What a use is. The use is but the equity and honesty to hold the land in conscientia boni viri. As for example; I and you agree that I shall give you money for your land, and you shall make me assurance of it. I pay you the money, but you made me no assurance of it. Here, although the estate of the land be still in you, yet the equity and honesty to have it is with me; and this equity is called the use, upon which I had no remedy but in Chancery, until this statute was made of 27 H. VIII. and now this there was no re- statute conjoineth and containeth the medy for a use, land to him that hath the use. I for my money paid to you have the land itself, without any other conveyance from you, and it is called a bargain and sale. Before 27 H. 8. but in Chancery. The stat. of 27 H. S. doth not pass land upon the payment of money without The stat. of 27 not into cities towns where enrol deeds. But the parliament that made that statute did foresee that it would be mischievous that men's lands should a deed indented so suddenly, upon the payment of a and enrolled. little money, be conveyed from them, peradventure in an alehouse or a tavern, upon strainable advantages, did therefore gravely provide another act in the same parliament, that the land, upon payment of this money, should not pass away, except there were a writing indented made between the said two parties, and H 8. extendeth the said writing also within six months and incorporate enrolled in some of the courts at Westthey did use to minster, or in the sessions rolls in the shire where the land lieth, unless it be in cities or corporate towns where they did use to enrol deeds, and there the statute extendeth not. The fifth conveyance of a fine is a conveyance to stand seised to uses. It is in this sort; a man that hath a wife and children, brethren, and kinsfolk, may by writing under his hand and seal, agree ment in writing that for their or any of their preferment to the use of any he will stand seised of his lands to their uses, either for life in tail or fee, so as he shall see cause; upon which agreement in writing there ariseth an equity or honesty, that the land should go according to those agreements; nature and reason A conveyance to stand seised to a use. to stand of his kindred, a use may be created, and the estate of the land thereupon executed, by 27 H. 8. | allowing these provisions, which equity and honesty is the use. honesty is the use. And the use being created in this sort, the statute of 27 H. VIII. beforementioned, conveyeth the estate of the land, as the use is appointed. A ovenant to stand seisod to no a use needeth as a bargain sale to a use enrolment, and, be to the use of wife, or one he mean child, or cousin, eth to marry. And so this covenant to stand seised to uses is at this day, since the said statute, a conveyance of land, and with this difference from a bargain and sale; in that this needeth no enrolment as a bargain and sale doth, nor needeth it to be in writing indented, as bargain and sale must: and if the party to whose use he agreeth to stand seised of the land, be not wife, or child, cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance; for although the law alloweth such weighty considerations of marriage and blood to raise uses, yet doth it not admit so trifling considerations as of acquaintance, schooling, services, or the like. But where a man maketh an estate of his land to others by fine, feoffment, or recovery, Upon a fine, fe. he may then appoint the use to whom offment, or rehe listeth, without respect of marriage, may limit the kindred, or other things; for in that he listeth, withcase his own will and declaration tion of blood, or guideth the equity of the estate. It is wise, in a barnot so when he maketh no estate, but or covenant. agreeth to stand seised, nor when he hath taken any thing, as in the cases of bargain, and sale, and covenant, to stand to uses. covery, a man use to whom out considera money. Other gain and sale, Of the continu will. The last of the six conveyances is a will in writing, which course of con- ance of land by veyance was first ordained by statute made 32 H. VIII. before which statute no man might give land by will, except it were in a borough town, where there was an especial custom that men might give their lands by will; as in London, and many other places. The not giving of land by will was thought to be a defect at common law; that men in wars, or suddenly falling sick, had not power to dispose of their lands, except they could make a feoffment, or levy a fine, or suffer a recovery, which lack of time would not permit; and for men to do it by these means, when they could not undo it again, was hard: besides, even to the last hour of death, men's minds might alter upon further proofs of their children or kindred, or increase of children or debt, or defect of servants, or friends, to be altered. For which cause it was reason that the law should permit him to reserve to the last instant the disposing of his lands, and to give him means to dispose it, which seeing it did not fitly serve, men used this device. and then they would, by their wills, declare how their friends should dispose of their lands; and if those friends would not perform it, the Court of Chancery was to compel them, by reason of the trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body. The inconveni. By this course of putting lands into ences of putting use, there were many inconveniences | land into use. (as this use which grew first for a reasonable cause), viz. to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as, namely, a man that had cause to sue for his land, knew not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease, for these rights and duties were given by law from him that was owner of the land, and none other, which was now the feoffee of trust, and so the old owner, which we call the feoffor, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee, and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it. The frauds of to increased, were statutes 1 H. 6. R. Which frauds, by degrees of time, as use by degrees they increased, were remedied by diof time, as they vers statutes; as, namely, by a statute remedied by the of 1 H. VI. and 4 H. VIII. it was ap4 H. 8. 1.3 pointed that the action may be tried against him which taketh the profits, which was then cestuy que use by a statute made 1 R. III. Leases and estates made by cestuy que use are made good, and statutes by him acknowledged. 4 H. VII. the heir of cestuy que use is to be in ward. 16 H. VIII. the lord is to have relief upon the death of any cestuy que use. Which frauds nevertheless multiplying daily, in the end 27 H. VIII. the Parliament, purposing to take away all those uses, law to the an- and reducing the law to the ancient conveyances of form of conveying of lands by public ment, fine, and livery of seisin, fine, and recovery, did ordain, that where lands were put in trust or use, there the possession and estate should be presently carried out of the friends in trust, and settled and invested on him that had the uses, for such term and time as he had the use. 27 H. 8. taking away all uses reduceth the cient form of recovery. In what manner 32 H. S. giveth pose of lands If a man be lands and soc By this statute of 27 H. VIII. the power of disposing land by will is the st. of clearly taken away amongst those power to d frauds; whereupon 32 H. VIII. another by will. statute was made, to give men power to give lands by will in this sort. First, it must be by will in writing. Secondly, he must be seised of an estate in fee-simple; for tenant for another man's life, or term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in soccage tenure, he may give it by will, except he hold any piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and primer seisin to the crown. And so if he hold lands by knight's service of a subject, he can devise of the land but two parts, and the third the lord by wardship, and the heir by descent, is to hold. seised of capite cage, he cannot parts of the devise but two whole. The third part must descend to swverguardship, the heir to an livery, and sei And if a man that hath three acres of land holden in capite, by knight's service, do make a jointure to his wife of one, and convey another to any of his children, or to friends, to take the profits and to pay his debts, or legacies, or daughters' portions, then the third acre, or any part thereof, he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship. ance by act exe But a conveycuted in the lifetime of the uses is not void, but a third heir be within have to be in party of such lands to such part; but if the age, he shall have one of the acres Yet a man, having three acres as before, may convey all to his wife or children, by conveyance, in his lifetime, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age when his father dieth, the king or other ward. lord shall have that heir in ward, and shall have one of the three acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of it, but it shall go according to the conveyance made by the father. It hath been debated how the thirds shall be set forth. For it is the use that all lands which the father leaveth to descend to the heir, being fee-simple, or in tail, must be part of the thirds; and if it be a full third, then the king, heir. nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest. if This supply is to be taken thus; The manner of it be the king's ward, then by a com- when the part mission out of the court of wards, affir whereupon a jury by oath must sct making supply full third, forth so much as shall make up the thirds, except | carry them to the market or fair, and sell them the officers of the court of wards can otherwise this sale doth bar me of the property of my goods. agree with the parties. If there be no wardship due to the king, then the other lord is to have this supply by a commission out of the chancery, and jury thereupon. The statutes give power to set out the third it be not a third himself, and if But in all those cases the statutes do give power to him that maketh the will to set forth, and appoint of himself, which lands shall go for thirds, and neither king nor lord can refuse it. And if it be not enough, yet they must take that in part, and only have a supply in manner as before is mentioned out of the part, yet the king or lord must take that in part, and have a supply out of the rent. rest. saving that if he be a horse he must be ridden two a Of markets, and what markets such a made in. So, whereas, by the custom of London, in every shop there is a market all the days of the week, saving Sundays and holidays. Yet if a piece of plate or jewel that is lost, or chain of gold or pearl that is stolen or borrowed, be sold in a draper's or scrivener's shop, or any others but a goldsmith, this sale barreth not the true owner, et sic in similibus. after they are Yet by stealing alone of goods the The owner may thief getteth not such property, but that seize his goods the owner may seize them again where- stolen. soever he findeth them; except they were sold in fair or market, after they were stolen, and that bona fide without fraud. But if the thief be condemned of the felony, or outlawed for the same, or outlawed in any personal action, have committed a forfeiture of goods the crown, then the true owner is without remedy. If the thief be condemned for felony, or outlawed, or forfeit or to to the owner is the stolen goods the crown, without re medy. But if he make fresh pursuit he may take his goods from the thief. Or if he proseagainst the thief cuted the law and convict him lony, he shall of the same fehave his goods again by a writ of restitution. Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and goods, and taketh the goods with the thief, he may take them again. And if he make no fresh pursuit, yet if he prosecute the felon so far as a justice requireth, that is, to have him arraigned, indicted, and found guilty (though he be not hanged, nor have judgment of death,) or have him outlawed upon the indictment; in all these cases he shall have his goods again, by a writ of restitution to the party in whose hands they are. IV. By waving of goods. By waving of goods a property is gotten thus. A thief having stolen goods being pursued, flieth away and leaveth the goods. This leaving is called waving, and the property is in the king; except the lord of the manor have a right to it by custom or charter. But if the felon be indicted, adjudged, or found guilty, or outlawed at the suit of the owner of these goods, he shall have restitution of these goods as before. ten. V. By straying. By straying property in live cattle is thus gotWhen they come into other men's grounds, straying from the owners, then the party or lord into whose grounds or manors they come causeth them to be seized, and a withe put about their necks, and to be cried in three markets adjoining, showing the marks of the cattle; which done, if the true owner claimeth them not within a year and a day, then the property of them is in the lord of the manor whereunto they did stray, if he have all strays by custom or charter, else to the king. VI. Wreck, and when it shall be said to be. By shipwreck property of goods is thus gotten. When a ship laden is cast away upon the coasts, so that no living creature that was in it when it began to sink escapeth to land with life, then all | those goods are said to be wrecked, and they belong to the crown if they be found; except the lord of the soil adjoining can entitle himself unto them by custom, or by the king's charter. ten. VII. Forfeitures. By forfeitures goods and chattels are thus gotIf the owner be outlawed, if he be indicted of felony or treason, or either confess it, or be found guilty of it, or refuse to be tried by peers or jury, or be attainted by judgment, or fly for felony, although he be not guilty, or suffer the exigent to go forth against him, although he be not outlawed, or that he go over the seas without license, all the goods he had at the judgment he forfeiteth to the crown, except some lord by charter can claim them. For in those cases prescripts will not serve, except it be so ancient, that it hath had allowance before the justices in eyre in their circuits, or in the King's Bench in ancient time. What probate of the will is, and in what made. The proving of the will is thus. They are to exhibit the will into the bishop's court, and there they are to bring the manner it is witnesses, and there they are to be sworn, and the bishop's officers are to keep the will original, and certify the copy thereof in parchment under the bishop's seal of office, which parchment so sealed, is called the will proved. IX. By letters of administration. By letters of administration property in goods is thus gotten. When a man possessed of goods dieth without any will, there such goods as the executors should have had if he had made a will were by ancient law to come to the bishop of the diocess, to dispose for the good of his soul that died, he first paying his funerals and debts, and giving the rest, ad pios usus. Pii usus. This is now altered by statute laws, so as the bishops are to grant letters of administration of the goods at this day to the wife if she require it, or children, or next of kin; if they refuse it, as often they do, because the debts are greater than the estate will bear, then some creditor, or some other, will take it as the bishop's officers shall think meet. It groweth often in question what bishop shall have the right of proving wills, and granting administration of goods. If there be but one executor made, Executor may yet he may refuse the executorship the bishop, if he coming before the bishop, so that he have not interhath not intermeddled with any of the goods. goods before, or with receiving debts, or paying legacies. Executor ought 1. Judgments. 3. Debts by sealed. bonds and bills 4. Rent unpaid. wages. Shop book, and contracts 5. Servants' 6. Head work by word. And if there be more executors than one, so many as list may refuse; and to pay, if any one take it upon him, the rest 2. Stat. recogn that did once refuse may when they will take it upon them, and no executor shall be further charged with debts or legacies than the value of the goods come to his hands. So that he foresee that he pay debts upon record, first debts to the king, then upon judgments, statutes, recognizances, then debts by bond and bill sealed, rent unpaid, servants' wages, payment to head workmen, and, lastly, shop-books, and contracts by word. For if an executor, or administrator pay debts to others before to the king, or debts due by bond before those due by record, or debts Z Executor dieth making his executor, the second executor shall be executor to the first testator. But otherwise, if the adminis Wator die cutor, or if ad committed of his goods. And if an executor die making an executor, the second executor is executor to the first testator. area, be may retain; cause the executors are charged to pay fore legacies. some debts be Property by legacy is where a man Executors or maketh a will and executors, and giveth legacies, he or they to whom the legacies are given must have the assent of the executors, or one of them, to have his legacy, and the property of that lease, or other goods bequeathed unto him, is said to be in him; but he may not enter nor take his legacy without the assent of the executors, or one of them, because the executors are charged to pay debts before legacies. And if one of them assent to pay legacies, he shall pay the value thereof of his own purse if there be not otherwise sufficient to pay debts. But this is to be understood by debts of record to the king, or by bill and bond sealed, or arrearages of rent, or servants' or workmen's wages; and not debts of shop-books, or bills unsealed, or contract by word; for before them legacies are to be paid. And if the executors doubt that they which les gacy he executors do sell any legacy But if an administrator die intestate, Executor may then his administrator shall not be exe-shall not have enough to pay every pay vill legacy, they may pay which they list first, if the first; but they may not sell any special want they may legacy which they will to pay debts, to pay debis. or a lease of goods to pay a money-legacy. But they may sell any legacy which they will to pay debts, if they have not enough besides. cutor or administrator to the first. But making his exe. in that case the bishop, whom we call ministration be the ordinary, is to commit the administration of the first testator's goods to his wife, or next of kin, as if he had died intestate. Always provided, that that which the executor did in his lifetime is to be allowed for good. And so if an administrator die, and make his executor, the executor of the administration administrator shall not be executor to the first intestate; but the ordinary must new commit the administration of the goods of the first intestate again. In both cases the ordinary shall commit of the goods of the first intes. tate. executor named, admibe committed nistration is to cum testamen If a man make a will, and make no when a will is executors, or if the executors refuse, made, and no the ordinary is to commit administration cum testamento annexo, and take bonds of the administrators to perform to annexo. the will, and he is to do it in such sort as the executor should have done, if he had been named, |