delivered for a rule, that every person may be an executor, and is capable of a legacy saving such as are forbidden 
c) Mincing. in d. tit. de haered. instit. in prin. pract. Petr. de Ferrar. in forma libelli, ad reddend. ration. Tutel. §. an ●●ecutores. n. 1. . Now what persons these be which are forbidden, shall straight way be showed, after the view of the greatness of the testators liberty in appointing his executors.  
First, it is to be understood that this liberty of the testator is so large & ample, that albeit the testator have children of his own, naturally and lawfully begotten, yet by the laws & customs of this realm, he may appoint others to be his executors; secretly omitting, or openly excluding his own children 
d) Bract de consuetud. & leg. Angl. lib. 2. c. 26. Tract. de repub. Angl. lib. 3. c. 7. unde perspicuum est, nullum ferè usum apud nos manner huiusmodi titulorum juris civilis, viz. de exhaeredac. liberorum. lib. 2. Instituc. de lib. & posthu. haered. instituend. vel exhaeredand. ff. & de in office test. ff. Instit. & C. unà cum pluribus alijs eiusdem farinae, cùm titulis, tum legibus. .  
Secondly, the testator hath liberty to appoint executors, not only those which be free, but also bondmen, or villains 
e) Lib. 2. Instit. tit. de haered. instituend. in prin. Litleton. tit. villeinage. fol. ●0. Brook abridge. tit. villain. n. 68 Et licèt iure civili servus institui quidem potest, non executor, ut per Bald. in L. id quod C. de episcopis & cler. n. 3. Tamen iure quo nos utimur, institui possunt servi nostrates executores, ut per Litleton & Brook. ubi supra. Quinimo eodem iure civili servus constitui potest nudus executor. Io. de Canib. Tract. de exec. vlt. volunt. part. 1. q. 3. n. 47. , either his own villeine, or the villeine of another 
f) d. tit. de haered. instit. in prin. . And if the testator do make his own villeine executor, he doth manumit, or deliver his villeine from bondage 
g) Io. de Platea. in d. tit. in prin. : And if another's villeine be made executor, such villeine may as executor have action against his own Lord, in case he were indebted to the testator 
h) Litleton. tit. villeinage fol. 40. Brook. tit. villain n. 68 , because he shall not recover the debt to his own use, but to the use of the testator 
i) Litleton. ubi supra. & sic nota quod non obtinet ius civil, quo servus alienus institutus acquirat domino. §. alienus. Instit. de haered. instit. .  
Thirdly, the testator hath liberty to appoint his executors, not only lay-men, but clerk also 
k) Imo etiam religiosos obtenta licentia Fitzh. tit. execute. n. 47. Brook. eod. tit. n. 63. 77. .  
Fourthly, the testator may make executors, not only men, but also women 
l) Covar. in c. tua. de testa. extr. Et est communis opinio. Peckius de testa. coning. lib. 1 c. 20. , either single or married 
m) Peckius. d. c. 20. Fitzh. & Brook. d. tit. executor. .  
Fiftly, the testator hath power to appoint executors, not only persons of full age, but also infants 
(n) Brook Abridg. tit. executor. n. 115. tit. coverture. n. 56. : and the act done by the infant as executor, as the releasing of the debt due to the testator, or the selling or distributing of the testators goods, is said to be sufficient 
(o) Brook. ubi supra. & sic non recipitur juris civilis disciplina, quâ minor 17. annis non admittitur executor.  in law. And here note, by the laws of this realm, every one is accounted infant until he be xxi. years old 
(p) Doct. & Stud. lib. 1. c. 21. lib. 2. c. 28. . But if the infant be so young that he hath no discretion (for it is not only lawful to make such an one executor, but also the child in the mother's womb, and unborn at the death of the testator 
(q) L. placet. ff. de lib. & posthu. quae lex etsi loquatur de haeredis institutione, idem tamen juris vel in executoris constitutione, passim ab Anglis observari notoriè constat, quicquid dixerit ius civil. ) In that case the ordinary, or other to whom the approbation of the testament appertaineth, after the birth of the child doth commit the execution of the will to the tutor of the child, for the child's behoof, until he be able to execute the same himself, the which tutor hath authority to deal as executor until the child be able to undertake the executorship 
r) Quod sine ulla contradictione saepissimè obseruatur, salten infra provinciam Eborac. .  
Sixtly, it is lawful for the testator not only to appoint his known friends and acquaintance his executors, but also strangers, and such persons as he did never see 
s) §. fin. Instit. de haered. instituend. L. extraneum. C. de testa. vide infra ead. part. §. vlt. & intellige ut ibi. .  
Finally, the testator may appoint one person alone, or many 
t) §. & unum Instit. de haered. instituend. : many I say, several, or many representing one body, as a College, a City, an university 
v) L. haereditatis. C. de haered. instit. Mincing. in d. §. & unum. Grass. Thesaur. come. op. §. Institutio. q. 20. .  
After this view of the greatness of the power of the testator in making executors, let us return to the restraint of the testators liberty, and show what persons are forbidden to be executors, or to reap any commodity, by a testament or last will.   

Of an Heretic.  
1 An Heretic cannot be executor.  
2 Whether an Heretic may be executor in a military testament.  
3 What if the Heretic do reclaim his heresy.  
§. ij.  
AN Heretic can not be executor; neither is he capable of a legacy 
a) L. Ariani. C. de heretic. Sichard. in Rub. de haered. instit. C. n. 5. Mincing. in tit. de haered. instit. lib. 2. Insti●uc. in prin. : and so odious is the crime of heresy, that albeit the party be not yet condemned of heresy: nevertheless persevering in his heresy, he is not to be admitted 
b) Vasq. de success. progress. lib. 1. §. 2. n. 20. , no not in a military testament 
c) L. vlt. C. de haereticis , howsoever a soldier hath more liberty in making an executor than another 
d) Supra. 1. part. §. 14. .  
And albeit he that is named executor, do repent and reclaim his heresy, yet being an heretic, either at the time of the making of the testament, or at the time of the death of the testator, or at the time when he undertaketh the executorship, he is excluded 
e) §. in extraneis. Instit de haered. qual. & differentia. .  
For this is perpetual, that if any person be incapable, either when the testament is made, or when the testator dieth, or when he taketh upon him the executorship, it is as if he were always incapable 
f) d. §. in extraneis. L. si alienum. §. 1. ff. de haered. instituend. Sichar. in Rub. de testa. C. in fin Grass. Thesaur. con. op. §. Institutio. q. 28. : but it hindereth not if he be not incapable at other times 
g) d. § in extraneis. L. sed & si. §. solemus. ff. de haered. instit. ; neither doth it hinder the legatary though he be incapable of the legacy at the making of the testament, so that he be capable thereof at the time of the testators death 
h) Bar. in L. non oportet. ff. de leg. 2. Peckius Tract. de testa. coniug. lib. 4. c. 31. Grass. Thesaur. come. op. §. Institutio. q. 28. , (as appeareth more at large hereafter 
i) Infr. part. 7. §. 19 ) the reason of the difference is, because the legacy dependeth of another act; that is to say, of the testament, from whence it receiveth his power and virtue, but the testament or appointment of the executor doth not depend of an other act, whereby it may receive either life or strength 
k) Peckius. d. c. ●1. .   

Of an Apostata.  
§. iij.  
AN Apostata also is incapable of an executorship, or legacy 
a) L. high qui secundum. C. de Aposta. : what an Apostata is, and how many kinds of Apostasy there be, I have else where declared 
b) Supra §. 2. §. 15. .  
That which is here spoken, is meant of Apostasy, properly so called, that is to say, of backstarting from the Christian faith 
c) Bar. in Rub. de Aposta. C. : to whom I might join also anabaptists, for they are also incapable of executorships and legacies 
d) L. vlt. de sacr. baptis. reit. C. Minsin. in d. tit. de haered. instit. lib. 2. Instit. in prin. .   

Of traitors and felons.  
§. iiii.  
Whosoever is convicted of treason, or felony, as he cannot make a testament or last will, as is before confirmed 
a) Supra §§. 12. 13. part. 2. , no more is he capable of any thing disposed by testament or last will 
b) Nam cùm sit damnatus ad mortem naturalem, mortuo aequiparatur, & sic non potest institui Bar. in L. qui ultimo. ff. de paenis. & est come. op. Grass. §. Institutio. q. 5. Vasq. de success ꝓgress. lib. 1. §. 2. n. 13. .   

Of him that is outlawed.  
§. v.  
HE that is outlawed, is out of the protection of the prince, & all his goods are forfeited, and is destitute of all the aid of the laws of this realm 
a) Supra part. 2. §. 21. : And therefore so long as he standeth in that case, he is not to be admitted to the executorship, nor can sue for his legacy 
b) Fitzh Abridg. tit. admnstr. n. 3. Sed non existimo utlegatum penitus incapacem reddi, utpote quem relegato verius quàm deportato, comparandum putem, (nam & relegati bona quandoque publicantur:) sed quia non habet personam standi in judicio, utlegatus non est audiendus in judicio durant utlegatione. , except it be in such cases as he may make his testament, whereof mention is made before 
c) Supra d. part. 2. §. 21. .   

Of an excommunicate person.  
§. vi.  
ALbeit an excommunicate person may be appointed executor, and is capable of a legacy 
a) Phil. Franc. in Rub. de testa. lib. 6. n. 32. quae sententia communiter approbatur, ait Grass. Thesaur. come. op. §. Institutio. q. 4. Bald. in L. id quod pauperibus. C. de episcopis & cler. n. 6 , yet so long as he standeth in the sentence of excommunication, he is not to be admitted by the ordinary, nor can commence any suit for his legacy 
b) c. intelleximus. de iudic. c. post cessionem. de probac. extr. .   

Of Bastards.  
1 Three sorts of Bastards.  
2 Incestuous and adulterous Bastards, are incapable of all testamentary benefit.  
3 diverse extensions of this former conclusion.  
4 diverse limitations of the same conclusion.  
5 Difference betwixt the laws Ecclesiastical and the civil law, about the alimentation or nourishment of children, begotten in adultery and incest.  
6 Of the laws and statutes of this realm, concerning Bastards.  
7 Of Bastards begotten betwixt single persons.  
8 Whether the legacy left unto the Bastard, be presumed to be left for his alimentation or relief.  
§. seven.  
OF Bastards or children begotten out of matrimony, there be divers sorts: some are begotten and borne in simple fornication, that is to say, of carnal copulation betwixt single persons, such as at the time of the conception or birth of the child, may be married together 
a) Covar. Tract. de matrimonio. 2. part. c. 8. §. 4. jul. Clar. lib. 5. §. fornicatio. . Some are begotten in adultery; that is to say, of such parents, as both, or the one of them being married to some other at the time of the birth and conception of the child, cannot then marry together themselves 
b) Covar. in d. c. 8. §. 5. jul. Clar. §. adulterium. . Some again are begotten in incest; that is to say, betwixt such persons as are prohibited to marry, by reason of Consanguinity or Affinity 
c) Covar. in d. c. 8. §. 5. & 6. jul. Clar §. incestus. .  
Bastards begotten and borne in adultery or incest, are not capable of any benefit by the testament or last will of their incestuous or adulterous parents 
c) Auth. ex complexu. C. de incest. nup. & DD ibid. Covar. de sponsal. 2. part. c. 8. §. ●. Grass. Thesaur. come. op §. Institutio. q. 7. , which conclusion is accompanied with no small train of ampliations & limitations 
f) Petr. Duen. Tract. reg. & fall. verb. filius. ubi tradit regulam 14. ampliat. & 11. limitac. illustratam. , of which company these are not the meanest.  
The first ampliation is, that albeit the incestuous or adulterous father do name an other person to be his executor, to whom he giveth the residue of his goods, willing him to restore the same goods to his incestuous and adulterous child: this disposition is void in respect of the Bastard 
g) Barth. Caepol. Cautela. 38. verb. quinta. : (neither is the executor bound to restore the same, but may retain the same to himself 
h) Covar. de sponsal. 2. part. § 5. n. 7. ) for whereof any person is not capable directly or by himself, he is not capable thereof, indirectly or by an other 
i) Duen. verb. silius. reg. 366. : yet I deny not but that the executor may of his own liberality give any goods to the bastard, though not as the gift or goods of the father 
k) Caepol. ubi supra. Io. Dilect. de arte testandi. tit. 1. cautela 14. n. 8. Covar. ubi supra. .  
The second ampliation is, that albeit the father should appoint his incestuous or adulterous child his executor, willing him to bestow his goods on such a person, who of likelihood would never demand the same: as if he should will his executor to give his goods to the Emperor, or to the Turk, if he should in person come into England to receive the same; this is but a fraudulent cautel, whereby the executor might have some colour still to retain the same in his own hands 
l) Alex. in L. cogi. §. high qui solidi. ad Trebel. ff. Caepol. d. cautela. 38. Io. Dilect. de arte testandi. d. cautela 14. : And therefore by reason of this fraud the disposition is void, at least so far as it doth respect the benefit of the executor 
m) Bald. consil. 399. vol. 2. Imol. in L. in tempus, de haered. instit. ff. Alex. Dilect. & Caepol. ubi supra. .  
The third ampliation is, that even he which is begotten and borne in adultery, much more he which is begotten and borne in incest, is not only incapable in respect of his father's testament, but is also excluded from all testamentary benefit by his mother 
n) Covar. Epitome. despousal. 2. part. c. 8. n. 15. .  
The fourth ampliation is, that the disposition is void, ipso iure, which is made in favour or for the benefit of incestuous or adulterous bastards 
o) Duen. d. reg. 366. am. pliac. 4. .  
The fift ampliation is, that although the incestuous or adulterous bastard, be possessed of the thing to him bequeathed; yet he cannot retain or prescribe the same by that title 
p) Bald. in L. id quod pauperibus. C. de episcopis & cler. per gloss. in L. nemo. ff. de usucap Duen. d. reg. 366. ampl. 5 .  
The sixth ampliation is, that the adulterous, and especially the incestuous bastard is excluded, not only by the civil and ecclesiastical laws, but also by the law of God 
q) Augustin ut habet 35 q. 7. c. quid est. Duen. d reg. ampliac. 2. ; but whether this ampliation be true or not, I leave to the consideration of the reverent divines. divers other ampliations also there be of this conclusion 
r) De quibus Duen. d. reg. 366. Barth. Caepol. cautela. 38. & Io. Dilect. cautela. 14. , which I omit, because they seem to repugn the laws of this realm. Now to the limitations.  
The limitations of the former conclusion are these: First these incestuous and adulterous bastards may be executors unto any other person, saving unto their natural parents, and are likewise capable of any legacy, or devise bequeathed unto them by any other, saving by their own parents 
s) Gloss. in Authen. quib. mod. na. effic fin. §. fin. Clar. § testm q. 31. n. 4. Panor. in c. cùm haberet. De eo qui dux. in matrimo. quam pol. extr. ; even unto their incestuous or adulterous brethren, they may be executors, or receive any other testamentary benefit from them 
t) Duen. verb. filius. reg. 366. limit. 10. Afflict. decis. 96. .  
The second limitation is, when they are appointed nude Executors 
v) Simo de Praetis. de Interp. vlt. vol. lib. 5. fol. 17. n. 27. Nec obstat quod dicitur per incapacem nihil posse capi. quia attento iure Can. spurius etiam incestuosus non est om●ino incapax, utpote, cui alimenta licitum est relinquere. Duen. d. reg. 366. limitac 9 , that is to say, when they do not reap any commodity by the testament 
x) Io. de Athon. in legatin. libertatem. de executor. test. , for than they may be executors even to their own natural parents.  
Thirdly, by the laws ecclesiastical they are also capable of so much of that which is bequeathed unto them by their incestuous and adulterous parents, as will suffice for their competent alimentation or relief 
y) c. cùm haberet. de eo qui dux. in ux. quam poll. per adult. : that is to say, for their food, clothing, lodging, and other meet and convenient necessaries 
z) L. legatis. ff. de alimen. leg. Caetera quae ad disciplinam pertinent, legato alimentorum non continentur, nisi aliud sensisse testatorem probetur. L. nisi. eod. tit. , according to the wealth and ability of the parents 
a) d. c. cùm haberet. in sin. sed neque pro necessitate tantùm (ut volunt quidam) sed etiam ad decentiam, constituenda sunt alimenta, si modo sacultates suppetant. Gab. lib. 6. come. conclus. tit. de alimen. concl. 1. n. 31. . And although the civil law in detestation of this heinous sin of incest and adultery, did deprive this incestuous and adulterous issue, of the hope of all testamentary benefit, though it were left for, and in the name of alimentation, or needful relief 
b) d. Auth. ex complexu. C. de incest. nup. , the rather by this mean to restrain the unbridled lusts of some, and to preserve the chastity of others 
c) L. isti quidem. ff. de eo quod met. cause. in fin. & §. fin. Instit. de noxal. action. : Nevertheless, forasmuch as nature hath taught all creatures to provide for their young, so that the very brute beasts have a natural care to bring up whatsoever they bring forth 
d) Cic. lib. 1. office L. 1. §. 1. ff. de justice. & iur. : Seeing also in equity the poor infants ought not to be punished (at least not to perish for want of food, by occasion of the father's fault, whereof they are altogether faultless 
e) Deutro. c. 24. vers. 16. Ezech. c. 18. vers. 20. L. Sancimus. C. de paenis. L. si paena. eod. tit. dist. 56. c nasci. :) Therefore the ecclesiastical law, whereby not only adulterous 
f) Text. in d. c. cùm haberet. , but incestuous 
g) Dec. in c. in praesentia. de probac. extr. n. 39 Gabr. ubi supra. n. 5. quae opinio communis est contra Bald. in d. Auth. ex complexu.  issue also is made capable of so much as is sufficient for needful and convenient sustentation, hath prevailed against the rigour of the civil law, and is to be observed especially in the ecclesiastical Court 
h) Idem juris est in terris imperij gloss. & Panor. in d. c. cùm haberet. Bar. in ●. Auth. ex complexu. Decis. Neap. 164. n. 2. Dec. ubi supra. Duen. verb. filius. reg. 367. , as more agreeable to nature, equity, and humanity. And in this respect the laws and statutes of this realm, in providing aswell for the convenient relief and keeping of poor and miserable children, begotten & born out of lawful matrimony, at the charges of the reputed father or mother 
i) Stat. Eliz. an. 18. c. 3. , (without distinction whether such infants were begotten in incest and adultery, or fornication 
k) Vbi enim lex non distinguit, nec nos distinguere debemus. L. de precio. ff. de pub. in rem. action. ;) as for the punishment of the mother and reputed father of such unlawful issue, are worthily commended, although in respect of the next limitation following, they may seem not altogether so worthy commendation.  
The fourth limitation is grounded in the laws of this realm, which do permit every man, both by deed made and executed during their lives 
l) Perkins. tit. grants. fol. 11. Bract. lib. 2. c. 7. , and also by their last wills and testaments to be executed after their deaths 
m) Perkins. tit. devise. fol. 98. , to give & to devise unto any their bastards without distinction, all their lands, tenements, or hereditaments, without restraint, at the least more than will suffice for their sustentation, and much more than they are worthy of. Which thing cannot but redound to the great prejudice of right heirs, considering the danger whereunto lawful children are subject, and which they do many times sustain, through forcible flatteries of vile dissembling harlots, no less void of all modesty, then full fraught with all kind of subtlety, with whose sweet poison and pleasant sting many men are so charmed and enchanted 
n) Videas c. 5. Proverb. Salom. , that they have neither power to hearken to the just petitions of a virtuous wife, praying and craving for her children, nor grace to deny the unjust demands of a vicious and a shameless whore, prating and grating for her bastards; never remembering that when Sara said to Abraham: Cast out this bond woman and her son, for the son of this bond woman shall not be heir with my son Isaak. Abraham by the commandment of God harkened to the voice of Sara 
o) Gen. c. 19 , never once regarding (that which divers have diligently noted;) that the brood of bastards are commonly infected with the leprosy of the Sires disease 
p) c. si gens Anglorum, & ibi praepos. distinct. 56. Hinc est (ait Peckius) quod Sodomitarum unà cum parentibus, paruulos etiam coelesti igne consumpsit Dominus, nempe quòd prospexerat paruulos hos idem flagitium admissuros. Pec. in c. non decet. de reg. iur. 6. : and being encouraged with the example and pattern of their father's filthiness, they are not only prone to follow their sinful steps 
q) Mali cor●● malum owm, & metuenda sunt paterni criminis exempla L. quisquis. C. ad L. jul. mayest. §. 1. , but do sometimes exceed both them and others in all kind of wickedness.  
The fift limitation is in the bastards of kings and princes, for a king may ex plenitudine potestatis, make his unlawful issue capable of whatsoever by will devisable he doth give or bequeath unto him 
r) Boer. Decis. 127 n. 17. Duen. d. reg 366. lim. 7. .  
The sixth limitation is this, the adulterous grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters, or make them his executors 
s) jas. in L. haereditas. C. de his quibus, ut indig. n 7. & 8. Cui opinioni locum concederen, etiamsi hic Auus habeat legitimos filios. Cùm apud nos nulla sit necessitas instituendi suos, ut supra ead. part. §. 1 ; but so cannot the incestuous grandfather 
t) Bald. in L. si quis incestus. C. de incest. nup. Covar. in d c. 8. de sponsal. 2. part. §. 5. n. 13. .  
The seventh limitation is this, that the testator may bequeath unto his incestuous or adulterous daughter a competent portion for her dowry, or preferment in marriage: for this is accounted all one, as if he did bequeath it unto her for her alimentation 
v) Panor. in d. c. cum haberet. n. 5. Bar. in d. Auth. ex complexu, quae conclusio ampliatur per Petr. Duen. verb. filius. reg. 367. ampl. 3. .  
The eight limitation is this, that an executor may make the testators bastard his executor 
x) Bar. in L. si his. ff. de vulg. sub. Bald. in L. eam qua. C. de fidei commis. n. 4. Clar. § testium. q. 31. Intellige tamen nisi coniecturae interuenerint, ex quibus fraus praesumatur. Grass. §. Institutio. q. 7. n. 13. .  
The ninth limitation is, when the adulterous parents do solemnize lawful matrimony together before the birth of the child 
y) Praepos. in c. tanta vis. Qui filii sunt legitimi. extra. n. 10. Card. eod. c n. 7. Melch. Kling Tract. de cause. inrion. fol. 85. 86. : for example, A married man doth beget a single woman with child (for this is adultery by the laws ecclesiastical of this realm 
z) Card. praepos. & alij, in d. c tanta vis. Kling. ubi supra. c. nemo. 32 q. 4. Panor. in c. transmissae de eo qui cog. consang. ux. extra. Clar. §. adulterium. n. 2. , although by the civil law it is but fornication 
a) L. 1. C. de adul L. inter liberos. ff. ead. Clar. ubi supra. ) immediately after his wife dieth, after whose death he marrieth the woman (for so he may 
b) Nisi praeter copulam mortis machinatio interuenisset, vel fides data fuisset, quia tunc non valet inter eos matrimonium iure can. c. super hoc c. significasti de eo qui dux. in matr. quam poll. per adul. extr. sed an dissolui possint hody nuptiae huiusmodi, multum dubito, occasione statuti H. 8. an. 32. c. 38. ) after the marriage the child is borne: In this case the child is not only capable of any testamentary benefit, but is reputed a lawful child, and not a bastard 
c) d. c. tanta vis. & DD. ibidem. , as heretofore hath been disputed more fully 
d) Supr. part. 4. §. 15. .  
Concerning those bastards which are begotten of single persons, such (I mean) as may lawfully marry together, then in case the mother were a maid, or an honest widow, immediately before such unlawful copulation and conception of the child: This kind of fornication is termed Stuprum 
(e) L. inter liberos. L. stuprum ff. de adul. , and this kind of bastard seemeth to be in the same case as if he had been begotten in adultery.  
If the mother were an harlot before the conception of the child, howsoever by the civil law such a bastard is not incapable of any testamentary benefit 
(f) Covar. de sponsal. 2. part. c. 8. §. 5. n. 15. 16 17. ; yet forasmuch as by the laws ecclesiastical 
(g) c. Nemo. 32. q. 4. Panor. in Rub. de adul. extra.  and statutes of this realm 
(h) Stat. Eliz. an. 18. c. 13. , such copulation is condemned as unlawful, and to be punished as ungodly: I suppose that this kind of bastard is no more capable of an executorship or legacy, then if the mother had been honest before 
i) Videas Covar. in d. §. 5. , especially if the mother were a common harlot, the testator nevertheless esteeming her to be clear from pollution with any other, and himself only to be the undoubted father of the child, whom he doth make his executor, or to whom he doth bequeath any legacy by the name of his child, when as indeed he is not the certain father of the child, the mother having prostituted herself to the filthiness of others also. For in this case even by the civil law, the Bastard cannot be executor, nor obtain the legacy 
k) Bald. in L. quisquis ad L. jul. C. de adult. Grass. Thesaur. come. op. §. Institutio. q. 7. n. 10. & infr. part. 7. §. 5. , if not by occasion of the father's crime, yet by reason of the testators error and folly, who of all likelihood would never have made that child executor, nor have showed himself so good a father if he had known the bad conditions of the mother. Where it is said that the parents may bequeath so much to their bastards as will suffice for their alimentation or relief, what kind of Bastards soever they be without distinction: It may be demanded not impertinently, nor unprofitably, What if the testator do simply bequeath a sum of money or some other thing to his unlawful child, not making any mention that he doth bequeath the same for the child's relief or alimentation: Whether in this case is it to be presumed that the father did mean it for the child's alimentation or no: but if he did so mean, the legacy is good, otherwise it is void. Briefly, howsoever in this matter all men are not of one mind, I do rather subscribe to their opinion, who do hold the affirmative 
l) Aymo. Gravetta consil. 219. n. 8. .   

Of an unlawful College.  
1 An unlawful College cannot be executor.  
2 What is understood by an unlawful College.  
3 Whether the Churchwardens may sue for a legacy left unto the Church.  
4 Particular persons of an unlawful College may be appointed executors.  
§. ix.  
AN unlawful College cannot be executor 
a) L. collegium. C. de haered. instit. : By an unlawful College in this place, I mean all companies, societies, fraternities, and other assemblies whatsoever, not confirmed nor allowed for a lawful corporation by authority of the prince, or of some other by whom they ought to be confirmed or allowed 
b) d. L. collegium. Bar. in L. cum senatus de reb. dub. ff. Abbas in c. dilecta. de excess. praela. extr. . Notwithstanding, if the testator bequeath any goods or money to the parishioners of any parish to the use of the Church, such a bequest is good 
c) Lambert. Tract. de office gardianorum. fol. 43 Brook. tit. corporation. n. 55. 73. 77. 84. tit. done. n. 17. 50. contra Fitzh. tit. done. n. 1. , and the legacy may be recovered by the Churchwardens, who albeit in every respect they be not a lawful corporation, yet in this respect they be accounted a lawful corporation, I mean in favour of the Church 
d) Lambert. ubi supr. : or if the several and particular persons of an unlawful College be appointed executors, they are not to be repelled 
e) Paul. de Castro. in L, cum senatus. ff. de reb. dub. .   

Of a libeler.  
§. x.  
HE that is condemned for a famous libel is intestable, both actively and passively: that is to say, he can neither make a testament, nor receive any benefit by a testament 
a) L. is cui. §. vlt. ff. de testam. Vasq. de success. progress. lib. 1. §. 2. n. 18. .   

Of usurers, Sodomites, and others.  
1 Manifest usurers & Sodomites, can neither make a testament, nor reap any benefit by another's testament.  
2 Whosoever is forbidden to make a testament by reason of some crime, the same person is incapable of any benefit by the testament of another.  
§. xi.  
AS manifest usurers, Sodomites, and other criminous persons, are forbidden to make testaments themselves, or to dispose their goods by their last wills (as is before at large declared 
a) Supr. part. 2. §§. 15. 16. 17. 18. ;) so are they forbidden to reap any such benefit by the testament of others: for this is a common received conclusion, that he that cannot make a testament or last will, by reason of some crime by him committed, the same person is incapable of any legacy of goods, disposed by the testament or last will of another 
b) Gloss. in L. is cui ff. de testa. Soarez. lib. rec. Sen. verb. testm. n. 82. referens hanc op. esse come. Idem jul. Clar. §. testm. q. 43. n. 2. .   

Of an uncertain person.  
1 If the testator make john at Stile his executor, and there be two persons of that name, neither of them is to be admitted.  
§. xii.  
AN uncertain person cannot be executor nor legatary 
a) §. incertis. Instit. de lega. Io. And. Gem. & Franc. in c. si pater. de testam. 6. : For example, the testator doth make Thomas Lante his executor, to whom also he giveth all his goods: and there be two persons either of them being called Thomas Lante: In this case neither is to be admitted 
b) Mincing. in d. §. incertis. per L. si quis. §. si inter. de lega. 2. .  
divers other examples of uncertainty, with divers declarations of every example, do appear in the last part of this book, where the reader may be more fully satisfied 
c) Infr. part. 7. §. 6. cum seq. , in what sort this former conclusion is to be admitted.    

THE sixth PART OF THIS TESTAMENTARY TREATISE, WHEREIN IS DESCRIBED THE office of an Executor.  

The Paragraphes or Chapters of the sixth part.  
OF the office of an executor. §. 1.  
Of accepting or refusing the executorship: And first whether the executor may be compelled to accept the same. §. 2.  
What is to be considered of the executor, desirous to be resolved, whether it were better to accept, or to refuse the executorship. §. 3.  
Of the time which the executor hath to deliberate, whether he will undergo the executorship. §. 4.  
Of the office of an executor testamentary, undertaking the executorship. §. 5.  
Of diverse questions about the making of an inventary: And first whether it be of necessity that an inventary be made. §. 6.  
What things are to be put into the inventary. §. 7.  
Within what time the inventary is to be made. §. 8.  
Of the form to be observed in the making of an inventary. §. 9  
Of the effect and benefit of an inventary. §. 10.  
Of the probation and approbation of testaments: and namely before whom the same are to be proved. §. 11.  
By whom the testament is to be proved. §. 12.  
When is the testament to be exhibited & proved. §. 13  
Of the manner or form of proving and approving testaments. §. 14.  
What fees are due about the probation and approbation of testaments. §. 15.  
Of the payment of debts, legacies, and mortuaries. §. 16.  
Of the making of an account; and first of the necessity thereof. §. 17.  
To whom the account ought to be made. §. 18.  
Of the time of making the account. §. 19  
Of the manner of making an account. §. 20.  
Of the end and effect of an account. §. 21.  
Of the executor refusing the executorship, and what he is to take heed of. §. 22.   

OF THE OFFICE OF an executor.  
The sixth part.  
1 Three kinds of executors.  
2 Executor by the law.  
3 Executor by the Ordinary.  
4 Executor by the testament.  
5 diverse kinds of executors testamentary.  
6 The office of an executor testamentary.  
§. i.  
Now followeth the sixth principal part of this Treatise, wherein I promised to set forth the office or duty of an executor, I mean of an executor Testamentary: that is to say, of him that is appointed by the testator for the performance of the will.  
For thou shalt understand that there be † three kinds of executors, or persons which have to deal with the execution of dead men's wills, and disposition of their goods 
a) Specul. de Instr. edit. §. nunc vero aliqua. in prin. , every of which have their several offices. The first hath his authority from the law, the second from the Ordinary, the third from the testator 
b) De hac trimembri executoris diuisione in legitimum, datiwm, & testamentarium. Specul. ubi supra. Cui adiungas velim Io de Canibus. Tract. de executorib. vlt. volunt. part. 1. q. 3. n. 22. fol. mihi. 120. .  
The † executor which deriveth his authority from the law, is the Bishop or Ordinary of every diocese, unto whom the execution of testaments and last wills, especially ad pias causas, (no executor being appointed by the testator) hath appertained and belonged 
c) L. nulli. L. si quis ad declinand. C. de episcopis & cler. c. tum nobis. c. nos quidem. c. Io de Testa. extr. c. statutum. de testa. lib. 3. provincial. constit. Cant c. statuimus. eod. tit. lib. constit. provinc. Ebor. , and that not of late time (as some have lately divined, or rather dreamt) but ever since Christianity was first received, and established by imperial authority, or very shortly after: nor within this realm of England only, where the bishops to whom the approbation of testaments appertain 
d) Lindw. in d. c. statutum. & in c. ita quorundam de testa. lib. 3. provincial. constit. Cant. Io de Athon in legatin. libertatem. de execute. testa. Doct. & Stud. lib. 2. c. 28. , have continually by the royal consent of the godly kings and princes of this realm 
e) c. accidit de immunitate ecclesiasticarum libertatum. lib. 3. provin. constit. Cant. Lindw. in d. c. statutum. verb. ecclesiasticarum libertatum. , exercised this office, and executed this charge, for, and during so long time, and so many ages, that (if I be not deceived) there is not any memory or ancient record to the contrary 
f) Lindw. in d. c. accilit, qui etsi antiquus sit, non potuit tamen huius antiquitatis initium inuestigatione assequi, nempe cuius regis tem poribus istud primo fuerat concessum, ut ille ingentiè fatetur. , (I mean since Christianity was first embraced, and Paganism abolished:) but also throughout all the kingdoms and nations within the Christian Empire. For not only by the laws ecclesiastical 
(g) c. tua. c. nos. c. Io. de testa. extr. , used and observed for many hundred of years, but also by the civil law 
(h) L. nulli. L. si quis ad declin. C. de episcopis & cleric. , composed above a full thousand years since 
(i) Anno viz. Christi 536. editus est ille justiniani codex, in quo leges istae inter alias inseruntur. , this office and charge of executing the aforesaid testaments and last wills hath been imposed upon the reverend Bishops: in the sincerity of whose consciences all Christian laws and namely the law of this land, hath reposed greater confidence then in other lay people, about the performance of dead men's wills 
k) Perkins in tit. de testamentis, fol. 94. . Hence it is, that every Bishop is called Ordinary, as if other judges were in this behalf incompetent or extraordinary 
l) Ordinarius verò dicitur, qui lege, vel consuetudine, vel principis beneficio jurisdictionem universaliter exercet. DD. in L. more de iur. am. iudic. : Hence also is it that the Bishop is called Executor legitimus, Legal executor, because he only is appointed executor by law, where no executor is appointed by the testator 
m) Specul. in d. §. nunc verò aliqua de Instr. edit. Io. de Canib. de exec. vlt. vol. part. 1. q. 3. Olden. de execute. vlt. vol. tit. 2. .  
The executor † which deriveth his authority from the Bishop, or Ordinary, is he whom we call Administrator 
n) Specul. ubi supra. : For when the executor named in the testament, doth refuse to be, or cannot be executor; or when no executor is named in the will; it is lawful for the Bishop or Ordinary to commit administration 
o) Stat. Ed. 3. an. 31. c. 21 & stat. H. 8. an. 21. c. 5. , and to annex the will to the letters of administration 
p) Brook Abridg. tit. testament. n. 20. . And this administrator having his authority from the Ordinary, is chargeable with the performance of the will, as if he had been appointed by the testator 
q) Brook Abridg. tit. devise. n. 35. stat. Ed. 3. an. 31. c. 11. , and is called in law, Executor datiws 
r) Specul. in d. §. nunc. verò aliqua. de instr. edi. Io. de Can. & Olden. Tract. de executore. , because he is given or assigned by the Ordinary, to whom originally and by law this execution doth appertain: But with us he is usually called Administrator 
s) Stat. Ed. 3. an. 31. c. 21. & stat. H. 8. an. 21. c. 5. , because he is the Ordinaries deputy, or as it were his steward or bailiff, to deal and to administer in stead of the Ordinary; and in that respect the Ordinary may call this his administrator to an account 
t) Stat. Ed. 3. an. 31. c. 11. , and if he will, may at any time revoke his office or administration, like as any other man may revoke his attorney 
v) Brook. tit admnstr. n. 3. & n. 33. sed. si statutum 21. Hen. 8. non obstat quod quaere, et tamen videtur quod ex justa causa poterit revocari ut in casu Caroli ducis Suffolciae. 5. Edw. 6. non tamen pro suo libito. .  
The executor † which deriveth his authority from the testator, is he that is named executor in the testament, or to whom the execution of the testament is committed by the dead man: For it is lawful for every one having authority to make a will, to appoint an executor for the performance of the same will 
x) Supra part. 5. §. 1. . This executor is termed Executor testamentarius, a testamentary executor 
y) Specul. in d. §. nunc verò. & Io de Can. ac Io Old. de execu. vlt. vol. , & hath his authority immediately from the testator 
z) Ploughed. lib 1. in cas. inter Greisb. & Fox. , representing the person of the dead man 
a) Sichard. in Rub. de iur. delib. C. n. 1. Mincing. in tit de haered. instituend. Instit. lib. 2. Zas. in L. si res. ff. de e●cep. & praeind. Doct. & Stud. lib. 2. c. 7. , and may without the authority of the Ordinary, enter to the testators goods and cattles 
b) Ploughed. d. cas. inter Greisb. & Fox. , and may be convented by the creditors and legataries of the deceased, as else where is declared 
c) Supra part. 4. §. 2. & infra hac part §. 3. : And after the probation of the testament, may also commence suit against the testators debtors 
d) Perkins. tit. testament. fol. 93. Brook. tit. executor. n. 49. , & doth not much differ from him in nature, whose name in the civil law is haeres 
e) Specul. de Instr. edit. §. nunc verò aliqua. n. 16. Lindw. in c. statutum. lib. 3. provincial. const. Cant. verb. prius. Tract. de repub. Angl. lib. 3. c. 9 Haddon lib. resor. leg. ecclesi. Angl. tit. de testa. c. 1. c. 18. Add quae superiùs adnotavi part. 4. § 2. in princip. , saving that haeres by the civil law, is to have the residue of the testators goods, & may convert the same to his own use, (the funeral, debts & legacies discharged,) albeit the testator do not expressly will that he shall have the same 
f) L. 3. C. de testam. mil. §. haereditas. Instit. de haered. instituend. L. interdum. ff. de haer. instit. Lindw. in d. c. statutum. verb. effectus. in fin : where as an executor may not convert the residue to his own private use 
g) Magna charta. c. 18. Ploughed. in c. inter Norwood. & Reed. Perkins tit. devise. c. 8. fol. 97. Litleton. fol. 40. Rip●. in L. cùm silius famil. ff. de leg. 1. n. 21. , nor any part of the testators goods, more than that which is left unto him by the testator, or which the Ordinary shall allow him for his travail and charges, or for some other causes hereafter expressed 
h) Text. in d. c. statuimus. Dom. Gem. in c. religiosus. lib. de testa. 6. n. 9 Doct. & Stud. lib. 2. c. 10. Dyer. fol. 2. & infr. ead. part. §. 3. n. 14. : Insomuch that if the executor die intestate, the testator also from that time shall be deemed intestate, and administration may be committed in this case of the goods not administered 
i) Brook. Abridg. tit. admstr. n. 1. 41. tit. exec. n. 149. Ploughed. in cas. inter Grersb. & Fox. .  
Concerning the office of him that is appointed executor by law, that is to say, of the Bishop or Ordinary: and likewise concerning the office of the executor appointed by the Ordinary, that is to say, of the administrator: I do not here purpose to entreat, but only of the office of an executor testamentary.  
Of † executors testamentary there be diverse kinds; that is to say, some be nude executors, such as do reap no commodity by the testament 
k) DD. in L. si quis. de leg. 2. ff. Io. de Athon. in legatin. libertatem. de executor. testam. : others not mere or naked executors, but are to receive some benefit thereby, and may commence judicial action 
l) Consul Bald. in d. L. si quis. ubi docet executorem dici posse nudum, duplici respectu, vel ob defectum commodi, vel ob defectum actionis. ; and again, of executors some be universal, and some particular 
m) Olden. Tract. de executor. vlt. vol. tit. 3. & supr. part. 4 §. 18. Bar. in L. à filio. ff. de alimen. leg. : But because I see no great use of these distinctions here in this place, I shall speak of an executor testamentary generally, and as it is agreeable to every testamentary executor, be he nude or other wise, universal or particular 
n) De officio executoris in genere, deinde de officio executoris testamentarij, legitimi dativi in specie. Vide post alios Io. de Canib. de executor. vlt. volunt. 2. part. .  
The † office of every executor testamentary consists in two things: the first is, in accepting or refusing the executorship 
o) Vide Sichar. in Rub. de iure delib. C. & infr. ead. part. §§. 2. 3. 4. . The second dependeth of the resolution of the executor in accepting or refusing the executorship. For if he do accept of the executorship, than his office is extended diversly, but especially it consisteth in making of an inventary 
p) Infr. ead. part. §. 6. , in procuring the probation and approbation of the testament 
q) Infr. ead. part. §. 11. , in the payment of debts and legacies 
r) Infr. ead. part. §. 16. , and finally in the making of an account 
s) Infr. ead. part. §. 17. . But if he resolve to refuse the executorship, his office is so much the less, consisting only in the avoiding of such things whereof mention is made hereafter 
t) Infr. ead. part. §. 22. .   

Of accepting or refusing the executorship: and first whether the executor may be compelled to accept the same.  
1 diverse questions about the accepting or refusing of the executorship.  
2 The executor may be cited to accept, or to refuse the executorship.  
3 If the executor being cited will not appear, the Ordinary may commit the administration of the goods of the deceased.  
4 If the executor named refuse the executorship, the ordinary may commit the administration.  
5 The executor cannot be precisely compelled to undertake the executorship.  
6 What if he have already meddled with the goods of the testator.  
7 Whether the executor refusing the executorship, shall lose his legacy given unto him in the same testament.  
§. two.  
COncerning † the accepting or refusing of the executorship, three questions may be demanded: First, whether he that is named executor in the testament may be compelled to undertake the executorship, or that it is in his power to refuse the same 
a) De hac Q. consulas Henr. Boic. in c. tua nos. de testa. extr. Panor. in c. johannes. eo. tit. & Bar. in L. 1. de. leg 2. ff. . secondly, what is to be considered of him that is named executor, whereby he may be resolved whether it were better to accept or refuse the executorship 
b) Infr. §. prox. . Thirdly, how long time, he that is named executor, hath to deliberate and determine of accepting or refusing the executorship 
c) Infr. ead. part. §. 4. .  
To the first it may be answered, that he † that is named executor, may be cited to appear before the Ordinary, or other having authority to prove the will, and there either to accept the executorship, or at least to refuse the same 
d) Boic. Panor. & Bar. ubi supra Ploughed. in casu inter Greisb. & Fox. . And in case † either he will not appear, or appearing † refuse to prove the testament, the Ordinary or other judge may commit the administration of the goods of the deceased, as if he had died intestate 
e) Brook Abridg. tit. admnstr. n. 32. tit. exec. n. 49. 102. stat. H. 8. an. 31. c. 5. ; and the administrators have action and may administer the goods of the deceased, as if he had died intestate, and their authority or act done is good and effectual in the law 
f) Brook ubi supra. & Ploughed. ubi supra.  in the mean time, until the executors undertake the executorship 
g) Bald. in L. de beri. C. de fidei commiss. liberta. Ploughed. in d. cas. inter Greisb. & Fox. , for then the Ordinary may revoke the administration before by him committed 
h) Brook Abridg. tit. admnstr. n. 33. quod facilitis procedit, cum administratio commissa fuerit (ut semper solet) saluo iure cuiuscunque etc. .  
But he † that is named executor, cannot be precisely compelled to stand to the will and undertake 
i) Panor. in c. Io. de testa. extr. n. 3. Olden. de exec. vlt. volunt. tit. 7. in fin.  the executorship, unless † he have already meddled with goods of the testator, as executor, for than he is not only to be compelled to perform the office of an executor 
k) Panor. & Olden. ubi supr. Boic. in c. tua. de te sta. extr. Ploughed. in cas. inter Greisb. & Fox. ; but also if he should refuse, and the Ordinary commit the administration unto him: this refusal is void, and he shall be charged as executor 
l) Fitzh. Abridg. tit. execute. n. 35. .  
Moreover, albeit † the executor named, who hath not meddled with the administration of the goods of the deceased, cannot be precisely or absolutely compelled: yet if any legacy be left unto him in the testament, he may be compelled to stand to the executorship, or else to lose the legacy: so that he shall not reap the benefit, if being duly admonished, he refuse the burden 
m) Quae positio locum vendicat, etiamsi executor sit coniuncta persona, ut habet communis opinio. Gribald. Thesaur. come. op. verb. tutor. Rom. consil. 235. Add Io. de Canib. d. Tract. de executore. ubi plures enumerat huius regulae limitationes, nempè quod non est compellendus, quarum firmitatem, quia suspectam habeo, eas silentio praetereo. .   

What is to be considered of the executor, desirous to be resolved whether it were better to accept or to refuse the executorship.  
1 diverse things to be considered of him which would be resolved, whether it were better to accept or to refuse the executorship.  
2 The first thing to be inquired in this case concerning the testator.  
3 Of the authority and charge of the executor.  
4 The executor may not meddle with the lands, tenements or hereditaments of the testator, but the heir.  
5 The heir hath not to deal with the goods and cattles of the testator, but the executor.  
6 The testator may give power to his executor to sell his lands for payment of his debts, or other purpose.  
7 What if some of the executors named do refuse, whether may the rest sell the lands according to the testament.  
8 Whether the executor of him that had lands in see simple, fee tail, or for term of life, may recover the rents, fee fermes, or other arrearages against the tenant which ought to have paid the same in the life of the testator.  
9 The second thing to be required concerning the testator.  
10 Of the authority and charge of the executor of an executor.  
11 Whether diverse being assigned executors, whereof some be dead, the executor of the executor deceased may be joined in action with the executor surviving.  
12 Of the authority and charge of the executor of an Administrator.  
13 What is to be considered about the last will of the testator.  
14 Whether the executor may convert the residue to his own use.  
15 Whether he that is named executor, shall lease his legacy if he do refuse the executorship.  
16 What is to be considered in the person of the executor.  
17 What is to be considered in a wise executrix.  
18 What is to be considered in the person of the coexecutor.  
19 Whether one executor may prejudice another.  
20 Whether one executor may sue another.  
21 Whether one of the executors may alone sell the goods of the testator.  
22 Whether the coexecutor after refusal, may meddle as executor.  
23 What is to be considered in other persons with whom the executor is to deal.  
§. iij.  
HE † that is desirous to be resolved whether it were better for him to undertake the executorship, or to refuse the same, must consider divers things, whereof some concern the testator; some concern the executor himself; and some concern the persons of others 
a) Haec & alia quae ab executore deliberante consideranda sunt, tradunturà Io de Canib. in Tract. de executor. vlt. vol. 2 part. q. 1. cum seq. Cui, si place at, adiungas Sichar. in Rub. de iure de lib. C. .  
Of those things which concern the testator, the first and principal thing to be regarded in this consultation, is his substance or wealth.  
First of all therefore † it behoveth him that is named executor, to inquire diligently, and to learn certainly (if he can) what goods and chattels did belong to the testator at the time of his death 
b) Sichard in d. Rub. de iure de lib. C. , and what debts were then due unto him: And on the contrary, what debts he the said testator did owe unto other men 
c) Cuius rei utilitas statim subijcitur. .  
For † as the executor may enter to all the goods and cattles which did belong unto the testator 
d) L cùm haeredes de acquir. post. L. haereditas. de reg. iur. ff Ploughed. in cas. inter Greisb. & Fox. , and were in his possession at the time of his death 
e) Cagnol. in L. in precibus. C. de impub. & alijs. sub n. 278. , and hath action against every debtor of his testator 
f) ●nstit. de perpet. & temp. action. Terms of law. verb. executor. : So shall every one, to whom the testator was indebted, have action against the executor (especially having an obligation or other specialty) so far as the goods of the testator will extend 
g) L. fin. &. sin. de iure de lib. C. , and so long as the executor hath assets in his hands 
h) Terms of Law. verb. executor. : howbeit, where any debt is due to the testator, this shall not charge the executor as assettes, because it is a thing in action, not in possession 
i) Brook Abridg. tit. executor. n. 112. : which conclusion is very reasonable, when as the executor hath used such diligence for the recovery: thereof, that he cannot be justly charged or worthily blamed for not having the same in his own hands 
k) c. sine c●lpa. de regiur. 6. quod si per cum st●tit, quo minus ha●eat, in eo casu est, de iure civili et ●an. ac si in manibus retineret. L. iure civili. ff. de cond. & daemon. Peckius in c. cùm non stat. de reg. lib. 3. c. 6. & 7. .  
As † for lands, tenements, and hereditaments of the testator, they shall descend to his heir, and shall not come to the executor: For by the laws of this realm, as † the heir hath not to deal with the goods and chattels of the deceased 
l) Doct. & Stud. lib. 1. c. 7. etc. 24 Idem lib. 2. c. 10. etc. 12. terms of law. verb. executor. , no more hath the executor to do with his lands, tenements, and hereditaments 
m) Doct. & Stud. ubi supra. Tract. de repub. Angl. lib. 3. c. 6. 7. . Albeit, where lands be devisable by will, (whereof we have spoken before 
n) Supr. part. 3. §. 1. cum sequentibus. ) the † testator may give power and authority to his executor to sell the same lands, either for the payment of his debts, or for some other purpose 
o) Perkins. tit. devise, fol 104. 105. , and the sale made thereof by the said executor is good and lawful 
p) Perkins. eod. loco. : insomuch that divers persons being named executors by the testator, though † part of the executors named in any such testament of any such person, making or declaring any such will of any lands, tenemen, or other hereditaments, to be sold by his executors after the death of any such testator, do refuse to take upon him or them the administration & charge of the same testament and last will, wherein they be so named to be executors, and the residue of the same executors do accept and take upon them the care and charge of the same testament and last will, it is enacted by the statutes of this realm 
q) Stat. H. 8. an. 21. c. 4. , that then all bargains, and sales of such lands, tenements, and hereditaments so willed to be sold by the executors of any such testator, as well before the making of that statute, as after made, or to be made by him or them only of the same executors that so doth accept, or hath accepted or taken upon him or them, any such cure or administration of any such will and testament, shall be as good and effectual in law, as if all the residue of the same executors, named in the said testament, so refusing the administration of the same testament, had joined with him or them in making of the bargain and sale of such lands, tenements, or other hereditaments, so willed to be sold by the executors of any such testator, which before that time had made or declared, or that after should make or declare any will of any such lands, tenements, or other hereditaments after his decease to be sold by his executors, as may appear by the statute in that behalf made. Howbeit it is provided, that the said statute shall not extend to give power and authority to any executor or executors at any time after, to bargain, or to put to sale, any lands, tenements, and hereditaments, by virtue and authority of any will or testament, made before the said statute, otherwise than they might do by the course of the common law, afore the making of the same.  
Besides that, supposing the case were such, as the lands being devisable, the executors had power by testament to sell the same land, and to distribute the profits in pios usus: yet after the death of the testator, the inheritance shall descend unto the heir, and shall remain in him, until the executor have sold the same 
r) Perkins. tit. devices. fol. 104. 105. . And if the executors themselves do enter into the lands, after which entry some man offereth a sum of money or price of the same land, and the executors refuse to take the money offered, because the money offered, is under the value of the land, and the executors intend to sell the same dearer, and so keep the land in their own hands, by the space of one, two, or three years, converting in the mean time the profits arising forth of the same land, to their own proper use. In this case, the heir of the testator deceased, may enter to the lands, and put out the executor 
s) Perkins. ubi supra. Brook Abridg. tit. devise. n. 19 .  
As † for rends due to the testator by the order of the common law of this realm 
t) Vide stat. H. 8. an. 32▪ c. 37. , the executors or administrators of tenants in fee simple, tenants in fee tail, and tenants for term of life, of rend services, rend charges, rend secks and fee fermes, have no remedy to recover such arrearages of the said rents or fee fermes, as were due unto those testators in their lives, nor yet the heirs of any such testator, nor any person having the reversion of his estate after his decease, may distrain or have any lawful action to leave any such arrearages of rents or fee fermes, due unto him in his life, by reason whereof the tenants of the demain of such lands, tenements, or hereditaments, out of the which such rents were due and payable, who of right aught to pay their rents & fermes, at such days & terms as they were due, did many times keep hold, and retain such arrearages in their own hands, so that the executors and administrators of the persons, to whom any such rents or fee ferms were due, could not have or come by the arrearages of the same, towards the payment of the debts, and performance of the will of the said testator. For remedy whereof, it is enacted by the statutes of this realm, as followeth, viz. that the executors and administrators of every such person or persons, unto whom any such rents or fee fermes, is or shall be due, and not paid at the time of his death, shall and may have an action of debt for all such arrearages against the tenant, or tenants, that aught to have paid the said rent or fee ferme, so being behind in the life time of their testator, or against the executors and administrators of the said tenants. And also furthermore, it shall be lawful to every such executor or administrator of any such person or persons, to whom such rent or fee ferme is or shall be due, and not paid at the time of his death, as is aforesaid, to distrain for the arrearages of all such rents and fee fermes, upon the lands, tenements, or other hereditaments, which were charged with the payment of such rents or fee fermes, and chargeable to the distress of the said testator, so long as the said lands, tenements, or hereditaments, continue, remain, and be in the season or possession of the said tenant in demain, who ought immediately to have paid the said rent or fee ferme so being behind to the said testator in his life time, or in the season or possession of any other person, or persons, claiming the said lands, tenements, and hereditaments only by and from the said tenant by purchase, gift, or descent, in such like manner & form, as their said testator might, or aught to have done in his life time: And the said executors and administrators shall for the same distress, lawfully make avowry upon their matter aforesaid. Provided always, that this act nor any thing therein contained, shall not extend to any such manor, lordship, or dominion in Wales, or in the marches of the same, whereof the inhabitants have used time without mind of man, to pay unto every Lord or owner of such lordship, manor or dominion, at his or their first entry into the same, any sum or sums of money, for the redemption and discharge of all duties, forfeitures, and penalties, wherewith the same inhabitants were chargeable unto any of the said lords, ancestors, or predecessors before his said entry.  
And further, be it, etc. that if any man which now hath, or hereafter shall have, in the right of his wife, any estate of fee simple, or fee tail, or fee ferme, and the same rents, or fee fermes now be, or hereafter shall be due, behind and unpaid in the wives life, than the said husband after the death of his said wife, his executors, and administrators, shall have an action of debt for the said arrearages, against the tenant of the demain, that aught to have paid the same, his executors or administrators; and also the said husband, after the death of his said wife, may distrain for the said arrearages in like manner and form, as he might have done if his said wife had been living, and make avowry upon his matter, as is aforesaid. And likewise it is, etc. that if any person or persons, which now hath, or hereafter shall have, any rents, or fee fermes, for term of life, or lives, of any other person or persons, and the said rent or fee ferme, now or hereafter shall be due, behind and unpaid in the life of such person or persons, for whose life or lives the state of the said rent or fee ferme did depend and continue: And if the said persons do die, than he unto whom the said rent or fee ferme was due in form aforesaid, his executors or administrators shall, and may have an action of debt against the tenant in demain, that aught to have paid the same when it was first due, his executors and administrators, & also distrain for the same arrearages upon such lands and tenements, out of the which the said rents or fee fermes were issuing and payable, in such like manner and form as he ought, or might have done, if such person or persons, by whose death the aforesaid estates in the said rents and fee fermes was determined and expired, had been in full life and not dead; and the avowry for the taking of the same distress, to be made in manner and form aforesaid.  
Secondly †, concerning the testator, it shall be behoveful for thee that art desirous to be resolved, whether it were better to accept or refuse the executorship, to inquire & learn whether the same testator were executor or administrator to any other person.  
If he were executor, then by the statutes of this realm 
v) Stat. 4. Ed. 3. an. 25. c. 5. Idem iure civili in haerede haeredis. L. 2. & 3. de petic. haered. ff. Contrarium in haerede executoris, tàm iure civili, quàm canonico, Bar. & alij, in L. à filio. ff. de alimen. leg. gloss. in c. fin. de testa. 6. verb. mortuo. , thou † being executor of an executor, shalt have actions of debts, accounts, and of goods carried away of the first testator, and execution of recognisances made in court of record, to the first testator, in the same manner as the first testator should have, if he were in life, aswell of actions of the time past, as of the time to come, in all cases where judgement is not as yet given betwixt such executors; but the judgement given to the contrary in times past, aught to stand in their force. And on the contrary, the executor of the executor shall answer to others to whom the first testator was indebted, as much as he shall recover of the goods of the first testator, even as the first executor should do, if he were in full life. But the goods which did belong to the first testator, shall not be put in execution for the debt of the second testator, which goods the executor of the executor shall have, by relation to the first testator, as immediately executor unto him, and not by relation to the second testator, executor to the first testator 
x) Ploughed. in casu inter Bransby & Grantham. Atque ita soluitur nodus de quo Bar. & alij in L. veluti. ff. de petic. haered. utrum videlicet haeres haeredis succedat priori testatori, ex testamento vel ab intestato? nobis enim intelligitur succedere ex testamento, vtcunque●on fuit in primo testamento nominatus, id quod disputandi rationem praebuit. , and so the property which the second testator had by the said relation is taken away, and is in such case as if the second testator had never been executor 
y) Ploughed. ubi supr. . Howbeit this is to be understood with this limitation, viz. if there be no executor of the first testator surviving. For † if the testator did make diverse executors, whereof some be yet living, that executor of the first testator surviving, and the executor of his coexecutor, cannot be joined both together in one action 
z) Brook Abridg. tit. execute. n. 99 Contrarium in haeredibus constituit ius civil, quo si aliquis ex haeredibus decesserit, pluribus relictis haeredibus, high omnes accipere debent illampartem, quae ad haeredem defunctum pertinuit, familiae herciscund●e actione. L. si familiae hercis. eod. tit. : but the executor of the first testator surviving, he alone shall have action against the debtors of the first testator, and he alone shall be convented by them, to whom the first testator was indebted, and not both jointly together 
a) Brook Abridg. tit. exec. n. 99 : for the executor of an executor hath not to deal with the goods of the first testator in this case, that is to say, where there is an other executor of the first testator surviving: in so much that where there be two executors, whereof one maketh an executor, and dieth, his coexecutor surviving, which coexecutor afterwards dieth intestate: yet in this case the executor of the executor may not meddle with the goods of the first testator 
b) Brook Abrid. tit. execute. n. 149. : for so soon as the executor which made his testament died, (the other surviving) his power was determined or finished by his death, and all the power did remain in the coexecutor surviving, who afterwards dying intestate, it is in the power of the Ordinary, to commit the administration of the goods of the first testator not administered to the next of kin to the first testator, and not to the executor of that executor which died first 
c) Brook. d. n. 149. & in tit. admnstr. n. 45. : Much less may the executor of the executor meddle with the goods of the first testator, when the coexecutor is yet living: And if he do, the executor surviving may have action against him for such goods as he hath of the first testator 
d) Brook. tit. exec. n. 99 . And besides that, the creditors of the first testator may have action against the executor of the executor in this case, as executor of his own wrong 
e) Brook. eod. n. 99 . Moreover, it is to be noted, that the executor of an executor cannot sell the land of the first testator, who by his testament gave power to his executor to sell the same 
f) Brook. tit. exec. n. 3. : for after the death of that executor the power ceaseth; unless divers being appointed executors, some of them die, or refuse to prove the will, for then the others surviving, or accepting, may sell the same, as is aforesaid.  
If † the party deceased to whom thou art executor, were not executor to another, but administrator only: thou art not to succeed in his place in the administration of the goods 
g) Fitzh. Abridg. tit. admnstr. n 3. , but a new administration is to be granted of the goods not administered by the administrator to the next of kin, not of the administrator, but of him that died first 
h) Fitzh. ubi supr. principal grounds. fol. 61. pag. 2. .  
There is yet † a further consideration to be had of some things, which seem to concern the testator, not to be neglected by the executor desirous to be resolved, whether it were better to accept or refuse the executorship, namely the consideration of the last will and testament of the deceased, & of the legacies and devices therein given: Wherein the executor is not only to consider, whether the testator hath given more than the deaths part doth extend unto, (in which case what course is to be followed is already elsewhere prescribed 
i) Supr. part. 3. §. 17. :) but also in case † any thing do remain, the funeral, debts & legacies discharged, the executor may not think to convert the same to his own proper use 
k) Magna charta. c. 18. c. statutum. §. statuimus. de testa. lib. 3. provincial. constit. Cant. Dominic. à S. Gem. in c. religiosus▪ de testam. 6. n. 9 Doct. & Stud. lib. 2. c. 10. circa medium. , nor any more of the testators goods than is given to him by the testator in his life time, or by his will, or which the ordinary shall allow him for his labour, or in am of some debts due unto him by the testator, or due by the testator to some other person, and discharged by the executor 
l) Text. in d §. statuimus. Dyer. fol. 2. & fol. 310. . And † if after due admonition to him given, he refuse the executorship, or to perform the will, he shall lose his legacy bequeathed unto him by the same testator, although he were of kin, or allied unto the same testator 
m) Rom. cons. 207 & 235. cuius opinio communis est, ut per eand. cons. 235. & ꝑ Gribald. Thesaur. come. op. verb. tutor. : the reason is, because he is deemed unworthy the benefit that refuseth the burden 
n) c. qui sentit. de reg. iur. 6. . Moreover, l●●re the executor doth what in him lieth, to make the party deceased to die intestate 
o) Gribald. Thesaur. come. op. verb. tutor. . But if the executor be not admonished to undertake the office, then being the testators kinsman, or such a person to whom the testator would have given the legacy, though he did not perform the will, he doth not lose that legacy in not undertaking the executorship 
p) jas. Alex. & Sichard. in L. si legatarius. C. de leg. ; neither shall the wife lose her thirds, nor the children their filial portions in refusing the executorship 
q) Auth hoc amplius. C. de fidei commis. Novel. de haered. & falcid. §. si quis autem. : much less shall the creditor lose his debt due by the testator.  
After the consideration of the estate of the testator, he † that is named executor must also consider his own person, in whom many things ought to concur, but chief it is requisite that he be prudent, diligent and faithful 
r) Io. de Canib. Tract. de execute ult. volunt. ●. particula. q. 1. : wherein if there be any defect, I mean if either he be ignorant, negligent, or unfaithful, he is very like to find the office very troublesome, pervaduenture also discommodious 
s) Io. de Cani. ubi supr. , unless there be certain hope, that being ignorant he will use the advise of those that be skilful, and that of a negligent person he will become diligent, easing himself also of such business, as might hinder the expedition of this office, and that howsoever he had behaved himself in other affairs unfaithfully: yet in this office he will have an honest care, well and truly to discharge that trust committed unto him, always having before his eyes, not only the forfeiture of his bond, by his unfaithful dealing, together with the ignominy by deceiving the dead man's expectation, but also the danger of his soul by the breach of his oath: for he must be sworn to execute the will, and to administer the goods well & faithfully 
t) Hoc viridi obseruantia passim fit notorium, maxim infra provinciam Ebor. . If † a wife during the coverture be named executrix, there is this further to be considered in her person, that she alone cannot sue for any debt due to the testator, nor be sued for any debt due by the testator, without her husband 
v) Brook Abridg. tit. execute. n. 178. : but she alone may do any act extraiudiciall, as the paying of debts or legacies, or the receiving or releasing of any debts due to the testator 
x) Brook. eod. n. 178. : yea the husband without the wife (though she alone be executrix) may do any extraiudiciall act, aswell as his wife executrix 
y) Fitzh. Abridg. tit. exec. n. 23. 40. Brook. eod. tit. n. 147. 151. 152. : and therefore if the husband release or remit any debt due to the testator, the same is good and available, not only during the marriage, but also after the death of her husband 
z) Fitzh. & Brook. ubi supra. . But if the wife die, the husband cannot convert any of the goods and cattles belonging to the first testator to his own proper use; for of such goods the wife herself may make a testament, appointing an executor without the licence of her husband, as is before more fully declared 
a) Supra. 2. part. §. 9 .  
Finally, concerning the persons of other with whom thou that art named executor in the testament hast to deal; it behoveth † thee to have a special consideration of thy coexecutor 
b) Io. de Canibus. Tract. de exec. vlt. vol. particula. 2. q. 1. n. 17. , (if any be) lest he be an overmatch for thee, that is to say, whether he be of more experience, and greater wealth than thou art, and namely whether he be a covetous and contentious person 
c) Io. de Cani. d. q. 1. n. 18 . If he be, take thou good heed, for it is to be feared, that † he will keep all the goods from thee 
d) Brook Abridg. tit. exec. n. 98. , that he alone will receive the debts due to the testator, and make them a release, for this also he may do 
e) Brook. tit. exec. n. 37 : without doubt, if he be such a person, he hath learned this lesson, that one † executor cannot sue another, for possession of the testators goods 
f) Brook. eod. tit. n. 98. , because how many executors soever they be, they are all but as one person, and no man can sue himself 
g) Arg. c. debitum de baptis. extr. L. praeter. ff de tut. & cur. dat. ab his Ploughed. in casu inter Panor. & Yardley. fol. 143. : and so the possession of one is as the possession of another 
h) Fitzh. tit. exec. n. 32 ; & hereby thou shalt remain without remedy, unless it be for a legacy left unto thee alone 
i) Brook. tit. exe. n. 104. , or unless thou mayst have some slender remedy before the Ordinary 
k) Brook. eod. tit. n. 37 . It is also very likely, that he alone † will sell the testators goods: In which case he alone will & may sue for the money due for the same 
l) Brook. tit. exec. n. 66 : but if there be any debt due to be paid in the behalf of the testator, then look assuredly that thou shalt be sued as well as he 
m) Supra part. 4. §. 20 , howsoever execution may pass against him alone which hath the goods 
n) Brook. tit. exec. n. ●6 . To conclude, if thy coexecutor be such a person, as is aforesaid, a hundred to one he will not suffer thee to partake of the commodity, but of the trouble thou shalt not avoid but be partaker.  
This also is not to be omitted, that † if thy coexecutor do refuse the executorship before the ordinary, and thou alone dost prove the testament, yet may he afterwards (so long as thou livest) administer the goods, or remit the debts due to the testator 
o) Brook. tit. exec. n. 38 Dyer. fol. 160 , and thou canst not hinder him; neither canst thou recover against the persons by him so released 
p) Brook. eod. tit. n. 37 & n. 117 . After † consideration of thy coexecutor, there is regard also to be had to the rest of those persons with whom thou art to deal, viz. to the creditors and legataries, and to the payment of debts; for debts are to be paid before legacies 
q) L. scimus. C. de iure delib. : and of debts some are to be preferred and satisfied before others, and likewise of legacies, as else where hath been 
r) Supr. part. 3. §. 17. , and shall be 
s) Infr. ead. part. §. 16.  showed: otherwise it may come to pass that the executor shallbe forced to pay out of his own purse, after he have spent all the testators goods and cattles 
t) d. L. scimus. Doct. & Stud. lib. 2. c. 10. .  
By the due consideration of those things, viz. First, of the estate or condition of the testator: secondly, of his own estate; and thirdly of the coexecutor or other person with whom he is to have any dealing, it is not hard in my opinion for the executor to collect, whether it is likely to be beneficial or hurtful, to accept or refuse the executorship, and to resolve accordingly, at the least if hereunto he also take a view of those things which do appertain to the office of an executor, accepting the executorship hereafter described 
v) Infr. ead. part. §. 5. tum §§. sequentibus. .   

Of the time which the executor hath to consult, whether he will undertake or refuse the executorship.  
1 The time of deliberation arbitrary.  
§. iiii.  
THe time † wherein he that is named executor in the testament, is to deliberate and determine, whether he will accept or refuse the executorship is uncertain, and left to the discretion of the Ordinary 
a) Legatin. libertatem de exec. testa. & ibi Io. de Athon. v●●b. approbatam consuetudi●em. , who useth at his pleasure, and when he will, not only within the year 
b) Quod verò annus deliberandi iure civili conceditur (L. cum in antiquioribus. C. de iure delib.) Illud ita intelligendum, ubi haeres non confecto inventario tenetur ultra vires haereditatis. Siquidem non tenetur haeres inventarium facere, si iuri tantùm civili attendamus (L. scimus. §. fui. de iure delib. C. & ibidem Sichard.) dummodo velit subire periculum soluendi universa defuncti debita: Sed iure Legatin▪ quo nos communiter utimur, executor tenetur praecisè ad confectionem inventarij, nec tenetur ultra vires bonorum. Quare sublata causa, id est, periculo soluendi debita ultra vires bonorum defuncti, per confectionem inventarij, quam non potest evitare (ut infra eadem part §. 6.) sublatâ (inquam) causâ, tollitur effectus, id est, annuale tempus deliberandi: Num velit huic periculo seipsum subijcere? nam executores quoad confectionem inventarij, tutorum potius quàm haeredum naturam sapiunt. Lind. in c. statutum. §. inhibemus. de testa. L. 3. provincial. constit. Cant. verb. prius. , but within a month or two, to cite him that is named executor, to accept or refuse the executorship.   

Of the office of an executor testamentary, undertaking the executorship.  
1 Wherein the office of an executor doth principally consist.  
§. v.  
1IT † appertaineth to the office of an executor testamentary here in England, accepting the executorship (amongst other things 
a) De quibus consulas velim Io. de Canib. Tract. de executor. vlt. vol. part. 2. q. 1. n. 26. ubi decem enumerat executoris officio incumbentia. ) to cause an inventary to be made 
b)  infr. ead. part. §§. 6. 7. 8. 9 10. , to procure the will to be proved and approved 
c)  infr. ead. part. §§. 11. 12. 13. 14. &. 15. , to pay the testators debts and legacies 
d) Infra §. 16. : and finally to make an account 
e) De quo infr. ead. pat. §§. 17. 18. 19 20. 21. .   

Of divers questions about the making of an inventary: and first, whether it be of necessity that an inventary be made.  
1 By the laws ecclesiastical of this realm, and statutes of the same, an inventary is necessary.  
2 The executor which presumeth to administer the goods, and refuseth to make an inventary, may be punished.  
3 The reason of this necessity.  
§. vi.  
COncerning the making of an inventary, it is expedient to understand whether it be simply necessary that an inventary be made, what things are to be put into the inventary; within what time the inventary is to be made; in what manner; and what be the effects of an inventary.  
That † an inventary is necessary to be made by an executor testamentary, is evident, as well by the laws ecclesiastical of this realm 
a) Legatin. libertatem. tit. de executor. testam. c. statutum. §. inhibemus. lib. 3. provincial. constit. Cant. , confirmed by continual use; as also by the statutes 
b) Stat. H. 8. an. 21. c. 5.  of the same: neither † aught the executor to meddle with the goods of the deceased, before he make an inventary 
c) d. §. inhibemus. . And if any executor refuse to make an inventary, & nevertheless presume to administer the goods of the deceased, he may be punished at the discretion of the Bishop or Ordinary 
d) Legatin. libertatem. de executor. testa. .  
The † reason is, lest the executor being disposed to deal unfaithfully, should defraud the creditors or legataries, by concealing the goods of the deceased 
e) Francis. Porcellin. Tract. de inventario. q. 1. per §. sancimus. de haered. & fall. in Auth. .   

What things are to be put into the inventary.  
1 All goods, cattles, wares, merchandizes, movable and immovable, are to be put into the inventary.  
2 Leases are to be put into the inventary.  
3 Corn on the ground is to be put into the inventary.  
4 Grass or trees growing, are not to be put into the inventary.  
5 Whether such things as are affixed to the freehold, aught to be inventaried.  
6 Whether debts are to be put into the inventary.  
7 Whether money due for land, is to be put into the inventary.  
§. seven.  
THe † things that are to be put into the inventary, are all the goods, & cattles, and rights which were the testators, or did belong, or were due unto him at the time of his death, whether they be movable or immovable, corporal or uncorporall 
a) Francis. Porcellin. Tract de inuentar q 3. Pract. Petr. de Ferrar. de forma libelli, quo agitu● 〈…〉 tationem Tutel. Sichard. i● §. sin autem. L. fin. C. de iure de lib. n. 9 : whereunto also agreeth the statutes of this realm, whereby it is enacted, that a true and perfect inventary be made of the goods, cattles, wares, merchandizes, as well movable as not movable, whatsoever that were of the person deceased 
b) Stat. H. 8. an. 21. c. 5. : and therefore † leases ought not to be omitted forth of the inventary 
c) Cattalla et●nim sun● realia. Terms of law. verb. chattels. , how many soever they be.  
Likewise † emblemetes, or corn growing upon the ground ought to be put into the inventary, seeing they belong to the executor 
d) Perkins. tit. devise. fol. 99 & hanc opinionem longaews comprobanit usus, quicquid dicat Sichard. post Angel. in d. §. sin autem. : but † not the grass or trees so growing, which belong to the heir 
e) Parkins. ubi supra. , nor † things that are affixed to the tenement, and are made parcel of the free hold: such I mean as belong likewise to the heir, and not to the executor 
f) L. accessorium. de reg. iur. 6. huc facit. L. caetera. de leg. 1. ff. in princ. .  
The † debts due to the testator are to be put into the inventary 
g) Gloss. in L. chi. ographus. ff. de admnstr. tut. Quod verum quidem est, si existant instrumenta, alias non requiritur, ut inscribantur, donec recuperentur, & in manibus tractentur, ut quae inte●im non rectè dicantur reperta. Lindw. in d. c. statutum. §. inhibemus. verb. bonis. Pract. Ferrar. forma libelli, ad reddendam rationem tut. §. in suo. n. 13. Aequum tamen est, ut aliqua fiat commemoratio huiusmodi creditorum, utut incertorum, ne sublata penitus corum memoria decepti maneant defuncti creditores, liberi, legatarij, vel alij interesse habentes in ea part. . But the debts due by the testator, they need not to be put into the inventary 
h) Lind. in d. c. statutum, & Ferrar. ubi supra. : and if any such debts be put into the inventary the Ordinary shall do well to make diligent examination, whether the testator did owe any such: for many times debts are thrust into the inventary which are not due by the testator, and so the legataries and children of the deceased, are often defrauded, at least of some part of their due, by the unfaithfulness of the executor, and negligence of the Ordinary, or his officer.  
Lands †, tenements, and hereditaments, with their appurtenances, such I mean as do not belong to the executor, but descend to the heir, are not to be put into the inventary: Insomuch that if the testator will by his testament or last will, that the same lands be sold: In this case by the statutes of this realm, neither shall the money thereof coming, nor the profits of the said lands for any time, be accounted as any of the goods or chattels of the person deceased 
i) Stat. H. 8. an. 21. c. 5. : and consequently are not to be put into the inventary.   

Within what time the inventary is to be made.  
1 The time for making and exhibiting the inventary, is left to the moderation of the ordinary.  
2 The inventary aught to be made before the executor meddle with the testators goods, except in some cases.  
§. viii.  
THe † time appointed for the making and exhibiting of the inventary, by the laws ecclesiastical of this realm, is left to the discretion and moderation of the Ordinary 
a) Text. in c. statutum. §. inventarium. tit. de testa. lib. 3. provincial. constit. Cant. unde palam est non obtinere ius civil, quo haeres ad perficiendum inventarium quandoque 66. dies, quandoque annum habeat, maxim si incipiat intra mensem à mor te defuncti. Sichard. in L. fin. §. sin autem. C. de iure delib. , who may appoint a shorter or longer time, as the distance of the place where the goods remain, being more or less, together with other circumstances, shall minister occasion 
b) Lind. in c. statutum. verb. arbitrio. .  
And † if the ordinary do not appoint a time, the executor had need to beware, that he do not administer the goods of the deceased, until he have caused an inventary to be made: For how soever the act of him that is named executor, is said to hold in law before the proving of the will 
c) Ploughed. in cas. inter Greisb. & Fox. , and the making of the inventary 
d) Lindw. in d. c. statutum. verb. prius. in fin. illius gloss. : nevertheless, he that so presumeth to meddle and administer as executor before he make an inveniarie, is subject to ecclesiastical punishment 
e) Legatin. libertatem. de executor. testam. , unless it be for doing such things, as cannot be deferred till the inventary be made; as for intermeddling about the funerals, or disposing of such things as cannot be preserved with keeping, and such like 
f) Io. de Athon. in d. legatin. libertatem. verb. inventarium. d. c. statutum. §. inhibemus. in text. & in gloss. .   

Of the form to be observed in the making of an inventary.  
1 What persons ought to be present at the making of the inventary.  
2 Whereof the inventary is to be made.  
3 inventary indented.  
4 Of the oath of the executor about the inventary.  
5 The goods and chattels are to be valued.  
6 Of the ancient form of preising the goods.  
§. ix.  
BY the statutes of this realm 
a) Stat. H. 8. an. 21. c. 5. , it is thus enacted concerning the form to be observed by the executor testamentary in making of an inventary; viz. that the † executor or executors, named by the person deceased, calling or taking unto him or them of such persons two at the least, to whom the person dying was indebted, or made any legacy, & upon their refusal or absence two other honest persons, in their presence & by their discretions shall make, or cause to be made, a true and perfect inventary † of all the goods and cattles, wares and merchandizes, as well movable as not movable, whatsoever that were of the said persons so deceased; and the † same shall cause to be indented, whereof one part shall be by the said executor upon † his oath to be taken before the Bishop's ordinaries, their officials, & ordinaries, or other person having power to take probate of the testament, upon the holy Evangelist to be good and true; and the same one part indented shall present and deliver into the keeping of the said bishop, ordinary, or ordinaries, or other person having power to take probate of testaments; and the other part of the said inventary indented, to remain with the executor: and that no bishop, ordinary, or other person whatsoever, having authority to take probate of testaments, upon pain in the said statute contained (viz. ten pound) do refuse to take any such inventary to him or them presented or tendered, to be delivered, as is aforesaid.  
Thus far the statute, whereunto it may be added, that † it is not sufficient to make an inventary, containing all and singular the goods of the deceased, unless the same be particularly valued and praised 
b) Bar. in L. fin. C. de magist. conven. Hoc addito. quòd quoad confectionem inventarij executores magis assimulantur tutoribus, quàm haeredibus, ut superiùs adnotavi ex Lind. in c. statutum. §. in hibemus. de testa. lib. 3. provincial. constitu c. Cant. verb. prius.  by some honest and skilful persons, to be the just value thereof in their judgements and consciences, that is to say, at such price as the same may be sold for at that time 
c) De probatione rei mobilis vel immobilis, vide Mascard. Tract. de probac. verb. valour. .  
In ancient † time amongst many other solemnities of inventaries 
d) De quibus DD. in L. fin. §. sin autem. C. de iure delib. , this order was observed: First of all the movable goods were inventaried and praised, as household stuff, corn, and cattle, etc. then the immovable, as leases of grounds or tenements, after that the debts due to the testator were set down 
e) Franc. Porcel. Tract. de inventario. , which order is for the most part observed at this time here in England: saving that some do omit leases, wherein they do amiss 
f) Supra ead. part. §. 7. : others praise them among the movables: but it were better to praise them severally.   

Of the effect and benefit of an inventary.  
1 The goods contained in the inventary are presumed to be in the hands of the executor.  
2 The testator is presumed to have no more goods than are described in the inventary.  
3 Whether sufficiency of goods be presumed when there is no inventary.  
§. x.  
diverse be the effects and benefits of an inventary 
a) Quorum Castrensis quinque, Minsingerus septem. ostendit: ille in d. L. scimus, iste in §. sed nostra. Instit. de haered. qual. & differentia. Sed hotum maxima pars nostratibus parum prodest. , this one I thought good to note, namely, that † all such goods and cattles as are contained in the inventary, are presumed to have belonged to the testator, and after his death to belong, and to be in the power of the executor 
b) L. scimus. §. legitima. C. de iure delib. & ibi Sichard. . And on the † contrary, that no more goods, and cattles, are presumed to have belonged to the testator then are contained in the inventary 
c) Bald. & Sichard. in d. §. legitima. .  
And therefore if any creditor or legatary do affirm, that the testator had any more goods than be comprised in the inventary, he must prove the same; otherwise the judge is to give credit to the inventary, being made in manner and form aforesaid 
d) Alciat. Tract. de praesump. reg. 3. praes. 20. Mascard. de probac. concl. 939. . Although indeed when † the executor entereth to the goods of the deceased, and maketh no inventary thereof, nor will not suffer the quantity thereof to be known: In that case our law presumeth, that the testator ●ad sufficient to discharge, not only all his debts, but all his legacies also 
e) Bald. in L. filium. C. famil. herciscund. n. 37 Sichard. in L. fin. §. & si praefatam. C. de iure delib. n. 1. .   

Of the probation and approbation of testaments and namely before whom they are to be proved.  
1 divers questions about the probation of testaments.  
2 Testaments are to be proved before the Bishop or Ordinary.  
3 Certain cases wherein testaments are to be proved before others, then before the Bishop.  
4 Of the prerogative of either Archbishop.  
5 What is meant by Notable goods.  
§. xi.  
COncerning † the probation and approbation of testaments, these things are chief to be inquired, before whom the testament is proved, by whom, when, how, and what fees he due in that behalf.  
The person † before whom the testament is to be proved, is the Bishop of the Diocese, where the testator dwelled 
a) Legatin. libertatem. de execute. testam. c. iten quia. c. statutum. de testa. lib. 3. provincial. const. Cant. c. statuimus. lib. provincial. constit. Ebor. & Lindw. in d. c. statutum. Doct. & Stu. lib. 2. c. 28. Perkins. tit. testament. fol. 94. Trac. de repub. Angl. lib. 3. c. 7. stat. H. 8. an. 21. c. 5. , or his officer 
b) Perkins. ubi supra. Fitzh. Abridg. tit. testament. n. 3. Brook. eod. tit. n. 12. c. fin. de fide instr. extr. Sichard. in L. 2. n. 3. C. de testa. , to whom by ancient custom observed this many hundred years, together with the royal consent of the kings and princes of this land, the probation and approbation of testaments have appertained 
c) Lindw. in d. c. statutum. verb. ecclesiasticarum libertatum. Qui in d. c. Item quia verb. insinuationem, ubi existimat testamentorum insinuationem, seu publicationem, iure civili non pertinere ad episcopos, sed iure tantùm authenticorum, (quo ius codicis corrigitur, & quod ius authenticum sancitum fuit ab Imperatore justiniano ultra mill annos retro numerandos,) non solùm executio, sed etiam ipsa insinuatio & publicatio, coram episcopis ordinariam jurisdictionem exercentibus fieri potest, ut firmat Sichard. in L. 2. C. de testa. n. 3. : saving † in certain Signories or Lordships, where the probation and approbation of testaments of the tenants there dwelling, doth by prescription appertain to the principal Lord 
d) Fitzh. tit. testament. n. 2. Doct. & Stud. lib. 2. c. 28. : and saving in certain peculiar jurisdictions, where by prescription or composition, or other special title, the probation and approbation of the testaments of such as dwell and die within those places, doth appertain to the judge of the peculiar 
e) Io. de Athon. in legatin. libertatem. de exec. testa verb. Ordinario. : And saving where no goods are bequeathed in the testament, but only lands, tenements, and hereditaments, or other lay fee are devised; and that in such places where neither insinuation, nor inrotulation is necessary 
f) Supr. part. 3. §. 3. : And saving † where the party deceased at the time of his death had notable goods extant in diverse dioceses or jurisdictions, for the probation, approbation, and insinuation or publication of the last wills and testaments of such persons, doth appertain to the Archbishop or metropolitan, within whose province such notable goods be dispersed in diverse dioceses or other inferior jurisdictions 
g) Lind. in d. c. statutum. verb. ad quos pertinet. Perkins. tit. testament. fol. 94. Fitzh. Abridg. tit. admnstr. n. 7. Brook. eod. tit. n. 48. , whether it be within the province of Canterbury 
(h) Lindw. in d. c. statutum. verb. laicalis feodi stat. H. 8. an. 23. c. 9 & pleniùs per Instrum. & Actorum libros. Curiae praerogativae Archiepisc. Cant. , or within the province of York 
(i) Perkins. tit. testament. fo. 94. pag. 2. stat. H. 8. an. 23. c. 9 & evidentius per Instrum. & Actorum libros in archivis Archiepiscopi Ebor. fideliter per plurimorum seculorum curricula conseruata. .  
What † is meant by Notable goods, in this place, or when they are so to be termed, divers authors have been of divers opinions. Some have been of this opinion, that if the testator died possessed of goods, or cattles, to the value of forty shillings, in two several dioceses; then he ought to be deemed to have notable goods 
k) Perkins. tit. testament. fol. 94. . Others have been of this mind, that the testator is to be deemed to have notable goods, though at the time of his death he had but one penny in another Diocese 
l) Fitzh. tit. admnstr. n. 7. . Others do not only vary from the former opinions, but are also at variance with themselves, accounting those for notable goods, sometimes when they extend clearly to a hundred shillings sterling: some times when they extend to ten pound eleven shillings, vj. pence: sometimes when they extend to twenty-three. pound three shillings, farthing, & not under 
m) Lindw. in d. c. statutum. verb. laicis. . Finally, others are of this judgement, that he is said to have notable goods, which hath goods to the value of ten pound of currant money of England, dispersed in divers dioceses or jurisdictions: and this opinion seemeth to me to be most commonly received 
n) Ploughed. in casu inter. Greisb. & Fox. fol. 281. .   

By whom the testament is to be proved.  
1 The testament is to be proved by the executor.  
2 Any person having the testament may be compelled to exhibit the same.  
§. xii.  
THe † person by whom the testament is to be proved, is the executor named in the testament 
a) Perkins. tit. testament. fol. 93. , whom the Ordinary or other person having authority for the probate of the testaments, may convent, to the intent to prove the testament, and to take upon him the execution thereof, or else to refuse the same 
b) Stat. H. 8. an. 21. c. 5. . This may the Ordinary or other competent judge do †, not only ex officio 
c) L. 1. ff. quemadmodum testa. app. & ibi Bar. n 1. , but at the instance of any party having interest 
d) Bald. & Angel. in d. L. 1. Opinor etiam quòd ad eius instantiam, cui nihil est relictum exhibendum testm. scilicet, ut inde certior fiat, Nunquid legatum aliquod sibi relictum sit a defuncto. gloss. & Bald. in L. 2. ff. quemadmodum. testa. app. in princ. , which interest is proved by the oath of the party 
e) Bar. & Bald. in d. L. 1. .  
If the executor have not the testament in his custody, but some other person, then may such person be compelled to exhibit the same 
f) L. 1. in prin. & §. hoc interdict. ff. de Tab. exhibend. . And it is sufficient to prove that once he had it, for he is presumed still to have the same, unless he affirm upon his oath, that the same is not in his possession 
g) Alex. in L. 2. C. de testa. n. 3. verb. tamen. .   

When the testament is to be exhibited and proved.  
1 The testament is not to be proved whiles the testator liveth, but after his death.  
2 If it be unknown whether the testator be dead or alive, whether may his testament be proved.  
§. xiii.  
IF † the testator be yet living, the judge may not proceed to the proving and publishing of his testament 
a) L. 2. §. si dubitetur. in fin. ff. quemadmodum testa. app. , at the petition either of the executor, or any other, saving at the request of the testator himself 
b) Bar. in d. §. si dubitetur. Sichard. in L. 2. C. de tes●a. .  
If the testator be dead, the judge may proceed to the proving of the will 
c) L. 2. C. de testam. & DD. ibidem. : and the time of exhibiting and proving the same, is left to his discretion, and he may appoint a longer or a shorter time, according as the place is further distant, or nearer, or as other due circumstances shall induce him 
d) L. 2. §. utrum. ff. quenadmodum testa. app. .  
If † it be unknown whether the testator be living or dead: For as much as some are of opinion, that every man is presumed to live till he be an hundred years old 
e) Quam opinionem (tanquam communem) acriter defendit Vivius. Thesaur. come. op. verb. vivere. Molinaeum haereticum appellans qui contrariam crebr●orem dixit. : it seemeth by this opinion, that the judge may not in the mean time proceed to the publication of the testament, unless there be lawful proof, or sufficient prescription for the testators death. On the contrary, others are of opinion, that a man is not presumed to live so long, that is to say, until he attain to an hundred years 
f) Quorum opinionem magis communem refert Molinaeus in Apostil. ad Alex. consil. 1. vol. 5. n. 24. , for that men commonly die betwixt lx, and lxx. years of their age 
g) Franc. Herculan. de probac. negativae. n. 290. pro quo sacir. Psalmus 89. : and so by their opinion, it seemeth that the will may be proved after the age of seventy years, of him that is absent, for that he is not then presumed to be living.  
I suppose if a man be absent, and no certain proof of his death, or life, that the will may be proved, and that the testament itself is a presumption of his death in this case 
h) jas. & Sic●ard. in d. L. 2. C. de testa. alter. n. 7. alter. n. 8. .   

Of the manner of proving Testaments.  
1 The form of proving testaments, is twofold.  
2 Of the vulgar form.  
3 Of the form of law.  
4 Of the difference betwixt the vulgar and the legal form.  
5 Of a third form of probation of testaments.  
6 Of the oath and bond of the executor.  
§. xiv.  
THat it is necessary for the proof of testaments, that there be either witness or writing, is already declared 
a) Supra p●rt. 4. §. 1. : Also what number of witnesses, and what manner of writing is sufficient, is likewise declared 
b) Supra d. part. 4. §. 25. 26. : wherefore in this place, I ●hall not need to speak, saving only of the manner of procee●ing in the probation and approbation of testaments.  
This † manner and form therefore here in England, is of two sorts, the one is called the vulgar or common form, the other is termed, the solemn form, or form of law 
c) Ad imitationem confirmationis, quae nunc fit in forma communi, nunc in forma solenni, & specifica. Molin. in consuet. Paris. §. 5. Alex. consil. 123. vol. 4. n. 18. etc. Dec in Rub. de consir. utili vel inutili. .  
The † vulgar or common form, is more compendious or brief than the other: For after the death of the testator, the executor presenteth the testament to the judge, and in the absence, and without citing or calling of such as have interest, produceth witnesses to prove the same, who testifying upon their oaths (viva voce) that the testament exhibited, is the true, whole, and last testament of the party deceased 
d) Stat. H. 8. an. 21. c. 5. : The judge doth thereupon, and sometimes upon lesser proof, annex his probate and seal to the testament, whereby the same is confirmed 
e) Quae omnia frequentissimà passim observatione fieri est manifestum. .  
When † the testament is to be proved in form of law, it is requisite that such persons as have interest 
f) Bald. in L. 2. C. de testa. n. 2. Sichard. in eand. L.  (that is to say) the widow and next of kin to the deceased, to whom the administration of his goods ought to be committed, if he had died intestate 
g) Stat. H. 8. an. 21. c. 5. Et high quidem, ut videtur, citandi sunt nominatim, licet si incertum sit quis succedere debeat ab intestato sufficit citatio genera. lis omnium, scilicet quorum interest. Sichard. post Bald. in d. L. 2. Kling de testa. ordin. Instit. n. 10. & n. 14. , are to be cited to be present at the probation and approbation of the testament 
h) Alias quoad non citatos, nullum facit praeiudicium. Paul. de Castro. consil. 96. vol. 1. Sichard. in d. L. 2. n. 4. Grass. Thesaur. come. op. §. testm. q. 61. Kling. ubi supra. , in whose presence the will is to be exhibited to the judge, and petition to be made 
i) Non tum requiritur libellas, vel litis contestatio. Sichard. in d. L. 2 n. 7. in sin. Simode Praetis de interp. vlt. vol. lib. 2. dub. 2. fol. 3. n. 4.  by the party which preferreth the will 
k) Nec. refert an sit executor, vel fideicommissarius, vel legatarius; vel an futurus sit reus, an actor, quamuis contrarium quoad legata●ium respondeat Paris. cons. 24. vol. 3. sed male, ut per Simo. de Praetis. ubi supra. , and enacted 
l) Bald. in d. L. 2 C. de testa. n. 3. ubi assignat rationem.  for the receiving, swearing and examining of the witnesses upon the same, and for the publishing or confirming thereof 
m Formam petic. vide apud Sichard. in d. L. 2. n. 2. : whereupon witnesses are received, and sworn accordingly, and are examined every one of them secretly, and severally, not only upon the allegation or articles made by the party producing them: but also upon interrogations ministered by the adverse party 
n) Bald. & Sichard. in d. L. 2. , and their depositions committed to writing 
o) Bald. Alex. & Sichar. in d. L. ●. : afterwards the same be published, and in case the proof be sufficient, the judge doth by his sentence or decree, pronounce for the validity of the testament 
p) Non tamen opus est sententia definitiva in scriptis, sed interlocutoria. Bald. Alex. Castrens. & alij in d. L. 2. .  
Which † two forms being compared together, we may easily perceive the differences betwixt the one and the other: of which differences, I suppose this to be of the greatest moment, that in the vulgar form, such as have interest are not cited to be present at the probation of the will, whereas observing the form of law, they are to be cited to that end: which difference of form worketh this diversity of effect, namely that the executor of the will proved in the absence of them which have interest, may be compelled to prove the same again in due form of law 
q) Paul. de Castr. consil. 96. vol. 1. Simo de Praetis. de interp. vlt. vol. lib. 2. dub. 2. soluc. 3. fol. 207. n. 4 & 5. . And if the witnesses be dead in the mean time, it may endanger the whole testament 
r) Paul. de Castr. d. consil. 96. DD. in L. 2. C. de testa. , especially if ten years be not past since the probation, whereby necessary solemnities are presumed to have been observed 
s) L. filiusfamil. C. de petic. haered. nisi sortè contrarium probetur ex inspectione actorum. : whereas the testament being proved in form of law, the executor is not to be compelled to prove the same any more: and although all the witnesses afterwards be dead, the testament doth still retain his full force 
t) L. 2. C. de testam. Socin. jun. consil. 89. vol. 1. Kling. in tit. de testa. ordin. lib. 2. Instit. n. 10. .  
Besides † these forms of proving testaments above recited, which are referred to that kind of probation which is called publicatio testamenti 
v De qua in d. L. 2. C. de testa. ; there is yet another form, which is called apertura testamenti 
x) De qua in L. 1. ff. quemadmodum. testa. app. , which form doth only respect written or closed testaments 
y) L. 1. & 2. quemadmodum testa. app. ff. & DD. in L. 2. de testa. C. : in the making whereof, amongst many other solemnities, the civil law did require that the witnesses should put to their seals, and after the death of the testator, at the opening of this written or closed testament; the same law did also require that the same witnesses should be called by the magistrate to acknowledge their seals 
z) L. 4. ff. quemadmodum testa. app. , or to deny the sealing 
a) L. 5. eod. tit. quemad. . But as we do not observe that solemnity of the civil law in the sealing of the testaments by the witnesses; no more do we observe that solemnity which the civil law requireth in opening of testaments sealed, unless this may seem to have some resemblance with this third form, de apertura testamenti, which is enacted in the statutes of this realm, viz. that the Bishop or Ordinary, or other person having authority to take probate of testaments, upon the delivery of the seal and sign of the testator, do cause the same seal to be defaced, and thereupon incontinent redeliver the same sealed unto the executoror executors, without claim or challenge thereunto, to be made 
b) Stat. H. 8. an. 21. c. 5. Crederem tamen huiusmodi verba statuti non referre veterem illam formam de apertura testamenti: sed potius, quoniam multa solent astutè sieri, quando sigillum mortui interceptum est, eapropter statuto caveri, ut sigillum ad judicem deducatur, ut ipsius forma ab eodem pervertatur. Materia autem executori statim restituatur. Haddon. de reformac. legum ecclesiastic. tit. de testa. c. 19 , etc.  
Furthermore †, it is to be noted that in what manner soever the testament be proved, the executor before he be admitted by the Ordinary to execute, and before he have the will under the seal of the Ordinary, is to promise by virtue of his oath, and if it be behooful also to enter into bond, to make a true account when he shall be thereunto lawfully called by the Ordinary 
c) c Statutum. §. & postquam. de testa. lib. 3. provincial. constituc. Cant. .   

What fees are due for and about the probation and approbation of testaments.  
1 Where the clear goods do not exceed the value of five pound, only six pence is due to the Register.  
2 Where the clear goods being above five pound, do not amount to forty pound, only three shillings six pence is due, viz. two shillings six pence to the Ordinary, and twelve pence to the register.  
3 Where the clear goods exceed forty pound, there five shillings is due, viz. two shillings six pence to the Ordinary, and two shillings six pence to the Register.  
4 What fees are due for the copies of testaments or inventaries.  
5 The penalty whereinto they fall which offend by extorting greater fees than are here limited.  
§. xv.  
IT is enacted and established by the statutes of this realm 
a) Stat. H. 8. an. 21. c. 5. , that from the first day of April, anno domini 1530, that † nothing shall be demanded, received, or taken by any Bishop, Ordinary, Archdeacon, Chancellor, Commissarie, Official, nor any other manner of person or persons, whatsoever they be, which now have, or at any time hereafter shall have authority or power to take or retain probation, insinuation, or approbation of testaments, or testaments by himself, or themselves, nor by his or their registers, scribes, praisers, summoners, apparators, or by any other of their ministers for the probation, insinuation, and approbation of any testament, or testaments, or for what writing, sealing, praising, regestring, sins making of Inuentaries, and giving in of acquittances, or for any other manner of cause concerning the same, where the goods of the testator of the said testament, or person so dying, do not amount clearly over and above the value of an hundred shillings sterling, except only to the scribe, to have for writing the probate of the testament of him deceased, whose goods shall not be above the same clear value of an hundred shillings, six pence; and for the commission for the ministration of the goods of any man deceasing intestate, not being above like value of an C. shillings clear, six pence. And that nevertheless, the Bishop, Ordinary, or other person or persons, having power or authority to take or receive the probation or approbation of testaments, refuse not to approve any such testament, being lawfully tendered or offered to them, to be proved or approved, whereof the goods of the person so dying, amount not above the value of an hundred shillings sterling: so that the same testament be exhibited by him or them in writing, which was thereunto affixed ready to be sealed, and that the same testament be lawfully proved before the same Ordinary (before the sealing) to be the true, whole, and last testament of the same testator, in such form as hath been commonly accustomed in that behalf.  
And when † the goods of the testator do amount over and above the clear value of an hundred shillings, and do not exceed the sum of forty pound sterling, that then no Bishop, Ordinary, or other kind of person or persons, whatsoever he or they be, now having, or hereafter shall have authority to take probation or approbation of any testament or testaments, as is aforesaid, by themselves, or any of their said Registers, scribes, praisers, summoners, apparators, nor to any other their ministers, for the probation, insinuation, or approbation of any testament, or testaments, or for the registering, sealing, writing, praising, making of inventaries, giving of acquittances, fines, or any other thing concerning the same, shall take, or cause to be taken of any person or persons, but only three shillings six pence, and not above; whereof to be to the Bishop, Ordinary, or to any other person or persons, having power and authority to take probation and approbation of any testament or testaments, for him or his ministers, two shillings six pence, and not above, and twelve pence residue of the same three shillings six pence, to the scribe, for the registering of the same.  
And where † the goods of the testator, or person or persons so dying, do amount over and above the clear value of forty pound sterling, that then the Bishop nor Ordinary, nor other person or persons, now having, or which hereafter shall have power or authority to take probate of testaments, as is aforesaid, by him or themselves, or any of his or their registers, scribes, praisers, summoners, apparators, or any other their ministers, for the probation, insinuation and approbation of any testament or testaments, or for the registering, sealing, writing, praising, making of inventaries, fines, giving of acquittances, or any thing concerning the same probate of testaments, shall from the said first day of April, take or cause to be taken, of any person or persons, but only five shillings, and not above, whereof to be to the said Bishop, Ordinary, or other person, having power to take the probation of such testament or testaments, for him and his ministers, two shillings six pence, and not above, and two shillings, six pence residue of the same five shillings, to be to the scribe for registering of the same, or else the same scribe to be at his liberty to refuse two shillings six pence, and to demand and have for writing of every ten lines of the same testament, whereof every line to contain ten inches in length, one penny.  
And in † case any person or persons, at any time hereafter require a copy or copies of the said testaments so proved, or of the said inventary so made, that then the said Ordinary or Ordinaries, and the other persons having authority to take probate of testaments, or their ministers, shall from time to time, with convenient speed, without any frustratarie delay deliver, or cause to be delivered, a true copy or copies of the same, to the said person so demanding them, or any of them, taking for the search, & for the making of the copy, either of the said testament or inventary, but only such fee as is before rehearsed, for the registering of the said testament; or else the said scribe or register to be at his election, to demand, have, and take for every ten lines thereof, being full proportion before rehearsed, one penny.  
Provided always, that where any person or persons, having power or authority, have used to take less sums of money than is abovesaid for the probate of testaments commissions, or administrations, or other cause concerning the same, shall take or receive such sum or sums of money for the probate of testaments and commissions of the administrators, and other causes concerning the same, as they before the making of this act have used to take, and above.  
And it is enacted †, that every Bishop, Ordinary, Archdeacon, Chancellor, Commissarie, Official, & other person and persons, having, or they which hereafter shall have authority to take probate of testaments, their registers, scribes, praisers, apparators and all other ministers what soever they be, that shall do, or attempt to be done, and attempted against this act or ordinance in any thing shall forfeit for every time so offending to the party grieved in that behalf, so much money as any such person abovesaid shall take contrary to this present act, and over that shall lose and forfeit ten pound sterling, whereof the one moiety shall be to the king, and the other moiety to the party grieved in that behalf, that will sue in any of the king's Courts for the recovery of the same, in which action, no assoine shall be admitted or allowed.   

Of the payment of debts, legacies, and mortuaries.  
1 Many questions about the payment of debts and legacies.  
2 What debts are first to be discharged.  
3 Of the debt due to the prince.  
4 Of debts due by recognisance and statute merchant.  
5 Of judgements and condemnations.  
6 Of obligations.  
7 Of bills and books.  
8 Of debts without specialty.  
9 Whether the executor may allow his own debt.  
10 Of paying part, and receiving an acquittance for the whole debt.  
11 Of paying the testators debts with the executors own money.  
12 Of Mortuaries.  
13 No mortuary to be taken but in certain cases, and that under a certain pain.  
14 No mortuary due where the movable goods do not extend to ten marks.  
15 No mortuary due, but in those places where they have been used to be paid.  
16 One only mortuary due, and that in the place of the most abiding of the deceased.  
17 Three shillings four pence due for a mortuary, where the movable clear goods do exceed ten marks, but do not amount to thirty pound.  
18 Six shillings viii. pence due for a mortuary, where the clear movable goods extend to thirty pound or above, and be under forty pound.  
19 Ten shillings due for a mortuary, the clear movable goods extending to forty pound or above.  
20 diverse persons discharged of Mortuaries.  
21 Other interpretations extending and limiting this statute concerning Mortuaries.  
§. xvi.  
HOw † far the executor is bound to pay debts and legacies 
a) Supr. ead. part. §. 3. , how the payment of debts is to be preferred before legacies 
b) Supr. part. 3. §. 16. , how legacies are to be paid out of the deaths part 
c) Eod. §. 16. , how the deaths part is sometimes the whole clear goods, some times half, and some times but a third part 
d) Eod. §. 16. : Also whether in case the legacies do exceed the deaths part, it be in the election of the executor to prefer one legacy before another; or what other order is to be taken 
e) Supr. part. 3. §. 17. : All these things are more fully heretofore declared, and need not here to be iterated. It remaineth † therefore that in this place be showed, which debts are first to be discharged, in case there be not sufficient goods and cattles to pay all the testators debts, or whether it be in the power of the executor to pay which debts he will: and if any remain clear, then whether Mortuaries are to be paid, and how much is to be paid for Mortuaries.  
First † of all therefore, I suppose that the debt due by the testator to the Prince is to be discharged, and that it is not in the choice of the executor, to prefer any other debt due to any subject 
f) Magna charta. c. 18. quod verum est non solùm in actionibus personalibus, sed etiam in hypothecarijs, saltem iure quo nos utimur, utcunque iure civili ex hypothecarijs creditoribus prior tempore, potior iure. .  
Secondly †, the debt due upon statute merchant & recognisance is to be discharged (if there be assets) before any personal debt 
g) Quibus enim res obligatae sunt, sunt illi potires quàm creditores, qui personali tantùm actioni incumbunt. L. eos. C. qui potiores in pig. : for that by force of the recognisance, not only the person of the debtor is bound, but also after the day of payment be expired, the movables of the debtor may be apprehended and sold for the payment of the debt 
h) Anno 13. Ed. 1. .  
Thirdly † (if yet there remain sufficient goods and cattles) before other personal debts, whether they be due by obligation, bill, or otherwise, judgements and condemnations are to be discharged 
i) Brook Abridg. tit. execute. n. 172. Do. & Stu. lib. 2. c. 10. .  
Fourthly †, (if the goods and cattles will suffice) obligations are to be discharged 
k) Brook. d. n. 172. . And if there be diverse obligations, than it seemeth to be in the power of the executor, to discharge which obligation, & to gratify which of the creditors he will 
l) Brook. ubi supr. Doct. & Stud. lib. 2. c. 10. ; which being done, the other creditors be without remedy, if there be no assets, unless the day of payment in the one obligation be expired, and the day of payment of the other obligation is not yet come; in which case the former obligation is to be first satisfied 
m) Brook. d. tit. exec. n. 172. ; or unless there be suit commenced for some obligation, for than it is not in the power of the executor to discharge an other obligation, for the which no action is brought in prejudice of the former suit 
n) Brook. d. n. 172. : But if there be two obligations, and the two several creditors bring several actions against the executor, he that first obtaineth judgement, must be first satisfied 
o) Brook. eod. n. 172. .  
Fiftly †, after obligations (supposing sufficiency of goods) debts due upon simple bills, or merchant books, or other like specialties, are to be discharged 
p) Doct. & Stud. lib. 2. c. 10. .  
Finally †, if the creditor have no specialty, or writing, it seemeth that the executor is not bound by the laws of this realm to pay the same, albeit he had assets in his hands (saving servants wages 
q) Brook. tit. exec. n. 87 163. ) because in every case where the testator might wage his law, no action lieth against the executor 
r) Terms of law. verb. executor. . Howbeit an action of the case may be brought against the executor, upon the promise or assumption made by the testator in his life time by word only without writing, if there be assets 
s) Brook. tit. executor. n. 171. : But if there be no assets to satisfy all these aforesaid creditors, then observing the order aforesaid, beginning with the payment of the debt due to the prince, and so forward, I suppose it is a discharge against the rest 
t) Quod facto inventario sine impedimento procedit, alias secus si respiciamus ius civil. L. scimus. §. & si praefatam, ídque ob praesumptam fraudem. ; otherwise it is dangerous to the executor, if he pay debts without specialty before those debts which are due upon specialty, or if he discharge obligations before judgements 
v) Brook. Doct. & Stud. locis supradictis. , etc.  
burr here it may be demanded, what if the testator were indebted to the executor, whether may † the executor allow his own debt in prejudice of other creditors? By the civil 
x) L. scimus. §. in computation. C. de iure delib.  and our ecclesiastical 
y) c. statutum. §. statuimus. de testa. lib. 3. provincial. const. Cant.  laws, he is in the same case as other like creditors: and I suppose also that by the laws of this realm, he may allow his own debt in prejudice of other like creditors 
z) Ploughed. in cas. inter Woodward. & Darcy. licet contratium teneat Brook. tit executor. n. 57 59 112. 114. 118. cuius opinio communiter hody reprobatur, ut non semel mihi nunciarunt iurisperiti huius regni Angliae, non pauci, nec mediocriter docti. , in case he have made an inventary.  
Furthermore it is to be noted in this place, that † if the executor pay to some of the creditors part of the debt due by the testator, and receive an acquittance for the whole, as if the testator be indebted to one in forty pound, whereof the executor payeth but ten pound, and nevertheless taketh an acquittance of the whole forty pound, this acquittance shall not prejudice any other creditor, but for ten pound only 
a) Brook. tit. assets. n. 1. & tit. executor. n. 6 .  
Moreover, it is to be noted, that this hath been delivered and received for law, viz. that if † the executor did pay with his own money so much of the testators debts, as the value of the testators goods or cattles did arise unto, and retain in his hands the testators goods or cattles, than such payment should not prejudice the other creditors, to whom the testator was indebted, but should charge the executor as assets 
b) Brook Abridg. tit. assets. n. 6. 8. tit. exec. n. 116. 150. tit. admnstr. n. 38. 37. 51. Lindw. in c. ita quorundam. verb. sibi. de testa. lib. 3. provincial. constit. Cant. , and therefore that it behoveth the executor to alienate the goods of the testator for the payment of his debts, if he would be safe from paying any more debts than the goods of the testator did extend unto 
c) Brook. & Lindw. ubi supra. Quibus adiungas Sichard. in L. vlt. §. & si praefatam. n. 11. 12. C. de iure delib. . Howbeit, at this present the contrary opinion seemeth to prevail in this our realm, namely, that the executor paying the just value of the testators goods to the creditors, may retain the same goods in his hands, which nevertheless shall not charge the executor as assets 
d) Dyer. fol. 2. & fol. 187 .  
Concerning † Mortuaries, it is enacted by authority of Parliament as followeth 
e) Stat. H. 8. an. 21. c. 6. . No † parson, vicar, curate, parish priest, ne any other spiritual person, nor the farmers, bailiffs, ne lessees, take, demand, or receive of any person or persons within this realm, for any person or persons dying within this Realm, for any mortuary or corpse present, ne any sum or sums of money, ne any other thing for the same, more than is hereafter mentioned, ne also shall convent or call any person or persons before the judge spiritual, for the recovery of any such Mortuaries or corpse present, or any other thing for the same, more than is hereafter mentioned, upon pain to forfeit for every time so demanding, receiving, taking or conventing, or calling any such person or persons before any spiritual judge, so much value as they shall take above the same limited by this act. And over that forty shillings to the party grieved contrary to this act; for the which forfeiture, the party so grieved contrary to this act, shall have an action of debt by write, will, plaint or information, in any of the kings Courts wherein no wager of law &c. shallbe allowed.  
First † it is enacted, that no manner of mortuary shall be taken or demanded of any such person whatsoever he be, which at the time of his death hath no movable goods under the value of ten mark.  
Also † that no mortuary shall be given or demanded from henceforth of any manner person, but only in such place as a mortuary heretofore hath been used to be paid and given, and in those places none otherwise but after the rate and form hereafter mentioned.  
Ne † that any person pay Mortuaries in more places than one, that is to say, in the place of their most dwelling and habitation, and there but one mortuary.  
Nor † no parson, vicar, curate, parish priest, r other, shall for any person dying, or dead, & being at the time of his death of the value of movable goods of ten marks or more, clearly above his debts paid, and under the sum of thirty pound, take for any mortuary more than three shillings four pence in the whole.  
And † for a person dying or dead, being at the time of his death of the value of thirty pound or above, clearly above his debts paid in movable goods, and under the value of xl. pound, there shall be no more taken and demanded for a mortuary then six shillings eight pence in the whole.  
And † for any person dying or dead, having at the time of his death of the value in movable goods of xl. pound or above, to any sum whatsoever it be clearly above his debts paid, there shall be no more taken, paid or demanded for a mortuary, than ten shillings in the whole.  
Provided † that no woman being covert baron, ne child, nor for any person not keeping house any mortuary be paid, ne that any parson, vicar, curate, parish priest or other, ask, demand, or take for any such woman, child, or for any person not keeping house, dying or dead, any manner of thing or money by way of mortuary.  
Ne also for any warfaring man, or other that dwelleth not, ne maketh residence in the place where they shall happen to die, but that the mortuary of such warfaring persons be answerable in places where Mortuaries be accustomed to be paid, & in manner and form, and after the rate before mentioned, and no otherwise in place or places where such warfaring persons at the time of their death had the most habitation house and dwelling places, and no else where.  
Provided † always, that it shall be lawful to all manner parsons, vicar's, curates, parish priests and other spiritual persons, to take and receive all manner sum of money, or other thing, which by any manner of person dying shall fortune to be disposed, given or bequeathed unto them, or any of them, or to the high altar of the Church, this act or any thing therein mentioned notwithstanding.  
And be it, etc. that no Mortuaries or corpses presents, or any sum or sums of money, or other thing for any mortuary or corpse present, shall be demanded, taken, received, or had in the parts of Wales, nor in the marches of the same, nor in the towns of Calais, or Berwicke, nor the marches of the same, but only in such parts and places of Wales, marches, & towns aforeraide, where Mortuaries have been accustomed to be taken, and paid: and in those parts & places, no mortuaries or corpses presents, ne any other thing for mortuary or corpse present, from henceforth shall be demanded, taken, received or had, but only after the form, order, and manner above specified in this present act, and none otherwise, ne of any other person or persons then is limited in this present act, and none otherwise, upon pain above contained in this present act.  
Provided also, that it shall be lawful to the Bishops of Bangors, Landaffe, Saint David's, and Saint Ass, and likewise to the Archdeacon of Chester, to take such Mortuaries of the Priests within the Dioceses and jurisdictions as heretofore hath been accustomed.  
Provided always, that in such places where Mortuaries have been accustomed to be taken of less value than is aforesaid, that no person shall be compelled to pay in any such place, any such mortuary than hath been accustomed, ne that any mortuary in such place shall be demanded, taken, received, or had of any such person or persons exempt by this act, nor in any wise contrary to this act, upon pain afore limited.   

Of making an account, and first of the necessity thereof.  
1 diverse reasons wherefore executors are to account.  
2 Whether the executor be subject to account, being released by the testator.  
§. xvii.  
HEre many things may be considered 
a) Super hac materia vide. Io. de Can. in Tract. de executor. vlt. vol. §. novissimum. n. 4. & Io. Olden. consi. Tract. tit. 8. , namely, how needful it is that executors should be accountable; To whom the account is to be made; within what time; in what manner, and what effects the same hath.  
How † requisite and needful a thing it is, that executors should be charged with the making and rendering of an account, the unfaithful dealing of a great sort of faithless executors, to the utter undoing and spoiling of many fatherless and friendless children, it is a proof over well known 
b) Argument. à §. quoniam in Authentic. ut hi qui oblige. . Surely if it stand with reason, that stewards, receivers, bailiffs, tutors, factors, and such as have to deal for other persons, should be accountable of their stewardship, receivership, and their other offices 
c) Io. de Canib. in d. §. novissimum. n. 1. Menoch. de arb. iud. lib. 2. cas. 209. , with greater reason may it be maintained, that an executor should be subject to account, rather than they: for they for the most part have to deal for such as be living, who may have an eye to their doings: but an executor hath to deal for a dead person, who can neither see nor hear, if his executor deal unjustly. Again, if the executor have well and faithfully executed his office, and fully discharged the trust reposed in him: what should move him that he should not willingly make a due account thereof; and thereby obtain an acquittance, and be delivered from the burden laid upon him 
d) Io. Oldendorp. Tract. de executor. vlt. vol. tit. 8. ? On the contrary, if he have played the unjust steward, much rather in that case, ought he to be urged & compelled to make his account, that his fraud and deceit being detected, he may be justly punished, and others by his punishment premonished 
e) Olden. ubi supra. . By this also that aswell the civil laws, as the ecclesiastical law, be so precise in making of inventaries, we may learn the necessity in making of an account: for if executors were not accountable, the use of inventaries were to little purpose 
f) Io. de Canib. in d. §. novissimum. .  
To conclude, all equal laws of every well governed common wealth, have favoured the execution of testaments, and last wills of men deceased, and have had special care that they should not be frustrated: and therefore no man can with safe conscience, speak against the rendering of an account, or seek immunity from the same 
g) Old. d. Tract. tit. 8. . Insomuch that if † the testator should discharge his executor from making an account: yet nevertheless, if the executor deal fraudulently, the Ordinary may in his discretion, exact an account at his hands for the reformation of such fraud 
h) Lind. in c. religiosa. verb. rationem. de testam. lib. 3 provincial. constit. Cant. Io. de Athon. in magna gloss. in Legatin. libertatem. de exec. testam. Io. de Canib. & Io. Olden. locis superius citat●s. : for it is not to be presumed, that the testator in granting to the executor immunity from making an account, did think that the executor would deal unjustly and fraudulently 
i) Lind. Io. de Canib. & Io. Olden. ubi supra. , and so did not pardon any such unjustice or fraud, whereof he had no conceit 
k) L. si quis. ff. de lib. leg. , but rather hoped that the executor would discharge his office with all fidelity, so that there should not need any account, and in that respect only (I mean in the case of his fidelity) did acquit him from rendering of an account 
l) Lind. ubi supra. .   

To whom the account ought to be made.  
1 The account is to be made to the Ordinary.  
2 Whether the account is to be made to the creditors or legataries.  
3 Whether the account is to be made to the coexecutor.  
§. xviij.  
THe † account is to be made by the executor testamentary to the Bishop or Ordinary, to whom the probation of the testament appertaineth 
a) Clem. Vnic. de testa. c. statutum. §. & postquam. de testam. lib. 3. provincial constit. Cant. Io. de Canib. de executor. vlt. vol. 2. particula. §. novissimum. per L. nulli. C. de Episc. & cleric. , who therefore not unaptly may be termed the executor of executors, because he examineth the account of every executor; and the father of the fatherless, for that to poor Orphans he is in steed of a father 
b) Io. de Canib. in d. §. novissimum. n. 9 , in providing how they may obtain that which is left unto them, by the testament of their father or other person deceased.  
And albeit † it seemeth that the executor is not tied to make an account to the legataries or creditors extraiudicially 
c) Io. de Canib. in d. §. novissimum. , yet I suppose that at the instance or promotion of such legataries & creditors invocating the office of the judge, he may be compelled to render an account to the Ordinary judicially 
d) Per ea quae inferius scribuntur ead. part. §. 20. .  
To † this question, whether an executor be bound to make an account to his coexecutor, it is answered, that extraiudicially an executor may exact an account of his coexecutor, but not in judgement 
e) Lind. in d. c. statutum. §. & postquam. verb. rationem. in fin. gloss. suae ibidem. : but the ordinary may call them both, or either of them to a judicial account 
f) L. 2. de admnstr. tut. C. Lind. ubi supr. .   

Of the time of the account.  
1 The time is left to the discretion of the Ordinary.  
2 Of the general and particular account.  
§. nineteen.  
THe † time appointed for making of the account seemeth to be arbitrary, that is to say, left to the discretion of the Ordinary 
a) Text. in c. statutum. §. & postquam. de testam. lib. 3. provincial. constit. Cant. . And † although it may seem that the executor ought not to be called to a general account of his whole executorship, before he have had sufficient time for the performance of the will 
b) Lindw. in d. §. & postquam. verb. congruè. & verb. rationem reddere.  (which is a twelve month 
c) L. nulli. C. de Episc. & cler. Boy. in c. tua nobis. de testa. extra. Conar. in c. 3. eod. tit. :) Nevertheless in the mean time, if the executor do not administer faithfully; or if the Ordinary think it convenient, the executor may be compelled to make a particular account 
d) Lind. in d. c. statutum verb. congruè. & verb. rationem reddere. Io. de Canib. de executor. vlt. vol. §. novissimum. q. 10. , and so in divers respects the law hath appointed the time diversly.  
But whatsoever the law hath determined herein, it is for the most part every where within this realm observed, that the executors promise to the Ordinary by virtue of their oath, to make a true and perfect account, whensoever they shall be thereunto called by the said Ordinary 
e) Text. in d. §. postquam. , and therefore may be called to a general account within the year 
f) Io. de Athon. gloss. in Legatin. libertatem. verb. approbatam. : yet I refer the reader to the several styles of several Courts, for his further information in this behalf.   

Of the manner of making an account.  
1 What proof is requisite in the account.  
2 Of the distribution of the residue.  
3 Of the office of the ordinary in the account.  
4 What manner of expenses are to be allowed to the executor.  
5 Of the citation in the account.  
§. xx.  
IF we respect what is to be performed by the executor, who maketh the account 
a) De forma reddendi rationem praeclarè Olden. in Tract. de executor. vlt. vol. tit. 8. & Menoch. de arb. iud. lib. 2. cas. 209. , he is not only to declare what goods and chattels belonging to the testator, he hath received 
b) Molineus in consuetud. Paris. §. 6. gloss. 6. n. 18. , and what debts and legacies he hath paid for the testator 
c) Molin. ibid. : and to † make due proof of every payment, that is to say, of lesser sums by his oath, and of greater sums by other proofs 
d) Io. And. in addic. ad Specul. de Instr. edit. §. nunc verò. verb. quid si executor. Lind. in c. statutum. verb. reddere rationem. lib. 3. provin. constit. Cant. Io. de Athon. in Legatin. libertatem. de executor. testam. Mascard. Tract. de probac. verb. expensae. concl. 722. , such as the Ordinary shall allow of 
e) Menoch. d. cas. 209. Old. de executor, vlt. vol. tit. 8. Mascard. de probac. conclus. 720. , but also if any thing do remain of the said goods and cattles 
f) L. cùm servus. ff. de cond. & daemon. , (the funerals † together with the debts and legacies satisfied and discharged 
g) Magna charta. c. 18. ) the same aught to be distributed, and converted in pios usus 
h) c. statutum. §. statuimus de testa. lib. 3 provincial. constit. Cant. c. cum tibi de testa. extr Ploughed. in cas. inter Norwood. & Read. Doct. & Stud. lib. 2. c. 10. circa medium. : neither aught the executor to apply any part thereof to his own private use, more than is given him by the testator, or which the Ordinary shall allow him for his laobur, or for the like consideration 
i) Text. in d. §. statuimus, Quod tamen intellige prout supra scripsi ead. part. §. 1. in fin. . But of this distribution of the residue (in pios usus) there is but small use in these days, as well for that the residue is commonly left to the executors, as also for that the executors are afraid that some unknown debts due by the testator, should afterward arise, and so the executor be compelled to pay the same out of his own purse.  
If we respect what is to be performed by the Ordinary in the making of this account, I suppose that it † doth appertain unto his office, not only to examine the account, and to see whether the same be rightly calculated, and whether the accountant do charge himself with the receipt of the whole goods and cattles of the testator, and how much he hath disbursed, either for funerals, debts, or legacies 
k) Menoch. d. cas. 209. Olden. d. tit. 8. : but also to have a regard what manner of expenses the accountant requireth to be allowed unto him: for † sumptuous and delicate expenses are not to be allowed, but honest and moderate, according to the condition of the persons 
l) d. c. statutum. §. statuimus. Old. d. tit. 8. n. 5. . And after due examination of the said account, the Ordinary finding the same to be true and perfect, may pronounce for the validity thereof, and so acquit the executor, so far forth as appertaineth to the ecclesiastical court 
m) De qua re attendendus est cuiusque fori stilus. . But if upon the examination of the said account, it do appear, that the executor hath not dealt faithfully, the account is to be rejected 
n) Vide infr. §. ꝓx. .  
But whether † we respect the office of the accountant, or of the ordinary, this is perpetually to be observed, that the creditors to whom the testator did owe any thing, and the legataries to whom the testator did bequeath any thing, and all others having interest are to be cited to be present at the making of the said account 
o) Specul. de Instr. edit. §. nunc vero aliqua. n. 45. Lind. in d. c. statutum. §. & postquam. verb. ordinarios. , otherwise the account made in their absence, and they never called, is not prejudicial unto them 
p) L. de unoquoque. ff. de re iud. & DD. ibid. & supr. ead. part. §. 14. .   

Of the end and effect of an account.  
1 The making of an account, ordained in favourable regard of testaments.  
2 The effect of a perfect and just account.  
3 The effect of an unperfect account.  
§. xxj.  
THe † end for which it is ordained, that every testamentary executor should be subject to make an account, is this, that the lawful testaments and last wills of them which depart this life, should be fully effected and accomplished, according to their true and honest intents, & that the occasion of defrauding the dead man, & misspending his goods by unhonest executors, might be prevented 
a) Io. de Canib. Tract. de exec. vlt. vol. §. novissimum. Io. Olden. eod. Tract. tit. 8. & supr. ead. part. §. 17. .  
The † effect which ariseth of a true and just account, is this, the executor having well and faithfully performed his office, and made his account accordingly, ought to be acquitted & discharged from further molestation and suits, as one that hath fully administered and finished his office 
b) Menoch. d. cas. 209. in fin Brook Abridg. tit. admnstr. n. 14. , neither is he to be called by the Ordinary to any further account 
c) L Semel. C. de Apoch. Olden. de exec. vlt. vol. tit. 8. n. 17. .  
But this final † discharge & acquittance can not be obtained, until the executor have fully administered & accounted. And if any inferior judge (I mean under the degree or dignity of a Bishop) do grant unto any executor letters of acquittance or final discharge, before a lawful account of full administration and faithful execution be made, that judge is ipso facto suspended ab ingressu ecclesiae by the space of six months 
d) c. fin. de testam lib. 3 provincial. constit. Cant. in fin. . Besides that, the acquittance itself doth not benefit the executor, when it appeareth that he hath not fully and faithfully administered 
e) Lind. in d. c. fin. verb. acquietanciarum. .   

Of the executor refusing the executorship, and what he is to take heed of.  
1 The executor resolved to refuse, must not meddle as executor.  
2 Who is said to meddle as executor, or not.  
§. xxij.  
IF the † executor named in the testament resolve not to stand to the executorship, but to refuse the same; then must he beware that he do not administer the goods of the deceased as executor, for having once administered as executor, he may at any time after be compelled to undergo the burden of an executor 
a) Panor. in c. johannes. Boic. in c. tua nobis. de testa. extr. , and also may be sued as executor by the creditors of the testator, though he cannot sue others as executor, for that he hath not the will under the ordinaries seal 
b) Perkins. tit. testament. fol. 93. Ploughed in cas. inter Greisb. & Fox. Brook. tit. exec. n. 49. .  
A † man is then said to administer as executor, so that thereby he may be compelled to stand to the executorship, when he doth perform those acts which be proper to an executor 
c) L. pro haerede. ff. de acquir. haered. Mantic. de coniect. vlt. vol. lib. 12. tit. 9 n. 18. , as to pay the debts due by the testator, or to receive any debts due unto the testator, or to give acquittances for the same 
d) Mascard. de probac. concl. 44. n. 5. 29. 45. Fitzh. Abridg. tit. executor. n. 38. , with other like acts 
e) Aditio haereditatis quomodo ꝓbatur copiosè Masca. Tract. de ꝓbac. qui per multas conclusiones hanc materiam prosequitur. in verb. aditio. .  
But if a man do those acts, which are not proper to an executor, he is not said to have administered as executor to the effect aforesaid 
f) Mantic. de coniect. vlt. vol. lib. 12. tit. 9 n. 18 , as to feed the cattle of the deceased, lest they should perish 
g) d. L. pro haerede. Fitzherb. tit. exec. n. 45. , or to take into his custody the goods of the deceased, to the end they may be safe from being stolen or purloined 
h) d. L. pro haerede. , or to dispose of the testators goods about the funerals 
i) Ead. L. pro haerede. & ibi DD. Lind. in d. c. statutum. Fitzh. tit. execute. n. 38. Brook. tit. admnstr. n. 6. 28. , for these be deeds of charity common to every christian, and not peculiar to an executor 
k) L. non hoc. C. unde legitimi. d. L. pro haerede. Fitzh. tit. exec. n. 38. . Likewise to make an inventary of the goods of the deceased, is not to administer as executor 
l) Mantic. de coniect. vlt. vol. lib. 12. tit. 9 n. 15. jas. & Alex. in L. vlt. §. sin autem. C. de iure delib. quae opinio communis est adversus Bar. & eius sequaces. ut refert Mascard. de probac. concl. 48. sed cum distinctione, ut ibi per eundem. , or to deliver to the wife her convenient apparel 
m) Brook. tit. admnstr. n. 6. Tu autem vide Mascard. de probac. concl. 44. n. 46. etc. , or to take the testators horse & ride him, or to use him as his own, supposing him not to be the testators but his own 
n) Brook. tit. admnstr. n. 28. Huc. pertinet quod scriptum reliquit Mascard. de probac. concl. 45. n. 46. etc. , or to take of the goods of the testator by the lawful & unfraudulent gift of the testator 
o) Brook. tit. executor. n. 162. Mascard. d. concls. 45. n. 29. etc. : And generally, whosoever as a mere trespasser, entereth into the goods of the testator, whether it be to things living, as horse, kine, sheep; or dead things, as pots, pans, dishes, converting the same to his own proper use, and not to the use of the testator, as to the payment of the testators debts or legacies, doth not administer as executor 
p) Brook. tit. executor. n. 165. tit. admnstr. n. 42.   
Howbeit in these cases and such like, whosoever feareth to be adjudged executor, administering of his own wrong, the most safe course is, not to meddle at all, but utterly to abstain from all manner of use of the testators goods, and namely, let him beware that he do not sell any goods, or kill any cattle of the deceased 
q) Brook. tit. admnstr. n. 26. Quamuis iure civili certo certius est, eum, qui res perituras, quae videlicet, seruando servari non possunt, distraxit, in ea causa esse, ut pro haerede non gesserit, quia hoc non adeundi animo factum esse praesumitur. d. L. pro haerede. .    

THE SEVENTH PART OF THIS TESTAMENTARY TREATISE, DECLARING BY WHAT MEANS TESTAments or last wills become void.  

The Paragraphes or Chapters of the last part.  
BY what means testaments or last wills become void. §. 1.  
Of testaments made by fear. §. 2.  
Of testaments made by fraud. §. 3  
Of testaments made by flattery. §. 4.  
Of error. §. 5.  
Of uncertainty. §. 6.  
Of uncertainty, either because no certain person is named, or some being named, none of that name is to be found. §. 7.  
Of uncertainty arising for that there be diverse persons of one name. §. 8.  
Of uncertainty by occasion of alternative or disjunctive speech. §. 9  
Of uncertainty respecting the thing bequeathed. §. 10  
Of uncertainty respecting the time or date of the testament, viz. where two testaments appear, and it is uncertain whether is the latter. §. 11.  
Of an unperfect testament. §. 12.  
Of the defect in the testators meaning. §. 13.  
Of a later testament. §. 14.  
Of revoking the testament made. §. 15.  
Of canceling the testament made. §. 16.  
Of the alteration of the state of the testator. §. 17.  
Of forbidding or hindering the testator to make an other testament. §. 18.  
When he that is named executor, cannot or will not be executor. §. 19  
Of ademption of legacies. §. 20.  
Of translation of legacies. §. 21.  
Of diverse means whereby legacies are lost, considerable in the person of the legatary as of enmity, etc. §. 22.  
Of the death of the legatary before the legacy be due. §. 23.  
Of the destruction of the thing bequeathed. §. 24.   

BY WHAT MEANS testaments or last wills become void.  
The seventh part.  
1 Testaments lose their force two ways.  
2 By what means testaments are void from the beginning.  
3 By what means the testament once good, is made void afterwards.  
4 How we may know when the testament is void from the beginning.  
§. i.  
HItherto of those things which appertain to the making and accomplishing of testaments: now of such things as tend to the dissolution thereof.  
Albeit † the means whereby testaments and last wills do lose their force, be many 
a) De quibus Vigelius in sua method. iur. civil. lib. 9 c. 5. cum seq. : yet they may be reduced to two 
b) Viglius in tit. quib. mod. testa. infir. Instit. .  
The first is, when † there is some original defect or corruption in the testament 
c) L. si quaeramus. ff. de testa. , which may happen divers ways, either because the testator is such a person as cannot make a testament or last will 
d) Supra part. 2. , or because the things bequeathed are not devisable by will 
e) Supra part. 3. , or because the manner of the disposition is unlawful 
f) Supra part. 4. , or for that the person named executor is incapable thereof 
g) Supra part. 5. , or for some other cause hereafter expressed 
h) Infr. §. prox. cum §§. seq. usque ad §. 14. : and such a testament or last will being void originally, or from the beginning, is called Nullum, sometimes iniustum, or non iure factum 
i) Mincing. & Vigl. in d. tit. quib. mod. testa. infir. Instit. .  
The other means is, when † the testament or last will being free from original fault, doth afterwards become void 
k) Vigl. in d. tit. quibus mod. testa. infir. . And this also may happen diverse ways, as by the making of a later testament 
l) §. posteriore. Instit. quib. mod. testa. infir. & infra §. 14. , or by revoking or canceling of that which is made 
m) L. 1. de his quae testa. del. ff. & inf. §§. 15. 16. , or by alteration of the state of the testator 
n) §. alio Instit. quibus mod. testa. infir. & infra §. 17. , or by forbidding or hindering the testator to make another testament 
o) Tit. si quis aliquem restari prohib. ff. & C. & infra §. 18. , or if he that is named executor will not, or doth become unable to be executor 
p) L. 1. ff. de injust. rup. & irrit. testam. & infr. §. 19 , and by many other means more particularly showed hereafter 
q) Infr. §. 20. cum reliquis §§ usque ad finem . And this kind of testament which once being good, becometh void ex post facto, is sometimes called ruptum, sometimes irritum 
r) Tit. de injust. rupt & irrit. testam. ff. d. §. alio Instit. quib. med. testa. infir. .  
Touching the former of these void testaments, forasmuch † as we have already declared who may make a testament, what thing may be disposed, what form is lawful, and who may be executor or legatary: and on the contrary, what person can not make a testament, what thing cannot be devised, what form is not lawful, and what person is not capable of an executorship or legacy, it is a matter of little labour, and less difficulty, by examination of the premises, to collect and discern when the testament is originally void, either in respect of the testator, or of the thing bequeathed, or of the form of the disposition, or of the person of the executor or legatary. Whereunto it may be added, that the testament is originally void, or at the least voidable by exception, when the testator is compelled by fear 
s) Infra §. prox. , or circumvented by fraud 
t) Infra. §. 3. , or overcome by immoderate flattery 
v) Infra §. 4. , to make the same. It is also void from the beginning, sometimes by reason of error 
x) Infra §. 5. , sometimes by reason of uncertainty 
y) Infra §. 6. cum seq. , and sometimes by reason of imperfection 
z) Infra §. 12. , and sometimes because the testator hath not animum testandi 
a) Infr. §. 13. , a meaning to make his testament or last will.  
Touching the other kind of these testaments, such I mean as were good at the first, but do become void afterwards, we shall speak more particularly hereafter.   

Of the testament made by fear.  
1 Exception of fear destroyeth the testament.  
2 Whether this exception be prejudicial to any other then to the author thereof.  
3 What if the testament be confirmed with an oath.  
4 What if the fear be not of present hurt.  
5 What if the testament be made after the time of the violence offered, and not at that instant.  
6 Whether the testament made by fear be void, ipso iure.  
7 Vain fear hindereth not the validity of the testament.  
8 The testament confirmed after fear be past, is good.  
9 The testament is good, saving in favour of the author of this fear and his complices.  
10 What if the testator protest that he made his testament being compelled by fear, whether doth this protestation make void the testament.  
§. two.  
NOthing is more contrary to free consent then fear 
a) Nihil consensui. de reg. iur. ff. : worthily † therefore is that testament to be repelled which is made upon just fear 
b) Bar. in L. fin. si quis aliquem testari ꝓhib. ff. jas. & Sichard. in Rub. si quis aliquem. C. quamuis communi Doctorum opinion, huiusmodi testamentum non sit ipso iure nullum. ut per Grass. Thesaur. come. op. §. testm. q. 83. Soarez. lib. rec. senten. verb. testam. n. 56. 57 , which conclusion is diversly both extended and limited.  
The first extension is, that the testament made by fear is uneffectual, not † only in respect of that person who put the testator in fear, but also in respect of other persons also 
c) Gloss. in Rub. si quis aliquem prohib. ff. Bar. in d. L. fin. Bess. Tract. var. tit. de his qui prohib. aliquem testari. n. 4. ; albeit ignorant of that fear wherewith the testator was constrained in that behalf 
d) Bar. & Bess. ubi supra contrariam tamen opinionem tenent jas. & Sichard. in Rub. si quis aliquem. C. sed distingue, ut infra in limitac. 4. .  
Secondly the † testament is overthrown by the exception of fear, albeit the testator did with an oath confirm the same, during the fear 
e) c. quamuis. de pactis. lib. 6. . For where a man being overcome with fear, to the end he may escape that danger, doth swear with his mouth to perform that thing, which he intendeth not in his heart: this oath doth not give any strength to that act 
f) DD. in d. c. quamuis. Felin. in c. si vero. de iureiur. extra. n. 8. declare. 4. ; but contrariwise the act is so much the weaker, by how much the suspicion of fear by this extorted oath is made the stronger.  
Thirdly †, not only that testament is deprived of lawful force, which the testator is constrained to make by present force and violence, but that also where the testator is not only threatened with future evils, being such as may move just fear 
g) Sichard. in d. Rub. si quis aliquem. C. n. 1. jas. in §. quadrupli. Instit. de action. ubi tradit quinque genera metus : although by the civil law in other respects, that is to say, of greater or lesser punishment of the author of this fear, there is great difference, whether he exercise violence against the testator, or threatenings only, as also whether the violence be open or secret 
h) Sichard. in d. Rub. jul. Clar. §. falsum. & pract. criminal. q. 83. , of which punishment we have no great use in England except it be for forgery of wills 
i) Stat. Eliz. an. 5. c. 14. .  
Fourthly, albeit † the testament were not made at the time of the violence or threatenings executed, but afterwards: yet the cause of the fear still enduring, it is of no less force than if it had been made at the time of the former beating or threatenings 
k) Zas. in L. si ob turpen. ff. de cond. indeb. Peckius. Tract. de testa. coniug. lib. 1. tit. 9 n. 3. .  
The limitations of this former conclusion are these. First, the testament † made by fear is not void ipso iure, but voidable by the help of excepton 
l) Bar in L. sin. si quis aliquem testari ꝓhib. ff. Are. in L. 1. ff. de testa. : the reason is, because he that doth an act through fear, doth after a sort consent 
m) L. si mulier. § pen. ff. quoth me. causa. , that is to say, of two evils he chooseth the less 
n) Wesenb. in tit. quoth met. causa. ff. , and is willing rather to make a testament, then to incur the peril threatened 
o) Wesenb. ibid. . And albeit some be of this opinion, that the testament made by fear is void, ipso iure; and that in this case a constrained will is no will, being rather noluntas then voluntas 
p) Vasq. de success. crea. §. 17. requisite. 22. jas. in Rub. si quis all. quem testari prohib. C. , yet the common opinion is against them 
q) Vasq. d. §. 17. n. 5. , unless the coaction be not conditional, but precise, necessary, and inevitiable 
r) Quia tunc omnino deest voluntas. Wesen. in tit. quoth met. causa. . 
q) Grass. Thesaur. come. op. §. testm. q. 83. Soarez. eod. lib. verb. testm. n. 56. 57 Mantic. de coniect. vlt. vol. lib. 1. tit 3. lib. 2. tit. 7.   
The second limitation is, when † the fear is but a vain fear 
s) L. si quis ab alio. ff. de re. iud. L. vani de reg. iur. ff.  (for a just fear only, that is such a fear as may move a constant man or woman, maketh void the testament 
t) c. ad audientiam. c. cum dilectus de his quae me. cum extra. Mantic. de coniect. vlt. vol lib. 2. tit. 7. n. 6. ; as the fear of death, or of bodily hurt, or of imprisonment, or of the loss of all or most part of goods, and such like fear) whereof no certain rule can be delivered, but is left to the discretion of the judge, who ought not only to consider the quality of the threatenings, but also the persons as well threatened, as threatening; and in the threatened the sex, the age, the courage, or pusillaminitie: and in the person threatening, the power, the disposition, and whether he be a mere boaster, or performer of his threats 
v) Menoch. de Arb. jud cas. 135. Mascar. Tract. de probac. concl. 1054. Idem Menoch. Tract. de praesump. lib. 3. praes. 126. .  
Thirdly, if the † testator afterward, when there is no cause of fear, do ratify and confirm the testament, I suppose the testament to be good in law 
x) L. 2. C. de his quae vi, etc. L. si ob turpem. ff de condict. in deb. Sichard. in L. si per vim. C. de his quae vi, etc. n. 3. .  
Fourthly, where † it is said that the testament is uneffectual, as well in respect of the author of the fear, as of others for whom he extorteth any benefit in the testament: yet if the testator of his own accord, do in the same testament bequeath any legacy to any other persons besides these afore named, the testament in that respect is not unlawful 
y) Bar. in d. L. ●in. n. 3. si quis. aliq. ff. Bal. in L. 1. eod. tit. C. n. 7. .  
Fiftly, if the † testator after the making of the testament, do affirm or protest generally, that the testament by him made was done through fear: not expressing particularly by whom he was compelled thereunto, such bare protestation doth not make void the testament 
z) Bald. in d. L. 1. Mantic. de coniect. vlt. volu. lib. 2. tit. 7. n. 5. : but if the testator do express by whom he was constrained, protesting that he would gladly alter the testament, but for fear of the persons by him named; by such assertion the testament is void, at the least in the prejudice of those persons 
a) Mantic. ubi supra. Sichard. in Rub. si quis aliquem testari prohib. C. n. 5. .   

Of testaments made by fraud.  
1 Fraud as detestable as force.  
2 Whether all manner of deceit be evil.  
3 What if the deceit be very small.  
§. iii.  
Fraud † is no less detestable in law then open force 
a) Olden. de action. class. 5. fol. 518. in action. ex testamento. , wherefore when the testator is circumvented by fraud, the testament is of no more force, then if he were constrained by fear 
b) L non enim. de inoffic. testa. L. 1. de excep. doli. ff. .  
Nevertheless † when the deceit is not evil, but good, (for all deceit is not evil 
c) Zas. in tit. de dolo malo. ff. ) such deceit doth not hinder the testament 
d) Bald. in L. 1. si quis aliquem testari prohib C. & Sichard. in Rub. ibidem. : for example, the testator intending to bestow all his goods upon some vile and naughty person, omitting his honest wife and dutiful children; if the wife or children beguile the testator, persuading him that that lewd person is dead, or by some other means deceive the testator, and so procure themselves to be made executors, or universal legataries: this deceit is not reproved as evil, and therefore the testament is not to be repelled as unlawful 
e) Bald. in d. L. 1. n. 17. .  
It seemeth † also, that the testament is not void, when the deceit is very light and small, such as can not beguile a prudent man or woman 
f) c. cum dilectus. de his quae vi vel metus causa extra. : for as that fear only is termed just, and is able to overthrow the testament, which may overcome a constant man: so that deceit only seemeth sufficient to repel the approbation of a testament, which may deceive a prudent person 
g) Panor. in d. c. cum dilectus. n. 4. Marsil. sing. 207. Alex. in apostil. ad lect. Bar. in L. eleganter. ff. de dolo. in prin. d. L. . Howbeit (if this limitation be true) yet as in that case it is left to the discretion of the judge to determine what fear is just, respecting the quality of the threats, together with the disposition of the parties: so in this case the judge comparing the deceit with the capacity or understanding of the person deceived, may best discern, whether it be such a deceit as may overthrow the testament or not 
h) Arg. d. c. dilectus. .  
How the testator may be induced by fraud too make or revoke his testament, were it not that the crafty would put the same in practice, is a thing not altogether unworthy the understanding. But lest by instructing the better to avoid the same, I might also teach the evil affected to follow the same: Sufficeth it, to refer the reader to that which hath been spoken of captious wills 
i) Supra part. 4. §. 11. , and to that which hereafter shall be uttered of forbidding or hindering the testator to make or alter his will 
k) Infra §. 18. .   

Of testaments made by flattery.  
1 Flattering persuasions not always unlawful.  
2 What if fear go before.  
3 What if fraud be intermingled with flattery.  
4 What if the testator be under the government of the flatterer.  
5 What if the flatteries be immoderate.  
6 What if the testator have made a former testament.  
§. iiij.  
IT is not † unlawful for a man by honest intercessions and modest persuasions, to procure either another person or himself to be made executor 
a) Olden. de action. class. 5. fol. 518. action. ex testaments. : neither is it altogether unlawful for a man, even with fair & flattering speeches, to move the testator to make him his executor, or to give him his goods 
b) L. vlt. si quis aliquem testari prohib. ff. & C. ac DD. ibidem. , except in these cases following.  
The first case is, when † he that is made executor, did first beat or threaten the testator, and thereby did put him in fear: for than it is justly suspected and presumed, that the testator is moved to make his testament, rather by fear then by fair speeches 
c) Peckius de testa. coniug. lib. 1. c. 9 n. 23. jas. & Sichar. in L. vlt. C. si quis aliquem testari ꝓhib. Menoch. de arb. jud. cas. 395. n. 41. verb. hoc fortius. .  
The second case is †, when unto flattery is joined fraud or deceit 
d) Sichard. in d. L. vlt. n. 13. Olden. de action. class. 5. fo. 518. Menoch. d. cas. 395. n. 41. Afflict. decif. 69. .  
The third case is, when the testator, is a person of weak judgement, and easy to be persuaded, and the legacy great 
e) Molin. in apostil. ad Dec. consil. 489.   
The fourth † case like unto this is, when the testator is under the government of the persuader, or in his danger 
f) Molin. in d. Apostil. : And therefore if the physician during the time of sickness, be instant with the testator to make him his executor, or to give him his goods, this testament is not good 
g) Peckius de testam. coniug. lib. 1. c. 9 n. 6. Bar. in L. Archiatr. de profess. & med. lib. 10. C ; for the law presumeth, that the testator did it, lest the physician should forsake him, or negligently cure him 
h) Peckius ubi supra. & in c. 17. eod. lib. Lucas de penna in d. L. Archiatri. juxta illud Poetae. Garrulus aegroto medicus, si forte medetur: Alter adest morbus continuusque dolour. . So it is if the testator being sick, his wife neglect to help him, or to provide remedy for the recovery of his health, and nevertheless in the mean time busily apply him with sweet and flattering speeches, to make her his executrix, or to bestow his goods upon her: for in this case, the disposition is uneffectual 
i) Peckius. d. lib. 1. de testa. coniug. c. 9 n. 5. Mathe. de afflict. decis. 69. .  
The fift case is †, when the persuader is very importunate 
k) c. fin. 20. q. 3. Abb. in c. praeterea. de office delega. extr. Menoch. de Arbitr. jud. cas. 395. n. 41. & latiùs Peckius. d. c. 9 n. 9 : for an importunate beggar is compared to an extortor 
l) ●mol. in c. petitio. de iureiur. Peckius in d. c. 9 n 9 L. 1. §. persuadere. ff. de ser. cor. , and it is an impudent part still to gape and cry upon the testator, and not to be content with the first or second denial 
m) Peckius ubi supra. Rebuff. Tract. de rescrip. ar. 2. gloss. 3. .  
The sixth case is †, when the testator hath made another testament before, for then the later testament made at the instigation or request of another person, is not good in prejudice of the former 
n) Socin. jun. consil. 14 vol. 2. Peckius in d. c. 9 versic. tertio. , as elsewhere is and shall be declared 
o) Supra part. 2. §. 27. inf●a §. 14. limitac. 4. .   

Of error.  
1 Error may happen in diverse respects.  
2 Of error in the person of the executor or legatary.  
3 Of error in the name of the executor or legatary.  
4 Of error in the quality of the executor or legatary.  
5 Whether a false cause make void the disposition.  
6 Error in the thing bequeathed, manifold.  
7 Of error in the proper name of the thing bequeathed.  
8 Of error in the name appellative of the thing bequeathed.  
9 Of the difference betwixt a proper name, and a name appellative.  
10 An objection with the answer.  
11 Certain cases wherein error in the name appellative is not hurtful.  
12 Error in the substance of the legacy, doth destroy the legacy.  
13 Error in the quantity of the thing bequeathed, is not hurtful.  
14 Certain cases wherein error in quantity doth destroy the legacy.  
15 Certain cases wherein the error in the quantity of the thing bequeathed as a certain body is not hurtful.  
16 Error in the quality of the thing bequeathed, doth not destroy the legacy.  
17 Error in the form of the disposition, doth destroy the force thereof.  
§. v.  
ERror doth sometimes overthrow the disposition of the testator, sometimes not: Therefore that we may understand whether this error hurt or not, we are to consider † whether the error doth respect the executor or legatary, or the thing bequeathed, or the form of the disposition: And if it do respect the executor or legatary, then whether the testator do err in the person, or in the name, or in the quality of the executor or legatary.  
When † the testator doth err in the person of the executor or legatary, supposing him whom he maketh executor, or to whom he doth bequeath any legacy, to be another person than he is, the disposition is void 
a) L. quoties. ff. de haered. instit. : for example, the testator intending to make john at Stile his executor, or to give to john at Stile an hundred pound, he saith, I make john at Noke my executor, or give I to john at Noke an hundred pound. In this case neither can john at Style, nor john at Noke be executors, or obtain the legacy 
b) DD. in d. L. quoties . The reason is this: john at Noke is excluded, because the testator never thought it. john at Stile is excluded, because the testator never spoke it: for meaning without speaking is nothing, and speech without meaning is less 
c) d. L. quoties. & L. in ambiguo. ff. dereb. dub. .  
When † the testator doth err in the name of the executor or legatary, and not in the person, such error doth not hurt 
d) L. si. in nomine. C. de testa. , but in certain cases: one is when the testator is blind; for than it is suspected that the testator doth mistake the person, together with the name 
e) jas. & Sichard. in d. L. si in nomine. Ripa. in L. si quis in fund. ff. de leg. 1. n. 9 quem vide. . Another is, when the testator doth err in the name of his own son 
f) Sicha. in d. L. si in nomine. n. 14. Ripa. in L. si quis fundi. ff. de leg. 1. ubi sublimitat hanc limitac. quando viz. natus & educatus esset silius in loco remoto. , or of his father 
g) Ripa. in d. L. si qns. n. 8 : the reason is, for that this gross error doth note the testator of folly 
h) Sichard. & alij in d. L. si in nomine. : But a fool, or he that is not of sound memory cannot make a testament 
i) Supra 2. part. §. 1. : much more is the disposition void, if the testator do err in his own name 
k) jas. in d. L. si in nomi. : as if the testator say, I Peter make my testament, where his name is john: for this is a plain and evident proof of his folly, or lack of sufficient memory 
l) Bar. in L. cum in liberis. C. de haered. instit. & est communis opinio, ut per Grass. Thesaur. come. op. §. Institutio. q. 29. n. 2. .  
When † the testator doth err in the quality of the executor or legatary, this error is not hurtful 
m) L. falsa demonstratio. ff. de cond. & daemon. c. 1. 29. q. 1. Mantic. de coniect. vlt. vol. lib. 4. tit. 5. n. 16. Paul. de Castro. in L. quoties. ff. de haered. instit. , unless that quality were the final cause wherefore the testator made him executor or legatary: for the error in such a quality doth make void the disposition 
n) L. neque professio. C. de testa. : for example; the testator saith, I make my cousin john at Stile my executor, or I give to my cousin john at Stile an hundred pound: in this case, if john at Stile be not cousin to the testator, he cannot obtain the executorship, or legacy 
o) d. L. neque. & ibi DD. & Grass. Thesaur. con. op. §. Insti. q. 29. n. 4. ubi refert hanc op. esse receptam ab omnibus, nisi fortassè restator solet appellare illum consanguineum suum. . Hereunto it may be added, that if the testator do erroneously express a false cause, the disposition is void 
p) Bar. in L. demonstratio. §. quod autem ff. de cond. & daemon. n. 13. : for example; the testator saith, because thou didst lend me an hundred pound, I bequeath unto thee an hundred pound 
q) Bar. ubi supra. verb. quaedam causa proxima. ; or because my son is dead, thou shalt be my executor 
r) L. sui ff. de haered. instit. Sichard. in Rub. de haered. instit. C. n. 3. : In which cases the cause being false, the disposition is of no force. And although it be written, that a false demonstration or false cause, doth not hurt the disposition 
s) L. cum tale. §. falsam. de cond. & daemon. ff. §. longè. Instit. de lega. : yet that is to be understood, where the testator doth not ignorantly, but wittingly 
t) Gloss. in L. 1. C. de falsa causa adiect. & ibi Doctores.  express the same.  
But † when the testator doth ignorantly express a cause, which is so annexed unto the legacy 
v) Bar. in d. L. demonstratio. §. quod autem. de cond. & daemon. ff. n. 13. & Paul. de Castr. in d. L. n. 5. , as without the which cause he would not have given that legacy 
x) Secus si causa sit impulsiva tantum, quae ab ignorant adijcitur, nam illa quantuncunque falsa, non viciat dispositionem, nisi fortè non causatiuè, sed conditionaliter sit adiecta, quia tunc viciatur dispositio, sive intellexerit, sive ignoraverit testator causam illam non existere. Sichar. in d. Rub. Paul. de Castr. in d. L. demonstratio. Mincing. & alij, in d. §. longè. Instit. de lega. Vigelij Method. iur. civil. lib. 12. c. 10. excep. 71. : in this case the cause being false the legacy is void 
y) Porcius in §. longè. Instit. de lega. & ibi Mincing n. 2. Sichard. in Rub de haered. insti. C. & Paul. in d. L. demonstratio.   
If the † error touch the thing bequeathed, than we are to inquire whether the testator do err in the name, or in the substance, or in the quality, or in the quantity of the thing bequeathed.  
The † error of the testator in the proper name of the thing bequeathed, doth not hurt the validity of the legacy, so that the body or substance of the thing bequeathed be certain 
z) §. siquidem in nomine. Instit. de lega. quae sententia communis est. Grass. Thesaur. con. op. §. Legatum. q. 65. : for example; the testator doth bequeath his horse Bucephal, whereas the name of his horse is Arundel: this error is not hurtful, but that the legatary may obtain the horse Arundel, if the testators meaning be certain 
a) Bar. Zas. & alij, in L. si quis in fundi. ff. de leg. 1. : for names were devised to discern things 
b) L. labeo. ff. de sup. leg. : If therefore we have the thing, it skilleth not for the name 
c) d. §. si quidem in nomine. Inst. de lega. .  
The † error in the name appellative of the thing bequeathed, doth destroy the legacy 
d) Si quis in fundi. ff. de leg. 1. : for example; the testator intending to bequeath a horse, doth bequeath an ox, or meaning to bequeath gold, doth bequeath apparel: in both these cases the legacy is void 
e) d. L. si quis in fundi. . The reason of the difference (I mean of the divers effects betwixt the error in proper names, and the error in names appellative) is because † a proper name is an accident, attributed to some singular or individual thing, to distinguish the same from other singular things of the same kind: whereas names appellative do respect the substance of things, and being common to every singular of the same kind, make them to differ from things of other kind or substance 
f) Mincing. in d. §. si quidem in nomine. n. ● DD. in d. L. si quis. & in L. si in nomine. C. de testam. . Against † this reason it is commonly objected, that words or names are but invented to signify things 
g) Text. in d. §. si quidé in nomine. , and that the words of the testator are to be drawn even into an improper sense, to maintain the will and disposition of the testator 
h) L non aliter. de leg. 3. ff. Mantic, de coniect. vlt. vol. lib. 3. tit. 5. n. 2. . To the which objection it is answered, that these words which have a manifold sense, may be stretched to that sense which is contained therein, albeit improperly: but to comprehend that sense, which is not at all within compass of the words, neither properly nor improperly, they may not be stretched so far 
i) Ripa. & Zas. in L. si quis in fundi. ff. de leg. 1. ille. n. 26. iste. n. 20. , for then this conclusion hath place: That which I would, I spoke not; that which I spoke, I would not; and so neither is good 
k) L. in ambiguo. de reb. dub. ff. .  
Nevertheless †, it is not perpetually true, that the error in the name appellative of the thing bequeathed, doth make void the disposition: for if the thing bequeathed be present, & the testator doth with his hand demonstrate the same, albeit he do err in the name appellative, it doth nothing hinder the validity of the legacy 
l) Gloss. in L. quae extrinsecus. ff. de verb. ob. jas. in d. L. si quis in fundi. qui ibi refert hanc opinionem esse veram. . Likewise if there be some conformity or similitude betwixt the name appellative, and the name wherein the testator doth err, the legacy is not void: as if the testator meaning to bequeath his books, doth bequeath his papers 
m) Gloss. in d. L. si quis in fundi Bar. in L. quaesitum. §. si mihi. de leg. 1. & est come. op. ait Grass. Thesaur. come. op §. legatum. q. 65. : or if the testator protest, that the legacy shall pass by those terms, for then the error in the name appellative is not hurtful 
n) Gloss in d. L. si quis in fundi. & quod haec. communis sit, numerat Ripa in d. L. si quis. n. 27. & Grass. §. legatum. q. 65. : or if by common use of speech the name appellative be altered; for than it is in the election of the testator, to use whether name he will, even that which is less proper 
o) jas. Zas. & Ripa. in d. L. si quis in fundi. : or if the names be artificial, not natural, as to use proctorship, for curatorship 
p) Mincing. in §. si quidem in nomine. Instit. de lega. n. 2. .  
The † error in the body or substance of the thing bequeathed, doth destroy the legacy 
q) Si quis in fundi. de leg. 1. ff. , like as in the person of the executor or legatary 
r) L. quoties. de haered. instit. ff. .  
When † the error is in the quantity of the thing bequeathed, it doth not hurt the legacy 
s) L. qui quartam. de leg. 1. ff. : For example; the testator meaning to bequeath the fourth part of his goods, doth by words bequeath the one half; or meaning to give but fifty pound, doth bequeath an hundred pound: or contrariwise the testator meaning to bequeath a great quantity or sum, doth express a lesser rate or sum 
t) Et sic valet legatum, siuè quantitas sit continua, siuè discreta: vel ut alij loquuntur, siuè pars sit quotitativa, siuè numeralis. jas. & Zas. in d. L. qui quartan. : In these cases the legacy is good, and the legatary may obtain so much as the testator did mean, be it more or less than the portion or sum uttered 
v) Bald. Paul. de Castr. Alex. jas. & Zas. in d. L. qui quartam. quamuis Bar. contrariam partem teneat, casu quo minor summa sit ex pressa, cuius opinio communiter reprobatur. Et sic valet legatum utroque casu. .  
Howbeit † if the quantity be bequeathed as a certain body: as if the testator bequeath an hundred pound lying in such a chest, when as there is no money in the chest, in this case the legacy is void 
x) L. si servus. §. si quinque. L. sed & si certos nummos. ff. de leg. 1. Mincing. in §. huic ꝓxima. Instit. de lega. n. 8. Grass. §. legatum. q. 59 n. 3. . Likewise if the testator do generally bequeath unto another whatsoever he himself doth owe unto that other, the testator not being indebted; the legacy is void 
y) L. si sic. §. si mihi. ff. de leg. 1. . So it is if the testator do say, I do bequeath unto such a man ten pound which he oweth me; in this case also the legacy is void, if the legatary be not at all indebted to the testator 
z) Mincing. in d. §. huic proxima. Instit. de lega. . So it is, if the testator do bequeath a certain sum to one, which either he (the legatary I mean) or some other doth owe unto the testator, when no such sum is due by either of them to the testator 
a) L. si sic. §. si mihi. & jas. in d. §. : for whether the testator did know, or not know, that nothing was due unto him: in both these cases the legacy is void 
b) Paul. de Castr. in d. §. si mihi. & Mincing. in d. §. huic proxima. . So it is, if the testator supposing himself to be indebted to another, doth bequeath that debt to the person to whom he erroneously supposeth himself to be indebted, not expressing any quantity, for the legacy is in this case void, as is aforesaid 
c) d. §. si mihi. . But if the testator knowing himself not to be indebted, doth say, I bequeath to such a person ten pound which I do owe unto him, in this case the legacy is good, notwithstanding the false demonstration 
d) Eod. §. si mihi. & Mincing. in §. huic ꝓxima. Instit. de lega. n. 6. : neither is the testator presumed to err in this case, and therefore unless the executor make proof of the error, the legatary may recover the legacy 
e) Castrens. in L. 2. C. de falsa causa adiect. .  
Where † I said a little before, that the legacy of quantity being bequeathed as a certain body, as when the testator doth bequeath an hundred pound lying in such a chest, or which such a person doth owe unto him, that then no money being found in the chest, or nothing being due by that person, the legacy is void 
f) L. si servus. §. si quinque. L. sed & s●certos nummos. ff. de leg. 1. . This conclusion doth admit these limitations: one is when the misreport or false demonstration is not joined to the substance of the legacy, (as before 
g) Hoc ipso §. & plenius supr. part. 4. §. 17. n. 8. etc. ) but to the execution thereof: as thus, viz. I give to A.B. an hundred pound, and I will that the same be paid of the money which I have in such a chest, or of the money which such a man doth owe unto me. For albeit there be not any money in that chest, nor any due by that person named by that testator, nevertheless the whole legacy is due, and is to be paid of the testators goods 
h) L. quidam testamento. ff. de leg. 1. : for the legacy being once pure and simple, and perfect in itself, it is not made conditional by that which followeth, in another sentence respecting the performance, and not the substance of the legacy, for by such demonstration the testator is presumed to have had a care only how the legacy might be paid, the more easily, or with less discommodity to the executor, not whether it should be paid at all unto the legatary 
i) d. L. quidam. & L. paulo. de leg. 3. Bar. Castrens. & alij in d. L. quidam. .  
Another limitation is this, when some part of the legacy consisting in quantity is extant, though not all, according to the demonstration of the testator 
k) L. si servus. §. si quinque. ff. de leg. 1. : For example, the testator doth bequeath ten pound remaining in such a chest, at whose death five pound only is found in that chest: In this case howsoever this legacy be, as of a certain body, yet five pound is due and recoverable by the legatary 
l) d. §. si quinque. , but no more than five pound: Insomuch that if at the death of the testator there were ten pound found in that chest, whereas at the time of the making of the testament there was no more but five pound in the chest: In this case five pound only is due 
m) Paul. de Castr. in d. §. quinque. n. 9 , unless the testator at the will making did think that there had been ten pound in the chest, and so did add other five pound thereunto, to make the sum answerable to his opinion, for then the legatary may recover the whole ten pound, as if the same had been all there, as well at the making of the testament, as at the testators death 
n) Idem Castrens. in d. §. quinque. n 9 .  
And here note, that the testator is presumed to have thought that there had been ten pound in the chest, like as it is set down in his testament, unless the executor do prove the contrary, viz. that the testator did know that there was but five pound in the chest when he made his testament 
o) Idem Castr. in d. §. .  
Error † in the quality of the thing bequeathed, doth not hurt the legacy, when the body or substance is certain 
p) Angel. in d. L. si quis in fundi. ff. de leg 1. , no more than the error in the proper name: and therefore if the testator bequeath his white horse, having but a black horse, the legacy is good 
q) Et est come. op. Ripa. in d. L. si quis in fundi. Grass. §. legatum q. 56. .  
Error † in the form of the disposition, maketh the same to be of no force 
r) L. quoties haeres. §. tantundem. ff. de hear. instit. : For example; the testator intending to make an executor, or to bequeath any legacy conditionally, and not otherwise, doth by error omit the condition: In this case the disposition concerning the executorship or legacy is void 
s) d. §. tantunden. & DD; ibidem. . Howbeit if the testator do appoint an executor, or bequeath any legacy, according to certain conditions afterwards to be written, no conditions being afterwards written, the disposition is good, and as it were simply made 
t) L. pen. C. de Instit. & sub. ; unless it do appear that the testator did mean, that the disposition should not take place without those conditions following 
v) Molin. in apostil. ad Dec. in d. L. pen. , as in the former example 
x) d §. tantundem. .   

Of uncertainty.  
1 diverse are the means whereby uncertainty doth grow.  
§. vi.  
THat we may the better understand when the uncertainty is such, as it doth overthrow the disposition, (for sometimes it doth destroy the same, and sometimes not) we are to be advertised †, that the uncertainty doth sometimes respect the person of the executor or legatary 
a) Infra §. 7. §. 8. : sometimes it doth respect the thing bequeathed 
b) Infra §. 10. : and sometimes it doth respect the time or date of the testament 
c) Infra §. 11. .  
The testament is uncertain in respect of the person of the executor or legatary by diverse means, especially by these means following.  
First, when it cannot be understood by whom the testator meaneth, either for that there is no person certainly named, or else some being named, yet no person of that name to be found 
d) Infra §. prox. .  
Secondly, when there be diverse persons of one and the same name, whereby the testator maketh his executor, or doth bequeath any legacy 
e) Infra §. 8. .  
Thirdly, when the testator doth appoint executors or give legacies alternatively, or disiunctively, as I make A. or B. my executor 
f) Infra §. 9 .  
Of the other uncertainties; viz. in respect of the thing bequeathed, or date of the testament, it followeth afterwards 
g) Infra §. 10. §. 11. . In the mean time therefore of the uncertainty concerning the person of the executor or legatary.   

Of uncertainty, either because no certain person is named, or some being named, none of that name to be found.  
1 The uncertainty of the person maketh void the disposition.  
2 If the person at the first uncertain, be afterwards made certain, whether is the disposition good or no.  
3 What if some person be named, but no person found of that name.  
§. seven.  
WHere † no certain person is named executor or legatary, the will in that point is void 
a) Bar. in L. quidam. ff. de reb. dub. Clar. §. testm. q. 36. Grass. Thes. come. op. §. legatum. q. 64. : and therefore if the testator say, I make one man of the world my executor, or I give to one of the world an hundred pound, no man can be executor, nor recover the hundred pound by this disposition 
b) Aetiologia est, quia ista persona est incerta ex incertis. Bar. Grass. & Clar. ubi supra. Are. in §. ex incertis. Instit. de lega. & Mantic. de coniect. vlt. vol. lib. 8. tit. 4. , unless he be able to prove, that the testators meaning was that he should be executor, or have the legacy 
c) Mincing. in d. § ex incertis. Saltem valet legatum iure can. Felin. in c. 1. de pact. extra. . Likewise where the testator saith, I make that person my executor, or give him an C.li whose name is written in a schedul. in the custody of such a man, when as in deed there is no such schedule to be found, or being found, yet no name therein: this disposition is void 
d) Bar. in L. si ita ff. de cond. & daemon. Couar in c. cum tibi de testan. extra. Simo de Praetis. de interp. vlt. vol. lib. 3. soluc. 1. n. 12. : neither is it sufficient that a paper or schedule be extant, and that the name be therein plainly contained, unless also it appear by sufficient proof or lawful conjectures, that this schedule is the very same, whereunto the testator made relation 
e) Bar. in d. L. si ita. Covar. in d. c. cum tibi. Grass. Thesaur. come. op. §. Instit. q. 16. Mant. de coniect. vlt. vol. lib 1. tit. 7. n. 7. Clar. § testm. q. 36. in fin. .  
If † no certain person be named at the first, but afterwards made certain by event, the testament or disposition is of no less force than if the person had been especially and certainly named at the first 
f) L. quidam. & ibi. Bar. de reb. dub. ff. Angel. Are. in d. §. incertis. Inst. de legate. : For example; the testator maketh that man executor, or giveth him an hundred pound, which shall marry the testators daughter: In this case whosoever shall marry the testators daughter, he is to be admitted to the executorship, and may obtain the legacy, as if he had been named at the first 
g) d. L. quidam, de reb. dub. ff. Nec obstat quòd tutor non potest dari is qui venit aliquo eventu certificandus, quia contrarium procedit iure cano. Apost. ad Bar. in L. duo. ff. de testa. tute. Add quod licèt executor non nunquam assimuletur tutori, ut ꝑ Bar. in d. L. quidam. & per DD. in L. si quis a filio. §. si quis pluries. de leg. 1. Tamen in Anglia aptiùs comparatur haeredi, qui incertus ex incertis eventu certificandus potest institui. Are. in d. §. ex incertis. Instit. de lega. . And this conclusion proceedeth whether the marriage be made in the life time of the testator, or afterwards 
(h) L. uter. cum sequent. ff. de cond, Instit. Donellus in L. quidam. de reb. dub. Bald. consil. 188. vol. 5. : saving where the marriage is made after the death of the testator, if it be likely that the testator would not have made that person executor, or have given him the legacy, if he had thought that it would so fall out, that he should have married his daughter, (for that perhaps that person was enemy to the testator, or otherwise unworthy of any benefit by the testator:) In this case the person marrying the testators daughter after his death, cannot be executor, or recover the legacy 
i) Donel. in d. L. quidād● reb. dub. Simo. de Praetis. lib. vlt. de Interp. vl. vol. fol. 128. n. 9 .  
If † a certain person be named, but no such person be to be found, and the meaning of the testator utterly unknown; it is as if the testator had made no mention of any 
k) L. 2. ff. de his quae pro non script. .   

Of uncertainty arising because there be diverse persons of one name.  
1 Where diverse persons be of one name, the disposition is void.  
2 What if the testators meaning be known.  
3 What if the one of them be a familiar friend, the other not.  
4 What if the one be of kin to the testator, the other not  
5 The disposition ad pias causas, is not void by reason of uncertainty.  
6 What if the testator give somewhat to the Church, what Church is understood.  
7 What if there be diverse churches of one name.  
8 If the testator give any thing to the poor: which poor are to have the same.  
9 The authority of the executor testamentary, in distributing to the poor.  
10 What if the executor make his kin his executor, who is to be admitted.  
11 What if the testator make an others kin his executor.  
§. viii.  
WHere † the testator nameth some one man his executor, or doth bequeath some legacy unto him, and there be diverse men of that name; this uncertainty maketh void the disposition 
a) L. si quis. §. si inter. ff. de leg. 2. Bald. in L. hac consultissima. C. Qui testa. fac. poss. n. 4. : For example; the testator maketh Titius his executor; whereas there be diverse persons so called: or to speak after the manner of our temporal lawyers, the testator maketh john at Stile his executor, or giveth to him an hundred pound, and there be two persons called john at Style, and the testator maketh no difference, but leaveth it uncertain of whom he did mean: In this case neither of them can obtain the executorship or legacy 
b) DD. in d. §. si inter. .  
But † if the one of them do prove that the testator did mean, that he should be executor or have the legacy, it is sufficient for the obtaining of the executorship or legacy 
c) Bar. in L. quidam. ff. de reb. dub. Simo. de Praetis. de interp. vl. vo. lib. 1. fol. 97. n. 1. .  
Or if † one of them appointed be one of the testators familiar acquaintance, and his friend, the other a stranger: In this case the stranger is excluded, and the other admitted 
d) L. quem haered. ff. de cond. & daemon. Man●ic. de coniect. vlt. vol. lib. 8. tit. 4. n. 5. : or both of them being friends; yet if one of them be joined in greater friendship with the testator than the other, he is to be preferred to the executorship or legacy before the other 
e) Simo. de Praetis. de Interp. vlt. vol. lib. 1. fol. 100 n. 3. Mantic. de coniect. vlt. vol. lib. 8 tit. 4. n. 5. .  
Or if the one of them † be of kin to the testator, and the other not of kin, the kinsman is to be preferred 
f) L. cohaeredi. §. qui discretas. ff. de vulg. sub. Mantic. de coniect. vlt. vol. lib. 8. tit. 4. n. 5. : and if they be both cousins, than I suppose that whether of them were to be admitted to the administratorship, in case the testator had died intestate, that he is to be admitted to the executorship 
g) jas. in L. 1. §. hoc autem. ad Trebel. lect. 3. ff. Simo de Praetis. de Interp. vlt. vol. lib. 1. fol. 98. n 9▪ Mantic. de conject. vlt. vol. lib. 4. tit. 6. n. 3. 4. .  
Or if † the disposition be made ad pias causas, it is not void, by reason that the name is common or agreeable to diverse. And therefore † if the testator doth bequeath any thing to the Church, not expressing what Church he doth mean, the disposition is not void, but is to be understood of his parish Church 
h) Gloss. in L. quidam. ff. de reb. dub. Abb. in c. iudicante. de testa. extr. Bar. & jas. in L. 1. de sacrosan. eccle. C. Grass. Thesaur. come. op §. Institutio. q. 12. & §. Legatum. q. 64. Manti. de coniect. vlt. vol. lib. 8. tit. 6. . And if the testator † name a Church, and there be diverse Churches of that name, it is to be understood of his parish Church 
i) Bar. in L. conditione. §. cum ita. ff. de cond. & daemon. Panor. in c. iudicante de testa. extra. : For ex-example; the testator doth bequeath to Saint Peter's Church in Oxford an hundred pound, where there be two churches of that name; this disposition is not void: But the bequest is due to the testators parish Church, or where he did more usually resort to pray unto God, or to hear his word 
k) Et haec est come. op. ait jas. in L. qui insulam. ff. de verb. ob. Grass. Thesaur. come. op. §. legatum. q. 64. Covar. in d. c. iudicante de testa●. extra. . And if neither of them be his parish Church, neither can it appear that the testator did more frequent the one than the other: or on the contrary, if both of them were his parish Churches, for that perhaps he kept a family in either parish, and did equally frequent either Church: In these cases, by the opinion of some writers, the legacy is to be divided betwixt the Churches 
l) Barba. in d. c. iudicante. & ibi Covar. asterens hanc opinionem esse veriorem. . But by the opinion of the more part, it is in the power of the executor, or if the executor do refuse to prove the will, or that there be no executor appointed by the testator, them it is in the power of the ordinary, to bestow the same legacy on whether church he thinketh good 
m) Hostiens. & alij in d. c. iudicante, quorum op. esse come. fatetur Covar. in d. c. iudicante. Idem quoque dicit Grass. Thesaur. come. op. §. legatum. q. 64. Benedict. Capra. Tract. regul. & fall. reg. 113. , as the consideration of divers circumstances shall induce him: wherein (amongst other things to be remembered by the Ordinary) this is not to be forgotten, viz. whether parish is the poorer 
n) Gloss. in d. c. iudicante. Mantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 4. .  
In like manner if the testator † make the poor his executors, giving them the residue of his goods: this disposition is not void by reason of uncertainty, for that it is a testament ad pias causas 
o) Tiraquel. Tract. de privileg. piae causae. privileg. 56. . By the poor therefore in this place, is understood the poor of the parish where the testator did dwell and keep house 
p) L quis ad Declind. §. ubi. C. de episcopis & cler. gloss. in c. si pater. verb. pauperes. de testa. lib. 6. Covar. in c. cum tibi de testa. extr. Mantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 2. : for it is likely that he did bear a great affection to the poor where he dwelled 
q) Mantic. d. tit. 5. n. 2. , especially also if the testator were buried in the same place 
r) Panor. consil. 99 lib. 2. n. 4. : and therefore the Ordinary in this case ought to provide, that the poor have their due, according to the meaning of the testator 
s) L. nulli. C. de episcopis & cler. d. c. iudicante. de testa. extra. & gloss. ibidem. . But if the † testator do bequeath a certain sum to be distributed amongst the poor, and do appoint an executor, than it is the office of that executor to distribute the same 
t) Mantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 2. , who in the distribution thereof is not necessarily tied to bestow it wholly upon the poor of that city, parish, or place where the testator did dwell 
v) Gem. & Franc. in c. si pater de testa. lib. 6.  (unless the testator did mean that the same should be bestowed on them alone 
x) Mantic. d. tit. 5. n. 2 :) neither is he precisely tied to make choice of the poorest persons 
y) Bar. in L. unum ex familia. §. 1. ff. de leg. 2. Bald. in rep. L. 1. de sacrosan. eccle. C. Mantic. d. tit. 5. n. 6. ; but may use a further liberty, so that he do not abuse the same 
z) Paris. consil. 45. vol. 3. & Mantic. d. tit. 5. n. 8. : for he may not so make choice of any person, as it may seem too oppugn the testators liking and meaning 
a) Angel. in L. sed & si. §. si libertis. ff. de iud. Paris. consil. 26. vol. 4. n. 29. : neither may he bestow the whole legacy upon one person alone 
b) Bar. in L. 1. ff. de op. leg. Bald. in rep. L. 1. C, de sacrosa. eccle. Mantic. de coniect. vlt. vol. lib. 8. tit. 5. n. 18. 19 , nor upon himself, nor his children unless they be very poor 
c) Brook. tit. exec. n. 116 c. tua nos de testa. extr, Imol. in Clem. 1. de testa. Mantic. d. tit. n. 9 , nor upon such persons as will unthriftily spend it; but upon such poor to whom it may do good, and especially if the kinsfolks of the testator be poor, and of the same parish where the testator did dwell, they are to be preferred 
d. Bald. in L illa Institutio. ff. de haered. instit. Paris. consil. 26. vol. 4. Mantic. de coniect. vlt. vol. tit. 5. n. 17. .  
Hereunto it may be added, that if the † testator make his kin his executor, or give his goods to his kin, that this disposition is not void, but that they which be in the next degree of kindred to the testator, to whom the administration of his goods were to be committed, if he had died intestate, are to be first admitted to the executorship 
e) jas. in L. Gallus. §. quidam rectè. ff. de lib. & posthu. Tiraquel. de retract. ligniager. §. 11. gloss. 12. Grass. Thesau. come. op. §. Institutio. q● 20. n. 12. , or to enjoy the legacy during their lives 
f) Bar. in L. cum ita. §. fin. ff. de leg. 2. Paris. con. sil. 49. vol. 2. Gra. ff Thesaur. come. op. §. legatum. q. 41. & §. fideicommissum. q. 16. , and after their deaths, the other next of kin to the testator are to be admitted one after another, successively by degrees, and not altogether 
g) Paul. de Castro. in d. L. cum ita. §. fideicommisso. Cuius op. con. est ut tef●rt Paris. consil. 11. n. 28. vol. 3. Covar. in c. Ranutius. §. 2. de testa. extra. Grass. Thesaur. come. op. §. fideicommissum. q 16. ; saving where the testator doth make another's kindred his executor, or doth bequeath some legacy to any others kin: for than they are all to be admitted together, without respect or degree, nearer or further of 
(h) Bar. in L si cognatis. ff. de reb. dub. Simo. de, Praetis. de interp. vlt. vol. lib. 3. fol. 91. n. 28. Grass. Thesaur. come. op. §. Institutio. q. 20. n. 10. : The reason of the difference is, because the testator is not presumed to carry an equal affection towards every of his own kin, but to him that is nearer of kin greater love, and to him that is further off, lesser: And therefore of his own kindred the best beloved is first preferred, which inequality of good will, is not presumed towards another's kindred, and therefore they are admitted without difference 
i) Bar. & Simo. de Praeris. ubi supra. .   

Uncertainty arising by reason of alternative or disjunctive speech.  
1 The executor saying, I make A. or B. executor, it is as if he had said, I make A. and B. executor.  
2 What if the testator be more affected to the one then to the other.  
3 What if the election be referred.  
4 What if the one be capable, the other not.  
§. ix.  
THe alternative † or disjunctive speech of the testator in making executors or disposing of any legacy, doth not hurt the testament 
a) L. cum quidam. C. de verb. signif. : And therefore if the testator say, I make A. or B. my executors, or I bequeath to such or such a person an hundred pound: this disposition is not void, but both of them shall be admitted executor, and both of them obtain the legacy, to be divided betwixt them 
b) d. L. cum quidam. & DD. ibidem. .  
And albeit, at the first there was great dissension and conflicts in opinions about this question; at last it was established for law that this word (or) in favour of testamen should be taken for (and 
c) Text. in d. L. cum quidam. ) when it is so placed betwixt two persons, as it may seem to minister doubt to the hearer, of whether person the testator did mean 
d) §. melius. in d. L. cum quidam. : And therefore the testator saying, I make A. or B. my executor, it is in effect, as if he had said, I make A. and B. executors 
e) d. §. melius. , etc. which conclusion notwithstanding is sometimes limited, and one only of the persons is to be admitted.  
The first limitation is, when † the testator doth bear more affection to the one then to the other; for than he to whom the testator beareth more affection, is to be preferred before the other 
f) Ripa. in c. inter caeteras. de rescrip. extra n. 54. Paris. consil. 21. vol. 3. jul. Clar. §. testm. q. 80. n. 5. : For example; the testator saith, I make my brother, or his children my executors, or I bequeath to my brother, or his children such a thing: In this case, forasmuch as the testator is presumed to carry a greater love to his brother then to his brother's children, he shall first be admitted to the executorship, and obtain the legacy, and enjoy the same during his life, and after his decease, his children then shall be admitted 
g) L. cum pater. §. à te. ff. de leg. 2. Bald. in c. 1. de eo qui sibi & haered. suis. lib. feud. jul. Clar. d. q. 80. n. 5. . But this unequal order of affection hath not such unequal effect, when the testator doth make his brother and his children executors, by this word and, or with, as before hath been declared, for than they be all admitted equally and not successively 
h) jas. in L. Gallus. §. quidam rectè. ff. de lib. & posthu. Clar. §. testm. q. 80. n. 6. quae opinio ab omnibus juris interp. est recepta, ait Clar. eod. n. 6. .  
another limitation is, when † authority is granted to another of making election: For example; the testator maketh his executors A. or B. whom the Ordinary shall choose, or giveth an hundred pound to A. or B. whom the executor shall choose. In this case, this disjunctive or, standeth properly, and is not changed into a conjunctive: and so election being made of the one, the other is excluded 
i) L. ●● Titio. aut Serio. de leg. 2. L. utrum. §. cum quidam. de reb. dub. ff. .  
another limitation is, when † the one of the persons is not capable of the executorship or legacy: for then also the disjunctive standeth properly, and the other person alone shall obtain the executorship or legacy 
k) jas. in L. cum quidam. C. de verb. signif. limi. 5. quip qui alias habet in eo loco istius regulae limitationes. .   

Of uncertainty respecting the thing bequeathed.  
1 Whether uncertainty by reason of generality in the thing bequeathed, doth make void the disposition.  
2 Whether the disposition be void when that is bequeathed which of the Logicians is called Species.  
3 Whether the legacy of wine or corn, no quantity being expressed, be void.  
4 By the equity of the ecclesiastical laws, uncertain testaments are saved from destruction.  
5 Who ought to choose where a legacy is given generally, the executor or the legatary.  
6 The manner of election.  
7 Of legataries who must choose first.  
8 Of collegataries dissenting amongst themselves, what means is to be used.  
§. x.  
THat the disposition or bequest is sometimes overthrown or destitute of effect, by reason of the uncertainty of the thing bequeathed, may appear by that which hath been already spoken of error in the thing bequeathed 
a) Supra. ead. part. §. 5. : For by what means the testator doth err, by the same means is his disposition made uncertain: concerning which kind of uncertainty, whether it destroy the legacy or no, doth there appear. Now therefore of some other kind of uncertainty respecting the thing bequeathed, and namely whether the uncertainty growing by occasion of generality, make void the bequest, or not.  
First, when † any thing is bequeathed under such general words, that the meaning of the testator is unknown, the disposition remaineth without effect: as when the testator saith, I do bequeath something, or I bequeath a substance, or I bequeath a body, or a living creature 
b) Gloss. & DD. in L. legato. generaliter. & L. si domus. ff. de leg 1. , for that which the Logicians call genus either generalissimum, or subalternum, being bequeathed, the executor is said to be delivered, if he give but a piece of bread, or a fly 
c) Accurs. Bar. & communiter DD. in d. L. legato. quamuis Zasius in d. L. & Io. Rub. lib. 2. sententiarum. c. 14. dicunt inutile quidem esse legatum, non tamen quia haeres dando quid minimum liberetur, sed quia effusum adeo & incertum est legatum, ut inutilem▪ potius quam utilem actum, concipere voluisse, testator intelligatur. .  
If the † testator bequeath such a thing, which in Logic is called species 
d) Quod enim dialecticis est species juristae genus appellant, quenadmodum & species dicitur à iurisc●nsultis, id quod Dialectici appellant individuum. Mincing. in §. si generaliter. Instit. de legate. , & in law genus, than we are to consider, whether the same thing do receive his limits of nature, as a horse, a tree, etc. or of a man, as a ship, a gold chain, or of weight, number, or measure, as lead, money wheat 
e) Zas. lib. 1. Sing. respon in princ. n. 33. Mincing. in d. §. si generaliter. , etc.  
In the first case, viz. if the testator bequeath a horse, the bequest is good, whether the testator have any or none 
f) Bar. Paul. de Castro. & omnes Doctores in d. L. legato. .  
In the second case, viz. if the testator bequeath a ship, or a gold chain, by the common opinion of writers, the legacy is void 
g) Angel. & Alex. in L. si domus. ff. de leg. 1. jas. in eand. L. n. 16. ampl. 2. & 3. Bar. & Lanc. Dec. ●n L. quod in●erum. §. & si Navem eod. , unless the testator have a ship, or a chain. But others are of opinion that the legacy is good, although the testator have no ship, or chain 
h) Zas. Sing. intel. lib. 1. c. 1. n. 42. 43. etc. Peckius de testa. coniug lib. 5. c. 26. Mincing in §. sed si generaliter. Instit. de lega. n. 9 10. Claud. cautiuncula, & alij, de quibus Peckius in d. c. 26, qui hanc sententiam ut veriorem defendunt in re magis dubia, nempe in domo simpliciter legata. Grass. §. legatum. q. 61. n. 4. in fin. : and this opinion seemeth more reasonable, & more agreeable to the equity of the ecclesiastical laws 
i) Zas. in L. Triticum. & in L. ita stipulatus, de verb. ob. ff. , especially if the testator knew that he had no ship, or chain of his own, when he made his will.  
In the third case, viz. if the testator do bequeath lead, or money, or wheat, not expressing the quantity, the bequest is unprofitable, because of the great uncertainty: at least it seemeth the executor is delivered, by delivering a very little 
k) L. nummis. ff. de leg. 3. Gloss. in d. L. legato. . Howbeit if the legacy consisting in weight, number, or measure, be disposed for the performance of some act, or other certain consideration, as for the building of some bridge, or amending of high ways, or for the education or alimentation of some person, or maintaining him at study, or for the relief of the poor, or for the repairing of the Church, or for other like uses: In these cases the legacy is not void, albeit no quantity be expressed: for so much is understood to be disposed, as may satisfy or answer that purpose, whereunto it is appointed; and as the ordinary considering the necessity of the thing, and the ability of the testator, and the continuance of the gift, shall deem convenient 
l) Zas. in L. ita stipulatus. de verb. ob. ff. n. 14. 15. & Ripa. in eand. L. n. 19 20. 21. etc. .  
Moreover, by the † equity of the laws ecclesiastical, not only the legacy general of things consisting in weight, number, or measure, as of wine, of oil, of corn, of iron, of brass, money, etc. is good and available, without any quantity expressed by the testator, which quantity is understood to be left to the discretion of the ordinary, to be limited by him as due circumstances shall induce him 
m) Archid. in c. sunt nonnulli. 1. q. 1. Abb. in c. 1. de dec. extr. gloss. & DD. in c. nos quidem. de testa. extra. : but also by the same † equity, it seemeth that the general legacy even of that which the Logicians call genus (which may be verified of things different in kind) is not void 
n) Veluti si animal legatum fuerit Zas. in L. Triticum. ff. de verb. ob. n. 11. Archid. in c. sunt nonnulli. 1. q. 1. ; but it is to be certified and declared by the Ordinary according to the estate of persons, the common cause, and whatsoever may be collected by other circumstances 
o) Zas. ubi supra. & in L. si ita stipulatus. ff. de verb. ob. & ibi Alex. & Ripa. : much less is the legacy void, where the testator doth bequeath a certain quantity of corn, or wine, or other things consisting in number, weight, or measure, not expressing the kind of corn, viz. wheat, rye, or barley; or of wine, viz. white, seek, or claret 
p) Zas. & Ripa. in d. L. si ita stipulatus. .  
Here it may be demanded, who † shall choose, where the legacy is general, the executor or legatary? To this question thus: If the testator do expressly grant the election, the doubt is easily answered: he to whom the election is granted 
q) Grass. Thesaur. come. op. §. legatum. q. 62. in. prin. Lanc. Dec. & jas. in l. legato. ff. de leg. 1. .  
If there be no express grant made by the testator, then if the words of the disposition be directed to the legatary: as if the testator shall say, I will that A. B. shall have a horse, the election doth belong to the legatary 
r) Gloss. in L. lucio. ff. de leg. 2. & h●ec opin●o communis est, tes●e Grasso, d. ●●legatum. q. 62. n. ●. : but if the words of the disposition be directed to the executor: as if the testator say, I will that my executor give to A.B. a horse, than the election doth appertain to the executor 
s) Couar in c. ●●dican●e. d●●e●●a. extr. n. 3. ●as. & a●ij in d L. legato quo●um opinio commua● est, ut per Grass. ubi supra. . If the words be neither directed to the executor, nor to the legatary, it is answered, that if the thing bequeathed have his limits assigned of nature, than the election is in the legatary, in case such things be extant amongst the testators goods: and in case there be no such extant, the election is in the executor 
t) Gloss. Alex. jas. Zas. in d. L. legato generaliter. & horum sententia communis est, ait Grass. d. q. 62. n. 3. . But if so be that the thing bequeathed be limited by man, the election doth appertain to the executor 
v) jas. in d. L. legato. n. 20. Grass. d. q. 62 n. 3. verb. aut verò. contrarium Mincing. in d. §. si generaliter. n. 9 sed prior opinio est communis, ut per eund. Grass. : and so it is of things consisting in number, weight, or measure 
x) L. 3. & 4. ff. de Tritic. vin. & oleo leg. Zas. in d. L. legato. n. 18. , albeit there be of those things extant amongst the goods of the deceased 
y) Atque haec opinio communiter approbatur, siuè test●tor de certo senserit, sive non, ut per Grass. ubi supra. qui ●amen distinguit. , much more if there be none extant 
z) Mincing. in d. §. si generaliter. n. 7. Zas. ●n d. L. legato in sin. .  
Provided † always, that of those things which be extant the legatary having the benefit of election, must not choose the very best 
a) Gloss. in L. si quis à filio. §. si quis plures. ff. de leg. 1 Zas in d. L. legato generaliter. n. 13. 14. Mincing. in d. §. si generaliter. n. 6. , unless there be no more but two of the things extant (for then he may choose the better 
b) L. si servus. §. cum homo. ff. de leg. 1. Zas. in d. L. legato. n. 14. ) or unless the testator do grant election, for than he may choose the best 
(c) L. 2. ff. de option. leg. & Wesenb in eund. tit. n. 1. per L. in testamentis. de reg. iur. ff. è regione stat Zasius scribe●s, quòd etiamsi legatatio detur optio, non tamen optima, sed mediocria sunt eligenda. in d. L. legato. n. 13. . And likewise on the contrary part, where the election belongeth to the executor, he may not obtrude to the legatary, the very worst of those things which be extant in the patrimony 
d) DD. in d. L. legato. Covar. in c. iudicante de testa. extra. n. 3. & hoc indubitatum in speciebus. Sed in quamtitatibus & in summis, quod minimum est deberi intelligitur, si Castrensi credamus. in d. L. legato. n. 4. Verum in huiusmodi legatis seruandum est boni viri arbitrium. Archid. in c. nonnulli sunt. 1. q. 1. Abb. in c. 1. de dec. extra. n. 6. : and whereas there be not any such things amongst the testators goods, the executor must provide some competent thing 
e) Zas. in d L. legato. n. 22. post gloss. ibidem. .  
Furthermore, it is to be remembered, that if the testator having two things, whereof the one is much better than the other (be it for example two horses) do bequeath to two persons either of them a horse, he that is first named in the testament may first choose 
f) Bar. in L. qui duos. ff. de leg. 1. quae sententia communiter approbatur, utrefert. Grass. d. §. legatum. q. 62. in fin. .  
Finally, this is not to be omitted, that if the † legataries dissent about the election of the thing bequeathed, this controversy is to be decided by lot, if it be not otherwise resolved who in that choice is to be preferred 
(g) §. optionis. Instit. de lega. .   

Of uncertainty in respect of the time or date of the testament.  
1 When it is uncertain whether of two testaments is later, both are void.  
2 The testament in favour of children is presumed last.  
3 The testament ad pias causas, is presumed last.  
4 The will once proved, is not to be reproved by an other of the same date.  
5 A soldier may die with two testaments.  
6 Which of these two testaments is presumed later, the testament ad pias causas, or the testament inter liberos.  
§. xj.  
WHere † two testaments be found, but uncertain whether of them is the later: in this case neither testament is good 
a) Gloss. in L. vlt. C. de edict. ●i. Adria. toll. Clar. §. testm. q. 100 , for no man can die with two testaments 
b) L. quaerebatur. ff. de teston. mil. , and so the one testament doth destroy the other 
c) Bar. in L. 1. §. 1. ff. de bon. poss. secundum Tabul. .  
Nevertheless, if the † one testament be made in favour of the testators children, or of those who are to have the administration of his goods, in case he had died intestate, and the other testament in favour of others; then that testament shall prevail which is made in favour of the testators children, or of them which otherwise are to have the administration of his goods 
d) Bar. in d. §. 1. Sichar. in L. vlt. C. de edicto Di. Adr. toll. Mantic. d● coniect. vlt. vol. lib. 2. tit. 15. n. 17. .  
Or if † the one testament be made ad pias causas, the other not; then that testament ad pias causas is presumed last, and so to take place 
e) jas. & Sichard. in d. L. vlt. .  
Or if † the one testament be proved (the other perhaps not as yet appearing) and the executors in possession of the testators goods by virtue of the testament already proved, it is not afterwards to be reproved, nor the executors dispossessed, by means of the other testament of the same date 
f) Bar. in d. §. 1. jas. & Sichard. in d. L. vlt. .  
Or if † the testaments be military testaments, for then perhaps they are both good, because a soldier may die with two testaments 
g) L. quaerebatur. ff. de mil. testa. .  
Where it is said, that that testament is presumed later, which is made in favour of them that are to have the benefit of the administration of the testators goods, or ad pias causas, rather than those testaments which are not made ad pias causas, nor in favour of them which are to have the administration: What † if two testaments be found, the one in favour of the testators children, or such as are to have the administration of the goods of the deceased; the other made ad pias causas, and it doth not appear whether of them is former or later, whether is to be presumed last, and so of force? I suppose that if they which are to have the administration of the testators goods, in whose favour the testament is made, be the testators children, than that testament made in their favour is to be presumed later, rather then the testament ad pias causas 
h) Mantic. de coniect. vlt. vol. lib. 6. tit. 3. n. 43. Vide supra 1. part. §. pen. in sin. & quod ibi adnotavi ex Augustino. : otherwise the testament ad pias causas is to be presumed later, rather then that testament made in favour of collateral kinsmen 
i) Mantic. ubi supr. per L. sancimus. C. de sacrosan. ecclesia. .   

Of an unperfect testament.  
1 Two sorts of unperfect testaments.  
2 Whether a testament which is unperfect in respect of solemnity be void.  
3 When a testament unperfect in respect of will is void.  
4 Two means whereby testaments are said to be unperfect in respect of will.  
5 Whether the testament be void which is unperfect by the former of these two means.  
6 By the civil law the testament unperfect in respect of will is void.  
7 Whether a testament ad pias causas being imperfect in respect of will, be void.  
8 That which hath place in testaments ad pias causas hath place also in our testaments.  
9 Whether a testament being unperfect in respect of will, by the second means be void or not.  
10 What if the testator after he have declared his whole will, reserve somewhat to be done at an other time.  
11 What if the testator having declared his testament do send for a Notary to write, and die in the mean time.  
§. xii.  
OF imperfect † testaments there be two sorts, the one unperfect in respect of solemnity; the other unperfect in respect of will 
a) L. hac consultissima. § ex imperfecto, C. de testa. & ibi Paul. de Castro. jas & alij. Boer. decis. 240. n. 4. & 5. .  
That testament is said to be unperfect in respect of solemnity, which wanteth some of the legal requisites, necessary to the constitution and denomination of a solemn testament 
b) Sichard. & alij. in d. §. ex imperfecto. , of which we have already spoken 
c) Supra 1. part. §. 7. & part. 4 §. 23. .  
That testament is said to be imperfect in respect of will, which the testator hath begun, but cannot finish as he would, being prevented by death, insanity of mind, or other impediments 
d) jas. Sichard. & alij, in d. §. ex imperfecto. L. si is qui de testa. ff. L. furiosus. qui testa. fac. poss. C. .  
The † testament which is unperfect in respect of solemnity, is utterly void by the civil law 
e) L. 1. de iniusto teston. ff. L. hac consultissima. §. ex imperfecto. C. de testa. & DD. ibid. Mincing. in §. sed cum paulatim. Instit. de testa. ord. 12. jul. Clar. §. testm. q. 89. : but by the laws ecclesiastical 
f) c. relatum. el. 1. c. cum esses. de testa. extra. , and especially by the general custom of this realm 
g) Tract. de repu. Aug. lib. 3. c. 7. Lindw. in c. statutum. de testa. lib. 3. provinc. const. Cant. , the testament is good without any such solemnities, saving that where lands, tenements, and hereditaments be devised by will, the solemnity of a writing in the life time of the testator, is precisely necessary, without the which the devise of lands, tenements, and hereditaments is merely void 
h) per Stat. H. 8. ●an. 32. c. 1. ut refert D. Smith. Tract. ut supra. Quod tamen quaere. .  
The † testanent which is unperfect in respect of will, is sometimes utterly void, and sometimes it is good, so far forth as it is done: which diversity of effects, doth arise by the diversity of the means whereby the testament is unperfect.  
If we would therefore know particularly when the testament is utterly void or not, which is unperfect in respect of will, it behoveth us to take particular view of the several means whereby the will of the testator is made unperfect.  
The † means whereby the testament is unperfect in respect of will, seem to be two 
i) Mascard. Tract. de probac. verb. testmt.. 1352. n. 70. ibi. Secundus casus. Grass. T●esaur. con. op. in §. testm. q. 19 ubi proponit tres casus. : the first is, when the testator after he have begun to make his testament, and intending to proceed further at that present, is then suddenly even whiles he is making of his testament, prevented by death, or insanity of mind, or by some other impediment, so that he cannot finish the same according to his purpose 
k) L. si is qui de testam. ff. L. furiosum. qui testa. fac. post. C. jas. & Sichard. in L. pen. de Instit. & sub. C. .  
The other mean is, when the testator is not hindered at that present time of making his testament, but after he haht begun to make his testament, deferreth the finishing or perfecting thereof until another time, and in the mean time dieth, or otherwise becometh intestable 
l) Oldrad. consil. 119. Paul. de Castr. cons. 75. vol. 1. & consil. 450. vol. 2. Peckius. Tract. de testam. coniug. lib. 1. c. 18. .  
When † the testament is unperfect after the first manner, it may seem that the same is utterly void, even touching that which is already done; yea although the testator had appointed an executor, which is the substance of the testament: and there † is no question, but that by the civil law it is void, though it were the testament of the father amongst his children 
m) Bar. Bald. Castrens. & alij, in L. hac consultissima §. ex imperfecto. C. de testa. quorum op. come. est, ut referunt jul. Clar. §. testm. q. 9 & Michael. Grass. Thesa. come. op. §. testm. q. 12. . But whether it be void iure gentium, and consequently by that law which we use here in England, is a question not altogether undoubtful: and the resolution seemeth to depend upon the verity of another question: namely, whether a testament ad pias causas being unperfect with that imperfection of will, be good or not: For if a testament ad pias causas be good, notwithstanding such imperfection, than our testaments are also good: and if that testament be not good; then ours are likewise nought: for these testaments ad pias causas, are ruled secundum ius gentium 
n) Panor. in Rub de testa. extr. n. 9 Tiraquel. de privileg. piae causae. c. 3. etc. 5. Corne. cons. 307 Covar. in c. relatum. cl. 1. n 6. Paul. de Castr. consil. 75. circa medium. vol. 1. & consil 450. vol. 2. Grass. Thesaur. come. op. §. testm. q 18. ubi dicit hanc op. come. esse iure can. ; and so are ours 
o) Dixi supra part. 1. §. 9 .  
Now † that a testament ad pias causas being unperfect in respect of will, is utterly void, even touching that which is already done, is holden by a great many of writers, and those of great account and authority 
p) Bald. in rep. L. 1. de sacrosan. eccle. C. q. 6. Angel. in L. si is qui de testa. ff. Fulgos. consil. 117. Anch. in c. 2 de testa. extr. Are. in d. L. si is qui. Boer. decis. 210 Vasq. de success. crea. §. 22. n. 6. Paris. consil. 24. vol. 3. Tho. Gram. decis. 62. Sichard. & Curtius jun. in d. L. hac consultissima. §. ex imperfecto. , whose opinion is also testified to be common 
q) jul. Clar. §. testm. q. 7. Immo magis est come. ait. Grass. , and highly extolled 
r) Ab hac opinion in Prax. non licere recedere scripsit Ruinus. consil. 7. n. 8. vol. 3. Eand. op. esse non modo come. sed canonicam & verissimam, laudat Vsuius. Thesau. come. op. verb. testamentum. tandem magis communem esse, asserit Grass. §. test. n. q. 19 : their reason is, because in this case here is defect of consent, without which consent no testament is good 
s) Sichard. in d. §. ex imperfecto. . There is defect (say they) of consent in this case, because testators whiles they are making of their testaments, until they have finished the same, do put in, and put out, they add, they revoke, and they alter many things already by them disposed 
t) Clar. §. testm. q. 7. : Other reasons also they have, the which in my opinion are not altogether so forcible 
v) Nempè quod testm. ratione voluntatis imperfectum. non valet inter liberos, ergo nec favore piae causae: Sed negatur argumentum per ea quae superiùs dicta sunt prima part de privileg. utriusque testamenti. .  
On the contrary, others whose not only number is more exceeding, but authority and estimation more excellent, are of this opinion, that where the testator hath begun his testament, and hath bequeathed certain legacies ad pias causas, and intending at that present to proceed further, is then suddenly by death or other impediment prevented, or hindered, that he cannot finish his testament: nevertheless those legacies already made ad pias causas, are not thereby infringed, but do continue still firm and effectual, as if the testator had finished his testament, according to his former purpose 
x) Bar. & Imola. in L. is qui. ff. de testa. Castrens. consil. 456. vol. 1. Panor. in c. 1. de success. ab intestat. extr. Alex. in L. hac consultissima. §. ex imperfecto. C. de testa. A●e. in §. fin. Inst. quib. mod. testa. infir. jas. consil. 15. vol. 4. Socin. Tract. reg. & sal. reg 300. Ioh de Ana. consil. 7. Barba. consil. 42. vol. 4. Calca. consil. 13. Dec. in c. 1. de fide instr. extr. Tiraquel. de priuileg piae causae. c. 7. Mascard. de probac. verb. testmt.. in c. relatum. el. 1. de testa. extr. , and this their opinion is testified to be more commonly received 
y) Tiraquel. Tract. de privileg. piae causae. privileg. 7. Mascard. de probac. verb. testmt. . The reason of their opinion is, because touching those legacies already given, there is no defect of natural consent 
z) Panor. in d. c. 1. de success. ab intestat. extra. : For although there be imperfection of will in respect of his whole testament, because the testator cannot absolutely finish the same according to his purpose: yet in respect of that which is done, there is no imperfection of will 
a) Tiraquel. de priuileg piae cause. e. privileg. 7. Dec in c. 1. de fide instr. extr.  (the perfect is not to be hurt by the imperfect 
b) c. utile. de reg, iu●. extra. ) And albeit testators whiles their wills and testaments are in making do many times add and diminish, and alter diverse things, yet who is able to say that concerning this, or that particular legacy already given, the testator would have made any addition, diminution, or alteration: The presumption is rather to the contrary, for perseverance and not mutation of will is presumed 
c) L. cum qui volunta tem. ff. de probac. . In deed if it can be proved that the testator did mean at that present to alter those legacies before given ere he had finished his testament and could not, being then suddenly prevented by death, or otherwise, than the former opinion hath place 
d) Paul. de Castr. in L. jubemus. de testa. & DD. in L. pen. de Instit. & sub. C. , that the disposition is void, otherwise not 
e) Quia nemo praesumitur habere plus in cord quam in ore. Bald. in L. si is qui. ff. de testa. .  
By † this now which hath been spoken of testaments ad pias causas, we may judge whether our testaments here in England be good or not, when they be inperfect by the first means, viz. where the testator whiles he is in making his testament, after he have appointed an executor, or given some legacies, and intending to proceed further, is even then suddenly interrupted and hindered, that he cannot finish the same accordingly.  
When † the testament is imperfect by the second means of imperfection of will, that is to say, when the testator after he have begun to make his testament, doth put off or defer the finishing thereof until an other time, and in the mean time dieth, or is otherwise letted, that he cannot make an end thereof, as he meant, howsoever by the rigour of the civil law the testament in this case may seem to be void, even touching that which is already done 
f) Paul. de Castr. consil. 150. vol. 2. : yet by that law which this realm of England doth admit, in this case (I mean ius gentium) concerning those things already disposed, the testament is not void by the reasons before alleged. For as in the former case the legacies already given are not void, where the testator cannot finish his testament as he would at that time: so in this case, the legacies before disposed, or the constitution of the executor before made, doth not become void, where the testator cannot finish his testament as he purposed at another time 
g) Cum igitur eadem ratio in utroque casu militet, idem etiam ius constitui oportet. Nec casus diversitas, sed rationis identidas inspici debet Aymo Gravetta. consil. 190. .  
Much less † is that testament void, where the testator having declared his whole will and intending to do no more at that present, reserveth somewhat to be done at another time, and in the mean time dieth: For even by the civil law in this case the testament is perfect, notwithstanding such reservations 
h) Aret. jas. & Sichard. in L. pen. C. de Instit. & sub. Grass. Thesaur. come. op. §. testm. q. 12. n. 4. quam sententiam communiter receptam monstrat. post Lud. Zant. Respons. pro ux. n. 302. . Wherefore if the testator after that he hath made his will, do say that he will add, diminish, or alter any thing in his will the next day, and die in the mean time, before any such additions, detractions, or alterations be made, the testament is not to be noted of imperfection by any such reservation of adding, diminishing, or altering his testament 
i) Simo. de Praetis. de Interp. vlt. vol. lib. 1. fol. 195. Io. de Ana. cons. 44 ; because these things may be done by way of codicil, without the which the testament is sufficiently perfect 
k) Sichard. in L. pen. de Instit. & sub. C. in sin. , and especially the testament remaineth firm and effectual, where the testator doth overlive the time by him prescribed for such additions, diminutions, or alterations, for than he is presumed to have repent him of such additions, by not doing the same when he might 
l) Alex. cons. 74. vol. 1. Olden de action. class. 5. fol. 498. Paul. de Cast. in L. jubemus. C. de testa. .  
Hereunto † it may be added, that where the testator having declared his whole will before witnesses, causeth the ᵃ Notary or Scribe to be called unto him intending to have the same committed to writing, for a more sufficient proof of his testament, and before the coming of the Notary dieth: In this case the testament is good, and aught to prevail as a Nuncupative testament 
m) Alex. in L. hac consultissima. §. ex imperfecto. C. de testa. Grass. Thesaur. come. op. q. 12. n. 6. Mantic. de coniec. vlt. vol. lib. 1. tit. 7. n. 6. ubi ostendit hanc op. esse come. : nevertheless, if it may be proved, that the testator did restrain himself to the written testament, and that it was his will and meaning, that the testament should not be of force, unless it were written, than the testator dieth in the mean time before it be written, the testament shall not be allowed as a Nuncupative testament, & so not at all 
n) Bar. post Din, in L. vlt. ff. de iure codicil. Oldrad. consil. 119. Castrens. consil. 75. vol. 1. & cons. 450. vol. 2. Peckius. de testa, coniug. lib. 1. c. 18. Grass. Thesaur. come. op §. testm. q. 11. el. 1. : But it is not presumed, by sending for a Notary, that otherwise the testator would that his testament should take no place, unless it were written 
o) Covar. in c. relatum. el. 1. de testa. extra. n. 11. ibi tertia conclusio. Mantic. d. c. 7. n. 6. , but rather for a more ready proof of his will 
p) Grass. d. §. testm. q. 12 in sin. .   

Of defect in the testators meaning.  
1 No testament good without a firm resolution of the mind to make a testament.  
2 Words uttered rashly, or unadvisedly done, not import a firm purpose in the testator.  
3 It is the mind and not the words which giveth life to the testament.  
4 What is to be considered to prove a firm intent of making a testament.  
5 Of the draft of a will in writing.  
6 If a writing be found in manner of a will, whether is it presumed the very will, or but a draft thereof.  
§. xiii.  
IF the † testator have not animum testandi, that is a firm resolution, or advised determination of making his testament, his testament is void, or rather no testament 
a) L. Diws. ff. de mil. testa. §. plane. Instit. de mil. testa. . And therefore † if any man rashly, unadvisedly, incidently, ieastingly, or boastingly, and not seriously, nor with a firm purpose to make his will, do say and affirm (as oftentimes it happeneth) that he will make such a man his executor, or will leave unto him all his goods, this is no testament 
b) L. vlt. ff. de testa. & DD. ibi, & in d. L. diws & §. plane. Hottoman. cons. 5. vol. 1. Socin. iun consil. 179. vol. 2. Paris. consil. 89. vol. 3. Hyero. Franc. in L. quicquid. de reg. iur. ff. : For † it is the mind and not the words of the testator, that giveth life to the testament 
c) Mantic. de coniect. vlt. vol. lib. 2. tit. 15. in fin. L. ex feodo. ff. de haered. instit. Atque huc pertinent quae superius à me scripta sunt in explicatione definitionis testamenti. verb. sententia. 1. part. §. 3. . Which † mind or earnest purpose ought to be proved by circumstances 
d) Gloss. in §. plane. Instit. de testa. mil. , as that the testator was very sick when he spoke these words 
e) Gloss. in L. diws. ff. de mil. testa. , or that he did require the witnesses to bear witness thereof 
f) eadem gloss. in d. L. diws. , or that he framed and settled himself earnestly to the making of his testament 
g) Gloss. in d. L. plane. , or by other circumstances of like effect 
h) L. Pamphilo. §. propositum. ff. de leg. 3. & DD. ibidem. , wherein the judge is to consider the condition of the person speaking the words, the time, the place, the occasion, the manner of speech, and in whose presence 
i) Menoch. de arbitr. jud. lib. 2. centur. 5. cas. 496. , and namely whether the words were of the present or future time 
k) Paul. de Castr. in L. fin. ff. de testa. Hottom. d. consil. 5. : and if the words be of the future time, then whether they be such as do import the acomplishment of the act, or but the beginning only: for those of the former sort being executory, are equivalent to words of the present time 
l) Alciat. Ripa. & alij, in L. servi electione. ff. de leg. 1. : By which circumstances the discreet judge may the better collect, whether he that uttered the words had a mind or purpose thereby to make his testament or not 
m) Menoch. d. cas. 496. ex quo abundè haurire poteris, unde sitim tuum extinguas. .  
As words † only without a constant purpose of making a testament, do not make a testament, so that writing which is prepared or destined for a draft or image of the testators will only, or for a more ready direction of the testator whereby to make his testament afterwards, is no more to be accounted a testament before it be acknowledged by the testator for his testament 
n) L. ex ea scriptura. de testa. L. fidei commissa. §. 1. de leg. 3. ff. , then is the draft of a sentence to be taken for a sentence, until it be pronounced by the judge 
o) L. 2. & 3. de senten. ex breviloqua recit. C. c. sin. de re iud. 6. Vantius de nullitat. viz. de null. ex defectu processus, etc. n. 69. 70. Bald. in d. L. fidei commiss. §. 1. Euerard. consil. 155. n. 8. , or the draft of an obligation is to be accounted for an obligation before it be sealed and delivered by the oblige as his act and deed 
p) L. contractus. C. de fide Instr. .  
Notwithstanding I do not hereby mean, that it is always necessary the testator should acknowledge before witness the testament by him written, to be his last will and testament, or that it is always necessary, that he should subscribe his name, or put his seal thereunto, for the testament written with the hand of the testator, may be good without any of these things, as heretofore I have confirmed 
q) Supra part. 4. §. 25. .  
But now this doubt may arise, what † if a writing be found written indeed with the hand of the testator in manner of a will, wherein he hath disposed his goods and appointed an executor, but the writing is neither sealed with the testators seal, nor subscribed with his name, nor by him acknowledged before witnesses, to be his last will: whether shall this writing be accounted to be a draft of the testators will, or the testament itself? I suppose that the solution of this question, resteth in the variety of circumstances: For if the writing be unperfect 
r) L. ex ea scriptum de testa. L. fidei commissa. de leg. 3. ff. , for that perhaps the testator doth leave of in the midst of a sentence 
s) Bald. & Angel. in d. L. ex ea scriptura Euerard. cons. 155. n. 9 , and without any date 
t) Auth. quod sine. C. de testa. Euerar. d. consil. 155. Non tamen affirmo necessarium 〈◊〉 ut tempus inscriba●●● prout ius civil in omni testamento, etiam inter liberos exigit, sed quia communiter apponi solet tempus à nostratibus in suis testamentis scriptis, omissio igitur temporis (argumento à cōmuniteriac cidentibus) denotat praeparationem rei, potius quam ipsam rem. , or if the same be written with strange characters 
v) L. quoties. § 1. ff. de haered. instit. Bar. Bald. Ang. & alij ibidem. Non quòd idcirco vitiosum sit testm. quia scriptum notis vel zypheris inusitatis maxime iure gentium attento sed quod deducto argumento à communiter acciden. praeparatio magis quam res ipsa videatur, quia perpauci vera sua testamenta literis vel characteribus inusitatis conscribant. , or if the same be written in paper, and great distance betwixt every line, with divers emendations and corrections made betwixt the lines 
x) Paul. de Castr. Sich. & alij, in L. contractus. C. de side instr. : if also the same be found amongst other papers of small value or account 
y) DD. in D. Auth. quod sine. , by these circumstances it seemeth rather a draft or preparation to a testament, than the testament itself 
z) Euerard. d. cons. 155. . But on the contrary, if the writing be perfect or fully finished, having a certain date of the day, month, and year, and be written with usual and accustomed letters in parchment, without corrections, and with small distance betwixt the lines; and also found in some chest of the testator amongst other writings of the testators, of great value and moment: by these circumstances it seemeth rather to be the very testament itself, than a draft only 
a) DD. in d. Auth. quod sine. Euerard. d. consil. 155. Add quae supra scripsimus. part. 4. §. 25. .   

Of a later testament.  
1 diverse means whereby the testament being good at the first, is afterwards infringed.  
2 A man may make as many testaments as he list.  
3 Only the last testament is of force.  
4 This conclusion that the later testament doth infringe the former, diversly extended.  
5 The same conclusion diversly restrained.  
6 Of the clause derogatory of future testaments.  
7 Questions about clauses derogatory.  
8 Of clauses derogatory, some are derogatory of the power of making testaments, some of the will.  
9 When the clause is derogatory of the power of making testaments, mention or revocation thereof is not necessary.  
10 When the clause is derogatory of the will of making testaments, than it is needful to make mention thereof.  
11 Certain cases wherein mention or revocation of the testament derogatory is not necessary.  
12 Three manner of revocations, general, special, and singular.  
13 The force of the general revocation.  
14 The effect of the special revocation.  
15 The effect of the singular revocation.  
16 The effect of general mention.  
17 The effect of particular mention.  
18 How a testament may be revoked, wherein is a special clause derogatory circumscribed with certain limits.  
19 What is chief to be observed about those testaments, wherein be clauses derogatory.  
20 Clauses derogatory of small force in the testaments of simple persons.  
21 What if two testaments appear, but doth not appear whether of them is later.  
§. xiiii.  
IT hath been signified already, that † a testament which is good and lawful at the beginning, may afterwards become void by diverse means 
a) Supra ead. part. §. r. : as by the making of a later testament 
b) In hoc ipso §. , and by revoking 
c) Infra §. 15.  and canceling 
d) Infra §. 16.  the testament made, by alteration of the testators state 
e) Infra § 17. , by forbidding or hindering the testator to make another testament, or to correct the former, and by diverse means hereafter ensuing 
g) Infr. §. 19 20. cum sequen. usque ad finem libri. .  
Concerning the first of these means, that is to say, the making of a later testament, so large and ample is the liberty of making testaments; that † a man may as oft as he will make a new testament, even until the last breath 
h) L. 4. ff. de adim. lega. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 1. , neither is there any cautel under the sun to prevent this liberty 
i) Bar. in L. si mihi. §. in legatis. ff. de leg. 1. Olden. de action. class. 5. in prin fol. 197. . But no man can die with two testaments 
k) L. ius nostrum. de reg. iur. ff. L. sancimus. C. de testa. , and therefore † the last and newest is of force 
l) §. posteriore. Instit quib. mod. testa. instr. : so that if there were a thousand testaments, the last of all is the best of all, and maketh void the former 
m) Paris. consil. 10. lib. 3 n. 4. .  
This † conclusion, that the later doth infringe the former, is diversly enlarged. First the later testament doth infringe the former, albeit it the executor of the later do refuse the executorship, or die, either during the life of the testator, or after his death 
n) d §. posteriore. Instit. quib. mod. testa. infir. Mascard. Tract. de probac. concl. 1282. n. 2. , for it is sufficient that once he might have been executor 
o) Eod. §. posteriore. . Secondly, the later testament doth infringe the former, albeit the prince or Emperor himself were appointed executor of the former 
p) L. si quis. C. qui testa fac. poss. . Thirdly, the later testament doth make frustrate the former, albeit the former were a written testament, and the later but a nuncupative testament 
q) Vasq. de success. resolve. lib. 1. §. 1. n. 26. 27 Perkins. tit. testament. fol. 92. , Fourthly, the later doth infringe the former, albeit there be no mention in the second testament of revoking the former 
r) Mincing. & Vigli. in d. §. posteriore. . Fiftly, the later testament doth revoke the former, albeit in the former there be a clause derogatory of wills and testaments afterwards to be made 
s) Bar. in L. si mihi & tibi. §. in legatis. ff de leg. : but then whether it be necessary, that in the later testament there be mention or revocation of that former testament, or of the clause derogatory, is hereafter declared 
t) Infra §. 15. . Sixtly, the later testament doth make void the former, albeit there be xx. witnesses of the former, and but two of the later 
v) Covar. in Rub. de testa. extr. part. 2. in prin. Vasq. de success. resolu. lib. 1. §. 1. . Seventhly, the later testament doth take away the former, albeit in the former testament the executor is appointed simply or without condition, & in the later conditionally, and the same condition also violated 
x) d. §. posteriore. Instit. quib mod. testa. infir. , so that the condition be of something then to come at the time when the condition was made. But if the executor of the later testament be made upon some condition then present, or past, the condition not existing, the former testament is not revoked 
y) Mincing. in d. §. posteriore. n. 6. . Eightly, the later testament doth make void the former, albeit the testator have sworn not to revoke the same 
z) Covar. in Rub. de testa. extra. part. 2. n. 9 , the oath also being revoked together with the testament 
a) jul. Clar. §. testm. q. 94. Grass. Thesaur. con. op. §. testm. q. 87. & hoc (inquit) est valdè notandum. .  
The restrictions † of this former conclusion are these: First, the later testament doth not make void the former, when the later is unperfect, in respect of the testators will 
b) §. ex eo Instit. quib. mod. testa. infir. L. sancimus. C. de testa. ; and not in respect of solemnity 
c) Supra hoc ipso §. Ampliac. 3. & 6. . Secondly, the later testament doth not make void the former, when it is vehemently suspected that the testator was compelled to make the later testament by fear, or violence 
d) Simo de Praetis. de Interp. vlt. vol. lib. 4. fol. 226. n. 49. sed an sufficiat probac. per unicum testen, vide ibid. . Thirdly, the later testament doth not make void the former, when it is suspected that the testator was induced to make the later by fraud or deceit 
e) Simo de Praetis. ubi supr. & supra ead. part. §. 3. . Fourthly, the later testament doth not take away the former, the later being made at the interrogation or suggestion of some other person 
f) Zas. cons. 3. vol. 1. n. 41. Aymo. consil. 10 n. 13. Apostil. ad Ripam. in L. 1. §. si quis ita ff de verb. ob. n. 9 ubi dicitur hanc op. esse come. & supra ead. part. §. 4. , especially when the testator is very sick, & in peril of death 
g) Socin. jun. consil. 148 vol. 2. n. 15. : for than it doth not take away the former, made by the proper motion of the testator 
h) Vide quae scripsi supra part. 2. §. 26. , unless it appear plainly of the express will of the testator to revoke the former 
i) Gabriel. lib. 4. come. conclus. tit de testa. conclus. 2. n. 9 post Rui. cons. ●2 n. 11▪ vol. 2. , or unless the testator himself did dictate the testament 
k) Gabriel. ibid. n. 21, in fin. , or unless the later testament be in favour of the testators children, or others, who were to have the administration of his goods if he died intestate 
l) Socin. jun. consil. 144. n. 5. vol. 2. . Fiftly, where the testator hath made two testaments, a former and a later, both being written; and the same testator afterwards lying sick upon his death bed, some neighbour of his presenting to the testator both the testaments, willing him to deliver to them which of these testaments he will shall stand for his last will, if the testator being of perfect mind and memory, shall deliver to them the former testament: In this case the testament so delivered shall be the testators last will, albeit it were first made 
m) Perkins. tit. testament. fol. 92. . Sixtly, the second testament doth not revoke the former, when the second testament doth not in any wise dissent from the former, but agreeth with the same in all points, especially if the later were made very shortly after the former, for than they both seem but one testament in divers writings 
n) Vigl. in d. §. posteriore. Instit. quibus modis testa. infir. . Seventhly, the former testament is not revoked, when in the later will, there be no executors named, for then the later is but a codicil or addition to the former testament, wherein executors be named 
o) Instit. de Codicil. vide supra part. 1. §. 5. . Eightly, the former testament is not revoked by the later, where the testator doth take an oath not to revoke the former, unless there be express mention of the same testament, or of the oath 
p) Vasq. de success. refoluc. lib. 1. §. 1. n. 32. Grass. Thesaur. come. op §. testm. q. 86. jul. Clar. §. testm. q. 94. n. 5. . Nienthly, the later testament doth not take away the former, when it is made in heat of anger, and displeasure conceived by the testator against the executor of the first testament, whereas afterwards they be reconciled and joined in amity as before 
q) L. quicquid de reg. iur. ff. Mantic. de conject. vlt. vol. lib. 12. tit. l. n. 25. . Tenthly, the † former testament wherein is a clause derogatory of wills and testaments afterward to be made (as if the testator say, What soever testament I shall hereafter make, I will that the same be of no force, etc.) is not always infringed by the later testament, unless there be sufficient mention or revocation of the former testament or clause derogatory 
r Gloss. in L. si mihi & tibi. §. in legatis. ff. de leg. 1. quam communiter receptam dicit jas. in L. Horatius. ff. de lib. & posthu. .  
If you demand in what † cases mention or revocation is to be made of the former testament having a clause derogatory, and in what manner this mention or revocation ought to be made, and is sufficient for the revoking of the former testament, with the clause derogatory: Surely this question, especially concerning the manner of mention or revocation to be made in the second testament, is very difficult, and such as in the answering whereof, the writers do fight amongst themselves mightily, and do contradict one another very strongly 
s)  prius per Covar. in Rub. de testa. extra. part. 2. & per jul. Clar. §. testm. q. 99 & per Grass. Thesaur. come. op. §. testm. q. 89. & per Mantic. de coniect. vlt. vol. lib. 12. tit. 8. , so that the victory is very doubtful, and very hard it is to know whether opinion is truer, or more commonly received. Others labouring to reconcile these contradictions, and to pacify these contentions, have waded so far for fine and dainty distinctions, that they seem to swim up and down, and to slote hither and thither, I know not whither, in a deep and bottomless sea of intricate & confused divisions 
t) Bar. in L. si quis in prin. de leg. 3. Michael. Grass. §. de testm. q. 89. DD. in L. si mihi & tibi. §. in legatis. ff. de leg. 1. , so that if a man would adventure to follow them to the end of their voyage, he might well doubt whether ever he should obtain any haven or safe landing: wherefore for mine own part, I thought to wade no further from the shore than I should find fast footing, & where I might be within the reader's reach.  
Concerning the question therefore, first of all we are to understand † that of clauses derogatory there be two sorts, the one derogatory of the power of making testaments, the other derogatory of the will of making testaments 
v) Clar. Grass. Covar. ubi supra. DD. in d. §. in legatis. : Example of the first is, when the testator useth these or the like words: I do from henceforth renounce the power of making any other testament: Or thus; I will that hereafter I have no more liberty or authority to make more wills or testaments, etc. Example of the second; when the testator useth these or the like words: If I make any testament hereafter, I will that the same be of no force: or thus; If I make any testament hereafter, except therein I writ the lords prayer, my mind and will is that the same be void and of none effect 
x) DD. in d. §. in legatis. Covar. in d. Rub. Clar. & Grass. ubi supr. . The use of this distinction or difference betwixt clauses derogatory of power and of will is this.  
If † the clause be derogatory of the power or liberty of making of testaments, & afterwards the testator maketh another testament, it is not needful therein to make any mention, or revocation of the former testament, or clause derogatory therein contained 
y) Bar. in L. si quis in prin. de leg. 3. jas. in d. § in legatis. Clar. §. testm q. 99 n. 2. Grass. §. testm. q. 89. n. 3. , for the former is taken away by the second, as if there had not been any such clause derogatory therein at all: the reason is, because the clause derogatory of the power of making testaments is utterly void in law, neither can a man renounce the power or liberty of making testaments 
z) Bar. d. L. si quis. n. 4. Clar. & Grass ubi supr. , neither is there any cautel under heaven to prevent this liberty 
a) Bar in d. §. in legatis Olden. de action. class. 5. in prin. fol. 497. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 1. , which also endureth whiles any life endureth 
b) L. 4. ff. de adimen. legatis. , as hath been aforesaid.  
If † the clause be derogatory of the testators will, than it is necessary that in the later testament there be mention or revocation of the testament with the clause derogatory, otherwise the former testament is still in force 
c) Bar. in L. si quis. de legatis. 3. Clar. § testm. q. 99 Grass. §. testm. q 89. : the reason is, because there is presumed a defect of the testators will in the second testament, and that his meaning is not to have the former revoked, without making mention of the former derogatory testament 
d) Covar. in d. Rub. de testa. extra. part. 2. Clar. & Grass. ubi supra Mantic. de coniect. vlt. vol. lib. 12. tit. 8. Paris. consil. 10. vol. 3 n. 9 24. etc. .  
Nevertheless † it is not perpetually true, that the testament wherein is a clause derogatory of the testators will, is not infringed by the later testament, wherein is no mention or revocation of the former testament derogatory, for it faileth in divers cases. The first case is, when it may be proved by other conjectures, that it was the testators meaning, that the former testament should be revoked 
e) Covar. in d. Rub. 2. part. n. 19 vers. quart. conclus. Paris. consil. 10. vol. 3. n. 21. Grass. d. q. 89. n. 6. Clar. d. q. 99 n. 8. Mantic. de coniec. vlt. vol. lib. 12. tit. 8. n 13. Mascard. de probac. conclus. 1282. n. 43. . Another case is, when there be ten years expired from the time of the first testament 
f) Bald. in L. sancimus. C. de testa n. 6. Grass. d. q. 89. n. 10. Clar. d. q. 99 n. 19 . The third case is, when the testator doth with an oath confirm the later testament 
g) Bald. in d. L. sancimus in fin. Grass. d. q. 89. n. 8. Clar. d. q. 99 n. 10. . The fourth case is, when the second testament is made in favour of the testators children 
h) L. vlt. C. de Curator. furios. Grass d. q. 89. n. 9 Mantic. d. tit. 8. n. 27. , or some other person entirely beloved of the testator 
i) jas. in d. L. sancimus. C. de testam. limi. 6. . The fift case is, when the executor named in the former testament after the making thereof doth grievously offend the testator 
k) jas. in d. L. sancimus. lim. 2. .  
For the other question, (viz. what manner of revocation is to be made in the second testament, that it may suffice to revoke the former testament, wherein is a clause derogatory of the will of the testator) we must note † that there be three sorts of revocations, one general, another special, the third singular, or individual 
l) Grass. Thesaur. come. op. §. testm q. ●9. n. 4. Clar. §. testm q 99 n. 7. Mantic. de coniect. vlt. vol. lib. 12. tit. 8. n. 6. . General, when the testator in his later testament useth these or the like words: I will that this testament shall stand, notwithstanding any other will or testament by me heretofore made: or thus; I revoke and make void all former wills and testaments, etc. Special when the testator hath these or the like terms. I do hereby revoke all former testaments, notwithstanding any clause derogatory in the same. Singular, wherein the testator saith, I make my last will and testament, notwithstanding that clause derogatory of my former will, that I would not have that testament revoked, unless I should insert in this testament the lords prayer. Or thus: Notwithstanding that clause derogatory in my former will, whereby I would that no will or testament afterward to be made should prevail, albeit I should specially derogate from the former. Or thus: Notwithstanding that will where I made such a person my executor. Or thus: Notwithstanding that will which I made in such a place, at such a time, and before such witnesses, etc. 
m) Bar, in L. si quis in prin. ff. de leg. 3. Covar. in Rub. de testa. extra part. 2. n. 19 Clar. §. testm. q. 99 Grass. §. testm. q. 89. Mantic. de conject. vlt. vol. lib. 12. tit. 8. . These distinctions observed, I make these conclusions.  
The first conclusion is, that † if in the later testament there be a general revocation, as notwithstanding all former testaments, etc. the former testament wherein is a clause derogatory of the testators will, is not thereby taken away 
n) Bar. in d. L. si quis. Socin. jun. in eand. L. n 24. Grass. Thesau. come. op. § testm. & haec opinio (inquit ille) est vera. q. 89. n. 4. , albeit there be but one former testament 
o) jas. in L. sancimus C. de testam. quae sententia communis est. teste Grass. d. q. 89. n. 5. contrarium Bar. in d. L. si quis, cuius opinio communiter reprehenditur, asserit Tobias Nonius consil. 26. col. 2. & secundum communem opinionem esse pronunciandum à judice, monet. Tiraquel. de leg. conub. gloss. 7. n. 131. Clar. d. q. 99 n. 3. affirman● quòd in lib: suo aut Bar. verba sunt corrupta, aut non fideliter à Doctoribus recitata. Tu igitur consu. las librum proprium. .  
The second conclusion is, that † if in the second testament there be a special revocation, as notwithstanding any testaments with their clauses derogatory, etc. the former testament with the clauses derogatory of the testators will is thereby taken away 
p) ●y. in c. quod semel de reg iur. 6. Alex. d. L. sancimus. Clar. §. testan. q. 99 n. 4. & per eum centetur communis opinio. .  
The third conclusion is, that † if in the second testament there be a singular revocation of the former testament, as notwithstanding such a testament made before such a Notary, etc. the same former testament having therein a general clause derogatory, is sufficiently revoked, although in the second testament there be no mention of the clause derogatory in the former testament 
q) Bar. in. d. L. si quis. n. 8. Covar. in d. Rub. de testa. extr. n. 19 versic. cert. conclus. qui ibi attestatur hanc op. esse & come. & veriorem. .  
The fourth conclusion is this †, that if in the former testament, there be a special clause derogatory, the same is taken away by the second, wherein is general mention made of the former testament, and of the clause derogatory 
r) Bar. in d. L. si quis. col. 3. DD. in d. L. sancimus. Covar. in d. Rub. de testa. n. 19 versic. cert. conclusio, ubi dicit hanc op. esse come. .  
The fift conclusion is †, that if in the former testament there be a special derogatory clause, the same is not taken away by the second testament, wherein is particular mention of the same testament without mention of the clause derogatory 
s) Paul. de Castr. consil. 206. vol. 1. Covar. in d. Rub. n. 19 verb. primum in quaestione. .  
The sixth conclusion shall be, that † if in the former testament there be a special clause derogatory, circumscribed with certain limits: for Example; I will that this testament shall stand, notwithstanding any other to be made hereafter, unless in the same I shall write, or cause to be written the lords prayer, etc. The same former testament may be taken away by a second, albeit the lords prayer be not written in the same 
t) Bar. in d. L. si quis. Covar. in d. Rub. n. 19 verb. secundum Apostil. ad Bar. in d. L. sancimus. C. de testa. Bald. consil. 178. vol. 4. : but than it is behoveful that in the second testament there be mention, not only of the testament, but also of the clause derogatory: as, I will that this later testament shall stand, notwithhanding any former testament by me made containing whatsoever words or clause derogatory: Which done, the former testament is taken away 
v) Bar. in d. L si quis. Paul de Castro. consil. 284. vol 1. Covar. in Rub. de testa. extr. part. 2. n 19 Mantic. de conject. vlt. vol. lib. 12. tit. 8. n. 10. Atque hanc opinionem communem laudat Covar. Sal. Din. & alijs refragantibus. .  
Other conclusions 
x) Videant justinianistae. Mantic. de coniec. vlt. vol. lib. 12. tit. 8. & Covar. in d. Rub. de testa. part. 2. n. 19  I might add, but I thought † good to deliver this one for all, the same in my opinion being more worthy to be remembered, which conclusion is this, that it behoveth the judge where he findeth such clauses derogatory in any testament, to consider the persons of these testators, namely whether they be such persons as do understand the force and effect of these clauses derogatory, and revocatory, yea, or nay: and to examine the occasions of inserting the same clause; especially this is to be considered, whether these clauses be added by the proper motion of the testator himself, or at the instigation and persuasion of some other, as the executor, the legatary, the Notary 
y) Simo de Praetis. de Interp. vlt. vol. lib. 4. fol 227. n. 60. etc. , etc. For if the testator do understand the effect of such clauses derogatory, and did insert the same wittingly and willingly of his own accord, it is presumed that he did so, lest peradventure afterwards he might be solicited and induced by the instigation and importunity of his kinsfolks, or the molestation of some other, receiving small benefit by the testament, and hoping to gain more by the alteration or revocation thereof, to change or revoke the same, contrary to his former settled purpose, and firm resolution. In which case, if at any time after the testator make a new testament, the former is not easily revoked 
z) Paris. consil. 10. lib. 3. n. 10. 11. etc. , unless in the second he do make mention and revocation of the former testament, with the clause derogatory 
a) Simo. de Praetis. de Interp. vlt. vol. lib. 4. fol. 227. n. 61. etc. , in cases where revocation is necessary, as in the former conclusions is prescribed: otherwise the said form not observed, it is to be presumed, that it is not the testators meaning to infringe and frustrate his former testament, made with such constant resolution, and precise caution 
b) Simo. de Praetis. ubi supra. . But on the contrary, if † the testator were but a simple person, not understanding the effect of such derogatory, or revocatory clauses, and the rather if the same clauses were inserted in the former testament by the Notary, at the petition or by the direction of such as were benefited by the same testament, or some of their friends, being loath to have the same altered or revoked: then howsoever the former testament be corroborated with cunning or precise clauses, of inserting the lords prayer in the second testament, or of not revoking the former testament, although in the second he should specially revoke the same: all these cunning clauses & curious cautions notwithstanding, the former testament may be the more easily revoked, without any such precise observation of special revocation above described 
c) Idem Simo de Praetis. loco superiùs allegato, ubi locupletissimè de hac re. Cui adijcias Didac. Covar. in Rub. de testa. extra. n. 19 verb. decimotertio. Mantic. de coniect. vlt. vol. lib. 12. tit. 8. n. 15 Barba. consil. 72. vol. 3. Paris. consil. 10. vol. 3. n. 21. etc. .  
Thus we have seen in what cases the former testament is infringed or not infringed by the last testament. If any do here demand of me, what † if two several testaments do appear to be made by one person, but it doth not appear which is former or later, which of these shall prevail. This question is satisfied a little before 
d) Supra ead. part. §. 11. & supra. 1. part. §. 16. n. 17. , thither I refer the reader.   

Of revoking the testament made.  
1 Lawful for every man to revoke his testament, and to die intestate.  
2 Revocation of a man's testament is not presumed.  
3 diverse extensions of this former conclusion.  
4 diverse limitations of the same conclusion.  
5 Whether a bare revocation do overthrow the testament.  
§. xv.  
AN other of those means whereby the testament which was good at the beginning, is afterwards made void, is revocation of the same testament. For † as it is lawful for every testator to add and diminish, to and from his testament, and to alter the same: So is it likewise lawful for every person having made his testament, to revoke the same, and to die intestate 
a) Bald. in L. sancimus. C. de testam. Mantic. de coniect. vlt. vol. lib. 2 tit. 15. .  
But † no man is presumed to have revoked his testament once made, unless it be proved 
b) L. eum qui voluntatem. ff. de ꝓbac. Mascard. Tract. de probac. concl. 1280. qui varijs & ampliac. & limitac. hanc conclus. ornavit. : Insomuch † that if a man do live by the space of forty years, after he have made his testament, yet is not the testament presumed to be revoked by the course of so long time 
c) Paul de Castr. Alex. & jas. in d. L. sancimus. C. de testa. Quaere tamen Bart. Sing. 183. & Mantic. lib. 6. tit. 3. n. 46. etiamsi prius fuerit testamentum ad pias causas. . And albeit during the same time his wealth and substance do greatly increase, yet is not the testament presumed to be revoked 
d) Alex. & jas. in d. L. sancimus. . And albeit the testament be in prejudice of such as otherwise were to have the administration of the goods of the deceased: yet all those things concurring, viz. the long time, the increase of the testators wealth, and the prejudice of such as are to have the administration of the testators goods, the testament is not presumed to be revoked 
e) Paul. de Castr. jas. & Alex. ubi supra. . And albeit the testament be made in time of sickness and peril of death, when the testator doth not hope for life, and afterwards the testator recover his health, yet is not the testament revoked by such recovery 
f) Alex. & jas. in d. L. sancimus. Masc. Tract. de probac. conclus. 1280. n. 17. 18. : Or albeit the testator make his testament by reason of some great journey, yet it is not revoked by the return of the testator 
g) Din. in L. potest. de haered. instit. ff. repertorium Bertachini. verb. testmt.. n. 48. . And albeit the testator after the making of the testament have a child borne unto him, I suppose that the testament is not presumed thereby to be revoked 
h) Hoc ita ob defectum patriae potestatis. L. quod dicitur. ff. de lib. & posthu. , especially if the testator did live a long time after the birth of the child, and might have revoked the testament, and did not 
i) Mantic. de coniect. vlt. vol. lib. 12. tit. 2. in fin. quamuis inspecta juris civilis dispositione, contraria opinio approbatur. Grass. §. legatum. q. 67. Ripa. in L. si unquam. C. de donac. 42. Mascard. de ꝓbac. conclus. 1280. n. 153. quae conclusio ampliatur & limitatur per Prat. Tract. reg. & fall. lib. 2. reg. 466. fol. mihi 16. verb. legato. .  
On the † contrary, the testament is sometimes presumed to be revoked, and the will of the testator altered. One case is, when he that is appointed executor or legatary after the making of the testament, doth become enemy to the testator, or doth him some great injury 
k) Auth. si captivi. C. de episcopis & cler. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 34. quod quidem in legatis & fideicommiss. quae nuda voluutate adimi possunt, multo facilius admittitur, quàm in haeredis institutione, ut in L. 3. §. vlt. & L. ex part. ff de adimen. lega. & Mascard. de probac. concl. 1280. n. 150. Verum tum dic ut per Bar. in d. L. ex part. Institutum propter graviss. inimicitias à se ortas haereditatem amittere. . another case is, when the testator in heat of anger or displeasure conceived without just cause against his son, or other persons, to whom the administration of his goods were to be committed, if he had died intestate, making his testament in favour of others & afterwards (the heat of his displeasure being extinguished) they be reconciled: for by this reconciliation, the testament is presumed to be revoked 
l) L. filium. de inoff. teston. Hyero. Franc. in L. quicquid de reg. iur. ●f. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 25. . The third case is, when the testator hath begun to make his testament, but is letted or hindered by the executor that he cannot proceed as he would to the finishing of the testament, or further disposing of other legacies: For in this case the will of the testator is presumed to be revoked 
m) L. si scriptis. ff. de his quibus ut indig. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 24. , concerning any benefit which the person so hindering the testator, otherwise aught to have reaped 
n) L. 2. ff. si quis aliq. testari prohib. vide quae inferiùs scripta sunt §. 18. . The fourth case is, when the testator being extremely sick, and afraid to die, doth bequeath some legacy ad pias causas, and after doth recover his health: for there the legacy is also presumed to be revoked 
o) Bar. in rep. L. 1. C. de sacrosanct. eccles. n. 41. Repertor. Bertachin. verb. testm revocatur. n. 47. . It may seem strange, that legacies left to good and godly uses should be revoked, rather than other profane legacies, but I take the reason to be, for that it is presumed that the testator did not intend to give legacies to so good an use in that extremity, but in case he should die of that sickness, and so not dying, the legacy is revoked 
p) Bar. & Bertachin. ubi supra. .  
It is † a question appertaining to the revocation of a testament not altogether free from doubt, whether a testament may be revoked by a bare and naked revocation, that is to say, whether the testament be sufficiently revoked, when the testator saith, I revoke my former testament, or I will that my former testament be of no force?  
Many writers are of this opinion, that the testament is not revoked by a bare revocation before witnesses, unless the testator had added unto his former words, and said, because I will die intestate 
q) Bar. in L. si iure. ff. de leg 3. Alex. & alij, in L. sancimus. C. de testa. quorum opinio multorum testimonio communis est. Dec. consil. 582. Clar. §. testm. q 91 Grass. §. testm. q. 84. Simo de Praetis de Interp. vlt. vol. li. 4. fo. 226 Vasq. de success. crea. lib. 2. §. 15. requisite. 17. n. 62. ubi sic, sicut (inquit) si vas aureum, vel argenteum, vel luteum feceris, deinde iustetis illud infectum fieri, non per hoc infectum fiet, nisi manus adhibeas, illúdque fregeris ita quoque testm. etc. Sed Bar. alia ratione nititur, quia vz ex hac voluntate non potest adiri haereditas. .  
Others are of a contrary opinion, esteeming that it is sufficient to make a bare revocation without any express mention of dying intestate 
r) Bald. in L. sancimus. C. de testa. Socin. jun. consil. 145. asserens hanc sententiam pluribus, & maioris ponderis auctoritatibus confirmatan. Quinimo narrat eandem cuilibet sensato & rationabili intellectui quadrare, & quemlibet judicem posse ab opinion Bar. recedere: cum quo etiam convenit Mantic. de conject. vlt. vol. lib. 12. tit. 19 Item Gid. papa q. 200. Barba. consil. 60. vol 2. & Raph. Cuma. in d. L. si iure, non dubitans pronunciare considerationem Bartoli esse Truffam. . And this opinion in my understanding is more sound, and more reasonable: for whiles the testator will not have his testament to stand, it followeth that it is his will and meaning to die intestate 
(s) Alex. consil. 104. vol. 2. , and so the next of kin to be called to the administration of his goods. Besides it seemeth absurd and unreasonable to maintain a testament, not only without a man's will, but even against his will 
(t) Mantic. d. lib. 2. tit. 15. n. 22. , at least within this realm of England, where we do not observe the solemnities of the civil law: this opinion is to be preferred; for even by the civil law, legacies are taken away by a simple and naked revocation 
(v) L. 3. ff. de alimen. leg. : and so be diverse testaments; those I mean wherein those solemnities are not necessary, as testaments ad pias causas 
(x) Alex post Bald. d. consil. 104. , or amongst the testators children 
(y) Alex. eod. consil. 104. , or military testaments 
(z) Vasq. de success. resoluc. lib. 1. §. 9 n. 7. : wherefore as those testaments are reclaimed and made void by a bare revocation, so ought our testaments to be measured with the same line, and to enjoy like liberty, aswell in the dissolution, as in the constitution 
(a) Consulas Vasq. d. n. 7. ubi testm militare eam ob causam nuda voluntate posse dissolui contendit, quia nuda voluntate potest constitui per L. nihil tam naturale. de reg. iur. ff. Consulas etiam de hac re Masc. de ꝓbac. concl. 1282. n. 36. quam has dissidentes op. distinction●s faedere conciliare conatus est .   

Of canceling the testament.  
1 A man's mind is known as well by deeds as by words.  
2 Of the effect of canceling testaments.  
3 Whether a nuncupative testament lease his force by canceling the writing.  
4 diverse cases wherein the testament is not hurt by cancellation.  
5 If it be unknown who did cancel the same, to whom is the same to be attributed.  
§. xuj.  
AN other of the means whereby the testament which was good at the beginning, is afterwards made void, is the canceling or cutting of the testament 
a) Cancellare est in modum crucis expungere vel illinire. Bar. in L. 1. § sed consulto. ff. de his quae teston. del. Spiegel. Lexic. verb. cancellare. , for the † will and meaning of a man is no less showed by his deeds than by his words 
b) Mincing. in §. ex eo. Instit. quib. mod. testa. infir. Vasq. de success. crea. lib. 2. requis. 17. n. 62. : And therefore he that cancelleth or defaceth his testament, is thereby thought to have this will and meaning, to take away the force and virtue thereof 
c) L. 1. & L. proximè. ff. de his quae testa. del. & DD. ibid. Vas. de success. crea. §. 15. requisite. 17. n. 60. 61. etc. : which will in this respect ought to be observed for a law, and so the testament canceled and defaced, is to be adjudged void 
d) Intellige ope exceptionis, non ipso iure. gloss. in L. 1. ff. de his quae teston. del. quae op. est come. Grass. Thesau. come. op. q. 85. n. 1. .  
And † that this canceling or defacing of the testament being objected 
e) Alias ipso iure non viciat. d. gloss. communiter recepta. , doth destroy the force thereof, is supposed to be extended to those testaments Nuncupative, which afterwards be reduced to writing 
f) Paul. de Castr. in L. fin. ff. de his quae test. del. : so that † if a man first make his testament by word of mouth, then causeth the same to be written, and afterwards doth wittingly and willingly cancel or cut the same writing, or otherwise deface it, that then such testament is void, as if it had been written at the beginning 
g) Zas. consil. 2. vol. 1. n. 29. Grass. Thesaur. co. op. §. testm. q. 85. ubi hā● sententiam & veriorem, & humaniorem refort, & huic etiam sententiae subscripsit Vasquius de success. crea. lib. 2. §. 15. requis. 17. n. 61. 62. quicquid in contrarium statuat jul. Cla. §. testm q 93. vel Minsinger. in §. pen. Instit. quib. mod. testa. infir. vel ante eos Bald. in d. L. sin. vel post eos Mascard. de proba. conclus. 1282. n. 31. : neither doth it profit to prove the same by witness 
h) Vasq. d. requisite. 17. n. 63. , for although the instrument or writing do not appertain to the substance of the testament: yet by the canceling thereof, the testator is presumed to have repent of the making thereof, and to have reclaimed or revoked the same 
i) Vasq. & Grass. ubi supra. . Furthermore, albeit there appear no cause of unworthiness either in the executor, or any other legatary, whereby the testator might be moved to disappoint them of their hope; yet by canceling the testament, the whole testament shall be void 
k) Vasq. de success. resoluc. lib. 1 §. 4. in prin. Doctores in L. cancellaverat. & in L. proximè. ff. de his quae testa. del. : And the testator is presumed to have done it in their favour, who are to have the administration of his goods after he dieth intestate 
l) Din. & DD communiter. in L. nostram. ff de his quae teston. del. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 31. Clar. §. testm. q. 93 Grass. §. testm. q. 85. .  
The cases † wherein this former conclusion, (viz. that by cancellling or defacing the testament, the same is made void) doth fail, are these.  
The first is, where the testament was canceled by the testator himself unadvisedly, or by some other person without the testators consent, or by some other casualty 
m) L. 1. §. sed consulto. ff. de his quae teston. del. Bar. in L. si iure. de leg. 3. Angel. Are. & Mincing. in §. ex eo. Instit. quib. mod. testa. infir. .  
The second case is, when the testator after he have wittingly and willingly pulled away the seals, doth seal the same again 
n) L. si t●stamentum. ff. qui testa. fac. poss. .  
The third case is, when the whole testament is not canceled or defaced, but some part thereof only razed, blotted, or put out, for the other parts of the testament do remain firm and safe 
o) L. proximè. §. sententia ff. de his quae in teston. del. Mantic. de coniect. vlt. vol. lib. 12. tit. 1. n. 31. infin. , as they were before, although the deletion were in the chief part of the testament, namely the assignation of the executor 
p) Wesenb. in d. tit. de his quae in teston. del ff. Mantic. ubi supra. .  
The fourth case is, when there be several papers or writings of one tenure, each of them containing the whole testament, the defacing or canceling of some of them doth not hurt the testament 
q) L. pluribus. ff. de his quae in testato. del. , unless it be proved that the testators mind was contrary 
r) d. L. pluribus. & ibi Doctores. .  
The fift case is, when the testament is lost, either in the life time of the testator, or after, for so much as may be proved by witnesses, is still in force 
s) L. 1. § sed consulto. ff. de his quae in testato. del. cum gloss. ibid. .  
What † if the testament be found canceled and defaced, but it is not known who did cancel it or deface it, to whom is this act of canceling or defacing the testament to be attributed, to the testator which made it, or to some other, which otherwise peradventure might be hindered by it.  
It seemeth not to be reputed the act of the testator 
t) Zas. consil. 2. lib. 1. , for mutation or change of the mind is not to be presumed 
v) L. eum qui. ff. de probac. , especially after a man hath done a thing with such deliberation and resolution, wherewith testaments commonly are made and finished 
x) Supr. 1. part. §. 3. verb sententia. & hac ipsa part paulò superiùs, viz. §. 13. .  
On the contrary, it seemeth that it ought not to be accounted the act of any other 
y) Io. Fa●er. in §. ex eo. Instit. quib. mod. testa. infir. Peckius. de testa. coniug. lib. 1 c. 46. n. 1. ; for that were to presume fraud and deceit in men which ought not to be presumed, unless it be proved 
z) L. dolum. C. de dolo. .  
In this controversy therefore I suppose that the person in whose custody the testament is found so canceled or defaced, is to be adjudged to have done the act, whether it be the testator or another 
a) DD. in L. si unus. C de testa. Mantic. de conject. vlt. vol. lib. 12. tit. 1. n. ●0. .  
And if it be so that the testament were kept in such a place, as not only the testator, but others might have access unto it: In this case the arguments and circumstances of the fact being equal and indifferent, the canceling or defacing of the testament, is rather to be ascribed to the testator then to others 
b) Zas. d. consil. 2. vol. 1. n. 1. & n. 15. Faber. in §. ex eo. Instit. quib. mod. testa. infir. , who is also presumed to have done the same wittingly and willingly 
c) Paul. de Castr. in L. 1. §. sed consulto. ff. de his quae in teston. del. : saving in legacies of freedom, or ad pias causas, which being blotted or put forth by the testator, it is not presumed to have been done willingly 
d) Paul. de Castro, in d. §. Tiraquel. de pia causa. privileg. 16. Mantic. de coniect. vlt. vol. lib. 12. tit 2. n. 25. . But when the arguments and circumstances be unequal, and the greater presumptions that it should be the act of another rather then of the testator, it is to be adjudged accordingly 
e) Zas. d. consil. 2. n. 15. 16. 17. 18. etc. : for the fewer and weaker presumptions give place to the more & stronger 
f) c. afferte mihi glad●um de pr●●sump extr. Mantic. de coniect. vlt vol. lib. 12. tit. 17. & Zas. ubi supra. .   

Of the alteration of the state of the testator.  
1 What manner alteration of the state of the testator doth make void his testament.  
2 Two times wherein the testator must have power to make a testament.  
§. xvij.  
THe alteration † of the state of the testator, is also a mean whereby the testament which was good at the beginning, doth after become void 
a) §. alio Instit. quibus modis testa. infir. ; the which alteration may happen diverse ways 
b) Videlicet▪ maxima & media capitis diminutione. gloss. in d. §. alio. Item voluntariè & invitè. Mincing. in §. non tamen. Instit. eod. tit. , but especially when the testator is convicted or condemned of such a crime, after the making of his testament, for the which the law depriveth him of this power and ability of making a testament 
c) d. §. alio. & ibi gloss. & DD. .  
What manner of crimes they be, whereby the state of the testator is so altered, that thereby he is made intestable, is above expressed 
d) De quibus sigillatim. supra part. 2. & part. 5. , to wit heresy, apostasy, treason, felony, sodomy, incest, manifest usury, and such like: whereunto also I might add captivity 
e) L eius qui apud hosts. ff de testa. supr. part. 2. §. 8. , not for that captivity is a crime, but for that it hath the same effect with those crimes, to overthrow the testament. But if the captive recover his former liberty, than the testament made before the captivity recovereth his former force 
f) §. non tamen Instit. quib. mod. testa. infir. . And if he that is convicted or attainted of treason, or felony, obtain the prince's pardon, with restitution to his former state, than the testament made before such his conviction is likewise revived and restored 
g) L. si quis §. quatenus. ff. de injust. testam. ; and in both cases the testament is good, without any new confirmation or declaration 
h) Quod verum quidem est in capitis diminutione necessaria, secùs in voluntaria. Mincing. & Platea. in d. §. non tamen. . Howbeit in this they differ; for the testament of the person which recovereth his former liberty, is good even from the beginning, as if he had never been in captivity 
i) Grass. Thesaur. come. op. §. testm. q. 25. : but his testament whose crime is pardoned, and himself restored, is of force only from the time of restitution 
k) joh. Platea. in d. §. non tamen. . Again, if the pardon do only import a remission of the penalty, without restitution of his former estate, than the testament before made doth still remain void 
l) Minsinger. in d. §. non tamen. .  
And here note † that there be two times wherein it is necessary, that there be in the person of the testator ability to make a will, the one is, the time of the making of the testament, when it receiveth his substance or being: the other is, the time of the death of the testator 
m) d. § non tamen. L. 1. § exigit. de bon. poss. secundum Tab. infr. §. 19 Porcius. in §. in extraneis. Institut. de haered. qual. & differ. , when it receiveth his strength and efficacy (as for the time betwixt the making of the testament, and the death of the testator, it skilleth not whether the testator have any such power or not 
n) d §. non tamen. & Mincing. ac alij ibid. :) and therefore if any person being attainted of some crime, do whilst he is intestable make his testament, and afterwards obtain a full pardon, with full restitution, the testament nevertheless is void, because of the original defect 
o) Aretin. in d. §. non tamen. Simo de Praetis. de Interp. vlt. vol. lib. 1. fol. 146. n. 56. .   

Of forbidding or hindering the testator to make an other testament.  
1 The former testament is void, where the testator is forbidden to alter the same, or to make a new testament.  
2 diverse extensions of this foresaid conclusion.  
3 Of hindering the Notary or witnesses to have access to the testator.  
4 Of disturbing the testator by making a noise.  
5 Of immodest persuasions.  
6 Whether this prohibition be proved by the assertion of the testator.  
7 divers limitations of the first conclusion, viz. that the testament is overthrown, where the testator is hindered in altering the same.  
8 Of disturbing the testator with noise and weeping.  
9 Whether the prohibition of one be prejudicial to others.  
§. xviij.  
Amongst many other means whereby the testament which was good at the beginning, is afterwards made void, this is one not to be omitted, (seeing it is so often practised) namely when † the testator intending to alter the testament before made, or to make a new testament is forbidden or crossed, so that he cannot or dare not do as he intended 
a) Tit. si quis aliquen testari prohib. ff. & C. . By this prohibition and manner of crooked dealing, the testament which should have been altered is made void 
b) L. 1. & 2. ff. si quis aliquem testari prohib. Bess. Tract. de var. crim. Tit. de his qui aliq. testari ꝓhib Menoch. de arb. iud quaest. cas. 395. Socin. l. in. consil. 148. vol. 2. qui omnes locupletissimè scripserunt de hac ●e. Eos igitur videas vel●m. .  
The reason is, because as those testaments are not found at the beginning which are made by fear or fraud 
c) Supr. ead. part. §§ 2. & 3. : so that testament which for fear, or by fraud the testator dare not, or cannot alter, is from henceforth infected with the same disease, and so from henceforth to be esteemed of no more force or efficacy then these other 
d) Wesenb. in tit. si quis aliq. etc. ff. n. 1. .  
This conclusion, † that the testament doth become void, when the testator is prohibited to alter the same, doth proceed not only when the testator himself is prohibited or put in fear: but also when the † Notary or witnesses be letted or stopped, that they cannot have access unto the testator 
e) Bar. in L. fin. ff si quia aliquem testari prohib. Bess. in d. tit. de his qui prohib. etc. n. 2. Paris. cons. 67. lib. 3. : for he that doth not permit, is said to prohibit 
f) Paris. d. consil. n. 13. . And therefore if the wife being made executrix, or any other person benefited by the testament, understanding that the testator is about to alter ●is will, will not suffer his friends to come unto him, pretending peradventure that he is fast asleep, or in a slumber, or the Physician gave in charge, that none should come to him 
g) Peckius. Tract. de testa. coniug. lib. 1. c. 13 , or pretending some other excuse, (or else all excuses set apart, do for charity's sake shut them forth of the doors 
h)  est apud Teren. prae amore exclusit cum soras. :) In these cases the testament is void, in detestation of such odious shifts and practices 
i) Peckius ubi supra. .  
Secondly, this conclusion hath place, if † after the coming of the Notary or witnesses, & preparation of all things necessary for the alteration of the former testament, some person of intent and purpose to hinder the altering of the same will, doth make a noise, and keepeth such a stir, exclaiming and quarreling with such as seek to have the testament altered, that the testator being therewith disturbed and offended, did not then alter his will, and shortly after died 
g) Anch. consil 337. Menoch, de A●b●●r. jud. cas. 395 n. ●8. 39 .  
Thirdly †, this conclusion hath place not only where the testator is prohibited by threatenings, or hindered by fraud, but also when he is overcome with importunate requests, and fraudulent persuasions, not to alter his former testament 
h) Afflict. decis. 69. n. 7. Menoch. d. cas. 395. n. 41. huc pertinet quod scripserunt Inno. in c. petitio. de iureiur. extr. & Rebuff. Tract. de rescript. tom. 2. art. 2. gloss. 3. .  
Fourthly †, this conclusion doth proceed, albeit there be no stronger proof of violence, or impediment offered to the testator in this case, than the assertion of the testator himself 
i) Paris. consil. 66. n. 119 vol. 3. Socin. jun. consil 148. n. 14. Menoch. d. cas. 395. n. 40. .  
In these cases following †, the former conclusion doth not proceed. The first case is, when the testator had no purpose to alter his testament: for if any do forbid the testator to alter his testament, when the testator hath not any purpose to alter the same; this prohibition doth not hurt the force of the testament already made 
k) L. 1. ff. si quis aliquen. Bar. in L. vlt. eod. tit. n. 13. Menoch. d. cas. 395. n. 31. & est co. op. quod duo sunt probanda, uz. voluntas mutandi testm. & prohibitio. Socin. jun. consil. 148. vol. 2. . The second case is, when the fear which is used in the prohibition is vain, or but light, such (I mean) as cannot move a constant person 
l) Paris consil. 97. n 41. vol. 3. Menoch. d. cas. 395. n. 32. & nos diximus supr. ead. part. §. 2 . The third case is when the testator is prohibited, but not at that present time, when he intended to alter his former testament, for such prohibition is not hurtful 
m) Socin. sen. council. 105 vol. 3. Socin. jun. consil 148. n. 3. vol. 2. Paris. consil. 67. n. 33. vol. 3. Menoch. d. cas. 395. n. 32. Bess. d. tit. de his qui prohib. etc. n. 2. in fin. . The fourth case being like to the former, is when the testator after the prohibition might very well at sundry times have altered his testament, and did not 
n) Mar. Socin. jun. con. sil. 148. n. 48. vol. 2. Paris. consil 67. n. 62. vol. 3. Menoch. d. cas 395. n. 25. : for in not altering the testament when he might, he seemeth to allow it and confirm it 
o) Mascard. de probac. conclus. 1280. n. 54. Mantic. de coniect. vlt. vol. lib. 12. tit. ●. n. ●2. per L. tractabatur. ff. de testa. mi●. quod tamen se●●o con●ide●andum est, ut per Mantic. ubi supr. & Pe●kius Tract. de testa. coniug. lib. 1. c. 11. . The fift case is, when the testator is not compelled by fear, nor circumvented by fraud, but induced with flattering speeches void of deceit, (such as may become an honest wife, or faithful friend) not to alter his testament 
p) Menoch. d. cas. 395. n 42. per L. vlt. ff. si qui● aliquem testari ꝓhib. . The sixth case is, when † all things necessary for the alteration of a testament being prepared, the executor or legatary, or other person, with his noise or weeping, doth disturb the testator that he cannot alter his testament, not of purpose to hinder such alteration, but being moved with compassion, to see the testator grievously afflicted with sickness, or being stricken with an unfeigned sorrow, through fear of the testators death, or otherwise overcome with an honest or kind care or grief, and not able to suppress the force of this vehement passion; doth burst into tears, and so with noise of his lamentations doth disturb the testator, that he cannot proceed in the alteration of his will: In this case the former testament is not made frustrate by such disturbance, albeit after that, the testator never had the like opportunity of altering his testament 
q) Paris. consil. 67. vol. 3. n. 47. 48. Socin. jun. consil. 148. vol. 2. n. 33. verb. nam dum primo▪ etc. . Howbeit the judge must be very wary, and learn by the circumstances of the fact, whether this noise and exclamation be of policy, or of simplicity 
r) Menoch. d. cas. 395. n. 39 . The seventh † case is, when the executor or legatary doth forbid or hinder the testator to alter his testament, in which case the former testament is void, only in prejudice of that person, which doth prohibit or hinder the testator to alter the same, but not in prejudice of another not consenting thereunto 
s) L. 2. si quis aliquem testa. prohib. ff. : much less doth the prohibition of that person, who is to reap no benefit by the testament, hurt those executors which otherwise should be administrators, in case the party died intestate 
t) Menoch. d. cas. 395. n. 20. post Bar. in L. ultim. si quis aliquem testari prohib. ff n. 11. , unless it doth appear that the testator would have changed his whole testament, and have appointed new executors, for then this prohibition maketh void the whole testament, like as if the testator had been compelled to make the same at the first 
v) Bar. in d. L. vlt. Menoch. d. cas. 395. n. 17. Paris. consil. 67. vol. 3. .  
There is much ado in the civil law about this question▪ who ought to have the testators goods, when he is compelled to make his testament, or hindered that he can not revoke his testament, the prince or the heirs of the dead person 
x) De qua q. Menoch. de arb. iud. cas. 395. ? But with us if any die intestate, the administration of his goods is to be committed to the widow, or next of kin 
y) Stat. H. 8. an. 21. c. 5. , and doth not go to the prince though the executor or legatary be unworthy.   

When he that is made executor can not, or will not be executor.  
1 Though the executor be incapable, the legacies are still due.  
2 The executor ought to be capable of the executorship at three several times.  
3 It is sufficient for the legatary, if he be capable of the legacy at the testators death.  
4 What if the disposition be conditional.  
§. nineteen.  
ALbeit † where he that is named executor in the testament, either cannot or will not be executor, by the laws of this realm the legacies bequeathed in the same will are still due, and to be paid by such as shall have the administration of the goods of the deceased 
a) Brook Abridg. tit. executor. n. 20. dixi iure huius regni, nàm secus est iure civili, haereditate non adita. L. 1. in fin. de iniusto teston. L. fidei commissum. de leg. 1. L. imperator. de leg. 2. ff. L. hoc non sit indistinctè verum, ut per Vigelij method. juris civil. à quo tradita est regula cum plurimis limitationibus & sublimitac. lib. 12. c. 9 : in which case the will is to be annexed to the letters of administration (as heretofore I have declared 
b) Supr. part. 1. §. 6. n. 6 ) yet by reason of the incapacity or refusal of the executor, such disposition is thereby deprived, both of the name and nature of the testament 
c) Instit. tit. de haeredit. quae ab intestat. def. in princ. Brook ubi supra. , and so the party is said to die intestate.  
I shall not need to repeat here particularly, by what means the executor may become incapable of the executorship.  
This one thing I thought good to note in this place, that by the civil law † he which is named executor, must be capable of the executorship at three several times 
d) §. in extraneis. Inst●t de haered. qual. & differentia. vide supra part. 5. §. 2. & quae in illo §. ad notavi. : First at the making of the testament, for then the testament taketh his substance or being 
e) Christ. Porcus. in d. §. in extraneis. . Secondly, at the time of the death of the testator, for then the testament receiveth his strength & confirmation 
f) Idem Porcus. in eod. §. . Thirdly, at the time of the probation of the will, and undertaking the executorship, for then the testament entereth to his effect and execution 
g) Idem ibid. quamuis jas hisce rationibus, totus non acquiescat. quip qui alias meliores, atque (ut ille inquit) fundamentaliores assignat, in suis addic. ad Christ. Porcum. in d §. . Howbeit it is † sufficient in a legatary, if he be capable of the legacy or device at the time of the death of the testator 
h) Bar. in L. si alienum. §. 1. ff de haered. instit. in fin. Peckius. Tract. de testam. coniug. lib. 4. c. 31. n. 5. Grass. Thesaur. come. op. §. Institutio. q. 28. n. 4. , unless the devise be not pure and simple, but conditional: for in conditional dispositions both the executor, and also the legatary, must be capable at the time of the performance or existence of the condition 
i) Bar. Grass. & Peckius ubi supra. ; as for any other time, whether it be betwixt the making of the will, and the testators death, or betwixt his death and the probation of the will, it skilleth not▪ for though the executor be then incapable, it hurteth not 
k) §. in extraneis. Instit. de haered. qual. & differentia. , especially if † the disposition be conditional; for than it is not required in the executor (much less in the legatary) that he be capable at another time, saving only at the time of existence or performance of the condition, no not at the making of the will, or death of the testator 
l) Alex. in L. 2. ff. de vulg. & pup. sub. n. 11. Grass. d. §. Institutio. q. 28. n. 3. quae op. come. est Licèt non desint qui contrariam teneant. .  
If the executor do refuse to undergo the burden or office of an executor, than he looseth whatsoever legacy is left unto him in the testament 
m) Bar. & Sichar. in L. si legatarius. C. de legatis. , saving as elsewhere is recited 
n) Supra part. 6. §. 3. .   

Of ademption of legacies.  
1 By what means legacies become void.  
2 Ademption of legacies what it is.  
3 Ademption of legacies two fold.  
4 The testator may at any time alter his will, either wholly, or in part.  
5 Ademption of legacies not to be presumed.  
6 Corn in the barn being bequeathed, whether the same being spent, and other corn there at the death of the testator, the legacy be extinguished.  
7 Whether the ship bequeathed, being altered and renewed, the legacy be extinguished.  
8 Whether the house bequeathed, being by piecemeal reedisied and renewed, may be recovered.  
9 What if the testator do voluntarily pull down the house, and erect another in place thereof.  
10 What if the house be burned, or blown down, and another erected, whether may this new house be recovered.  
11 An answer to an objection.  
12 Whether by necessary alienation of the thing bequeathed, the legacy be adempted.  
13 What if the alienation be voluntary, the legacy is extinguished.  
14 What if the voluntary alienation be void in law.  
15 What if the testator should redeem the thing alienated.  
16 Whether lands devised, alienated, and redeemed, may be recovered.  
17 The reasons of either law being contrary in this point.  
18 If the thing bequeathed be pledged, it is not thereby adempted.  
19 Whether the receiving of the debt bequeathed by the testator, be an ademption of the legacy.  
20 A flock of sheep being bequeathed, whereof one alone is left, whether that one be due.  
§. xx.  
MAny other † means there be, whereby the testament which was good at the beginning, becometh void afterwards 
a) Centum penè casus quibus resolovitur testm. commemorat Vasq. de success. resoluc. lib. 1. : but it were too long to rehearse them all: let it suffice therefore, that I have spoken of such as happily may the ofter fall out in fact. Now it remaineth that I speak of such means, whereby legacies given and bequeathed by the testator become void: Of which means some do proceed from the fact of the testator 
b) Hoc ipso §. & §. seq. : some have relation to the fact or person of the legatary 
c) Infra §§. 22. & 23. : some to the thing bequeathed 
d) Infra §. vlt. .  
In respect of the fact of the testator are legacies made void, especially by ademption, and by translation of the thing bequeathed 
e) Instit. tit. de ademp. & translac. legatorun & tit. de adimen. vel transferend. leg. ff. .  
Ademption † is a taking away of the legacy before bequeathed 
f) DD. in d. Rub. de ademp. & translac. leg. Instit. : Translation is a bestowing of the legacy bequeathed upon some other person 
g) Mincing. in d. Rub. . Ademption may be without translation, but translation of a legacy cannot be without ademption 
h) Mincing. ubi supra. Wesenb. in tit. de adimen. vel transfferend. leg. ff. .  
Ademption † of legacies is two fold, expressed and secret 
i) Wesenb. in d. tit. de adimen. leg. ff. : expressed, when the testator doth by words take away the legacy before given 
k) L. 2. & 3. de adimen. leg. ff. : secret, when the testator doth by deeds without words take away the legacy: as when he doth give away the thing bequeathed, or doth voluntarily alienate the same before his death 
l) L. rem legatam. de adimen. leg. ff. .  
It is † lawful for every testator 
m) L. 3. de re. iud. L. 3. de reg. iur. ff.  so long as he liveth, to revoke or alter his will 
n) L. 4. ff de adimen. leg. ff. , either wholly or in part 
o) L. vlt. de adimen. leg. ff. , either in the same will, or in another, either solemn or unsolemn 
p) Quod si alio testamento insolenni fiat ademptio, tunc non ipso iure, sed ope exceptionis tollitur legatum. Grass. Thesau. come. ●●. §. legatum. q. 78. , simply, ●r conditionally 
q) L. datum. C. de legatis. .  
When the testator doth expressly revoke the legacy, it is not material whether he do use words direct contrary: as I do not give, I do not bequeath, or any other words whatsoever, so that his meaning may appear 
r) L. 2. & 3. ff. de adimé. leg. Insti. tit. de ademp. legate. .  
Ademption † of legacies is no more to be presumed, than the revocation of the testaments 
s) Bald. in L. si pluribus ff. de leg. 1. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 2.  unless it be proved 
t) L. eum qui voluntatem, ff. de probac. . And therefore † if the testator do bequeath all the corn in his barn, and after the making of his will, the testator surviveth until all the corn be spent, and other corn put in the please thereof 
v) Secus si non sit repositum per modum surrogationis, ait Angel. in L. si servus. §. qui quinque. ff. de leg. 1. Mascard. de probac. conclus. 1283. n. 33. : this spending of the corn is no ademption of the legacy; and therefore the legatary shall have such corn as is found in the barn when the testator dieth 
x) Bar. in d. §. qui quinque. Mantic. de conject. vlt. vol. lib. 12. tit. 2. n. 9 , unless the corn found in the barn at the death of the testator, be greater in quantity than was the corn at the time of the will making: for so much is due, but not a greater quantity than was the first 
y) Paul. de Castr. in d. &. qui quinque. Mascard. de probac. d. concls. 1283. n. 33. 34. .  
Likewise if † the testator do bequeath a ship, and afterwards doth by piecemeal repair and renew the same, so that there remaineth nothing of the old ship but only the bottom tree: here is no ademption of the legacy, and therefore the legatary may recover the whole ship 
z) L. quod in rerum. §. & si navem. ff. de leg. 1. Spiegel. Lexic. verb. carina. Mantic. de conject. vlt. vol. lib. 12. tit. 2. n. 7. .  
Or if the † testator do bequeath a house, and afterwards by piecemeal repair the same, so that there is no part of the old matter or stuff remaining, the will of the testator is not hereby presumed to be changed, and therefore the legatary may recover the house so repaired 
a) L. si ita legatum. §. fi domus. ff. de leg. 1. : For it is deemed to be the same house still in law, as in the former case it is deemed to be the same ship 
b) jas. in d. §. si domus. n. 1. Mascard. de probac. conclus. 1280. n. 21. Zas. in d. §. & si navem. .  
But if the † testator did at once voluntarily pull down all the whole house bequeathed, & did afterwards erect anew house in the same place; then by the civil law, the will of the testator is presumed to be changed, and the legacy extinguished 
c) Paul. de Castr. in d. § si domus. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 6. . And although by the laws of this realm, it may be otherwise in contracts and covenants amongst such as be living 
d) Id quod non semel mihi nunciatum fuit. : admit it were so (as in some sort it is answerable to the civil law 
e) Intellige quoad iura realia quorum intuitu aedificium destructum & restitutum cen●●tur idem. L. seruitutes. §. sublatum. ff. de seruit. verb. praed. ) yet the reason of the difference is not obscure, which is this. In contracts, covenants, and grants made amongst such as be living, he to whom this or that is lawfully granted, hath by and by a certain right and interest therein 
f) Bar. & alij. in d. §. vlt. , which without his consent ought not to be impaired 
g) L. Id quod nostrum. de reg. iur. ff. , and whatsoever is builded upon another's ground, yieldeth thereunto, and thereby becometh his, which is the owner of the ground 
h) §. cum in suo solo. Instit. de rerum divis. . But in a testament or last will, there is no such right derived to the legatary, in, or to the thing bequeathed, until the testator be dead 
i) Bar. in d. L. si ita legatum. §. vlt. de leg. 1. verb die ergo. : and therefore, if in the mean time the testator do alter his mind (which alteration is manifest, as well by deeds as by words 
k) L. Paulus. ff. rem rat. haberi. Wesenb. in tit. de adimen. leg. ff. n. 2. & 4. :) In this case the legatary which hath no right, cannot make such claim to the thing bequeathed as another may do, to whom a thing is covenanted or granted, and so hath a right and interest therein 
l) Bar. in d. §. vlt. & jas. ibid. n. 6. . In deed if the testator were dead, and so a right in the legatary, and then the heir or executor should pull down the house devised, and erect a new house in the same place, the legatary might recover the new builded house 
m) L. domos. de leg. 1. ff. & ibi DD : but being pulled down by the testator, whiles as yet there was no right or interest in the legatary, the legacy is extinguished 
n) Text. in d. L. si ita legatum. § si domus. Mascard. de probac. conclus. 1280. n 27. , as is aforesaid: unless a contrary meaning be proved in the testator, viz. that he did not intend to revoke the devise, by destroying the thing devised 
o) Eod. §. si domus. , because peradventure he did protest 
p) L. at si cleric●. §. plerique ff. de relig. & ibi Bald.  before he caused the house to be pulled down, that he did not thereby mean to make void the devise, or after the reedifiing thereof, did ratify and confirm his former will 
q) Arg. L. 1. §. 1. de leg 3 ff. Brook Abridg. tit. devise. n. 8. , or did manifest his meaning by other equivalent conjectures, without which proof of such the testators meaning, the legacy is so surely extinguished, that albeit the testator did pull down the house, with intent to re-edify the same, or to make it bigger 
r) jas. in d. L. si ita. §. vlt de lega. 1. ff. n. 13. in sin. : and albeit it were re-edified of the same matter or stuff 
s) Paul. de Castr. & jas. in d. §. si domus. Mascard. de probac. concl. 1280. n 25. , yet it cannot be recovered as due to the legatary: for now having a new form, it is not the same but another house 
t) jidem Castreus. jas. & Mascard. ubi supra. Mascard. de probac. conclus. 11●0. n. 25. , and so being another thing than that which was bequeathed, how can it be rightly challenged by the legatary 
v) Vide DD. in L inter stipulantem. ff. de verb oblige. .  
What if † the house bequeathed be blown down with violence of the wind, or be consumed with fire, or otherwise by casual means destroyed, against the will of the testator, and a new house erected by the testator, in the ●l●ce where the former stood; whether may the legatary recover the house newly erected? By the opinion of some he may 
x) jas. in L. domos. ff. de leg. 1. n. 1. & in L. si ita legatum. §. si domus. eod. tit. n. 13. , for if the testator had not erected a new house, by the civil law the ground whereon the house did stand, should belong to the legatary 
y) L. si grege legato. ff. de leg. 1. in fin. Paul. de Castr. in d. §. si domus. verb. sed ponc. & ibi jas. n. 2. & 7. . Seeing then the ground is the legataries, it followeth that the house is the legataries also 
z) L. si servum filii. §. si a cae. ff. de leg. 1. jas. & Paul. de Castr. ubi supr . Howbeit the author of this opinion in another place is of another opinion 
a) jas. in L. domus. ff. de leg 1. n. 13. , which opinion is also commended of other writers, as more agreeable to law 
b) Mascard. Tract. de probac conclus. 1280. n. 27. & Mantic. de conject. vlt. vol. lib. 12. tit. 2. n. 6. , because this house is another house than that which was bequeathed. And again, the text of the civil law is plain, that the house bequeathed being destroyed, if the testator build another in the same place, the legacy is extinguished, unless the meaning of the testator were otherwise 
c) Text. in d. § si domus. . Seeing then, the text doth not distinguish of the means whereby the house is destroyed, neither may we 
d) Mas●●. & Mantic. ubi sup .  
To the † former reason that the ground had belonged to the legatary, if the testator had not builded a new house, ergo the house also: It is answered, that if it were granted (which of divers is denied) that the ground should be ong to the legatary 
e) Raph. Cu. Petr. de Bexu. in d. §. si domus, & ibi jas. n. 13. , yet should it not belong unto him as principal, but as accessary, or part of the house bequeathed 
f) Bar. Paul. de Castr. jas. in d. §. si domus. : and therefore being but accessary, it doth not receive any other access or augmentation 
g) jidem Bar. jas. & Paul. de Castr. ubi supr. . How be it, forasmuch as these questions about houses devised by will, afterwards destroyed, and then re-edified, are rather to be determined by the laws of this realm, then by the civil law: I do willingly yield the matter into their hands, to whom it principally appertaineth.  
Furthermore, if † the testator being constrai●●● need 
h) L. fideicommiss. §. si rem. ff. de leg. 3. L. rem legatam. de adimen. leg. , as to pay his debts, or to provide him food, or other like necessaries 
i) Mi●sing. in §. si rem. Instit. de lega. Berous. q. 9 Add quod siuè necessitas sit ex re familiari. siuè ex lege utraque impedit praesumptioneth revocationis le●ati. Mascard. de probac. conclus. 1280. n 126 , do as it were unwillingly alienate the thing by him before bequeathed, this is no ademption of the legacy 
k) d. L. fideicomissa. §. si rem. , and therefore is the executor bound to redeem the same, or to pay the just value thereof to the legatary, unless he prove that the testator did purpose by the said alienation to take away the legacy 
l) d. §. si rem. Instit. de lega. Mascard. de probac. d. concls. 1280. n. 127. , or unless the legacy were conditional, and the alienation made before the condition were extant or accomplished 
m) L. Stichum. ff. de lega. 1. Bald. in L. 3. C. de lega. n. 6. . But † if the testator not constrained by necessity, do of his own accord alienate the thing bequeathed (as if he give the same freely 
n) L. rem legatam. ff. de adimen. lega. , or do sell the same of intent to gain thereby 
o) Berous. d. q. 9 ) this is an ademption of the legacy 
p) Bar. & alij, in L. r●● legatam. ff. de adimen. leg. & in L. 3. C. de lega. : which conclusion † hath place, although the gift or alienation be void in law 
q) L. legatum. §. pater ff de adimen lega. Bar. in L. cum dns'. § fin. de pecul. leg 1. Socin. sen. consil. 104. n. 11. vol. 3. Covar. in Rub. de testa. extra. 2. part. n. 21. Mantic. de coniect. vlt. vol. lib. 11. tit. 6. n. 2. quod locum habet tametsi legatum fuerit expressim legatum, & h●●c sententia verior est. & receptior. testibus Mantica ubi supra. Mascardo de probatione concl. 1280. n. 98. Gabriel. cons. 103. Idem juris est si facta alienatione dominium non sit tra●●atum. Mantic. d. tic. 6. n. 3. Mascard. d. concl. 1280. n. 100 Et licèt non desint magni nominis Interpretoes, qui in contraria stant sententia, per L. praedia §. libert. de Instr. leg. Falsissima tamen est horum sententia, si verum dicat Gabr. d. consil. 103. Tu verò dic ut per D. Gentilem, acutissimè de hac re differentem. lib. 1. epist. c. 10. : For it is sufficient in last wills, for the revoking of a legacy that the testators meaning do appear even by a sufficient act 
r) Covar. in d. Rub. part. 2. n. 21. verb. advertendum. Grass Thesaur. come op. §. legatum. q 78. in sin. .  
Secondly, this conclusion † hath place although the testator should redeem the thing alienated, the alienation being lawful 
s) L. cum servus. ff. de adimen. leg. : and therefore if the legatary should after the death of the testator demand the legacy alienated, and redeemed, his petition were to be repelled, unless he did prove a new will of the testator, or some approbation or ratification of the former will, after the redemption of the thing alienated 
t) d. L. cum servus. , or unless the legacy be of freedom from bondage 
v) L. verum. ff. de testam. manumiss. , or given to some godly or charitable use 
x) M●nsing. in d. §. si rem. Instit. de lega. Mantic. d. tit. 6. n. 6. Mas●a●d. d. conclus. 1●80. n. 112. : or unless the alienation were necessary, not voluntary 
y) Bar. ●n d. L. cum seru●s. , or unless the legatary be near of kin or allied unto the testator 
z) L. si●ia. § Titio. ff. de cond. & daemon. Masc. d. concl. 1280. n. 111. : In these and in some other cases, the legacy redeemed may be recovered, as if the same had never been alienated 
a) Mascard. d. conclus. 1280. n. 108. 109. etc. ubi alias videre licet huius regulae exceptiones. . Peradventure also by the laws of this realm † lands, tenements, and hereditaments, being first devised, and after the devise alienated, and after the alienation redeemed, may be recovered, as if the same had not been alienated 
b) Brook abridge. tit. devise. n. 8. . The † reason of this law may be, because the alienation doth not defeat the will, which is not as yet of any force until the testator be dead 
c) Brook. eodem loco. : but the reason of the civil law is, because by this voluntary or unconstrained alienation, or gift of the thing bequeathed, being an act contrary to the former act of the testator, his will and meaning, (which is the life and soul of the testament,) is strait ways presumed to be changed 
d) Aretin. in §. si rem Instit. de lega. Socin. sen. consil. 103. in fin. Mascard. de probac. concl. 1280. n. 100 Sichard. in L. 3. C. de leg. n. 5. , and consequently the legacy not to be asleep, (as some do dream) but to be quite dead and extinguished 
e) Sichard. in d. L. 3. C. de leg. ●. 5. 8. ; and being once dead, cannot easily be awaked, but standeth in need of a new consent or other lively act before it can be revived 
f) L. cum servus ff. de adimen. lega. .  
If † the thing bequeathed be not fully alienated, as if it be pledged or pawned, the legacy is not thereby extinguished 
g) L. qui post. C de lega. : and therefore the executor in this case is bound to redeem the same, and to restore it to the legatary, or to pay the price thereof if he suffer it to be forfeited 
h) Istam conclusionem limitat & sublimitat Mascar. de probatione conclus. 1280. n. 56. etc. quem velim videas. . Likewise, if some part only of the legacy be alienated, the other part not alienated is due, and may be recovered 
i) § ff rem. Instit. de lega , unless it be proved that the testator did mean by alienating part, to take away the whole legacy 
k) Eod. §. in fin. ; or if the legacy be alternative, as if the testator bequeath something, or the value thereof, the thing being alienated, yet may the value be recovered 
l) Bald. & Paul. de Castro. in L. 3. C. de lega. .  
If the † testator do bequeath an obligation, or a sum of money due unto him, and afterwards the debtor unprovoked doth voluntarily pay the debt due unto the testator, the receipt of the same is no ademption of the legacy 
m) L. fideicommissa. §. sed si rem. ff. de leg. 3. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 19 : but if the testator do provoke the debtor to make payment, then by receipt thereof the legacy is extinguished 
n) d. §. sed si rem. & ibi Bar. & alij. L. pater. ff. de adimen. leg. Mascar. de probac. concl. 1280. n. 130. , unless the legatary be able to prove, that the testator did not thereby mean to revoke the legacy 
o) d. §. sed si rem. , for that peradventure the testator exacting and receiving the money, did lay it up, and safely keep it for the legatary 
p) Eod. §. s●d si rem. & ibi Bar. in fin & Bald. circa med. , or did utter in words that he did not intend thereby to revoke the legacy 
q) Bar. in d. §. sed si rem. : In these cases the legacy is not revoked 
r) Vide Mascar. d. conclus. 1280. n. 132. 133. .  
Finally †, If the testator do bequeath a flock of sheep, and afterwards the number decreasing, they become fewer than a flock, (a flock consisteth of ten at the least 
s) L. si grege. ff. de leg. 1. & DD ibid. ) be it that of all the flock there be left but one: In this case the will of the testator is not presumed to be altered, nor the legacy adempted, and therefore that one sheep is due 
t) §. si grex. Instit. de lega. .   

Of translation of legacies.  
1 Translation of a legacy what it is.  
2 Every translation includeth an ademption.  
3 What if the person to whom the legacy is transferred, be incapable thereof.  
4 Certain cases wherein translation of the legacy doth not include an ademption.  
5 The legacy is presumed to be transferred with the charge imposed on the first legatary.  
6 Certain exceptions of this conclusion.  
7 One and the same thing bequeathed, first to one, and afterwards to another, whether it be wholly taken from the former legatary.  
8 If in the second disposition there be no mention of the former, it is not wholly taken from the former legatary.  
9 If there be mention of the former bequest, yet the thing bequeathed is not wholly taken away.  
10 Certain limitations of this last position.  
11 Difference betwixt these words, I give▪ and I bequeath.  
12 What if the legacy consist in quantity.  
13 What if one sum be twice bequeathed to one person, whether is it twice due.  
§. x●●.  
TRanslation † of a legacy is a bestowing of the same upon an other 
a) Mincing. in tit. de ademp. lega. Inst. t. n 4. , as ademption may be made either in the same testament or in codicils, simply or conditionally: so may translation of legacies likewise 
b) Tit. de ademp. leg. Instit. L. translatio. eod. tit. ff. & DD. ibid. .  
A legacy † being transferred from one to another, the legacy is taken away from the former legatary, albeit † the second legatary be incapable of the legacy 
c) L. plane. §. 1. de leg. 1. L. & si transferam de adim. leg. ff. : for howsoever that act is said not to minister impediment, which is altogether without effect 
d) c. non praestat. de reg. iur. ●. , yet forasmuch as by this translation it doth appear to be the testators will and meaning, first to have the legacy taken away from the former legatary: this will and meaning ought to be observed, so far as it may 
e) Mincing. in d. tit. de ademp. leg. n. 6. , and ought not therefore to be hindered in one thing, because it cannot be performed in another 
f) Bar. jas. & alij, in d. L plane. . For as I said before, every † translation doth presuppose & include an ademption 
g) Caeterum an translatio sit expressa vel tacita primi legati revocatio, quaestio est cui non eod●m modo respondent omnes: Tu autem videas Covar. in Rub. de testa. extra. 2. part. n 21. , except in certain cases following. The first case is, when the testator in the time of great & extreme sickness, transferring a legacy, or bestowing the same upon an other, doth afterwards recover his health: for by this recovery the translation is void, and the former legacy confirmed 
h) L. Titia. §. vlt. de adimen. leg. ff. Mantic. de coniect. vlt. vol. lib. 12. tit. 3. n. 2. . Another case is, when the testator having bequeathed a legacy to one, and having provided that if the legatary will not do such a thing to another person, that then that other person shall have the legacy: In this case if the former legatary be prevented by death, that he cannot perform the condition though he would, the second legatary cannot obtain the legacy 
i) L sancimus C. le paenis. jas. in L. cum proponas. C. de h●●red. in●●●t. & Mantic. de coniect. vlt. vol. lib. 12. tit. 3. n. 2. . The third case is, when the legacy doth consist in quantity; as when the testator doth bequeath to one man an hundred pound, and immediately after to another man an hundred pound: here is neither translation nor ademption of the former legacy, but two several legacies 
k) L. plane. §. 1. de leg. 1. L. paulo. in prin. de leg. 3. ff. . But yet if the testator do limit this sum to some certain body, as if the testator bequeath to one man an hundred pound which lieth in his chest; than it is all one as if he said, he did bequeath his signet, his books, or his armour, whereof we shall have occasion to speak shortly after 
l) Infra hoc ipso §. n. 7. 11. .  
Furthermore, it is to be † noted in this place, that where any legacy is transferred from one to another, it is presumed to be transferred to the second legatary, with such charge, or upon such condition, as it was left to the former legatary, albeit in the translation there be no express mention of any such charge of condition 
m) L. Gaio. ff. de alimen. & cib. leg. L. legatum. de adimen. ●eg. Paul de Castr. consil. 327. vol. 1. : For example; the testator giveth to one person an hundred pound, charging him to distribute ten shillings yearly amongst the poor during ten years: afterwards the testator doth bestow that hundred pound upon an other person, without mention of any such yearly distribution: In this case the second legatary is charged with the yearly payment and distribution of ten shillings, even as the former legatary 
n) Bar. in d. L. Gaio. Mantic, de coniect. vlt. vol. lib. 12. tit. 3. n. 3. : neither can he accept the one part of the legacy without the other 
o) L. legatarius. §. si legatum. de leg. 1. : saving † in certain cases. One case is, if he be able to prove the testators meaning to be contrary, viz. that it was the testators meaning to transfer and bestow the legacy simply without any such charge or condition 
p) d. L. Gai●. . Another case is, when the condition is such, as the same doth cleave to the person of the former legatary 
q) L. legatum sub conditione. de adimen. leg. L. legatum sub conditione. de condict. & daemon. ff. : For example; the testator doth bequeath to a woman with child an hundred pound, if she be delivered of a boy: this condition doth cleave to the person of the former legatary, and so is not transferred with the legacy 
r) d. L. legatum sub conditio. de adim. legate. & ibi DD. . The third case is, when the translation is made to the same person, without mention of any further charge or condition: for than lest the second bequest should seem superfluous, it is thought to be the meaning of the testator, by the second bequest to give the same simply 
s) L. si tibi. de adimen. leg. ff. . The fourth case is, when in the translation of the legacy, there is a new special charge imposed upon the second legatary: for then the old charge imposed to the former legatary is presumed to be remitted, lest otherwise the later legatary should be pressed with a double charge 
t) L. Alumne. de adimen. le Paul. de Castr. consi. 327. vol. 1. Mantic. de coniect. vlt. vol. lib. 12. tit. 3. .  
What if the testator after he have given a legacy to one person, do afterwards bequeath the same to another person, whether is this an ademption of the former legacy, or whether ought both the legataries to concur, and to have the legacy betwixt them.  
For answer, we are to consider, whether some special and certain thing is bequeathed, or a thing consisting in quantity.  
In the former case, namely when some special or certain thing is bequeathed; it is material whether the legacy be of lands, tenements, or hereditaments, and so the question determinable in the temporal court, according to the laws temporal of this land, are of goods, and so the controversy to be decided in the ecclesiastical court, according to the laws ecclesiastical of this realm. If of lands, tenements, & hereditaments, as when the testator (for example) doth in the former part of his will, devise his lands in such a place to one in fee, and afterwards in the later part of the same will, to another person in fee: it seemeth by the laws of this realm, that the later part doth overthrow the former 
s) Ploughed. in cas. inter Paramor & Yardley. fol. 541. . And that as the later testament doth destroy the former testament: 
t) Eaden enim est ratio partis ad partem, atque totius ad totum. Euerard. loc. top. à toto ad partem.  so the later part of a testament, doth infringe the former part of the same testament, when it is contrary thereunto: nevertheless I will not presume to affirm, that this conclusion is undoubtedly certain, but with due submission surrender the same, to be discussed by the learned in the laws temporal, unto whom it rightly appertaineth.  
If the devise be of goods; as when the testator doth bequeath his signet, his books, or his horse, etc. First to one person, and afterwards to another person: then in case the second legacy be simple, (I mean without mention of the former) the former legacy is not taken away, but the two legataries concurring, aught to divide the legacy betwixt them 
v) Paul. de Castro. jas. & Zas. in L. si pluribus. ff. de leg. 1. Ripa. in L. re coniuncti. n. 21. de leg 3. . The reason and foundation whereupon this conclusion is builded, is the testators constancy, wherein the civil law doth repose such confidence, that when he hath once bequeathed a thing, he is not presumed to take the same away 
x) d. L. si pluribus. verb. si quidem evidentissimè. , without evident presumption 
y) Raph. Cum. in d. L. si pluribus. & ibi jas. n. 12. & 13. & zas. n. 14. qui omnes tenent sufficere coniecturalem probationem, non obstante quod Textus exigat evidentissimam. Quin imo, probatio vel ex coniecturis emergens, dicitur evidentissima, in translatione legatorum. jas. ubi supra. post Bar. in L. si constant. ff. sol. ma. n. 12.  of the alteration of his former resolution. Insomuch that if one and the same thing be left to one person in the testament, and to another in the codicil, yet is not the testator presumed so variable, as utterly to take away the former legacy, but rather that both the legataries are to concur, and so to divide the legacy betwixt them 
z) Bald. in L. cohaeredi. §. cohaeres. in fin. de vulg. & pup. sub. ff. Alex. consil. 169. vol. 5. Mantic. de coniect. vlt. vol. lib. 12. tit. 2. n. 3. . Where it is said that as the later testament doth destroy the former testament: so likewise the later part of the testament, doth overthrow the former part thereof: That is true, when it is evident that the testator did mean it should be so 
a) d. L. si pluribus. & ibi DD. Mantic. de coniec. vlt. vol. lib. 12. tit. 2. n. 3. in fin. : But if it be doubtful, then without all doubt we ought to labour diligently to save the testament from contradiction 
b) Mantic. de coniect. vlt. vol. lib. 3. tit. 5. in fin. Socin. jun. consil. 125. vol. 1. n. 5. , and not suffer one part to fight and brawl with another; much less to permit one part to kill and destroy another, in case there be any place for peace, or hope of reconciliation to be had betwixt them. Again, the argument is not of equal force, à part ad partem, with the argument à toto ad totum, in case there be inequality or diversity of reason betwixt the one and the other 
c) Euerard. d. loco, à toto ad partem. n. 7. post Cyn. & alios legû interprete. in L. cum notissimi. §. in his. C. de praescrip. 30. ann. , as in this case: For say that such is the force of posteriority in testaments, that the later doth still destroy the former 
d) §. posteriore. Instit. quib. mod testam. infirm. , without any other revocation 
e) Viglius. & Mincing. in d. §. posteriore. : Say and think, that the life of the later testament is evermore the death of the former testament, even because it is the later 
f) Grass. Thesaur. come. op. §. testm. q. 860. in prin & supra eadem part. §. 14. : yet how can it be thereby justified, that the later part of a testament doth destroy the former part, whereas neither part doth receive any life before the other 
g) Bar. in L. si quis. ff. de testa. L. ex ea scriptura. eod. tit. : for until the whole testament be completed, the parts thereof are as the senseless parts of an unperfect creature, or confused embryo 
h) d L ex ea scriptura, Imo (inquit Textus) testamentum imperfectum est sine dubio nullum. §. pen. Instit. quib. mod. testa. infir. : and do receive their life altogether at one instant; namely when the testator having finished his testament, doth approve the same for his last will, and not before 
i) jul. Clat. §. testm. q. 7. in fin. : Like as they do receive their strength all at one moment, namely at the death of the testator, and not before, at which time the foresaid Embryo being now grown to a perfect child, is then brought into the world, when the testator doth departed out of the world 
k) Chrof. Porcus. in §. in extraneis. Instit. de haer qual. & different. c. March. de celebr. miss. extra. .  
If the second bequest be qualified with mention of the former: for example; the testator saith, my signet which I bequeathed to A.B. I bequeath to C. D. whether in this case the former legacy be quite taken away, or in part, is a question wherein the writers do greatly vary 
l) Id quod patet per Mantic. de coniect. vlt. vol. lib. 12. tit. 4 per Covar. in Rub. de testa. extra part. 2. per Grass. Thesaur. come. op. §. legatum. q. 8. per Vasq. de success. progress. lib 3. §. 23. n. 96. etc. & per Doctores, in L. plane. & L. si pluribus. ff. de leg. 1. : but the greater number incline to this opinion, that the former legacy is not wholly taken away, but that they are both joint legataries 
m) Bar. in L. re coniuncti. ff. de leg. 3. cuius opinionem frequentiori calculo receptam monstrat nobis Mantic. de coniect. vlt. vol. lib. 12. tit. 4. n. 1. et refert Grass. Thesaur. come. op §. legatum. q. 180. , except in certain cases. One is when it may appear (at least by conjectures) that it was the testators meaning to take away the legacy from the former legatary wholly. 
n) Bar. in d. L. re coniuncti. Mantic. d. tit. 4. n. 8. Grass. d. §. legatum. q. 80. n. 2. . Another is, when the second bequest is not made in the same testament, but after in some codicil 
o) Ripa. in d. L. re coniuncti. n. 23. de leg. 3. ff. Mantic. d. tit. 4. n. 10. . Another case is, when the testator in the second disposition saith, that which I did bequeath to A. B, I give to C. D: for this word give, is of such force, that it seemeth wholly to take away the former legacy 
(p) Covar. in Rub. de testa. extra. part. 2. n. 21. Alciat. in L. triplici. de verb. sig ff. n. 13. Mascard. Tract. de probac. conclus. 1280. n. 47. .  
In the second case, that is to say, when the legacy doth consist in quantity, if the testator do bequeath to one man an hundred pound, and immediately to another man an other hundred pound: here is neither translation, nor ademption, but two several legacies; and either legatary in this case shall recover an hundred pound 
q) Atque haec conclusio sine contradictione vera est. Mincing. in §. transferri. Instit. de ademp. leg. n. 8. , as I have showed before. Where also I signified, that if the testator do restrain this quantity to a certain body, as to the hundred pound sealed up in such a bag, than it is reduced to that case of bequeathing a certain special thing, as the testators signet, first to one; and then to another 
r) L. plane. §. si eadem. de leg. 1. ff. verb. sed hoc ita. & Zas. eod. §. n. 3. verb. sed finge. .  
If the testator do bequeath to one man an hundred pound, and afterwards in the same testament bequeatheth to the same man an hundred pound; the second disposition is understood to be but a repetition of the former, and all but one legacy 
s) Gloss. in d. L. plane. §. 1. & ibi jas. n. 11. & Zas. n. 14. Michael. Grass. Thesaur. come. op. §. legatum. q. 60. Contra quam opinionem quantumuis communem, emanavit disputatio à D. Gentil. condita, non in elegans, nec iniucunda. Hanc ipse legito. lib. disputac. fol. 51. : wherefore the legatary in this case can recover but one hundred pound; unless he make proof that it was the testators meaning, that he should have two hundred pound 
t) Tunc enim saepiùs praestanda est summa, si modò evidentissimis probationibus ostendatur testatorem multiplicare legatum voluisse. d. §. 1. : or unless an unequal quantity be given to the same legatary; as if the testator do bequeath in one part of his testament an hundred pound, and in another part fifty pound: for in this case the legatary may recover an hundred and fifty pound 
v) L. cum centum. de adimen. leg. ff. jas. in d. § 1. Grass. d. q 60. ubi scribit hanc op. esse come. : or unless where two equal sums be left to one person, the one quantity were left in one writing, and another quantity in another writing, suppose one C. pound in the testament, another hundred pound in the codicil; for here the legatary may recover two hundred pound 
x) jas. & Zas. in d. L. plane. §. si eadem. de leg. 1. & haec op. come est, ut per eosdem Doctores: & per Grass. d. §. legatum q. 60. & per Ripam. d. L. coniuncti. de leg. 3. ff. , as two several legacies, except the executor prove the testators meaning to be contrary 
y) Minsin. in tit. de aden. legate. Instit. n. 8. .   

Of diverse means whereby legacies are lost, considerable in the legatary.  
1 By what means he that is named executor is made incapable of the executorship, by the same means doth the legatary lose his legacy.  
2 The legacy is lost by reason of enmity betwixt the testator and the legatary.  
3 diverse extensions of this conclusion.  
4 What if the testator were the cause of the enmity, and the legatary in no fault.  
5 Certain cases wherein the legacy is not lost by reason of enmity.  
6 The legatary being appointed tutor, looseth his legacy, if he refuse the tutorship.  
7 The legatary, if he accuse the testament of falsity, looseth his legacy.  
8 The legatary which doth cancel the testament, doth lose his legacy.  
9 The legatary doth lose his legacy, who of his own authority doth take and possess the thing bequeathed.  
10 Certain cases wherein the former conclusion is limited.  
§. xxii.  
IN respect of the fact and person of the legatary, the legacy may become void divers ways. And first generally † by all the means above recited, whereby the executor is made incapable of the executorship 
a) Gloss. in L. 3. §. fin. de adimen. leg. ff. L. ex part. eod. tit. Mantic. de coniect. vlt. vol. lib. 12. tit. 4. n. 2. : as if the legatary do become an heretic, an apostata, or do forbid the testator to alter his will, etc. of all which means we have spoken already 
b) Supra part. 5. §§. 2. 3. 4. cum seq. & supr. ead. part. §. 18. , wherefore we shall let them pass, and descend to some particular causes not yet mentioned.  
First therefore, if the † legatary become enemy to the testator, he looseth his legacy 
c) L. 3. §. fin. de adimen. leg ff. Tiraquel. in reg. cessant causa. n. 127. Mantic. de coniect. vlt. vol. lib. 12. tit. 5. in prin. . For besides that he seemeth unworthy of a benefit at his hands, whom he doth offend and injury, it is not likely that the testator would, that that person which doth persecute him with hatred and enmity whiles he liveth, should reap any commodity by his testament when he is dead 
d) L. si inimicitiae. ff. de his quib. ut indig. L. nec adiecit. ff. pro socio. Mascard. de probac. conclus. q. 1280. n. 137. : and therefore if the testators enemy should demand any legacy, he might justly be repelled, by reason of the defect of the testators will and consent 
e) DD. in d. L. si inimicitiae. & in d. §. fin. , which consent is the life and soul of the testament.  
The † extensions of this conclusion are these. First, albeit the testator do afterwards make some codicil, or additions to his testament, and do not therein expressy revoke the legacy, before bequeathed in his last testament, yet is it still presumed to be revoked secretly, and in the intent of the testator, by reason of the aforesaid hatred or enmity 
f) L. filio. §. scia. & ibi Bar. de adimen. leg. ff. Rip. in L. vlt. de revoc. done. C. Mantic. de conject. vlt. vol. lib. 12. tit. 5. n. 2. Mascard. de probac. concl. 1280. n. 138. .  
Secondly, the former conclusion hath place, albeit the testator were ignorant of the injury done unto him by the legatary, when it is such an injury, for the which it is very likely that the testator would have revoked his legacy, if he had known thereof: as if the legatary have committed adultery with the testators wife, or have deflowered his daughter 
g) Gloss. in L. fideicommissum. C. de fideicommiss. Mantic. de coniect. vlt. vol. lib. 12. tit. 5. n. 6. & quidem ipso iure tollitur legatum. si vivente testatore stupravit eius uxor. eo verò de functo,  exceptionis Apost. ad gloss. in d. L. fideicommissum. .  
Thirdly, if the wife divert or departed from her husband, without his good favour, she looseth her legacy 
h) L. uxori de aur. & argent. leg. ff. & ibi gloss. cum Bar. Mascard. de probac. conclus. 1280. n. 140. Mant. d. tit. 5. n. 3 .  
Fourthly, he which doth accuse the testator of any capital crime, looseth his legacy 
i) L. filio. §. scia. ff. de adimen. leg. .  
Fiftly, he which becometh capital enemy to the testators brother, loseth his legacy 
k) Mantic. de coniect. vlt. vol. lib. 12. tit. 5. n. 8. .  
Sixtly †, albeit the testator himself were the cause of the enmity, and the legatary in no fault, yet shall the legatary lose his legacy 
l) Mantic. d. tit. 5. n. 9 jas. in L. si filiam. C. de inossic. test. Ripa. in L. vlt. C. de revoc. done. n. 151. Covar. in Rub. de testa. extr. part. 2. n. 19 versic. 5. in fin. contra opinionem Bar. à multis olim quidem receptam (quorum diligenter meminit Cotta in causa sororis suae, asseverans eam esse communem in memorabilibus. verb. inimicitiae) sed hody magis communiter reprobatā, ut refert Mascard. de probac. concl. 1280. n. 144. : which conclusion may seem hard, but the reason is easy, namely, because where the testator hath conceived enmity, there is he presumed to have altered and revoked his will 
m) Mant. d. tit. 5. n. 9 L. 3. §. vlt. de adimen, leg. ff. : which alteration and revocation is so much the rather presumed when the testator himself is the cause of the enmity, for he that will be enemy without a cause, is less a friend than he that is unwillingly made an enemy. And therefore I do the rather incline to their opinion, which hold that the legacy is taken away by enmity arising from the testator, without any just cause given by the legatary. If any think that this opinion doth savour more of law then of equity, let him yet consider that even in equity, the legatary, although innocent, ought not to receive any favour against the will of the testator 
n) Dec. consil. 426. Mantic. de coniect. vlt. vol. lib. 3. tit. 19 n. 11. : At least howsoever the legararie were in no fault at the first, if at the last being provoked by the testator, he become his enemy, seeking to be revenged for the injury done unto him: in this case he loseth his legacy, even as well as if he himself had first broken the bond of amity 
o) Mascard. de probac. concl. 1280. n. 145. qui hoc distinctionis foedere contrarias opiniones conciliari putat. .  
Seventhly, if the legatary did neglect to minister necessary help to the testator in time of his sickness, when as he might easily have done the same, through the want whereof the testator died, the legacy is lost 
p) L. indignum. ff. de his quibus ut indignis. : For who so looketh to be benefited by a man's death, he ought to beware that he be not the occasion thereof, either in committing, or in omitting any thing, contrary to the rule of piety and charity 
q) Mantic. d. tit 5. n. 10. Mascard. d. concl. 1280. n. 134. 135. .  
Eightly, if the legatary by injurious and contumelious words do grievously defame and slander the testator, or curse him with wicked speeches: In these and such like cases the legacy is lost 
r) L. si inimicitiae. ff. de his quibus ut indignis. Mantic. d. tit. 5. n. 11. quem velim te videre. .  
The † limitations of the former conclusion are these: First, when the enmity is not great and grievous, but small and light 
s) L. ●. § vlt. de adimen. leg. L. si inimicitiae. ●e his quibus ut indig. ff. : for the testator is not presumed to have altered or revoked any part of his will and testament, made with deliberation and constancy, by reason of any light offence, or small displeasure: But then when as the testator is moved and stirred, as it were with violence of great displeasure, and thereby driven to such bitterness of mind against the legatary, that it may seem that it repent the testator that he had bequeathed any thing in his testament to such a legatary 
t) Mantic d. tit. 5. n. 14. Zaf Tract. de sub. c. 2. col. pen. jas. in L. si filiam. C. de inoffic. testa. .  
Secondly, when the legacy is left in respect of the good desert of the legatary 
v) Mascard. de probac. concl. 1280. n. 147. Ripa. in L. vlt. C. de revoc. done. n. 150. : for where desert went before, the legacy is not presumed to be taken away by the offence following 
x) L. si pater. §. pen. ff. de donac. Bald. in L. si cum tibi ff. de dolo. Mantic. d. tit. 5. n. 17. ; at the least if the offence be not very great and heinous, such as may be thought to alter a man's purpose, even against him that had well deserved 
y) Mantic. ubi supra. vide Mascard. d. concl. 1280. n. 148. .  
Thirdly, when the testator and legatary be reconciled and reduced into friendship again, for then the former enmities do not prejudice the legatary 
z) L. 4. de adimen. leg. ff. Grass. Thesau. come. op. §. legatum. q 78. Masc. d. conclus. 1280. n. 149. : Not only by reason of enmity betwixt the testator and the legatary, during the testators life; but also by other occasions after the testators death, considerable likewise in the person of the legatary, the legacy may be lost.  
If the † legatary being appointed tutor in the testament, or charged by the testator with the bringing up of some child, do refuse to undergo the charge, he loseth his legacy 
a) L. post legatum. verb. amittere ff. de his quibus. ut indignis. : which conclusion proceedeth whether he were appointed tutor, either in the same testament wherein the legacy is contained, or in some codicil, the legacy being contained in the testament 
b) L. Nefensius juncta. L. seq. de excus. tut. ff. , or whether he were appointed by the father of the child, or by any other having authority to appoint a tutor 
c) d. L. Nesensius. L. naturali. de confir. tut. ff. & ibi Bar. L. si patronus. eod. tit. & ibi Bald. , (of whom we have spoken before 
d) Supra 3. part. §. 9 cum sequen. ) or whether the legacy were left conditionally, (viz. if he did undertake the tutorship) or simply 
e) L. sed haec. ff. de excus. tut. Gribald. Thesaur. come. op. verb. tutor. , or whether the tutor appointed be of kin or allied to the testator or no 
f) Gribald. d. verb. tutor Bar. jas. Sichard. & alij, in L. si legararius. C. de lega. Et ista opinio communis est iure Authent. ꝑ §. his omnibus de haered. & falcid. refragante Covar. in c. johannes de testa. extra. sed distingue, ut per Alex. & alios. in d. L. si legatarius. . But the said conclusion faileth, when the legararie would be tutor, but cannot 
g) DD. in d. L. si legatarius. C. de lega. , or when it doth not stand by the legatary, that he is not admitted tutor 
h) L. cum filius. §. non iure. de leg. 2 ff. : or if by other circumstances it may appear that the testator would that he should have the legacy, albeit he did not undertake the tutorship: In which case the tutor not being monished to undertake the tutorship, doth not lose his legacy 
i) Alex. & Sichard. in d. L. si legatarius. C. de lega. .  
Item, if † the legatary after the death of the testator, do accuse the testament, as a false testament, he looseth his legacy therein bequeathed 
k) L. post legatum. de his quibus ut indig. ff. , unless he being tutor to the testators children, or to some other having interest, that the testament should not take place, doth prosecute the cause against the testament, not in his own name, but as tutor, or for the behoof of the pupil 
l) L. tutorem. ff. de his quib. ut indig. , or unless he accuse the testament, not as a false testament, but as unlawfully made 
m) L. pen. eod. tit. Aetiologia est, quia non tam judicium defuncti impugnat, quàm de iure disputat. , or unless he desist from the suit before sentence be given 
n) Sichard. in Rub de his quibus ut indignis. C●n. 7. per L 2. & per L. aliam causam. eod. tit. : In these and divers like cases he doth not prejudice himself.  
Item, if † the legatary cancel or destroy the testament, he looseth his legacy 
p) L si quis cum falso. §. diws. L. si quis patris. Ad. L. Cornel. de falsis. ff. ; & so it is, though 
o) Doctores in c. ex eo. de reg. iur. 6. Gabr lib come conclus. lib. 6. tit. de reg. iur. conclus. 1. Vigel. method. iur. civil. lib. 12. c. 8. causa 17.  he do not deface the testament, but maliciously and fraudulently conceal the same 
q) L. si legatarius. C. de lega. .  
Item, if † the legatary of his own authority, without the consent of the executor, do apprehend and occupy the legacy to him bequeathed, he looseth his right and interest thereunto 
r) L. 1. quorum legatorum. ff. L. non dubium. C. de lega. : For he may not be his own carver in this case, but aught to receive his legacy at the hands of the executor 
s) Sichard. in d. L. non dubium. Perkins tit. testament. fol. 94. : which executor ought first to have all the testators goods and cattles in his hands, for the payment and discharge of the testators debts 
t) Old. de actione class. 2. action. 2 fol. 112. Perkins. ubi supra. Castrens. & Sichard in d L. non dubium. assignantes aliam rationem, nempè ob detractionem falcidiae. : which debts ought to be paid before legacies 
v) L. scimus. C. de iure de lib. Paul. de Castro. in d. L. non dubium. Brook Abridg. tit. devise. n. 6. .  
The † limitations of this former conclusion are these: First when the testator doth in his testament give licence to the legatary to take and occupy the same, without delivery of the executor 
x) Bar. in L. Titia. §. Lucius. de leg. 2. Rip. in L. 1. quorum lega. ff. Sich. in d. L. non dubium. C. de lega. ; which licence may be granted either expressly or secretly 
y) Sichard. in d. L. non dubium. Ripa. in d. L. 1. : expressly, when the testator saith, I bequeath my horse to A.B. giving him licence to take him, and to possess him of his own authority, without any delivery to be made by my executor 
z) Sichard. in d. L. non dubium. n. 11. : Secretly, when the testator saith, I bequeath unto him my horse, which I will that he quietly enjoy without trouble or molestation 
a) Sichard. in d. L. non dubium. n. 12. ; or by words of like importance 
b) Ripa. in d. L. 1. ff. quorum lega. n. 10. 11. 12 13. 14. .  
The second limitation is, when the legatary was in quiet possession of the thing bequeathed, at the time of the death of the testator: In which case if there be sufficient goods to pay the testators debts, he may still retain the legacy 
c) Socin consil. 11. lib. 1. Ripa. in d. L. 1. n. 15. Old n. de action. class. 2. action. 2. fol. 113. .  
The third limitation is, when the executor doth willingly permit the legatary, to take and occupy the legacy without contradiction 
d) L. 1. §. prodest. ff. quorum leg. .  
The fourth limitation is, when the legatary doth apprehend his legacy, before the executor have proved the will, and undertaken the executorship 
e) Paul. de Castr. in d. L non dubium. Ratio est, quia vacant haereditate, legatarius non dicitur vitiose occupare. , or before administration be granted 
f) Forte tamen censuri● ecclesiasticis puniendus est. per Legatin. unic. de bonis intestatorum. .  
The fift limitation is, when the executor is negligent, and the legacy like to perish, as when certain fruits or corn on the ground are given, and the same ready for reaping 
g) jas in d. L. non dubium. in fin. .  
The sixth limitation is, when the legatary is ignorant, that the thing by him apprehended and possessed, was bequeathed unto him 
h) Sichard. in eand. L. non dubium. n 1. .  
The seventh limitation is, when the legatary is also executor 
i) Sichard. ibi. n. 13. . In these and other cases the legatary doth not lose his legacy 
k) Old. de action. class. 2. action. interdicti quod legatorun. fol. 109. : albeit (if need be) he may be compelled to restore the same 
l) d. L. 1. quorum legatorum, & ibi Zas. & Ripa. d. L. non dubium. & ibi jas. & Sichard. .   

Of the death of the legatary before the legacy be due.  
1 If the legatary die before the legacy be due, the legacy is extinguished.  
2 A simple legacy beginneth to be due at the death of the testator.  
3 What if the legatary die at the same instant when the testator dieth.  
4 If the prince die before the testator, his successors may obtain the legacy.  
5 A conditional legacy is not due before the condition be extant.  
6 If the legatary die before the condition be extant the legacy is not transferred to his executors.  
7 Extensions of this former conclusion.  
8 Limitations of the same conclusion.  
9 If the legacy be referred to a certain day, whether it begin to be due at the death of the testator.  
10 When the day is utterly uncertain, the legacy is as if it were conditional.  
11 What if the day be certain in some respects, and uncertain in other respects.  
§. twenty-three.  
IF the † legatary die before the legacy be due, the legacy is extinguished 
a) L. si post. ff. quando dies. leg. ced. . That we may know when the legacy is due, we are to consider, whether the same be pure and simple, or conditional, or referred to a day 
b) Gloss. in Rub. de cond. & daemon. ff. Grass. Thesaur. co. op. §. legatum. q. 43. in prin .  
When † the legacy is pure and simple, the day wherein the legacy beginneth to be due, is the day of the death of the testator 
c) L. vnic. § cum igitur. & §. in novissime. C. de cad. tollend. , and therefore if the legatary die before that day, the legacy is void: neither can the executors or administrators of the legatary demand the same 
d) d. L. vnic. §. cum triplici. . And † so it is although the legatary live as long as the testator: for if he do not overlive the testator, but that they die both at one instant (both peradventure being drowned together, or both being stroke to death at once with the fall of an house:) In this case also the legacy is not due 
e) L. quod ff. de reb. dub. , and consequently, not transmissible to the executors or administrators of the legatary. But if the legatary do overlive the testator, though it be but a very little, even a moment, than the legacy is due 
f) Castrens. in d. L. quod de Tiraquel. de iudic. in reb. exig. lim. 3. nee longè abest jas. L. si quis. C. de Instit. & sub. n. 5. , and so may be recovered by the executors or administrators of the legatary 
g) L. si post diem. ff. quando dies. leg. ced. : neither is it material whether the legatary did know, or were ignorant 
h) L. vlt. quando dies. leg ced. ff.  of the legacy, or whether the will were proved, or the administration of the goods committed, whiles the legatary lived 
i) L. vnic. §. sin autem C. de cad. tollend. : for in this case also the same is due to his executors or adminisrators. Howbeit † the former conclusion, that if the legatary die before the testator, the legacy is extinguished, doth not proceed where any thing is bequeathed to the prince: for though the prince die before the testator, yet the legacy is due to the prince's successor 
k) L. quod principi. ff. de leg. 2. .  
When † the legacy is conditional, the day wherein the legacy beginneth to be due, is the day wherein the condition is performed or extant 
l) L. vnic. § sin autem. C. de cad. tol. Bar. in L. si post. ff. quando dies. leg. ced. : and therefore † the rule is, that the legatary dying in the mean while, before the condition be extant, the legacy is extinguished 
m) L. intercidit. ff. de cond. & daemon. & Bar. in d. L. si post diem. : which rule † is extended although the legatary were one of the testators children 
n) Gloss. in L. vnic. de his qui ante aper. tab. C. Vasq. de success. progress. lib. 3. §. 29. n. 19 quae opinio communis est, ut latiùs per Mantic. de coniect. vlt. vol. lib. 11. tit. 20. n. 1. . Item, although the condition were referred to the will of the legatary: Example; The testator giveth to A.B. an hundred pound if he will: for in this case also, if the legatary die before he have declared himself willing, the legacy is extinguished 
o) L. si ita. §. si illi de leg. 1. ff. , and so nothing is due to his executors or administrators. likewise, if the condition be alternative, whereof one part is simple, and the other conditional, if the legatary die before the condition be extant, the legacy is utterly void 
p) L. cum illud. ff. quando dies. leg. ced. : For example; the testator doth bequeath to A.B. all his plate, or if his wife have a child, an hundred pound: albeit A.B. do overlive the testator, but die before his wife have a child, the executors or administrators of the legatary can neither obtain the hundred pound, nor the plate 
q) DD. in d. L. cum illud. Aetiologia est, quia in alternativis non sunt duo legata, sed unum. .  
Limitations † of this former rule are many 
r) Vigel. method. iur. civil. part. 4. lib. 13. c. 7. except. 2. : First, when it is the testators will and meaning, that the conditional legacy be transmitted 
s) Vasq de success. progress. lib. 2. §. 18. n. 94. lib. 3. §. 29. n. 16. Bar. in L. si is cui. §. hoc autem de leg. 1. in fin. .  
Secondly, when it doth not stand by the legatary wherefore the condition is not performed, and in that respect the condition is reputed for accomplished 
t) c. cum non stat. de reg. iur. 6. pleniùs supra part. 4. §. 8. .  
Thirdly, when the legacy is not conditional, but modal 
v) L. cum tale. ff. de cond. & daemon. , (of which difference we have spoken before 
x) Supra part. 4. §. 9 .)  
Fourthly, when the legacy which was first conditional, is afterwards repeated without any condition 
y) L. non ad ea. ff. de cond. & daemon. et Castrens. ibid. .  
Fiftly, when the testator doth give the legacy upon condition afterwards to be expressed, but expresseth none 
z) L. pen. C. de Instit. & sub. .  
Finally, wheresoever the condition doth not make the legacy conditional (either because it is secretly included 
a) L. si dies. §. vlt ff. quando dies leg. ced. Manti. de coniect. vlt. vol. lib. 12. tit. 20. n. 5.  in the disposition, or rejected 
b) L. conditiones. de condic. Instit ff. §. impossibilis Instit. de hae. red. instit. & supra §§. 4. & 5. part. 4. ) it doth not hinder the transmission of the legacy to the executors or administrators of the legatary deceased, no more than if it were a simple and pure legacy.  
When † the legacy is referred to a day, than it skilleth whether the day be altogether certain, or altogether uncertain, or in some respect certain, and in other respects uncertain.  
In the first case, that is to say, when the day is certain, the legacy beginneth to be due at the time of the death of the testator, although it can not be demanded effectually before the day do come 
c) L. cedere diem. de verb. sig. ff. & ibi Alciat. &. Rebuff. . And therefore if after the death of the testator, the legatary die also before the day of payment, the legacy is transmitted to the executors or administrators of the legatary, as if it had been a pure and simple legacy 
d) L. si dies. ff. quando dies lega. ced. : For example; the testator doth bequeath to A.B. an hundred pound at Easter, anno domini 1600, and afterwards dieth, and after him the legatary dieth also before Easter anno 1600: In this case the executors or administrators of the legatary, at Easter 1600. may demand and recover the legacy, because the time is undoubtedly certain (in the reputation of law) aswell in respect of the question when, as in respect of the question whether 
e) DD. in d. L. si dies. & in L. si post diem. ff. quando dies leg. ced. Grass. Thesaur. con. op. §. legatum. q. 43. n. 3. 4. 5. .  
In the second case, that is to say, when † the day is utterly uncertain, the legacy is compared to a conditional legacy 
f) L. dies incertus. ff. decond. & daemon. : and therefore if the legatary die in the mean time, the legacy is lost without hope of devolution thereof, to the executors or administrators of the legatary deceased 
g) L. vnic. §. sin autem. C. de cad. toll. : For example; The testator saith: I do bequeath to A. B. an hundred pound when he shall be married: or thus; I bequeath to A.B. an hundred pound to be paid when he shall be married: here the day is utterly uncertain: for neither is it certain when, neither yet whether the legatary shall marry before the event: and therefore if the legatary die before he be married, his executors or administrators have no action or right to demand the legacy 
h) DD. in d. §. sin auten. : neither is it material, whether the day be joined to the substance of the legacy, as in the former example, or to the execution thereof, as in the second example: for it is not devolved neither in the one case, nor in the other 
i) Bar. in L. si cui. §. hoc autem de leg 1. post gloss. in L. Seius. ad Treble. ff. & Alex. ibid. Mantic. de coniect. vlt. vol. lib. 11. tit. 20 n. 3. & est communis opinio, teste Grass. Thesaur. come. op. §. legatum. q. 43. n. 7. .  
In the third case, that is to say, when † the day is partly certain, and partly uncertain, we are to distinguish, whether the uncertainty be in respect of the question whether, or of the question when.  
If the uncertainty be in respect of the question whether, not of the question when: as if the testator do bequeath an hundred pound, when his son shall come to the age of xxi. years, (for here it is certain when he shall be of that age, but uncertain whether he shall live till he come to that age:) In this case we must yet again distinguish: for either the time is joined to the substance of the disposition, as when the testator saith; I give to A.B. an hundred pound when he cometh to the age of xxi. years, and the legacy is not devolved to his executors or administrators, if he die in the mean time 
k) Bar. in d. L. ff cui. §. hoc autem. de leg. 1. L. ff Titio. in prin. quando dies. leg. ced. ff. Vasq. de success. progress. lib. 3 §. 29. n. 3.  (except in certain cases elsewhere before specified 
l) Supra part. 4. §. 17. sub fine. ;) or else the day is joined to the execution or performance of the legacy: as when the testator doth bequeath to A. B. an hundred pound, which he willeth to be paid when the legatary shall be of the age of xxi. years, and then the legatary dying in the mean time, his executors or administrators may recover the legacy, when the time is expired that the legatary should have been of the age of xxi. years if he had lived 
m) L. ex his verbis. C. quando dies. leg. ced. Bar. & Paul. de Castr. in L. si cui. §. hoc autem ff. de leg. 1. Alex. in L. Seius ad Trebel. in fin. ff. Vasq. de success. ꝓgress. lib. 3. §. 29. n. 3. verb. quandoque. & 3. .  
If the uncertainty be not in respect of the question whether, but of the question when, as if the testator do bequeath to A.B. an C. pound, when the executor of the testator shall die, or to be paid when the said executor shall die. For here it is certain whether the executor must die (we must all die) but when he must die it is uncertain: In this case the legacy is not transmitted, the legatary dying before the executor of the testator 
n) L. huiusmodi. ff. quando dies. leg. ced. DD. in L. haeres meus. de con. & daemon. Caeval. de usufruct. mulier. n. 70. 71. quorum opinio est magis recepta, ut per Grass: Thesaur. come. op. §. legatum. q. 43. n. 8. Vasq. de success. progress. lib. 3. §. 27, n. 11. : howbeit this legacy after another's death, if it be duly considered, is not only uncertain, in respect of the question when, but also in respect of the question whether, because it is uncertain also whether the legatary shall overlive the executor, not only when the executor shall die 
o) d. L. haeres meus. de cond. & daemon. ff. , as elsewhere hath been declared 
p Supra. part. 4. §. 17. .   

Of the destruction of the thing bequeathed.  
1 The legacy is extinguished, if the thing bequeathed do perish.  
2 What if it perish by the fact or negligence of the executor.  
3 What if the legacy be general, or do consist in quantity.  
4 What if one thing of two things be bequeathed, whereof the one doth perish.  
5 What if the thing bequeathed be not destroyed, but the form thereof altered.  
§. xxiv.  
IF the † thing bequathed do perish or be destroyed, the legacy is extinguished 
a) §. si res legata. Instit. de lega. , and the legatary destitute of remedy: For example; The testator doth bequeath unto thee his best ox, which ox i● afterwards killed: In this case the legacy is extinguished 
b) L. mortuo 'bove. ff. de leg. 2. , insomuch that neither the skin, nor the flesh, nor the price, is due unto thee 
c) d. §. si res legata. & ibi Mincing. : which rule notwithstanding is limited in certain cases.  
First, when † the thing bequeathed doth perish by the fact or negligence of the executor: as when the executor after the death of the testator, converteth the thing bequeathed to his own proper use 
d) Gloss. in d. L. 'bove. & in L. lana. de leg. 3. ff. , or when he maketh delay, in not paying or delivering the thing bequeathed so soon as he may, after he have undertaken the executorship 
e) L. omnia. de leg. ff. Intellige si modo praecedat interpellatio, vel hominis, vel certae diei. L. si ex legati causa. ff. de verb. ob. sed non sufficit mora irregularis, nempè quae ex juramento oritur. Cagnol in L, quod te. ff. si cer. pe. n. 97. , or doth unjustly defer the proving of the will, and undertaking the executorship 
f) L. equis. ff. de usur. & fruct. , and the thing bequeathed perish in the mean time: for then the legacy is not so extinguished, but that the legatary may recover the value thereof: albeit the thing itself be not extant 
g) Paul. de Castr. in L. servum filii. §. si pocula. de leg. 1. L. senatus. eod. tit. Mantic. de conject. vlt. vol. lib. 9 tit. 12. c. 3. : And albeit peradventure it would have perished likewise, if it had been delivered to the legatary in due time 
h) Alex. jas. & alij, in L. nemo de verb. ob. ff. quotum op●nio est communis, ut refert jas. ubi supra. & Soarez lib. receipt. sententiarum. litera M●n 222. de qua sententia tanto minùs dubitatur, quanto magis dubitatur an res apud legatarium peritura fuisset. Quod si manifestè constat rem eodem modo fuisse perituram apud legatarium, high multi recedunt ab illo communi dogmate existimantes aequiorem opinionem esse, ut non teneatur executor. Soarez ubi supra. Ripa. in L. si insulam. de verb. ob. n. 97 .  
Secondly, when † the legacy is general, or consisteth in quantity; as when the testator doth bequeath a horse, or an ox (not this horse, or that ox:) or when the testator doth bequeath certain quarters of wheat, or other grain, not this or that grain lying in such a barn or garner: this kind of legacy cannot perish, though all the testators cattle do perish, and all his corn be consumed 
i) L. incedium. C. si cer. pe. L. non amplius §. 1. de leg. 1. ff. Mincing. in §. si res legata. Instit. de lega. ff. : and therefore the legatary may recover his legacy, unless some certain thing were offered to the legatary, which he without just cause refused to take: for than if the same thing do perish afterwards, the legacy is extinguished 
k) L. huiusmodi. §. stichum. & §. si cui. de lega. 1. ff. .  
Thirdly, when † one of two things is bequeathed alternatively; as if the testator do bequeath his apparel, or his books, the one of these being consumed, the other of them may be recovered 
l) L. cum res. §. sed si. de leg 1. , unless the election appertaining to the executor, he offered the one of them to the legatary, which afterwards perished 
m) L. huiusmodi. §. stichum. & §. si cui. de leg. 1. L. statu liberum. §. vlt. de leg. 2. ff. .  
Fourthly †, when the thing bequeathed, whereof the former is altered, may be reduced to his first matter; as when the testator doth bequeath some mass of metal be it gold or silver, tin, or such like, whereof the testator afterwards doth make some vessel, or other instrument. Or on the contrary, the testator having bequeathed a cup of gold, or other vessel, or instrument of metal, doth afterwards dissolve the same to his first matter: or the testator having bequeathed a cup of gold, doth make a chain thereof: the will of the testator by such alterations is not presumed to be altered, and therefore the legacy is not thereby extinguished 
n) Bar. Lancel. Dec. & alij, in L. servum silij. §. si pocula. ff. de leg. 1. quorum opinio communiter approbatur, ut refert jas. cod. §. n. 5. .  
But if the thing bequeathed after the form thereof be altered, cannot be reduced to that which it was before; as wool when it is made cloth; or timber, when it is hewn or made parcel of a ship: the testator having bequeathed certain wool or timber, and afterwards translating the same to other forms, from whence they cannot be reduced to the former, the legacy is extinguished 
o) L lana. ff. de leg 3. Bar. Paul. de Castro. & alij communiter. in d. L. servum filii. §. si pocula. de leg. 1. , unless it do appear that the will of the testator therein is not changed 
p) d. §. si pocula. .  
Other limitations there be of this rule, as also divers other causes whereby legacies may be lost: But neither have I convenient leisure to proceed in the discourse thereof, neither do I think the same either so needful or profitable to be known, as these whereof I have made choice, and which I have already delivered. And therefore I thought good only to refer such as are 
q De quibus plene Vigelius in sua methodo exactissima juris civilis. lib. 12. c. 10. caus. 51. ubi enumerat 70. causas amittendi legata.  farther studious in that point, and here cut off the thread of this testamentary treatise.   
FINIS.   

An Epilogue.  
THus for thy love (loving countryman) have I delivered unto the view of thy judgement, the picture of my conceit concerning testaments, which if thou shalt behold sharply, than I fear strongly, thou wilt espy in steed of just proportion, lameness, or want of some notable members; and in steed of delectable beauty, deformity, or spots of soul and loathsome errors. Wherefore as at the first I did earnestly entreat for favour; so now in the end I do humbly beg for pardon. And although peradventure I might use some reasons to draw thee thereunto, (as by giving thee to understand, First that all the limbs and bones of this my testamentary picture, were not only heretofore out of joint; but scattered and dispersed far asunder, some amongst the laws civil, some amongst the decrees and decretals, some amongst our provincial constitutions, and some amongst the laws, statutes, and customs of this realm: and therefore the labour in searching and joining of some of these dismembered members, to be rather thankfully accepted, than the not collecting of all to be accounted a fault. Secondly, that these manifold laws being so contrary one to another, and the interpreters of every several law being at everlasting variance amongst themselves about every sentence, every word, and every letter almost; the blots and blemishes of the work are so much the more tolerable, by how much the simple truth is often obscured and mistaken for error; and error (clothed in truths garment) embraced many times for truth itself, even of the learned. And thirdly, that forasmuch as no man hitherto since England was Albion, hath set forth a perfect Idea of an English testator, or a right pattern of a lawful testament within this land: The author therefore in adventuring to break the ice to make the passage easy for his countrymen, failing sometimes of the ford, and falling into the pit, may seem worthy to be pitied, or at least unworthy to be reprehended in this enterprise, no less profitable for this common wealth, than it is usual to die:) Nevertheless, because it more tendeth to the advancement of thy commendation, to be entreated then persuaded, and more fit for mine own safety to crave with humility, then proudly to challenge that which may be denied: rejecting therefore these foresaid reasons, I do wholly submit myself unto thy courtesy, beseeching thee to use me friendly, and either to pardon freely, or to admonish charitably: so shall I have just cause to commend thy virtue and gladly amend any fault committed.  
H. S.   

Whereas there be sundry escapes in the print, I have (for thy ease) caused those of greater consequence to be amended with a pen: the rest I shall desire thyself to amend, or to sustain without grief.   

AN ALPHABETICAL TABLE of the particular contents of this treatise, wherein is relation to the leaf.  

A  
Accounted wherefore exacted of the executor. fol. 232  
Account whether it may be released by the testator. 233  
Account to be made to the ordinary. 233  
Account whether it is to be made to the creditors or legataries. 234  
Account whether it is to be made to the coexecutors. 234  
Account when it is to be made. 234  
Account general and particular. 234  
In the Account what proof is requisite. 234  
By accusing the testament of falsity the legatary doth lose his legacy. 288  
Ademption of legacies what it is. 277  
Ademption of legacies two fold. 277  
Ademption of legacies not presumed. 278  
Administrators to be accountable to the ordinary. 92  
Administration of the testators goods, to whom it is to be committed, the condition of the executorship depending unaccomplished. 169  
Administration of the testators goods may be committed to the ordinary, until the executorship take place, & after it is ended. 171  
Affirmative conditions about marriage, are not rejected, but in some cases. 152  
Affirmative conditions of marrying sometimes harder than the negative part. 152  
Age of testators, wherein they may devise their lands. 35  
Age of testators, wherein they may devise their goods. 35  
After the Age of fourteen years a boy, and after twelve a woman, may make their testaments of their goods. 35  
Age, how old soever doth not deprive a man of liberty to make his testament. 42  
Alienation of pupil's goods by the tutor, whether it be good or not 102  
Alienation of the things bequeathed, whether it may be prohibited, or no. 154  
Alienation of the things bequeathed sometimes lawful, notwithstanding the testators prohibition. 155  
By Alienation of the thing bequeathed, whether the legacy be extinguished. 285  
Alteration of the testators state, whether it make void the testament. 272  
Altar his will the testator may at any time. 277  
Ambiguity, what it is, and how it may be avoided. 192  
Analogy betwixt a testament, and a judicial sentence. 9  
Animus testandi, how it is proved. 8  
An Apostata cannot make a testament. 55  
Apostata worse then an heretic. 55  
Apostata what he is. 55  
Every Apostata is not intestable 56  
An Apostata cannot be executor. 197  
Armed soldiers. 26  
Of Armed soldiers, whether every one be equally privileged. 27  
Arguments of madness. 38  
arbitrary conditions accounted for accomplished, when the let is not in the party. 132  
Arbitrary conditions not accounted for accomplished, when it doth stand by the party. 132  
arbitrary conditions when the same must be performed, no time being expressed by the testator. 157  
arbitrary conditions, in what compass of time it ought to be performed, after the testators death 158  
Ascrip●itius glebae. 44  
The authority and charge of an executor. 209  
The Authority & charge of the executor of an executor. 213  
The Authority and charge of the executor of an administrator. 214  
Authority of the executor testamentary in distributing to the poor. 251  
The Authority of a tutor. 101  
The Ancient form of making inventaries. 220   

B  
Of Bastards there be three sorts. 198  
Bastards begotten in incest, or adultery, whether they be capable of any testamentary benefit. 198  
Bastards by whom they are to be nourished by the laws of this realm. 200  
Bastards, how far they be capable of any benefit by the laws of this realm. 200  
Of Bastards begotten betwixt single persons. 201  
Benefit by the ministers of God's word. 27  
Benefit by the study and practise of law. 27  
A Blind man may make a nuncupative testament. 52  
A Blind man, whether he may make a written testament. 52  
Boasting words do not bind or dispose. 8  
The Bond called Mutiana cautio, whence it had the name 138  
bond ought to be put in, where there is prohibition of alienation. 155  
A Bondslave cannot make a testament. 43  
Bondmen as well as free, may be executors. 196  
Burgages lands devisable by will. 71  
Burgages lands to whom, and after what manner are they devisable. 71  
Burgages lands whether they be devisable by any other, but a citizen. 71  
Burgages tenure is a kind of tenure in soccage. 71  
Burgages lands being devised, whether livery or seisin be needful. 72   

C  
canceling of a testament ad pias causas, is presumed to be done unadvisedly. 31  
By Cancellation the force of the testament is overthrown. 270  
By Cancellation, whether a nuncupative testament lose his force. 270  
canceling of a testament sometimes is not hurtful to the testament. 271  
canceling of the testament, to whom it is to be imputed, when it is unknown who did it. 271  
By canceling the testament, the legatary doth lose his legacy. 288  
A Captive during his captivity, can not make a testament. 45  
If the Captive escape, whether the testament made during captivity, be good or not. 45  
Captivity doth not make void the testament made before. 45  
Captious conditions, wherefore they be so termed. 146  
That Captious dispositions are void, this position is diversly extended. 146  
Captious conditions do not always make void the disposition. 147  
Casual conditions not accounted for accomplished, before the event. 133  
Casual conditions sometime reputed for accomplished, albeit the same be not indeed performed. 133  
Casual and mixed conditions, whether the same may be performed before the making of the will. 157  
A Casual condition may be accomplished at any time. 157  
No Cautel can take away the liberty of making a testament. 61  
Children, whose father or mother is in bondage, whether they be free or bond. 43  
The child begotten before marriage shallbe the husbands, though another got it. 162  
The Child begotten during marriage is deemed to be the husbands, though another man had to do with the wife. 162  
The Child sometime like to the husband, being begotten by the adulterer, & what is the reason. 163  
The Child begotten during marriage, in some cases is not adjudged the husbands. 164  
The Child whether shall it be deemed the former, or later husbands, when it is uncertain whether of them did beget the same. 165  
If the Child be heard to cry, the father shall be tenant by the courtesy. 167  
The Child, if it were not heard to cry, whether shall the father be tenant by the courtesy. 167  
The Child in the mother's womb, being made executor, & she delivered of divers children, whether shall every of them be executors. 168  
Church goods cannot be devised. 93  
Churchwardens may sue for a legacy left unto the Church. 202  
Church, if any thing be left unto the Church, what Church is understood. 251  
Citation, whether it be necessary in proving of testamants. 224  
Citation whether it be necessary in making of an account. 235  
By the Civil and Canon laws a King cannot give away his kingdom. 67  
Clause derogatory manifold. 265  
Clause being derogatarie of the power of making testaments, mention or revocation thereof is not necessary. 265  
Clause being derogatory of the will of making testaments, than it is needful to make mention thereof. 265  
In clauses derogatory, what is chief to be observed. 267  
Clauses derogatory of small force in the testaments of simple persons. 268.  
This word Codicill what it is. 12  
Codicill rightly defined. 12  
Codicill called a little will, testament, a great will. 12  
The Codicill compared to a boat, the testament to a ship. 13  
Codicils upon what occasion they were devised. 13  
Codicils may be made in writing, or without. 13  
Codicils may be made, either by him who hath made a testament, or which dieth intestate. 13  
Codicils part of the testament, whether they be made before, or after the testament. 13  
Codicils, & testaments agree in the efficient cause, but they have contrary effects. 14  
Coexecutor not excluded by his refusal before the ordinary. 183  
In the Coexecutor many things considerable. 215  
Condemned to perpetual prison, whether he may make a testament. 46  
Condition in a testament ad pias causas, need not be observed precisely. 31  
Conditions expressed in the disposition, do not always make the same conditional. 116  
Conditions impossible, or unhonest, do not make the disposition conditional. 117  
Conditions necessary, whether they make the disposition conditional. 117  
Conditions being referred to that which is past, are improperly conditions. 117  
Conditions necessarily understood, do not make the disposition conditional. 117  
Of Conditions, some be necessary, some impossible or indifferent. 121  
Conditions necessary. 121  
Conditions impossible divers. 122  
Conditions possible manifold. 122  
Conditions necessary, or impossible do not suspend the effect of the disposition. 124  
Conditions possible, do suspend the effect of the disposition. 124  
Conditions partly certain, & partly uncertain, do suspend the effect of the disposition. 124  
Conditions first possible, afterwards impossible, whether they make void the disposition. 126  
That Condition which is both impossible, and unhonest, maketh void the disposition. 126  
Conditions impossible, by reason of repugnancy, whether they make void the disposition. 126  
Conditions possible whether they do always suspend the effect of the disposition. 127  
Conditions inducing a form, are to be observed precisely. 128  
The Condition whether it may be performed by an other person, than him, that is therein named. 130  
The Condition whether it be reputed for accomplished, when the impediment is not in the party. 131  
Conditions arbitrary are accounted for accomplished, if the let proceed not from the party. 132  
The condition not performed by the impediment of the testator, whether the same be reputed for accomplished in law. 134  
The Condition being affirmative, it sufficeth not to put in bonds. 137  
The condition being negative, whether it be sufficient to put in bonds. 138  
The condition, if it cannot be accomplished during life, than it sufficeth to put in bonds. 138  
The condition being negative, if it may be performed, during his life to whom it is imposed, there the caution hath no place. 139  
A condition negative is then said to be accomplished, when it cannot be infringed. 139  
The Condition being once accomplished, whether it be sufficient, though it do not endure. 141  
The Condition being casual, it sufficeth if it were once accomplished. 141  
The Condition being arbitrary, it is sufficient that the same was once accomplished. 142  
The Condition being mixed, than it is sufficient that the same was once accomplished. 142  
The Condition, if it endure not by his fault, by whom it is to be accomplished, the thing bequeathed cannot be obtained. 143  
The Condition being of marriage, whether it be reputed for accomplished if the executor were once willing, though afterwards unwilling. 143  
Conditions against the liberty of marriage unlawful, except in certain cases. 150  
Condition with the arbitrement, will or consent of another, unlawful. 150  
Condition of prohibiting marriage with some persons, not unlawful. 151  
Condition having relation to the marriage of a third marriage, whether the same be unlawful. 151  
Condition prohibiting marriage not rejected, when pia causa is substituted. 152  
Conditions affirmative about marriage not unlawful but in some cases 152  
Condition of marriage, with the advise or counsel of another, not unlawful. 152  
Condition of marrying with the consent of another, to be observed in part. 153  
Condition of not marrying, doth not hinder restitution simply imposed. 153  
Conditions, within what time the same aught to be performed, no certain time being expressed 156  
The Condition, whether it may be performed before the making of the will. 157  
Conditions arbitrary, when the same aught to be performed. 157  
The Condition, whether it may be performed betwixt the making of the will, and the death of the testator. 158  
The Condition, within what compass of time it may, or aught to be performed after the Testators death. 158  
Condition of marriage, when it ought to be performed. 159  
Condition of prohibiting marriage, whether it be meant of the first marriage only. 151  
Condition prohibiting marriage, in some place not unlawful. 151  
Conditional legacy not due before the condition be extant. 290  
The Condition depending, if the legatary die, whether the legacy be transferred. 290  
Corn on the ground, whereof a man is seized in right of his wife, whether the same be devisable. folio 93  
Corn on the ground, whether the same be devisable by the lessee, the lessor being seized in right of his wife. 93  
Corn on the ground, whether the same be devisable by the tenant, by the courtesy. 93  
Corn on the ground devisable by the tenant in dower. 93  
Corn growing on lands mortgaged, whether the same be devisable. so. 93  
Corn on the ground, whether the same may be devised by the testators daughter, where a son and heir is afterwards born, or wherein her mother doth recover her dower. 94  
Corn on the ground to be inventaried. 218  
Corn in the barn bequeathed, the same being spent, and other corn there at the testators death, whether the legacy be good. 278  
Custom of Gavelkind, whence it sprang. 71  
Custom of devising lands to certain uses, reform. 72   

D  
He that is both Deaf and Dumb may make a testament. 51  
Deaf, but not dumb, whether he may make a testament. 52  
Declaration of a man's will may be referred to another. 148  
Definition of a testament. 3  
The Definition of a testament unworthily reprehended. 3  
Definitions dangerous in law. folio. 4  
Definitions wherefore dangerous. fol. 4  
A perfect Definition very profitable 5  
Definition of a last wil 11  
Definition of a codicil. 12  
Definitions of a codicil and a testament, how they agree or differ. 12  
Definition of a legacy or devise. fol. 14  
Definition of a gift in consideration of death. 16  
Definition of a solemn testament. 17  
Definition of a testament mentioned in the Civil law, whether it agree with our testaments in England. 19  
Definition of a testament comprehendeth both solemn and unsolemn testaments. 19  
Definition of a testament is not of any special testament. 21  
Definition of a privileged testament 24  
Definition of a testament amongst children. 29  
Definition of a testament ad pias causas. 30  
Definition of an idiot, or natural fool. 39  
Definition of a slave. 43  
Definition of an Apostata. 55  
Definition of a famous libel. 58  
Definition of appointment of an executor. 112  
Defect in the testators meaning. 261  
Defect of solemnity, whether it do make void the testament. 257  
Defect of will, whether it destroy the testament. 258  
Degrees of consanguinity prohibiting marriages here in England. 57  
Of Degrees of Executors. 177  
Debts, whether they ought to be put into the inventary. 218  
Debts, which are first to be paid. 228  
Debts to the Prince are first to be paid. 229  
Of Debts due by recognizance, and statute merchant. 229  
Of Debts upon judgements. folio. 229  
Of Debts upon obligation. folio. 229  
Of Debts upon bills and books. 229  
Of Debts without specialty. 229  
Debt due to the executor, whether it is to be allowed. 230  
Debts due by the testator, discharged by the executor with his own money, whether he may retain the testators goods. 230  
A Debt being bequeathed, and afterwards received by the testator, whether the legacy be extinguished. 281  
Difference betwixt a testament, and all other kinds of last wills. 7  
The Difference betwixt a testament and other sentences. 10  
Difference betwixt the definition of a last will, and the definition of a testament. 11  
Difference betwixt these two words, Lawful, and just 11  
Difference betwixt these two words, Disposition, and Sentence. 11  
Difference betwixt a legacy, and a gift in case of death. 14  
Difference betwixt a slave and a villeine. 43  
Difference betwixt the executor of an executor, and the executor of an administrator. 92  
Difference betwixt these two phrases, (if he do not marry,) and, (so long as he doth not marry.) 153  
Difference betwixt these phrases (If he die without issue) and (If he have no issue.) 166  
Difference, whether the legacy be referred to the substance, or execution of the disposition. 173  
Difference betwixt substituting by proper names, and by names appellative. 179  
Difference betwixt obscurity & ambiguity. 192  
Difference betwixt the laws Civil, & the laws Ecclesiastical, about the education of bastards. 200  
Difference betwixt the vulgar and legal form of proving testaments 224  
Difference betwixt a proper name, and a name appellative, 246  
Difference betwixt these words, (I give) and (I bequeath) 284  
Different effects of a simple assignation of an executor, and a simple legacy. 119  
Distinction of legacies confounded. 15  
Distribution of the residue of the testators goods. 235  
divers kinds of conditions. 121  
Devise of lands not good without writing. 23  
Doctors of the law, and clergy men, what privileges testamentary they enjoy. 27  
All Doctors or Divines, not privileged. 28  
Donor of lands in tail, whether he may prohibit alienation. 154  
Doubt about the date of wills, maketh both void. 29  
dumb, but not deaf, whether such a person may make his testament. 52  
A Drunken person, whether he may make a testament. 42   

E  
Of Ecclesiastical persons, some be regular, some be secular. 64  
Ecclesiastical persons are not simply prohibited to make their testaments. 64  
Ecclesiastical persons may make their testaments of all goods which they have, not in right of the Church. 64  
Ecclesiastical persons cannot make their testaments of things immovable, which they possess in right of the Church. 65  
An Ecclesiastical person may make his testament of the glebe by him sown .. 65  
An Ecclesiastical person, whether he may make his testament of all movable goods which he hath in right of the church. 65  
Effects of interlocutory and definitive sentences, be contrary. 9  
The Effects of testaments and codicils, contrary. 14  
Efficacy of a nuncupative testament. 24  
The effect of dying with or without a testament. 112  
Effect of a pure or simple nomination of an executor. 116  
Effects of conditions divers and contrary. 123  
The Effect of the disposition is not suspended by necessary or impossible conditions. 124  
The Effect of the disposition is suspended by possible conditions. 124  
Effects of substitution of executors. 177  
Effects of an inventary. 220  
Effects of a perfect account, 236  
Effects of a bare revocation. 169  
Effects of an unperfect account 236  
Effect of canceling testaments. 270  
Election, whether it belong to the executor, or legatary. 255  
Election, in what manner it ought to be made. 255  
Election belonging to the Legataries, which of them ought to choose first 256  
In Election, if the collegataries descent, what means is to be used. 256  
Emblements. See corn on the ground  
Increase or decrease of solemnities, doth not make any disagreement betwixt our testaments, and the definition of a testament. 20  
In England testators are not tied to the observation of any other solemnities, the such as be juris Gentium. 6  
In England our testaments, though unsolemn, have the effects of testaments properly so called. 21  
End of an account. 236  
enmity a cause whereby the legatary doth lose his legacy. 286  
By Enmity, whether the legacy be lost, if the testator were the cause thereof. 286  
By Enmity the legacy is not always lost. 287  
Errors detected about the definition of a testament. 7  
Error may happen divers ways. 244  
Error in the person of the executor, or legatary, doth destroy the disposition. 244  
Error in the name of the executor, or legatary, whether it hurt the disposition. 244  
Error in the quality of the executor or legatary, whether it destroy the disposition. 245  
Error in the thing bequeathed, manifold. 245  
Error in the proper name of the thing bequeathed, whether it destroy the legacy. 245  
Error in the name appellative of the thing bequeathed, whether it destroy the legacy. 245  
Error in the substance of the legacy, whether it make void the legacy 246  
Error in the quantity of the thing bequeathed, whether it be hurtful 246  
Error in the quality of the thing bequeathed, whether it be hurtful. 248  
Error in the form of the disposition destroyeth the force thereof. 248  
Essential form of a testament, is the naming of an executor. 112  
Examples out of the old testament, whereby it may seem lawful for kings to give away their kingdoms. 66  
Examples out of profane histories, tending to the same end. 66  
Examples of a pure or simple appointment of an executor. 114  
An Excommunicate person may make his testament, except in certain cases. 60  
An Excommunicate person, whether he may be executor. 198  
An Executor, wherefore he cannot dispose the testators goods by legacy. 49  
An Executor made without express mention of this word Executor. 115  
An Executor may be made, either by the proper motion of the testator, or at the interrogation of an other. 116  
Executor, when is he said to be appointed conditionally. 120  
An Executor may be made universally, or particularly. 175  
An Executor may be ordained, either from a time, or for a time. 171  
An Executor may be made in the first, second, or third degree. 176  
The Executor of an executor may sometimes be sued, as executor in his own wrong. 182  
Executor every one may be, which is not forbidden. 196  
Executor by the law. 205  
Executor by the Ordinary. 206  
The Executor is not to meddle with lands, tenements, & hereditaments. 210  
The Executor may be cited to accept or refuse the executorship. 208  
The Executor being cited, if he will not appear, the Ordinary may commit administration. 208  
The Executor cannot be compelled to undertake the Executorshippe. 208  
Executor of an executor, whether he may join with the executor surviving 213  
The Executor punishable, which doth administer without an inventary first made. 217  
The Executor resolved to refuse the executorship, must not meddle as executor. 236  
Executor, when doth he administer as executor. 236  
Executor ought to be capable of the executorship at three several times. 276  
Expenses to be allowed to the executor. 235  
Exposition of testaments favourable. 24   

F  
False cause, whether it destroy the disposition. 245  
A Famous libel what it is. 58  
The Father may by his will appoint a tutor to his child. 96  
In Favour of liberty the condition need not to be observed precisely. 130  
Fear and Fraud make void the testament. 10  
Fear hindereth the effect of the testament. 240  
Fear, whether it be prejudicial to any other then unto the author thereof. 240  
Fear, whether it destroy the testament confirmed with an oath. fol. 240  
Fear of future hurt, whether it destroy the testament. 241  
Fear, whether it be proved by the protestation of the testator. 242  
Fees due about the probation of the testaments. 225  
Fees due for copies of testaments, or inventaries. 227  
Felons intestable. 53  
Felons lands who shall have. 53  
Whether he that is only indicted of Felony may make his testament. 53  
Whether he that is only apprehended for felony, may make his testament. 54  
Felons goods not to be seized before atteindure. 54  
A Felons testament convicted, is void, though he be never executed. 53  
Flattery not always unlawful. 243  
Flattery mingled with fear, doth hurt the testament. 243  
Flattery mingled with fraud, destroyeth the testament, 243  
Flattery destroyeth the force of the testament, when the testator is under the government of the flatterer. 243  
Flattery if it be immoderate, hindereth the disposition. 243  
A Flock of sheep being bequeathed, if all perish but one, whether that one be due. 281  
Forms of testaments so many as there be kinds. 111  
Of Forms testamentary, some be general, some particular. 111  
Form essential of a testament, is the appointment of an executor. 112  
The Form of the bond called Mutiana cautio. 140  
The Form of a solemn testament. 188  
The form of an unsolemn testament 189  
The Form of a nuncupative testament. 192  
Form to be observed in making of an inventary. 219  
Form of proving testaments, twofold. 223  
The former testament is not revoked by the second, made by flattery. 243  
Former testament void, where the testator is forbidden to alter the same. 273  
Former testament in some cases is not void, although the testator be forbidden to alter the same. 274  
Forfeiture for extortion of fees. 227  
Foundation of the testament. 112  
Fraud as detestable as force. folio 242  
Fraud doth not always destroy the testament. 242  
Freedom requisite in the testator. 10  
Funeral expenses to be deducted out of the whole goods. 104   

G  
Guardian, see Wards.  
Gavelkind lands may be devised by will. 70  
Gavelkind lands, by what occasion they were made devisable. 70  
The General signification of this word testament 2  
The General form of testaments twofold, essential, & accidental. 111  
General legacy of all, or the residue of the testators goods, whether it make an executor. 115  
General legatary is not always understood to be the executor. 115  
A Gift in consideration of death, what it is. 16  
Three sorts of Gifts in consideration of death. 16  
Which Gift in case of death is compared to a legacy. 16  
Goods, at what age they may be devised. 35  
Goods of any kind, are deviseable, except in certain cases. 91  
Goods which a man hath jointly with another, are not deviseable. 92  
Goods which any hath as administrator, are not devisable. 92  
Goods of the Realm, uz. of the ancient crown, and jewels, not devisable. 22  
Goods belonging to a church or hospital, cannot be devised. 93  
Goods belonging to a city, borough or commonalty, not devisable. 93  
Goods contained in the inventary, are presumed to be in the hands of the executor. 220  
Goods, other than are described in the inventary, the executor is not presumed to have. 220  
Grass, or trees growing, are not to be inventaried. 218   

H  
Hard conditions, whether they suspend the effect of the disposition. 125  
An Heretic cannot make a testament. 54  
An Heretic, whether, and when he doth forfeit his lands or goods. 54  
An Heretics testament not convicted, whether it be good. 54  
An Heretic may be condemned after death. 55  
An Heretic reclaiming his heresy, whether he may make a testament 55  
An Heretic cannot be executor. 197  
An Heretic cannot be executor in a military testament. 197  
An Heretic reclaiming his heresy, whether he may be executor. 197  
Heir hath not to deal with goods and cattles of the testator. 210  
An House bequeathed, and afterwards re-edified, and renewed, whether the same may be recovered. 278  
The House bequeathed, being burned, or blown down, and afterwards another erected, whether may this new house be recovered. 279  
Husbands licence necessary to the validity of the wives testament. 47  
The Husband, whether he may revoke the licence granted to his wife. 47   

I  
An Idiot or natural fool who, 39  
An Idiot cannot make a testament. 39  
An Idiot, if he do make such a testament as seemeth reasonable, and void of folly whether is the same good in law. 39  
That idiots have given very wise sentences, confirmed by examples. 40  
Idiots in the custody of the Prince. 99  
What Immunity we enjoy in England concerning testaments. 18  
Imperfection testamentary twofold. 6  
Impossible conditions do not make the disposition conditional. 126  
Of Impossible conditions there be divers kinds. 122  
Impossible conditions do not suspend the disposition. 124  
Impossible conditions, which the testator supposed to be possible, whether they suspend the disposition. 125  
Impossible conditions negative make void the disposition. 126  
Incestuous marriages. 57  
Incestuous persons, whether they may give any thing by their testaments, and to whom. 57  
Incestuous persons may in some cases bequeath something to their incestuous children. 57  
What Inconvenience would follow if unsolemn testaments were not properly testaments. 20  
Indifferent betwixt a wise man and an Idiot, may make a testament. 39  
Indicted of felony, whether he may make a testament. 53  
Infants as well as others of full age, may be made executors. 196  
Infanitie of mind, see Madness.  
Intestable actively, by occasion of any crime, is intestable also passively. 203  
Inventory to be made by the tutor. 101  
An inventary being made, the executor need not to pay any legatary his whole legacy, where there is not sufficient to pay the rest. 107  
No Inventory being made, how far the executor is bound to pay legacies. 108  
Inventory necessary. 217  
Inuentarie wherefore necessary. 217  
In the Inventory what things are to be put. 218  
Inuentarie to be made before the executor meddle with the testators goods. 219  
Inventory indented. 219  
joyntenant whether he may bequeath his part of Burgages land. 71  
Whose Issue is natural, not lawful, whether he is said to die without issue. 161  
Whose Issue is lawful, not natural, whether he be said to die without issue. 261  
The Issue, whether it is the former, or second husbands, when it is doubted which of them did beget the same. 165  
Issue, whether shall he be deemed to have, who had children, but not at his death. 166  
Issue whether shall he be deemed to have, whose child is unborn when he dieth. 167  
The Issue, if it die so soon as it is borne, whether shall the father be deemed to have died without issue. 167  
If the Issue be borne dead, or die as it is borne, whether shall the father be said to have had Issue. folio. 168  
This word Just hath divers significations. 5  
Just opposed to that which is wicked. 5  
Just, taken for full and perfect, 6  
Just, what it signifieth in the definition of a codicil. 12   

K  
He that Killeth himself, is intestable. 58  
Kin, if the testator make his Kin executor, which of his kin is to be admitted. 252  
Many kinds of testaments. 16  
Two Kind's of judicial sentences. 9  
divers Kinds of legacies now confounded. 15  
Three Kinds of gifts in regard of death. 16  
divers Kinds of privileged testaments. 25  
Three Kind's of Apostasy. 55  
Two Kinds of Ecclesiastical persons, regular and secular. 64  
divers Kind's of conditions. 121  
divers Kind's of Bastards. 198  
divers kinds of executors 205  
divers Kinds of executors testamentary. 207  
A King, whether by his testament he may bestow his kingdom at his pleasure. 66  
Known or unknown persons, may be made executors. 196   

L  
Landes not devisable without writing. 23  
Lands at what age they may be devised. 35  
Lands are not devisable, but in certain cases. 70  
Lands holden in gavel kind, devisable. 70  
Lands holden in burgages tenure devisable. 17  
Lands devisable to certain uses. 72  
Lands in what cases they may be devised by the laws of this realm. 77  
Lands devised, alienated, and redeemed, whether the same may be recovered. 280  
Last will is a general word. 3  
Last will how it is defined 11  
Later testament doth infringe the former. 263  
By the laws Civil and Canon, a King can not give away his kingdom. 67  
Whether by the laws of this realm a King may give away his kingdom. 67  
Leases are to be put into the inventary. 218  
Legacies bequeathed by him which dieth intestate, by whom they are to be paid. 13  
Legacy what it is. 14  
Legacies proceed of liberality. 14  
Legacies payable, as well by an administrator, as by an executor. 15  
Legacies are to be paid out of the clear goods. 104  
Which legacy is first to be paid when there is not sufficient goods to pay every legacy wholly. 107  
A Legacy may be given to or from a certain time, or to or from an uncertain time. 172  
The Legacy is not transmissible, which is given from an uncertain time. 172  
The Legacy whether it be transmissible the uncertainty being about the question whether, not this question when, 172  
The Legacy is not transmissible, if the question be only when, not whether. 173  
The Legacy whether it be transmissible, which is given after a certain age. 173  
The Legacy sometimes transmissible, albeit the age be joined to the substance of the legacy. 173  
A Legacy being left to a bastard, whether the same be presumed to be left for his alimentation. 202  
A Legacy of wine or corn, no quantity being expressed, whether the same be void. 255  
Legacy due, though the executor cannot, or will not undertake the executorship. 276  
The legacy if it be referred to a certain day, whether it begin to be due at the death of the testator. 291  
The Legacy is extinguished, if the thing bequeathed do perish. 292  
The Legacy is not extinguished, if the thing bequeathed do perish by the negligence of the executor. 292  
The Legacy which is general, or doth consist in quantity, cannot perish. 293  
The Legacy whether it be extinguished, if the thing bequeathed be not destroyed, but the form only altered. 293  
The legatory may not take his Legacy of his own authority 15.  
A legatory may not of his own authority take his legacy, and what is the reason. 119  
Legataries, what remedy they have for the obtaining of their legacies. 119  
The legatory may sometimes take his legacy of his own authority. 119  
A legatory whether he may be a witness. 187  
legatory ought to be capable of the legacy at the testators death. 276  
Legataries by what means they may be made incapable of their legacies. 286  
A legatory whether he lose his legacy, by reason of enmity betwixt him and the testator. 286  
The legatory looseth his legacy by accusing the testament of falsity. 288  
The legatory looseth his legacy by canceling the testament. 288  
The legatory whether he lose his legacy by entering to the possession without authority. 288  
The legatory if he die at the same instant when the testator dieth, whether the legacy be lost. 289  
A Libeler cannot make a testament. 58  
A libeler cannot be executor 203  
Licence of the husband maketh good the wives testament. 47  
Licence of the husband, whether it must go before, or may concur or follow the wives testament. 48  
Licence granted by the husband to the wife, whether, & when it may be revoked. 48   

M  
Mad folks cannot make their testaments. 36  
Madness being past, whether the testament be good. 36  
A mad man may make his testament betwixt his sits. 37  
Madness to be proved by him which objecteth the same. 37  
Madness before the making of the testament, whether it be presumed to continue. 37  
Madness hard to be proved. 38  
Madness how it may be proved. 38  
Madness whether it may be proved, by singular witness. 38  
Madness whether it may be proved, when the witnesses yield a general reason of their knowledge. 38  
A Manifest usurer cannot make a testament. 56  
A Manifest usurer not to be buried in any Church or Churchyard. 57  
Many being appointed executors, whether one may be admitted without the rest. 181  
Manifest usurers incapable of testamentary benefit. 203  
Many things to be considered of him that would be resolved, whether it were better to accept or refuse the executorship. folio 209  
Marriage though it be unsolemn, yet it is a true marriage. 20  
Marriages incestuous. 57  
Meaning, or will of the testator chief governor of the testament. 9  
The Meaning of the testator diligently to be sought, and faithfully to be kept. 9  
Meaning to be preferred before words. 9  
Meaning not words to be regarded. 116  
The meaning of the testator to be preferred before the propriety of words in the devise of lands, proved by divers examples 118  
For the Means it skilleth not where the end is regarded. 129  
To meddle as executor what it is. 236  
Mention of condition doth not always make the disposition conditional. 116  
Mention to be made in the later testament of the former amongst children. 29  
Military testaments unsolemn, yet properly testaments. 20  
In Minority, whether a testament may be made with the authority of the tutor. 35  
In Minority whether a soldier may make his testament. 35  
Mind and memory presumed to be perfect. 37  
The mind of the testator giveth life to the testament. 261  
Mixed conditions, whether they be reputed for accomplished, when it doth not stand by the party, wherefore the same is not performed. 133  
Modus & conditio, how they differ. 137  
A Monster being born, whether shall the parents be judged to have died without issue. 168  
Money due for land, whether the same aught to be put into the inventary. 218  
Of Mortuaries. 230  
Mortuaries to be taken but in certain cases. 230  
Mortuaries not due where the movable goods do not extend to ten marks. 230  
Mortuaries not due but in places where they have been used to be paid. 231  
Mothers whether they may appoint tutors to their children. 97  
Multitude or scarcity of solemnities doth not make our testaments to disagree with the former definition of a testament. 20  
He that standeth Mute at the bar may make his testament of his lands. 54  
Mutiana Cautio, why it is so termed. 138   

N  
Necessary conditions, whether they make the disposition conditional. 117  
Necessary conditions which they be. 121  
Of Necessary conditions there be two sorts. 121  
Necessary conditions do not suspend the effect of the disposition. 124  
Necessary conditions being otherwise expressed then understood, suspend the disposition. 124  
The necessity of an inventary. 217  
A Negative condition is then said to be accomplished, when it cannot be infringed. 139  
Notes unaccustomed do not hurt a testament ad pias causas. 30  
Notes or characters of a written testament. 190  
Notable goods. 222  
Nuncupative testament what it is. 24.  
Nuncupative, wherefore so called 24  
Nuncupative testament, of what efficacy. 24  
Nuncupative testaments when they be commonly made, and why then. 24  
Nuncupative testament made divers ways. 24  
A Nuncupative testament whether it lose his force by cancellation. 270  
Number of witnesses needful or sufficient for the proof of a testament. 185  
The number of witnesses doth sometimes supply the defect. 186   

O  
Objections against the definition of our testaments in England. 19  
Obscurity what it is, and how it may be avoided. 192  
The office of a tutor doth principally respect the person of the pupil. 101  
The office of an executor testamentary wherein it doth principally consist. 217  
Office of the ordinary in an account. 235  
One only usurarie act, whether it make a manifest usurer. 56  
One alone, or more together, may be appointed executors. 181  
One of the executors may execute when the rest refuse. 183  
One executor alone, whether he may sue or be sued without his fellows. 183  
One executor cannot sue another. 183  
One witness sometimes sufficient for the proof of. a testament. 186  
One executor whether he may sue another. 215  
One executor whether he may prejudice an other. 215  
One of divers executors may sell the testators goods. 216  
One only mortuary due. 231  
One and the same thing being bequeathed, first to one, and afterwards to another, whether it may be wholly taken away from the former. 283  
The Ordinary whether he may appoint a tutor. 97  
The office of a tutor secondarily doth respect the good administration of the pupil's goods. 101  
The Ordinary, whether he may limit a certain time for the performance of the condition. 159  
The Ordinary may commit administration until the executorship take place, or after the executorship is ended, 171  
Oath about the inventary. 220  
Oath of the executor proving the wil 225  
An other person cannot make my testament. 10  
Old age alone doth deprive no man of the liberty of making a testament. 42  
An Old man childish cannot make his testament. 42  
An Old man which hath lost his memory, cannot make a testament. 42  
An Outlawed person looseth his goods, and the benefit of the law. 59  
An Outlawed person, whether he may make his testament. 59  
An Outlawed person doth sometimes forfeit his lands, as well as his goods. 59  
An Outlawed person, may make his testament of his lands not forfeited. 59  
An Outlawed person, may assign tutors testamentary to his children. 59  
An Outlawed person may make his testament, when there is some error in the writ. 59  
An Outlawed person, whether he may be executor. 198   

P  
Of Paying part of the testators debts, & receiving an acquittance for the whole. 230  
Peculiar to a written testament. 23  
A Perfect definition, profitable to many purposes. 5  
Every Perfect will is not a perfect testament. 7  
Every Person may make a testament, which is not prohibited. 34  
What Persons are prohibited to make a testament. 34  
Particular executor may meddle with no more than is allotted unto him, and therefore no further charged, but according to that portion. 175  
Particular forms of testaments, be so many as there be several kinds of testaments, 188  
Particular persons of an unlawful college may be executors. 202  
At the Point of death, whether a testament may be then made. 61  
A Poor man whether he may be a witness. 188  
Poor if the testator leave any thing to be given to the poor, which poor are to have the same. 251  
By Possessing the thing bequeathed of his own authority, whether the legatary do lose his legacy. 288  
Of Possible conditions there be diverse kinds. 122  
Possible conditions, whether they do always suspend the effect of the disposition. 127  
Posteriority presumed, for that testament which is among children. 29  
The Power of parents in assigning tutors to their children. 96  
The Power of Guardians. 99  
Precise observation of the condition in a testament (ad pias causas) not necessary. 31  
Of the Prerogative of either Archbishop. 221  
If the Prince give goods to the executor of an outlawed person, whether he be thereby chargeable with the payment of legacies, as having assets, 59  
The Prince though he die before the testator, his successors may obtain the legacy. 290  
The Prince may frustrate the gift or testament of the villain at any time. 44  
Privileged testaments, what they be. 24  
Privileged, wherefore so called. 24  
Of Privileged testaments divers kinds. 25  
What Privileges, Divines and Lawyers enjoy, concerning their testaments. 28  
What Privileges Soldiers enjoy, in making their testaments. 25  
What Privileges belong to the testament, amongst testators children. 29  
Privilege of proof, whether it be peculiar to the father's testament amongst his children. 29  
Privileges of a testament, ad pias causas, what they be. 30  
Privileges belonging to a military testament, or amongst children, whether they belong to a testament ad pias causas. 31  
Privileged testaments being sound without date, which is presumed to be later. 31  
A Prisoner, whether he may make a testament. 46  
Probation of testaments belongeth to the Bishop of the diocese where the testator dwelleth. 221  
Probation of testaments, sometime belongeth to other then to the Bishop. 221  
Probation of testaments, to be made by the executor. 222  
Probation of the testaments to be made after the death of the testator, not before. 223  
Prodigal persons, whether they be intestable. 60  
Prochein Amie, accountable to the ward after his full age. 99  
Prohibition of the first marriage, more odious than the second 150  
Prohibition of alienation, sometimes to be observed as lawful, sometimes not. 154  
Prohibition with a cause lawful. 154  
Proof of making the testament, to be made either by witnesses, or by writing. 185  
Proof requisite in making an account. 234  
Protestation of fear by the testator, whether it be a sufficient proof of fear or not. 242  
A Pure appointment of an executor, what it is. 114   

Q  
Of the Quantity of lands devisable. 103  
Of the Quantity of goods and cattles devisable. 104  
What Quantity of goods is due to the wife and children. 104  
A Quantity bequeathed first to one, and afterwards to an other, whether this be an ademption or translation of the former legacy, 285  
Whether a Queen may make her testament. 48  
Questions about the tuition of children, 95  
Questions about conditions. 126  
Questions about accepting or refusing of the executorship. 208  
Questions about the making of an Inventory. 217  
Questions about the probation of testaments. 221  
Questions about the payment of debts and legacies. 228  
Questions about accounts. 232  
Questions about clauses derogatory. 265   

R  
Rare is that definition, which can not be overthrown. 4  
Of Reason destitute cannot make a testament. 8  
Reasons tending to this purpose, that a King may by his testament make away his kingdom. 66  
A Reasonable part, whether it be due to the wife and children, when there is no custom. 105  
The Reason of the law, which leaveth all to the disposition of the testator. 106  
The Reason of the custom, whereby the liberty of the testator is restrained. 106  
Reasons wherefore executors are accountable. 232  
Referring of the testators will, to an others will, sometimes lawful. 148  
By Refusal before the ordinary, whether the coexecutor be excluded. 183  
By Refusal of the executorship, the ordinary hath power to commit administration. 208  
By Refusal of the executorship, whether the executor lose his legacy. 208  
After Refusal, whether the executor may meddle as executor. 216  
Regular persons. 64  
Religious persons compared to dead men. 64  
Religious persons compared to bond men. 64  
What Remedy the creditors & legataries have during the suspense of the condition of the executorship. 169  
Rents, whether they may be recovered by the executor. 211  
The Residue of the testators goods, whether the executor may convert to his own use. 214  
Residue of the testators goods to be distributed. 235  
Resolved to refuse the executorship, must not meddle as executor. 236  
Of Revocations, some be general, some special, some singular. 266  
Revocation general, what it worketh. 266  
Revocation special, what it worketh. 266  
Revocation singular, what it worketh. 267  
Revoked, by what means may that testament be, wherein is a special clause derogatory circumscribed with certain limits. 267  
Revoke his testament may every one. 268  
Revocation of a man's testament is not presumed. 268  
Revocation sometimes presumed. 269  
Rigour of the Civil law, concerning testaments. 17  
The Rigour of the Civil law justly reform. 17   

S  
Secular clerks. 64  
Sentence, what it signifieth. 7  
Sentences judicial of two sorts. 9  
Sentence, how it differeth from this word disposition. 11  
A simple legacy beginneth to be due at the death of the testator. 289  
Several sorts of sentences, have several effects. 7  
How a testament differeth from other Sentences. 10  
A Slave, what he is. 43  
A Slave cannot make a testament. 43  
A Slave hath nothing of his own. 43  
A Sodomite who. 58  
A Sodomite cannot make a testament. 58  
He that hath sworn not to make a testament, whether he may make a testament. 60  
Solemn testaments not used in England. 17  
What Solemnities are requisite in our English testaments. 6  
Soldiers, wherefore they enjoy so great privileges about their testaments. 25  
Soldiers, wherein are they privileged concerning their testaments. 25  
Soldiers privileged, not only in respect of their own persons, but others also. 26  
Soldiers privileged in respect of solemnities testamentary. 26  
Soldiers privileged in respect of the substance or form of a testament. 26  
Three sorts of Soldiers. 26  
Soldiers armed. 26  
Soldier during minority, whether he may make a testament. 35  
A Ship being bequeathed, & the same afterwards altered and renewed, the legacy is extinguished 278  
Study & practise of the law, profitable to the common wealth. 27  
A Stranger, whether he may appoint a tutor to an others child. 97  
Substitutions of divers kinds. 177  
Substitutions have sundry effects. 177  
The Substitute executor is not to be admitted, so long as he which is instituted in the first degree may be executor. 178  
The first Substitute being repelled, whether the rest be repelled likewise. 178  
The Substitute is not always excluded by the admission of the executor first instituted. 178  
The Substitute ought to succeed in that part and quantity, which was assigned to the former executor. 179  
Sufficiency of goods, whether it be presumed. 221   

T  
Testament and last will, have divers definitions. 2  
This word Testament is sometimes taken in a general signification, sometimes in a special. 2  
This word Testament taken generally, doth not differ from a last will. 3  
A Testament taken specially, or according to definition, is but one kind of last will. 3  
A Testament what it is. 3  
Testaments must be just. 5  
Testaments must be perfect. 6  
What maketh a Testament to differ from other kinds of last wills. 7  
The Testament not to be referred to an others will. 10  
The Testament of no force, until the testator be dead. 10  
Testaments amongst children unperfect, yet properly testaments. 20  
Testaments, when they be properly so called. 21  
Testaments favourably expounded. 24  
Testaments amongst children what it is. 29  
Testaments amongst children, presumed to be last. 29  
Two Testaments appearing, and no proof which is first or last, both are void. 29  
Testament, ad pias causas, what it is. 30  
Two Testaments privileged found without date, which is presumed to be the later. 31  
Testament may be made by any person which is not forbidden. 34  
Testament made in minority, whether it be good if the testator live until he come to lawful age. 35  
Testament made during the time of madness, whether it be good when the testator is come to himself. 36  
Testament made by a lunatic person, whether it be presumed to have been made during his lunacy or not, 38  
Testament, whether it may be made by him which is at the very point of death, 61  
Testaments to be proved before the ordinary. 221  
Testaments lose their force 2. ways. 239  
Testaments, by what means they be void from the beginning. 239  
Testaments being good at the first, by what means they become void afterwards. 239  
Testament made by force, whether it be void, ipso iure. 241  
Testament confirmed after fear past, whether it be good. 241  
Testament made by fear is good, saving in favour of the author of his fear. 241  
Testament made in favour of children, is presumed to be later. 256  
Testament ad pias causas, is presumed later than others to profane uses. 256  
Which Testament is presumed later, the one made ad pias Causas, the other inter Liberos. 257  
The Testament improperly termed Captions, which is referred to the will of an other. 147  
The Testator must be sui juris. 10  
Testator at what age he may devise lands. 35  
Testator, at what age he may make a testament of his goods. 35  
The Testators will may not depend of an other man's will, and what is the reason thereof. 147  
The Testator may refer his will to another's will, joined with a fact. 148  
The Testator whether he may die partly testate, partly intestate. 171  
The Testator may omit or exclude his own child, & make others executors. 195  
The Testator may bequeath sometimes all, sometimes half, sometimes the third part of his goods. 104  
Things descending to the heir, and not to the executor not deviseable. 93  
Translation of legacies, what it is. 281  
Whether every Translation do include an ademption of the legacy. 28  
Translation of legacies doth not always include ademption. 282  
In Translation of legacies, whether the charge imposed on the first legatary be transferred to the second legatary. 282  
Traitors or felons cannot be executors. 197  
Traitors be intestable. 52  
Traitors intestable from the time of the crime committed. 53  
A Traitor pardoned and restored, may may make a testament. 53  
Tutors by whom they may be appointed. 96  
Tutors who may be appointed. 97  
Tutors to whom they may be appointed. 98  
A Tutor cannot be assigned to him that is in ward. 98  
Tutors may be appointed simply or conditionally. 99  
Tutors whether they ought to enter into bond for the performance of their office. 101  
Tutorship ended by divers means. 102  
Tutorship ended in respect of sufficient age of the pupil. 102  
Tutorship ended sometimes in respect of the tutor himself. 102  
Tutorship ended in respect of the form of the tuition. 103  
Two testaments privileged found without date, which is presumed to be the later. 31  
Two witnesses needful, and two sufficient for the proof of a testament. 185  
Time of the crime committed. 53  
What time hath the executor to consult whether he will take or refuse the executorship. 216  
Time for making an inventary. 219   

V  
Vain fear hindereth not the testament 241  
Villain compared to him that is Ascriptitius Glebae. 44  
A Villain whether he may make a testament or no. 44  
A Villain whatsoever he hath, his lord may take it from him. 44  
A Villains testament, whether it may be made void by his lord. 44  
A Villain being executor may make his testament. 45  
A Villain executor may maintain action against his lord. 45  
Ulpian lived long before justinian. ●9  
Voluntary conditions are to be observed precisely. 129  
Unadvised speeches make not a testament. 8  
Unaccustomed notes do not hurt a testament ad pias causas. 30  
An uncertain person cannot be made executor. 203  
Uncertainty manifold. 248  
Uncertainty of the person, whether it destroy the disposition. 249  
Uncertainty by reason there be divers persons of one name, maketh void the disposition. 250  
Uncertainty unhurtful, if the testators meaning be certain. 250  
Vncerteintie doth not hinder the disposition ad pias causas. 251  
Uncertain by reason of alternative speech unhurtful. 252  
Uncertainty by reason of generality in the thing bequeathed, whether it destroy the disposition. 254  
Uncertain testaments preserved from destruction by the equity of the laws Ecclesiastical. 255  
Uncertainty about the date of two testaments, maketh both void. 256  
Unjust things not to be commanded by the testator. 5  
Universal executor may enter to all the testators goods and cattles, and therefore chargeable with the payment of all his debts. 175  
An Unlawful College cannot be executor. 202  
An Unlawful College, when it is so reputed 202  
unperfect is the testament by two means. 6  
Unperfect in respect of solemnity, folio 6  
Unperfect in respect of will. 6  
unpriviledged testaments what they are. 32  
Of Unperfect testaments there be two sorts. 257  
Unperfect in respect of solemnity, whether the testament be void. 257  
Unperfect in respect of will, whether the testament be void. 258  
Unperfect in respect of will, the testament may be by divers means. 258  
An Unperfect testament is void by the Civil law. 258  
An Unperfect testament ad pias causas, being unperfect in respect of will, whether it be void. 258  
Unperfect in respect of will, the testament is not by reservation of some thing to be added. 2●9  
Vnsolemne testament, what it is. 18  
An unsolemn testament, if it were not properly a testament, what inconvenience would follow. 20  
Usurer manifest, cannot make a testament. 56  
Every Usurer is not intestable. 56  
A manifest Usurer, who is. 56  
Whether he be an Usurer which dareth for gain, but doth not receive any more than the principal. 56  
An Usurer is not intestable in England, unless he take above ten in the hundred for a years forbearance, or after that rate. 56  
Usury how it is punished in England 56  
Usurer manifest not to be buried in any Church or Churchyard. 57  
Usurer manifest, incapable of any testamentary benefit. 203  
Vulgar form of proving testaments. 223   

W  
The wardship of a child that hath lands, who shall have. 98  
Of Wards the hard estate. 98  
All Wards are not subject to the like conditions. 99  
The Wardship of an infant having lands in soccage to whom it belongeth. 99  
Wardship ended by divers means. 102  
The Wife cannot make her testament of lands though her husband consent. 47  
The wives testament, whether it be good after the death of her husband. 47  
The wives testament of lands sometimes good in law, notwithstanding the coverture. 47  
The Wife cannot make her testament of goods without her husbands licence, and why. 47  
The Wife may in some cases make her testament without her husbands licence. 48  
The Wife may make her testament of a thing in action whereof her husband was never possessed. 48  
A Wife executrix may make an executor without her husband's licence. 48  
A Wife executrix cannot give away the testators goods by her will. 49  
A Wife both executrix and legatary, cannot make a testament of that which she did accept, not as executrix, but as legatary. 49  
A Wife executrix and legatary, whether shall she be deemed to have accepted the testators goods as executrix, or as legatary. 50  
A wife wherefore may she not make her testament of that which she did accept as legatary. 49  
A Wife licenced to make her testament, whether she may make any more wills but one. 50  
Of a Wife Executrix. 215  
The Will of the testator chief governor of the testament. 9  
wills are to be favourably interpreted. 193  
Witnesses to the number of seven, wherefore they were exacted rather in testaments then in other acts. 17  
Witnesses two or three sufficient by the law of God. 18  
Witnesses whether they are to be required in the making of a testament. 19  
Witnesses not privy to the contents. 23  
Witnesses whether they be necessary in a testament amongst children. 29  
Witnesses must be learned when they do not know the contents of the wil 23  
Witnesses deposing that the testator was of sound mind and memory, to be preferred before those which depose the contrary. 38  
A Witness every one may be, which is not forbidden. 186  
The Witnesses not being greater than all exception, whether the number may supply the defect. 186  
Witnesses no greater than all exception in three respects. 186  
Witnesses are sometimes excluded for their dishonesty. 187  
Witnesses sometimes excluded for want of judgement. 187  
Witnesses sometime excluded for affection 187  
Witnesses whether they be always necessary in a written will. 191  
A Woman covert cannot make a testament of her lands. 47  
A Woman's testament made before marriage, whether it be good if she die during the coverture. 47  
A Woman whether she may be a witness. 187  
Women as well as men may be executors 196  
This word testament what it signifieth. 2  
This Word last will what it signifieth. 3  
This Word lust, what it signifieth. 5  
This Word lust, taken for full and perfect. 6  
This Word Sentence, hath many significations. 7  
Words unadvisedly spoken, make not a testament. 8  
The Words of the testator are not so greatly to be regarded as his will and meaning. 9  
These Words lawful and just, how they differ. 1●  
These Words disposition and sentence, how they differ. 11  
This word codicil what it signifieth. 12  
This word lust, what it signifieth in the definition of a codicil. 12  
Words without meaning are of no force 116  
By what Words the disposition is made conditional. 121  
Of the Words and sentences of a written testament. 190  
Writing necessary in the devise of lands. 19  
Written testament what it is. 22  
Writing after the making of the testament whether it do make it a written testament. 23  
A Written testament hath some things peculiar to itself. 23  
Without writing, the devise of lands is not good. 23  
A Written Testament may be proved, though the witnesses be not privy to the contents. 23  
What is to be observed in written testaments, where the witnesses are not privy to the contents. 23  
A Written testament, in what manner of stuff it ought to be written. 190  
A Written testament, in what language it ought to be written. 190  
A Written testament, in what hand it ought to be written. 190  
A Writing being found in manner of a will, whether it be presumed the very will, or but a draft thereof. 262   

Y  
Years 21. requisite for the devise of lands. 35  
Years after fourteen a boy, and a woman after twelve, may make their testaments of goods. 35  
Years, See age.   
FINIS.   

Printed at London by I. Windet, 1591.