Bracton: Thorne Edition: English. Volume 2, Page 178

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Volume 2, Page 178

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[001] only when death occurs.¹³ A gift mortis causa, as where one in contemplation or
[002] expectation of death makes a gift to another,¹⁴ may take many forms, such being
[003] often made by those who are ill, or about to enter into battle, sail over the sea, or
[004] set off on a pilgrimage, and they include the tacit condition that they are revocable
[005] if the sick man recovers, the soldier returns from battle, the sailor from his voyage
[006] or the traveller from his journey. ¹⁵Gifts so made in anticipation of death are
[007] confirmed by the testator's death, and are made on the understanding that if the
[008] testator dies he to whom the bequest was made may have it, but if he recovers the
[009] testator may retain or retake it, and so if he to whom the bequest is made predeceases
[010] him,¹⁶ ¹⁷[If two make reciprocal gifts mortis causa and die at the same
[011] time, the heir of neither will recover [the other's] property, since neither survived
[012] the other.]¹⁸ and in truth such a ¹⁹gift mortis causa occurs whenever the testator
[013] prefers that he himself have the thing rather than the legatee, and the legatee rather
[014] than his own heir.²⁰ If, however, it is ²¹given mortis causa in such a way as to be
[015] irrevocable, the causa is that of gift rather than mortis causa and it ought therefore
[016] to be treated as any other inter vivos gift; thus it is void between husbands and
[017] wives.²² ²³It is lawful to make a gift mortis causa not only on account of illness,
[018] but because of danger and imminent death at the hands of an enemy or robbers,
[019] or because of the cruelty or enmity of some powerful man, or because of an
[020] impending voyage or journey, or if one is about to travel through perilous places.
[021] All these indicate immediate danger.²⁴

[Wills.]

[023] ²⁵Heirs are bound to observe the wills of their parents and of the other ancestors
[024] whose heirs they are, and to discharge any debts for which their chattels do not
[025] suffice.²⁶ First of all, whoever makes ²⁷a will must recognize his lord with the best
[026] chattel he has, and after him, with the next best, his church, [In some places
[027] the church by custom has the best beast, or the second or third best, in others
[028] nothing, thus the custom of the place must be heeded. In some, on the death of a
[029] wife in her husband's lifetime, the second best beast of the common flock, [the best
[030] beast], so to speak, of her portion, but only with the husband's leave and favour.
[031] And though no one should be bound to give anything to the church by way of
[032] burial fee,²⁸ yet, since such praiseworthy custom exists, the lord pope does not wish
[033] to interfere with it.] then his kin and other persons as it pleases him.²⁹ ³⁰A woman
[034] who is sui juris can make a will,³¹ just as any other person may, and dispose of her
[035] property

Notes

14. ‘ut si quis ... alicui dat,’ from line 2

15-16. Inst. 2.7.1; Woodbine, op. cit.

17-18. D. 39.6.26

19-20. D. 39.6.1. pr.; 39.6.35.2; Inst. 2.7.1.; Woodbine, op. cit., 838

21-22. D. 39.6.27

23-24. D. 39.6.3-6

25-26. Glanvill, vii, 5: ‘Tenentur quoque heredes testamenta patrum suorum et aliorum antecessorum suorum servare, illorum scilicet cuius sunt heredes, et eorum debita acquietare.’; infra 181, 281; cf. 180; cf. G’terbock, 44

27-29. Glanvill, vii, 5: ‘quod dominum suum primo de meliore et principaliore re quam habet recognoscat, deinde ecclesiam suam, postea vero alias personas pro voluntate sua.’; infra 250; om: ‘Postquam vero ... recognoverit,’ a connective

28. C. 13, qu. 2, ca. 12

30. New paragraph

31. Glanvill, vii, 5: ‘Mulier etiam sui iuris testamentum facere potest’