Bracton: Thorne Edition: English. Volume 2, Page 80

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Volume 2, Page 80

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[001] after the death of the woman, whether married or not, it ought to revert to the
[002] donor, nor will it descend to heirs or remain by the law of England with her
[003] first husband or her second. ¹If it is given in this way, ‘to facilitate her marriage
[004] and to hold to herself and her heirs,’ generally, though she has none of her body
[005] others more remote are called to the succession, [but if she has heirs of her body
[006] such are preferred to the others,] provided that the land [first] remains for life
[007] by the law of England to her first or second husband.² If the land is given in this
[008] way, in maritagium to her and certain heirs, that is, with a limitation, that is,
[009] ‘who are born of her body,’ if such fail, the land will revert at once to the donor for
[010] failure of heirs, all other heirs being excluded.³ If it is given to the husband and
[011] the wife and their common heirs, those are taken to be the heirs born of their
[012] two bodies in common, all others being distinguished [and] excluded from the
[013] succession, [Thus if the wife has a daughter by her first marriage and a son by
[014] her second, her daughter by her first husband must be preferred in the succession
[015] to her son by her second, which would not be true if the land had been given only
[016] to the wife and the heirs born of her body.] and all such failing, the land reverts to
[017] the donor, all others being excluded, as was said above. Land may be given in
[018] maritagium to the husband as well as the wife, to have and to hold to the said
[019] husband and wife and the heirs of the husband only, and in that case other heirs
[020] of the husband, not only those he has by another wife but others more remote, are
[021] called [to the succession]. If it is given to husband and wife and the heirs of the
[022] wife only, then not only are the wife's heirs by that husband called to the succession,
[023] whether they are male or female, but also those by a second husband, and others
[024] more remote, provided males are preferred to females. If the gift is made to the
[025] husband and wife and their heirs, it is taken to be given to their common heirs,
[026] that is, heirs born of their two bodies.⁴ Now suppose that the gift is made in this
[027] way, ‘I give to such a man so much land with the appurtenances for his homage
[028] and service to hold to him and his heirs,’ and the donor then immediately adds to
[029] his charter this clause, ‘and in free marriage with my daughter.’ It is evident
[030] that these two cannot stand together since they are repugnant to one another,
[031] for it follows from the first that the land so given ought to remain to the husband
[032] and his heirs generally, and from the second that it ought to remain to the wife
[033] and the husband and their common heirs, and in the absence of such that it ought
[034] to revert

Notes

1. Om: ‘vel’

2. B.N.B., no. 487; infra iv, 360

3. Infra 96

4. The portion supra 75, n. 2 belongs here