Bracton: Thorne Edition: English. Volume 2, Page 274

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Volume 2, Page 274

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[001] if an invalid one, she loses her case, as may be seen when, for the purpose of proving
[002] assent, she produces verbal evidence and witnesses who say her husband endowed
[003] her and a document, also produced in proof, says the father or mother or other
[004] relative endowed her, when it ought to say they gave their consent. When the wife
[005] has committed herself positively to both neither will stand, since they are contradictory,
[006] unless one says it is sufficient to accept the one that is useful, the useful
[007] not being vitiated by the useless, and because what is done is of more value than
[008] what is written, perhaps by the mistake of the scribe, and [because] by a favourable
[009] interpretation the instrument could be so read that it ought to be valid at
[010] least to this extent, as showing that the ancestor gave his assent to the constitution
[011] of dower made by the heir,¹ and because of the ignorance of the parties, as in the
[012] case of a layman presenting to a church, who says in the instrument of presentation
[013] that he gives such a church to such a clerk, which is inappropriate since it is the
[014] bishop who gives and the layman only presents.² But by a benign interpretation
[015] adopted because of the ignorance of laymen, and in order that the presentation not
[016] be void because of the inappropriate language of the gift, the gift is taken for a
[017] presentation.³ Though he cannot ‘give’ the church a layman may give the advowson
[018] of the church, but if when he gives the advowson he says in the instrument of
[019] gift that he gives the church, the gift of the advowson will be valid by virtue of a
[020] benign interpretation made because of ignorance.⁴ This interpretation was made
[021] by the ancients, that when a layman says, ‘I give the church,’ he gives whatever
[022] right he has in the church, in the advowson as in the presentation; favourable
[023] interpetations are to be made that a thing survive rather than perish.⁵ ⁶<But
[024] without prejudice to a better opinion, it seems that ⁷they are not contradictory and
[025] thus may well stand together,⁸ [and that] both constitute dower, the father or other
[026] relative by reason of the consent, the husband because of the nomination of dower,⁹
[027] neither of which avails without the other nor may one suffice by itself, [for] ¹⁰the
[028] husband's nomination will never be valid without the consent of the relative nor
[029] conversely.¹¹ Hence if the father has made an instrument as above¹² [it suffices] for
[030] consent, and for proof of the constitution [if] the wife has oral evidence to prove the
[031] nomination.> ¹³A husband may endow his wife of the property of others (that of his
[032] father or mother, or both or¹⁴ of some other ancestor, by their consent and agreement)
[033] in the same ways as he may endow her of his own, specifically or generally,
[034] [that is], property acquired and to be acquired, and also of things (though only
[035] specifically and specially) of which his ancestors were never seised, provided they
[036] are to revert after a time to heirs, as is briefly explained above [in the portion] on
[037] the dower of a second wife not delivered in the lifetime

Notes

1. Infra iii, 380

2. Supra 160, infra 279

3. Supra 160

4. Supra 160; cf. infra 279

5. D. 34.5.12; Drogheda, 124: supra 78, n. 12

6. Supra i, 384

7-8. ‘neutrum valebit ... stare possunt,’ from line 29

9. Infra iii, 380

10-11. ‘numquam valebit ... contrario,’ from line 30; om: ‘et sic ... simul’

12. ‘ut supra, valet ad consensum et ad’

13. New paragraph

14. ‘vel’