Editions: > 1763 [subscription only] | 1797 | 1842

Ecclesiastical Law

by Richard Burn LL.D.
Vicar of Orton, in the County of Westmoreland.

First edition (1763, with 1765 Addenda)

This online resource is available only to subscribers of Eighteenth Century Collections Online.

Volume II (extract): Wills

[Title page] [Citation] [Index]

I Who may make a will.
II Of what things a will may be made.
III Form and manner of making a will; and therein of appointing guardians and executors.
IV Of the probate of wills, and administration of intestates effects.
V Of the duty of executors and administrators in making an inventory, and getting in the effects of the deceased.
VI Of the payment of debts by executors or administrators.
VII Of the payment of legacies, and distribution of intestates effects.
VIII Account
  Addenda | Table of Provincial and Legatine constitutions cited | Table of Acts of Parliament cited

IspaceWho may make a will.

Difference between will and testament 504
Infant 504
Idiot 505
Lunatic 505
Person of weak understanding 506
Person in liquor 507
Married woman 507
Person under fear or restraint 511
Person circumvented by fraud 511
Person deaf and dumb 512
Blind 512
Traitor 513
Felon 513
Felo de se (suicide) 514
Outlaw 514
Excommunicate 514

Editions: > 1763 [subscription only] | 1797 | 1842

IIspaceOf what things a will may be made.

Lands 514
Lands to charitable uses 516
Estate pur auter vie (life interest for the life of another person) 516
Mortgage 516
Advowson 517
Lands contracted for, but not conveyed 517
Lease 517
Term for years 517
Debts or things in action 517
Things which the testator has not of his own 518
Things in joint tenancy 518
Corn growing 518
Things not yet rerum in natura (in existence) 519
Things belonging to the freehold 519
Things in executorship 520
Things in administration 520
Wife's goods by the husband 520
Things obtained after the will made 520

Editions: > 1763 [subscription only] | 1797 | 1842

IIIspaceForm and manner of making a will; and therein of appointing guardians and executors.

Of lands 521
Of goods 521
Declarations of trust 525
Nuncupative will 525
Codicil 527
Donatio causa mortis (gift in prospect of death) 528
Qualification of the witnesses 528
Appointing of guardians 536
Appointing of executors 542
Supervisors 545
Attesting the execution of the will 545
Wills to be construed favourably 547
Clause of perfect mind and memory 550
What words will pass a fee simple 550
Devise to a feme couvert (married woman), to her separate use 552
Devise to heirs female 552
Devise to one's relations 552
Devise to younger children 554
Life's estate, how implied 554
Estate equally to be divided 554
Devise of mortgages, passeth the lands 559
Advowson, tithes, fee farm rents 559
Lands to be sold 559
Devise upon condition 561
Devise tending to perpetuity 563
Devise to children yet unborn 566
In what case maintenance shall be implied 567
Household stuff 567
Household goods 567
All his goods, what it implies 567
Chattels does not imply things which go to the heir 568
Lands, implies the corn growing thereon 568
Devise in restraint of marriage 570
Condition not to give trouble to the executor 572
Thing devised twice 573
Things which a person has jointly with another 573
In what cases a legacy shall be said to lapse 573
Surplus 578
Wills how revocable 582

Editions: > 1763 [subscription only] | 1797 | 1842

IVspaceOf the probate of wills, and administration of intestates effects.

1. Of the probate of wills
Origin of jurisdiction 601
Bishop 602
Peculiar 602
Archbishop's prerogative in case of bona notabilia (goods to be notified) 602
Wills in the British colonies 607
Wills of lands not subject to the ecclesiastical jurisdiction 607
Will of goods not effectual before probate 608
Refusal of an executorship 608
Executor of his own wrong 609
Co-executors; some of them do refuse 611
Where one executor excludes the other 612
Where all refuse; administration to be committed 612
Within what time the will shall be proved 612
What the executor may do before probate 612
Ordinary to cite the executor to prove the will 614
Mandamus (writ) to compel the ordinary 614
Manner of proving the will 614
Executor's oath to render a just account 617
Bond to the like purpose 618
Probate making out 622
Registry of wills in particular places 622
Probate of a will of lands, not evidence 623
Probate of a will of goods and chattels, how far evidence 623
Fee for probate 625
Stamps 629
Executor dying 629
2. Of the administration of intestates effects.
Power of the ordinary 629
Ordinary may be compelled 632
Refusal of administration 634
To be granted to the widow or next of kin 634
To the husband, of the wife's effects 635
To the father or mother, of their children's effects 636
To the grandmother before uncles and aunts 636
To the son before the father 636
Half blood 636
In general to the next of kindred 636
Residuary legatee, or principal creditor 636
Administration during absence out of the kingdom 637
Pendente elite (pending litigation) 637
During the minority of an infant executor or administrator 637
Feme couvert (married woman) Administratrix 639
Administrator dying 639
Where none will administer 639
May be granted out of jurisdiction 640
Cannot act before administration 640
Time of granting administration 640
Administrator's oath 640
Bond on granting administration 640
Fee for administration 642
Stamps 642
Letters of administration allowed as evidence 642
Revoking administration 642

Editions: > 1763 [subscription only] | 1797 | 1842

VspaceOf the duty of executors and administrators in making an inventory, and getting in the effects of the deceased.

Administering before inventory made 644
Laws requiring the making of an inventory 644
Things to be put into the inventory: Goods 645
Things to be put into the inventory: Chattels 645
Debts owing by the deceased 646
Debts owing to the deceased 646
Leases 646
Extent 646
Rent 646
Corn or other things growing 646
Things fixed to the freehold 647
Heirlooms 648
Box with writings 649
Profits of lands to be sold 649
Wife's Paraphernalia 649
Wife's goods or chattels 651
Valuation 652
In what cases an inventory may be dispensed withal 652
How far the strict formalities before required, are necessary 653
Strictness requisite in contestation of suit 653
Action given to executors 654
Action given to administrators 654
Action in case of rent in arrear 655
In what courts to be brought 656
In what case co-executors must all join 656
Case where one co-executor refuses 657
In what case one may do what all may do 657
One executor cannot sue another 657
Co-executor dying 658
Executor of an executor 658
Administrator dying 658
Executor of an administrator 659
Administrator de bonis non (of goods not administered) 659
Actions brought against divers executors 659
Costs 659

Editions: > 1763 [subscription only] | 1797 | 1842

VIspaceOf the payment of debts by executors or administrators.

Ordinary liable 660
Executors and administrators liable 661
Devisee and heir at law of lands liable 662
Lands devised to divers to be sold for payment of debts, one of them may sell 667
In what case the heir may enter for the condition broken 668
Fraudulent alienations of goods, to defeat creditors 668
Fraudulent administrations to defeat creditors 668
Assets 668
In what case the lands and the personalty shall be charged in aid of each other 672
In what case both executors shall be charged, where one only has assets 673
What debts to be first satisfied 674
Forfeiture for not burying in woollen 678
Funeral expenses 678
Overseer of the poor dying 678
Charges of probate or administration 678
Debts due to the king on record 678
Debts due to post office 679
Judgements 679
Decree in equity 679
Recognisances and statutes 680
Mortgages 680
Rent, bonds, and other obligations 680
Simple contract 682
In what case debts shall be paid pari passu (proportionally without preference) 683
In what cases interest shall be allowed 684
Debt barred by the statute of limitation 684
Executor may file a bill, to determine priority of payment 685
Plea of plene administravit (estate fully administered and assets exhausted) 685
Plea of ne unque executor (not nor ever executor) 685
Debts to be paid before legacies 685

Editions: > 1763 [subscription only] | 1797 | 1842

VIIspaceOf the payment of legacies, and distribution of intestates effects.

1 Concerning the payment of legacies
What persons are incapable of a legacy 689
In what cases legacies are taken away or extinguished 689
Legacy where to be sued for 690
Security to be given, when the day of payment is distant 693
Payment to an infant 693
In what case a legacy shall bear interest, and from what time 695
Maintenance and education, how far to be allowed 698
Payment to a feme couvert (married woman) 699
Security to refund 699
If assets fall short, in what case legacies shall abate 700
Co-executor dying, who shall be sued 704
2 Concerning the distribution of intestates effects
2i Of the statutes of distribution 704
Table 715
Ch 1 Of the succession of descendents 718
Ch 2 Of the succession of antecedents 720
Ch 3 Of the succession of collaterals 725
2ii Of customs in particular places 733
2iii Of the custom of the City of London in particular 738
Statute enabling to dispose by will 738
Custom of distribution in case of intestacy 739
The death's part distributable according to the statute of distribution 740
Superintendency of the court of orphans 740
Children entitled, though born out of the city 740
Child entitled, though born after the father's death 740
Child dying, the orphanage part survives 741
Wife divorced 741
Husband attainted 741
Wife or children advanced 741
What shall be deemed a sufficient advancement 742
Child of age may release the customary part 743
Whether the husband can release 744
Whether marriage without consent bars the custom 744
Custom extends not to grandchildren 745
Hotchpot only amongst children 745
Lease 745
Trust of a term 745
Mortgage 745
2iv Of the custom of the province of York 746
2v Of the custom within the principality of Wales 763

Editions: > 1763 [subscription only] | 1797 | 1842


Executor's oath to account 764
Administrator's bond to account 764
Before whom the account shall be 764
Ordinary's power to compel the executor 764
Ordinary's power to compel the administrator 764
Parties interested to have notice 765
Manner of passing the account 765
Expenses to be allowed 766
Money lost 766
Discharge 766
Costs 766
Whether the administration bond shall be put in suit for debts not paid 766

Form of an inventory 768
Form of a will of lands 768
Form of a will of goods 769
Form of a will of lands and goods 770
Form of a codicil 773
Form of a nuncupative will 773

Volume II (extract): Popery

Papists shall not be executors, administrators or guardians 214
Papists shall not inherit or take by descent, devise, or purchase 215
Enrolling deeds and wills of papists 215

[1763] Addendum concerning distribution of intestates effects in Scotland 782
[1765] Addenda 800

Table of Provincial and Legatine constitutions cited [802]
Table of Acts of Parliament cited [814]