Editions: 1763 sub | > 1797 | 1842

Ecclesiastical Law

by Richard Burn LL.D.
Chancellor of the Diocese of Carlisle, and vicar of Orton in the County of Westmoreland.

Sixth edition (1797), with notes and references by Simon Fraser, Esq., Barrister at Law

Volume IV (extract): Wills

[Title page] [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
  Table of Acts of Parliament cited

IspaceWho may make a will.

Difference between wills and testaments 44
Infant 45
Idiot 46
Lunatic 47
Persons of a weak understanding 49
Person in liquor 50
Married woman 50
Person under fear or restraint 57
Person circumvented by fraud 59
Person deaf and dumb 60
Blind 60
Traitor 61
Felon 62
Felo de se (suicide) 62
Outlaw 62
Excommunicate 62

Editions: 1763 sub | > 1797 | 1842

IIspaceOf what things a will may be made.

Lands 63
Lands to charitable uses 66
Estate pur auter vie (life interest for the life of another person) 66
Mortgage 68
Advowson 68
Lands contracted for, but not conveyed 69
Lease 69
Term for years 70
Debts or things in action 70
Things which the testator has not of his own 71
Things in joint tenancy 72
[Things in common] 72
Corn growing 72
Things not yet rerum in natura (in existence) 73
Things belonging to the freehold 73
Things in executorship 74
Things in administration 74
Wife's goods by the husband 75
Things obtained after the will made 75

Editions: 1763 sub | > 1797 | 1842

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

Of lands 77
Of goods 105
Declarations of trust 107
Nuncupative will 107
Codicil 109
Donatio causa mortis (gift in prospect of death) 110
Appointing of guardians 112
[Guardians by Statute] 113
[Guardians to natural children] 122
Appointing of executors 122
[Executor bankrupt or non compos] 126
Supervisors 126
Attesting the execution of the will 126
Wills to be construed favourably 130
[Wills refering to deeds] 136
Clause of perfect mind and memory 136
What words will pass a fee simple 137
Devise to a feme couvert (married woman), to her separate use 144
Devise to heirs female 145
Devise to one's relations 145
Devise to younger children 148
Estate equally to be divided 148
Devise of mortgages, passeth the lands 155
Advowson, tithes, fee farm rents 156
Lands to be sold 156
[Resulting trust as to the surplus] 157
Devise upon condition 159
Devise tending to perpetuity 162
[Devise of the use of chattels personal] 164
Devise to children yet unborn 166
In what case maintenance shall be implied 168
Household stuff 168
Household goods and furniture 168
All his goods, what it implies 169
Chattels 170
Chattels does not imply things which go to the heir 171
Lands, implies the corn growing thereon 171
Devise in restraint of marriage 173
Condition not to give trouble to the executor 180
Thing devised twice 181
Things which a person has jointly with another 182
In what cases a legacy shall be said to lapse 182
Surplus 191
Wills how revocable 197
[Implied revocation of a will] 203
Of seamen's wills [and those of marines] 205
Administration how to be obtained 208
Executors how to obtain probates of wills 212
Creditors desirous of administering to petty officers, seamen, &c. 216
Checks and certificates how to be issued by the inspector of seamen's wills 219
Deputy paymaster to ascertain and pay the wages due, or if the party reside at a distance, to make out a remittance bill 222
Remittance bills to be paid by the receiver general of the land tax, collector of the customs or excise, or clerk of the check 224
Sums to be paid for probates of wills and letters of administration 226

Editions: 1763 sub | > 1797 | 1842

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

1. Of the probate of wills
Origin of jurisdiction 229
Bishop 231
Peculiar 231
Archbishop's prerogative in case of bona notabilia (goods to be notified) 232
Wills in the British colonies 237
Wills of lands not subject to the ecclesiastical jurisdiction 238
Will of goods not effectual before probate 238
Refusal of an executorship 240
Executor of his own wrong 241
Co-executors; some of them do refuse 244
Where one executor excludes the other 245
Where all refuse; administration to be committed 246
Within what time the will shall be proved 246
What the executor may do before probate 246
Ordinary to cite the executor to prove the will 248
Mandamus (writ) to compel the ordinary 248
Manner of proving the will 249
Executor's oath to render a just account 253
Bond to the like purpose 254
Probate making out 259
Registry of wills in particular places 259
Probate of a will of lands, not evidence 260
Probate of a will of goods and chattels, how far evidence 261
Fee for probate 264
Stamps 269
Executor dying 269
2. Of the administration of intestates effects.
Power of the ordinary 270
Ordinary may be compelled 274
Refusal of administration 276
To be granted to the widow or next of kin 277
To the husband, of the wife's effects 278
To the father or mother, of their children's effects 279
To the grandmother before uncles and aunts 279
To the son before the father 279
Half blood 279
In general to the next of kindred 280
Residuary legatee, or principal creditor 280
Administration during absence out of the kingdom 281
Pendente elite (pending litigation) 281
During the minority of an infant executor or administrator 282
Feme couvert (married woman) Administratrix 284
Administrator dying 285
Where none will administer 285
[Where there are no kindred] 285
May be granted out of jurisdiction 285
Cannot act before administration 285
Time of granting administration 285
Administrator's oath 286
Bond on granting administration 286
Fee for administration 291
Stamps 292
Letters of administration allowed as evidence 292
Revoking administration 292
[Bond to take possession of the effects of person dying intestate abroad] 293

Editions: 1763 sub | > 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 294
Laws requiring the making of an inventory 295
Things to be put into the inventory: Goods 297
Things to be put into the inventory: Chattels 297
Debts owing by the deceased 297
Debts owing to the deceased 298
Leases 298
Estates pur auter vie 298
Extent 299
Rent 299
Corn or other things growing 299
Things fixed to the freehold 300
Heirlooms 303
Box with writings 304
Profits of lands to be sold 305
Wife's Paraphernalia 305
Wife's goods or chattels 308
Valuation 309
In what cases an inventory may be dispensed withal 309
How far the strict formalities before required, are necessary 310
Strictness requisite in contestation of suit 310
Action given to executors 312
Action given to administrators 312
Action in case of rent in arrear 313
In what courts to be brought 315
In what case co-executors must all join 315
Case where one co-executor refuses 315
In what case one may do what all may do 316
One executor cannot sue another 316
Co-executor dying 317
Executor or administrator of an executor 317
Administrator dying 319
Executor of an administrator 319
Administrator de bonis non (of goods not administered) 319
Actions brought against divers executors 319
Costs 320
[Executor bankrupt] 321

Editions: 1763 sub | > 1797 | 1842

VIspaceOf the payment of debts by executors or administrators.

Ordinary liable 322
Executors and administrators liable 323
Devisee and heir at law of lands liable 324
Lands devised to divers to be sold for payment of debts, one of them may sell 331
In what case the heir may enter for the condition broken 332
Fraudulent alienations of goods to defeat creditors 332
Fraudulent administrations to defeat creditors 333
Assets 333
In what case the lands and the personalty shall be charged in aid of each other 338
In what case both executors shall be charged, where one only has assets 341
What debts to be first satisfied 341
Forfeiture for not burying in woollen 348
Funeral expenses 348
Overseer of the poor dying 348
Charges of probate or administration 348
Debts due to the king on record 348
Debts due to post office 349
Judgements 349
Decree in equity 351
Recognisances and statutes 352
Mortgages 352
Rent, bonds, and other obligations 353
Simple contract 354
In what case debts shall be paid pari passu (proportionally without preference) 355
In what cases interest shall be allowed 357
Debt barred by the statute of limitation 358
Executor may file a bill, to determine priority of payment 359
Plea of plene administravit (estate fully administered and assets exhausted) 359
Plea of ne unque executor (not nor ever executor) 360
Debts to be paid before legacies 361

Editions: 1763 sub | > 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 362
In what cases legacies are taken away or extinguished 362
Legacy where to be sued for 365
Security to be given, when the day of payment is distant 369
Payment to an infant 370
In what case a legacy shall bear interest, and from what time 375
Maintenance and education, how far to be allowed 381
Payment to a feme couvert (married woman) 383
Security to refund 384
If assets fall short, in what case legacies shall abate 385
Specific legacy or devise 387
Marshalling assets [footnote] 388
Co-executor dying, who shall be sued 392
2. Concerning the distribution of intestates effects
(i) Of the statutes of distribution 392
[The spiritual court cannot compel distribution of the residue where there is a will] 395
[The spiritual court cannot order the testator's goods to be brought in] 396
Hotchpot or collatio bonorum 397
Table 407
Ch. 1 - Of the succession of descendents 411
Ch. 2 - Of the succession of antecedents 413
Ch. 3 - Of the succession of collaterals 420
(ii) Of customs in particular places 434
(iii) Of the custom of the City of London in particular 441
Statute enabling to dispose by will 441
Custom of distribution in case of intestacy 442
The death's part distributable according to the statute of distribution 443
Superintendency of the court of orphans 443
Children entitled, though born out of the city 444
Child entitled, though born after the father's death 444
Child dying, the orphanage part survives 444
Wife divorced 445
Husband attainted 445
Wife or children advanced 445
What shall be deemed a sufficient advancement 446
Child of age may release the customary part 448
Whether the husband can release 449
Whether the share released shall fall into the dead man's or the orphanage part 450
Whether marriage without consent bars the custom 451
Custom extends not to grandchildren 451
Hotchpot only amongst children 451
Lease 452
Trust of a term 452
Mortgage 452
(iv) Of the custom of the province of York 452
(v) Of the custom within the principality of Wales 477
[3. Concerning the stamp duties chargeable on legacies, and the distributive shares of an intestate's estate] 479

Editions: 1763 sub | > 1797 | 1842


Executor's oath to account 485
Administrator's bond to account 485
Before whom the account shall be 486
Ordinary's power to compel the executor 486
Ordinary's power to compel the administrator 486
Parties interested to have notice 487
Manner of passing the account 487
Expenses to be allowed 488
Money lost 488
Discharge 489
Costs 489
Whether the administration bond shall be put in suit for debts not paid 489

Form of an inventory 491
Form of a will of lands 492
Form of a will of goods 492
Form of a will of lands and goods 494
Form of a codicil 497
Form of a nuncupative will 497

Volume III (extract): Popery

36a. Papists shall not be executors, administrators or guardians 177
36b. Papists shall not inherit or take by descent, devise, or purchase 177
37 Enrolling deeds and wills of papists 177

Table of Acts of Parliament cited [499]