Bracton: Thorne Edition: English. Volume 2, Page 222

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 222

Next

Go to Volume: Page:

[001] what is enclosed, with gardens and game preserves, provided that after it is
[002] partitioned the eldest, whether male or female, has his choice because of seniority.
[003] Sometimes a hall is divided into two or more portions, sometimes a chamber is
[004] separated from the hall, and let the same be done of the several dwellings in a
[005] court. [On the other hand, when dower is assigned a wife after the death of her
[006] husband and there is but one chief messuage, she will not share it with the heirs,
[007] whether there are several or one, but will have her choice of one of the messuages
[008] held in villeinage.¹ If there is no such, then let there be assigned her a place in the
[009] court² to the value of a third part of the chief messuage, in breadth and length,
[010] and let a house be built³ there out of the common inheritance. This will be so where⁴
[011] she has been endowed generally of a third part, and if something other than this
[012] is sometimes done it will not be de jure but of grace or through ignorance. Nor does
[013] she share in the advowsons of churches by reason of her third part, any more than
[014] she does in the messuage, unless she has been endowed of some manor entire
[015] with the appurtenances, without reservation, or unless when dower was constituted
[016] the advowson has been specially attached to her third part.]⁵ [What was said,
[017] that the chief messuages of a military fee admit of division and are divided among
[018] co-heirs, is true, unless the chief messuage is the head of an earldom,⁶ because of
[019] the jus gladii, which must not be partitioned, or the caput of a barony,⁷ a castle
[020] or other similar edifice. This is so because if the caput were divided into several portions,
[021] and several times, the rights of earldoms and baronies would be brought to
[022] naught, to the destruction of the realm, since it is of earldoms and baronies that
[023] it is said to be constituted. But if there are several edifices, each of which is the
[024] head of a barony, they may be divided among the co-heirs, saving the right of
[025] the eldest, because since there are several rights each may be maintained entire,
[026] which is impossible where there is but one, as was said above, though some say
[027] that in other regions it occasionally is divided by custom. But [it is clear] that
[028] it ought not be partitioned; nor has a contrary rule ever been seen in England;
[029] and the custom of the region in which the claimed inheritance lies and where the
[030] persons who claim are born must be observed, and hence, if it is maintained that in
[031] the realm of England partition once was made, such was unlawful.]⁸ Rights also
[032] fall into the partition, one or several, but those are not divided which⁹ do not admit
[033] of division, as the advowsons of churches¹⁰ and praedial servitudes.¹¹ For several
[034] advowsons may be divided among several co-heirs

Notes

1. Infra 280

2. ‘locus in curia’

3. ‘aedificetur’

4. ‘ubi ubique’

5. Infra 278

6. Infra 269; this paragraph a gloss on 221, last lines

7. Ibid.; C.R.R., vii, 240, 263

8. Infra 269; cf. B.N.B., nos. 1227, 1273

9. ‘quae’

10. Infra 277

11. Infra 223