Bracton: Thorne Edition: English. Volume 2, Page 181

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Volume 2, Page 181

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[001] of a wife, and provided that they have deserved well of their parents in their
[002] lifetime. Hence, except as a matter of grace, children have no more rightful claim
[003] than wives, for a citizen could scarcely be found who would undertake a great
[004] enterprise in his lifetime if, at his death, he was compelled against his will to leave
[005] his estate to ignorant and extravagant children and undeserving wives. Thus it is
[006] very necessary that freedom of action be given him in this respect, for thereby he
[007] will curb misconduct, encourage virtue, and put in the way of both wives and
[008] children an occasion for good behaviour, which indeed might not¹ come about if
[009] they knew without doubt that they would obtain² a certain share irrespective of
[010] the testator's wishes.] If there are more debts, or more is bequeathed, wittingly or
[011] unwittingly, than that for which the chattels of the deceased suffice, let a general
[012] reduction be made, the lord king being excepted by his privilege, provided that if
[013] it is a debt that is not paid in full the heir remains liable for the deficiency.³ ⁴The
[014] will of a free man must be made before at least two or more lawful and honest men,
[015] clerks or laymen,⁵ called together specially for the purpose, who can prove the
[016] will if need be, should a dispute arise concerning it. ⁶The executors ought to be those
[017] the testator chooses,⁷ whether strangers or relatives, near or remote. And if a
[018] dispute arises over the will, ⁸the plea must be determined in the ecclesiastical
[019] court,⁹ for the royal court meddles in testamentary matters no more than in
[020] matrimonial. Quaere whether a testator may bequeath his actions [for money owed
[021] him].¹⁰ In truth he may not, but such lie for his heirs, [that is], actions for debts
[022] which have not been proved or acknowledged in his lifetime. If they have been
[023] proved and acknowledged they then are part of the testator's estate, so to speak,
[024] and lie for the executors in the ecclesiastical court. If, as said above, they lie for the
[025] heirs, they must be determined in the secular court, for until they are proved, and
[026] in the proper court, they do not belong¹¹ to the executors so that they may be proved
[027] in the ecclesiastical court.¹² And finally note that from the estate of the deceased
[028] necessary deductions must first be made, then those that are useful, and finally
[029] those that are matters of favour.

On acquiring dominion by purchase.

[031] There is [another] causa for acquiring the dominion of things which is called that
[032] of purchase and sale. ¹³When one sells his property to another, whether it is movable
[033] or immovable, the purchaser is liable to the seller for the price and conversely
[034] the seller is bound to deliver the thing to the purchaser,¹⁴ because, as may be
[035] seen above in the portion on gifts,¹⁵ without delivery dominion over things is not
[036] transferred.¹⁶ It is requisite that the thing sold be certain [and the price fixed
[037] for it certain, for there can be no purchase without a fixed price,]¹⁷ [for]

Notes

1. ‘non,’ all MSS.

2. ‘obtinerent’

3. Supra 178, cf. 180

4-5. Glanvill, vii, 6

6-7. Ibid.

8-9. Glanvill, vii, 8; infra iii, 47

10. Infra iv, 267, 268

11. ‘pertinent’

12. Infra iv, 267-8

13-14. Glanvill, x, 14: ‘Ex causa quoque emptionis et venditionis debetur aliquid cum quis rem suam alii vendiderit. Debetur enim pretium ipsi venditori et res empta ipsi emptori.’

15. Supra 124

16. C. 2.3.20

17. Inst 3.23.1 ‘Pretium autem constitui oportet, nam nulla emptio sine pretio esse potest, sed et certum pretium esse debet ...’