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custom, which has on the *one hand confirmed the tenant's interest in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An heriot may also appertain to free land, that is held by service and suit of court; in which

Now, is that fit? We know that for- tates of each tenant in common, the merly copyholds were held with fines copyhold does not still remain an entire uncertain; but the courts have said, tenement, In the case of heriot-ser"you shall not take what you please, vice, or heriot-custom, the law multiyou shall only be entitled to two plies the heriot in two cases; one, where years' purchase, because, if you take the tenement is actually divided, and just as much as will satisfy your cu- converted into two or more separate pidity, you may compel the heir to tenements; the other, where the tenesurrender the estate into your hands; ment is left entire, but different pertherefore, we will impose our restraint sons have distinct undivided estates upon you.” Upon the same principle, therein. But will the creation of a we must restrain the claim of heriots; tenancy in common have the effect of at all events, so that these, and the fines producing, even for a time, separate and fees, may not exceed the value of tenements ? None of the tenants in the property. We are called on to say, common knows his own share in sevewhether, without any custom within ralty. The creation of a tenancy in the manor alleged either way, it is the common in freeholds, leaves the tene. necessary legal consequence, that when ment entire; and, a fortiori, it must do an estate has been divided and again so in copyholds. There is a plain disre-united, all the heriots are to be paid tinction between the alienation of an after the re-union of the several estates, entire part, and the creation of a tenthat were paid whilst it was divided: ancy in common: the authorities shew, we say there is no such law, no such that the former will split one tenement doctrine.

into several, the latter will not. WhatIn the case of Holloway v. Berkeley, ever may at any time have been the (6 Barn. & Cress. 9), the question as number of tenants in common of what to the multiplication of heriots was was originally one copyhold tenement, brought before the court of King's when all the interests are again vested Bench: and it was decided, that when in one person, he may consider himself a copyhold tenement, holden by heriot- as seised, not of so many undivided custom, becomes the property of several portions of the land, but, as the sole as tenants in common, the lord is en- proprietor of one entire estate and tenetitled to a heriot from each of them; ment. but if the several portions are re-united The court added, Garland v. Jekyll in one person, one heriot only is pay- was a case of the creation of a tenancy able. The Court said, the question, in in common, and upon the principle that substance, is, whether, upon a tenancy the creation of a tenancy in common in common, each share of the tenement leaves the tenement entire, we think constitutes a distinct tenement; or whe- that decision right. ther, notwithstanding the distinct es

case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton (i) speaks of heriots as frequently due on the death of both species of tenants: est quidem alia præstatio quæ nominatur heriet

tum; ubi tenens, liber vel servus, in morte sua dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam locorum consuetudinem.” And this he adds, “ magis fit de gratia quam de jure;” in which Fleta (k) and Britton (1) agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in

the lord. of the nature of This heriot is sometimes the best live beast, or averium, the heriot.

which the tenant dies possessed of (which is particularly denominated the villein's relief, in the twenty-ninth law of king William the conqueror), sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant, who was the owner of it, being ascertained by the option of the lord (m), becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due; and, therefore on the death of a feme-covert no heriot can be taken: for she can have no ownership in things personal (n). In some places, there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably antient custom; but a new composition of this sort will not bind the representatives of either party; for that amounts to the creation of a new custom, which is now impossible (0).

*2. Mortuaries are a sort of ecclesiastical heriots, being [ *425 ] a customary gift claimed by and due to the minister in

very many parishes on the death of his parishioners. They

2. Mortuaries.

(i) L. 2, c. 36, s. 9.
(k) L. 3, c. 18.
(1) C. 69.

(m) Ho 60.
(n) Keilw. 84. 4 Leon. 239.
(0) Co. Cop. s. 31.

seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us, from a constitution of Archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their life-time might have neglected or forgotten to pay. For this purpose, after (p) the lord's heriot, or best good was taken out, the second best chattel was reserved to the church as a mortuary: si decedens plura habuerit animalia, optimo cui de jure fuerit debitum reservato, ecclesiæ

sua sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reserve

tur, post obitum, pro salute animæ suæ (9).And, therefore, in the laws of king Canute (r) this mortuary is called soul-scot (raplsceat) or symbolum animæ. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandize, jewels, and other moveables (s). So, also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grievance (t).

It was antiently usual in this kingdom to bring the mor- Progress of the tuary to church along with the corpse when it came to be doctrine of mor

tuaries. buried; and thence (u) it is sometimes called a corse-present; a *term which bespeaks it to have been once a volun

[ * 426 ] tary donation. However, in Bracton's time, so early as

(p) Co. Litt. 185.
(9) Provinc. I. 1, tit. 3.
(r) C. 13.
(s) Panormitan. ad Decretal. 1. 3,

t. 20, c. 32.

(t) Sp. L. b. 28, c. 41.
(u) Selden, Hist. of tithes, c. 10.

66

Henry III. we find it rivetted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori:” the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: in quibusdum locis habet ecclesia melius animal de consuetudine; in quibusdam secundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci (w).” This custom still varies in different places, not only as the mortuary to be paid, but the person to whom it is payable. In Wales, a mortuary, or corse-present, was due upon the death of every clergyman, to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the statute 12 Ann. st. 2, c. 6. And in the archdeaconry of Chester, a custom also prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring (x). But by statute 28 Geo. II. c. 6, this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature; though Sir Edward Coke(y) apprehends, that this is a duty due upon death and not a mortuary; a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by Sir Edward Coke, is entitled to six things: the (w) Bracton, l. 2, c. 26. Flet. I. 2, c. 57. (r) Cro. Car. 237.

(y) 2 Inst. 491.

the law of mortuaries.

bishop's best horse or palfrey, with his furniture; his cloak, or gown, and tippet; his cup and cover; his bason and ewer; his gold ring; and lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter (2).

This variety of customs, with regard to mortuaries, giv- Present state of ing frequently a handle to exactions on the one side, and frauds or expensive litigations on the other; it was thought proper, by statute 21 Hen. VIII. c. 6, to reduce them to some kind of certainty. For this purpose, it is enacted, that all mortuaries, or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due: viz. for every person who does not leave goods to the value of ten marks, nothing; for every person who leaves goods to the value of ten marks, and under thirty pounds, 3s. 4d.; if above thirty pounds, and under forty pounds, 6s. 8d.; if above forty pounds, of what value soever they may be, 10s., and no more. And no mortuary shall, throughout the kingdom, be paid for the death of any feme-covert; nor for any child; nor for any one of full age that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day. 3. Heir-looms (3) are such goods and personal chattels, 3. Heir-looms.

(2) Pag. 413.

(3) A court of equity will never fet- doubts on the construction of a will. ter personal property, by adjudging it (Saville v. Lord Scarborough, 1 Swanst. to be held under a will, as an heir- 546. Boon v. Cornforth, 2 Ves. sen. loom, upon presumption; more espe- 280. Wythe v. Blackman, 1 Ves. sen. cially in the case of a testator who, 202). Still, where a testator has diwhen such was his intention, knew how rected that certain personal chattels shall to express it. A claim which, in effect, go as beir-looms; though the limitation attempts to restrain alienation, and per- may not have been made in such terms manently to give to personalty the char- as the law, in a strict sense, requires acter of annexation to realty, can only for settling heir-looms, Lord Hardwicke be enforced on clear proof; not by seems to have held, that a court of equi

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