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 formerly copyholds were held with fines uncertain; but the courts have said, "you shall not take what you please, you shall only be entitled to two years' purchase, because, if you take just as much as will satisfy your cupidity, you may compel the heir to surrender the estate into your hands; therefore, we will impose our restraint upon you." Upon the same principle, we must restrain the claim of heriots; at all events, so that these, and the fines and fees, may not exceed the value of the property. We are called on to say, whether, without any custom within the manor alleged either way, it is the necessary legal consequence, that when an estate has been divided and again re-united, all the heriots are to be paid after the re-union of the several estates, that were paid whilst it was divided: we say there is no such law, no such doctrine. In the case of Holloway v. Berkeley, (6 Barn. & Cress. 9), the question as to the multiplication of heriots was brought before the court of King's Bench: and it was decided, that when a copyhold tenement, holden by heriotcustom, becomes the property of several as tenants in common, the lord is entitled to a heriot from each of them; but if the several portions are re-united in one person, one heriot only is payable. The Court said, the question, in substance, is, whether, upon a tenancy in common, each share of the tenement constitutes a distinct tenement; or whether, notwithstanding the distinct es tates of each tenant in common, the copyhold does not still remain an entire tenement. In the case of heriot-service, or heriot-custom, the law multiplies the heriot in two cases; one, where the tenement is actually divided, and converted into two or more separate tenements; the other, where the tenement is left entire, but different persons have distinct undivided estates therein. But will the creation of a tenancy in common have the effect of producing, even for a time, separate tenements? None of the tenants in common knows his own share in severalty. The creation of a tenancy in common in freeholds, leaves the tenement entire; and, a fortiori, it must do so in copyholds. There is a plain distinction between the alienation of an entire part, and the creation of a tenancy in common: the authorities shew, that the former will split one tenement into several, the latter will not. Whatever may at any time have been the number of tenants in common of what was originally one copyhold tenement, when all the interests are again vested in one person, he may consider himself as seised, not of so many undivided portions of the land, but, as the sole proprietor of one entire estate and tenement. The court added, Garland v. Jekyll was a case of the creation of a tenancy in common, and upon the principle that the creation of a tenancy in common leaves the tenement entire, we think that decision right. Of the nature of the heriot. 2. Mortuaries. 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 consue“tudinem.” 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. This heriot is sometimes the best live beast, or averium, 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 (i) L. 2, c. 36, s. 9. (k) L. 3, c. 18. (1) C. 69. (m) Hob. 60. 4 Leon. 239. (0) Co. Cop. s. 31. 66 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 anima"lia, 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 (q).” And, therefore, in the laws of king Canute (r) this mortuary is called soul-scot (raplrceat) 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 morburied: and thence (u) it is sometimes called a corse-pre tuaries. sent; 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. (q) Provinc. 1. 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. 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. 66 Imprimis autem debet quilibet, qui testamentum "fecerit, dominum suum de meliori re quam habuerit re"cognoscere; 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 ha"bet ecclesia melius animal de consuetudine; in quibusdam 66 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, 1. 2, c. 26. Flet. 1. 2, c. 57. (x) Cro. Car. 237. (y) 2 Inst. 491. 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 (z). tuaries. This variety of customs, with regard to mortuaries, giv- Present state of ing frequently a handle to exactions on the one side, and the law of morfrauds 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. (z) Pag. 413. (3) A court of equity will never fetter personal property, by adjudging it to be held under a will, as an heirloom, upon presumption; more especially in the case of a testator who, when such was his intention, knew how to express it. A claim which, in effect, attempts to restrain alienation, and permanently to give to personalty the character of annexation to realty, can only be enforced on clear proof; not by VOL. II. 546. doubts on the construction of a will. |