A Brief Treatise of Testaments and Last Willes
by Henry Swinburne, BCL (1590/1)
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Part 1
What a Testament or last Will is; and how many kinds of Testaments there be.
1 Whether a Testament, and a last Will, be both one thing, and of the manifold signification of this word Testament. 1
2 The definition of a Testament. 3v
3 An exposition of the same definition. 4v
4 The definition of a last Will. 10v
5 The definition of a Codicil. 11v
6 The definition of a Legacy. 14v
7 The definition of a gift in regard, or because of death. 16
8 The division of Testaments. 16v
9 Of a solemn Testament. 17
10 Of an unsolemn Testament. 18
11 Of a written Testament. 22
12 Of a nuncupative Testament. 24
13 Of privileged Testaments. 24v
14 Of a military Testament. 25
15 Of the Fathers Testament among his Children. 29
16 Of a Testament ad pias causas (for religious works). 30
17 Of unprivileged Testaments. 32
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Part 2
What persons may make a Testament, and who may not.
1 Whether every person may make a Testament. 34
2 Of children. 35
3 Of mad folks and lunatic persons. 36
4 Of Idiots and Fools. 39
5 Of Old men. 41v
6 Of him that is drunk. 42
7 Of slaves and villains. 42v
8 Of Captives and Prisoners. 45
9 Of a woman Covert. 46
10 Of those which be deaf and dumb. 51
11 Of him that is blind. 52
12 Of Traitors. 52v
13 Of Felons. 53
14 Of Heretics. 54v
15 Of an Apostata (apostate). 55
16 Of manifest Usurers. 56
17 Of incestuous persons. 57
18 Of Sodomites. 58
19 Of a Libeller. 58
20 Of him that kills himself (suicide). 58v
21 Of him that is outlawed. 58v
22 Of an Excommunicate person. 60
23 Of prodigal persons. 61
24 Of him that has sworn not to make a Testament. 60v
25 Of him that is at the very point of death. 61
26 Of Ecclesiastical persons. 63v
27 Of Kings. 65
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Part 3
What things, and how much may be disposed by Will.
1 What things are examined in this third part. 69
2 Lands, Tenements and Hereditaments cannot pass by will, but in certain cases. 69v
3 Certain cases approved by custom, wherein it is lawful to bequeath, or devise Lands, Tenements and Hereditaments. 70v
4 Certain cases authorized by the Statutes of this Realm, whereby it is lawful to bequeath, or devise Lands, Tenements and Hereditaments. 77v
5 Of the devise of goods and chattels. 91
6 Diverse kinds of goods and chattels not devisable by Will. 91
7 Of the assigning of Tutors, and disposing of children's portions. 95
8 Of committing the tuition of children, and custody of their portions within the province of York. 96
9 Who may appoint a Tutor. 96v
10 Who may be appointed Tutor. 97
11 To whom a Tutor may be appointed. 97v
12 Of the manner of appointing Tutors. 100v
13 Of the office and authority of a Tutor. 101
14 By what means the Tutorship is ended. 102
15 What quantity of Lands may be devised by will. 103
16 What quantity of goods or chattels may be devised by testament. 103v
17 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. 106v
18 Of childrens portions, especially within the Province of York. 116 [1611 edition]
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Part 4
How or in what manner Testaments or last Wills are to be made.
1 Of the forms of Testaments. 111
2 Of the general, substantial, form of a Testament. 111v
3 After how many sorts an Executor may be made. 113
4 Of a simple assignation of an Executor. 113v
5 Of a conditional assignation, or nomination of an Executor. 120
6 Of the effect of a conditional disposition. 123
7 Whether every possible condition ought to be observed precisely. 128
8 Whether the condition be accounted for accomplished in Law, when it does not stand by the Executor or Legatary, wherefore the same in not accomplished. 130v
9 Whether he that is made Executor, or to whom any Legacy is bequeathed conditionally, may in the mean time while the condition depends, be admitted to the executorship, or obtain the Legacy by entering into bonds to perform the condition, or else to make restitution. 136
10 Whether it be sufficient that the condition was once accomplished, though the same does not continue. 141
11 Of divers conditions which may seem doubtful, whether they be lawful or unlawful: And first of those conditions, whereby the liberty of making Testaments in hindered, how far the same are lawful or unlawful. 145
12 Of those conditions whereby the liberty of marriage in hindered, how far the same are lawful or unlawful. 149
13 Whether the prohibition or forbidding of alienation of the goods bequeathed be good or not. 153v
14 Within what time the condition may or ought to be performed, no certain time being limited by the will. 156
15 Of the understanding of this usual condition (if he die without issue). 160
16 What order is to be taken concerning the administration of the goods of the deceased, while the condition of the executorship depends unaccomplished. 169
17 Of the making of an Executor, to or from a certain time. 170v
18 Of the making of an Executor universally or particularly. 175
19 Of making of Executors by degrees. 176v
20 How many may be appointed Executors. 180v
21 Of those things which do appertain to the apparance (preparation) of Testaments. 185
22 Of the particular forms of Testaments. 188
23 Of the form of a solemn Testament. 188v
24 Of the form of an unsolemn Testament. 189
25 Of the form of a written Testament. 189v
26 Of the form of a nuncupative Testament. 192
27 Of the particular forms of other Testaments or last Wills. 193v
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Part 5
What persons may be appointed Executors, and who be incapable of an Executorship or Legacy.
1 What persons may be appointed Executors or be capable of a Legacy. 195
2 Of a Heretic. 196v
3 Of an Apostate. 197v
4 Of Traitors and felons. 197v
5 Of him that is outlawed. 198
6 Of an Excommunicate person. 198
7 Of Bastards. 198
8 Of him that is mad. ???
9 Of an unlawful College (Assemblies). 202v
10 Of a Libeller. 203
11 Of Usurers, Sodomites, & other vicious persons. 203
12 Of an uncertain person. 203v
13 Of a Recusant convict. 234 [1611 edition]
Whether an Alien my be an Executor or Administrator. 313 [1677 edition]
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Part 6
The office of an Executor.
1 Of the office of an Executor. 205
2 Of accepting or refusing the Executorship: And first, whether the Executor may be compelled to accept the same. 207v
3 What is to be considered of the Executor, desirous to be resolved, whether it were better to accept or refuse the executorship. 208v
4 Of the time which the executor has to deliberate, whether he will undergo the Executorship. 216v
5 Of the office of an executor testamentary, undertaking the executorship. 217
6 Of divers questions about the making of an Inventory: and first, whether it be of necessity that an Inventory be made. 217
7 What things are to be put into the Inventory. 218
8 Within what time the Inventory is to be made. 219
9 Of the forms to be observed in the making of an Inventory. 219v
10 Of the effect and benefit of an Inventory. 220v
11 Of the probation and approbation of Testaments; and namely before whom the same are to be proved. 221
12 By whom the Testament is to be proved. 222
13 When is the Testament to be exhibited and proved. 222v
14 Of the manner or form of proving and approving testaments. 223v
15 What fees are due about the probation and approbation of Testaments. 225v
16 Of the payment of debts, legacies, and mortuaries. 228
17 Of the making of an account; and first of the necessity thereof. 232v
18 To whom the account ought to be made. 233v
19 Of the time of making an account. 234
20 Of the manner of making an account. 234v
21 Of the end and effect of an account. 235v
22 Of the Executor refusing the Executorship, and what he is to take heed of. 236v
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Part 7
By what means Testaments or last Wills become void.
1 By what means Testaments or last Wills become void. 239
2 Of Testaments made by fear. 240
3 Of Testaments made by fraud. 242
4 Of Testaments made by flattery. 243
5 Of Error. 244
6 Of uncertainty. 248v
7 Of uncertainty, either because no certain person is named, or some being named, none of that name is to be found. 249
8 Of uncertainty arising, for that there be divers persons of one name. 250
9 Of uncertainty by occasion of alternative or disjunctive speech. 252v
10 Of uncertainty respecting the thing bequeathed. 253v
11 Of uncertainty respecting the time or date of the Testament, namely where teo Testaments appear, and it is uncertain whether is the latter. 256
12 Of an unperfect Testament. 257
13 Of the defect in the Testators meaning. 260v
14 Of a later Testament. 262v
15 Of revoking the testament made. 268v
16 Of cancelling the testament made. 270v
17 Of the alteration of the state of the testator. 272
18 Of forbidding or hindering the testator to make another Testament. 273
19 When he that is named Executor, cannot or will not be Executor. 275v
20 Of ademption of legacies. 276v
21 Of translation of legacies. 281v
22 Of divers means whereby legacies are lost, considerable in the person of the legatary as of enmity, etc. 285v
23 Of the death of the legatary before the legacy be due. 289
24 Of the destruction of the thing bequeathed. 292
Epilogue 295
An Alphabetical Table of the particular contents of this Treatise, wherein is relation to each particular leafe. 296
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