Bracton: Thorne Edition: English. Volume 2, Page 279

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Volume 2, Page 279

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[001] or without, provided it is not excepted, she will be able to confer the church when it
[002] becomes vacant and as often as it is vacant. But she cannot give it to a religious
[003] house¹ or elsewhere before it falls vacant and she is in possession of the presentation;
[004] if she does so the presentation of her heir and warrantor is [not] seriously impeded,
[005] [for] he will be restored to seisin of his presentation, or his ancestor's, by the assise,
[006] [but] if she presents during her widowhood, [and then makes a gift] or if after the
[007] death of the husband who endowed her she marries a second husband and they
[008] together give the advowson to a religious house or to a private person, seisin of the
[009] presentation will thereby be taken from her warrantor and after her death he will
[010] not be heard except on the property by writ of right.² In that case the donee will
[011] vouch the donor or his heir to warranty that escambium may follow. But what
[012] if the wife survives her second husband and claims the advowson by the writ
[013] of entry ‘since she could not gainsay her husband in his lifetime,’ neither fine
[014] nor chirograph having been made in the king's court;³ quaere whether she ought to
[015] be heard. It is submitted that she should, just as for any other thing. If when she
[016] begins her claim by writ of entry her warrantor begins his suit by writ of right,
[017] the wife's action must be heard first. If she prevails, her warrantor's right will
[018] thereby be re-established, so that after her death he will have the same seisin she
[019] had. If the wife fails in the proof of her right, it is evident that the warrantor's
[020] action ought to remain until her death, as it would if after having made a presentation
[021] she had given the advowson during her widowhood. ⁴To give a church is
[022] a very different matter from giving an advowson,⁵ for he who gives the advowson
[023] transfers [both] the church and the right of presenting and seisin, that is, when⁶
[024] he is in seisin of the presentation. But if he gives the church to another, who is
[025] admitted on [his] presentation, he retains seisin of the presentation and the
[026] right of patronage, no matter to whom the gift is made, to a private person or
[027] a religious house, for their own use or in some other way.⁷ ⁸Suppose the first
[028] husband endowed her specifically, or with the advowson in some other way as
[029] described above,⁹ and during his lifetime he gives the advowson to some religious
[030] house; on his ancestor's death his heir is bound to deliver that advowson, encumbered
[031] by his ancestor, to her, if he can, or if he cannot, to satisfy her to the
[032] value; if he delivers it, she may present if the church is vacant, but whether it falls
[033] vacant or not [in her lifetime], after her death the advowson will revert to the
[034] religious house,¹⁰ because of the gift made by the first husband, which ought to be
[035] observed. ¹¹ When she has been endowed of a third part, whether in one manor or
[036] several, and the whole dower is vacant, she will have no part of anything which by
[037] its nature

Notes

1. Glanvill, vi, 17: ‘Praeterea notandum quod si fuerit terra aliqua data alicui mulieri in dotem nominatim, ita quod ecclesia aliqua in feodo illo sit fundata, post mortem mariti sui habebit mulier liberam inde praesentationem, ita quod clerico cuilibet idoneo poterit ecclesiam illam concedere si vacaverit. Sed collegio non potest, quia hoc aufert ius ipsius heredis perpetuo.’

2. Infra iii, 222, 226

3. Supra 275; cf. 272, iii, 370

4. New paragraph

5. Supra 160, 274

6. ‘et seisinam, scilicet, cum’

7. By a benign interpretation ‘church’ is taken to mean both: supra 160, 274; cf. Pike in L.Q.R., v, 39-40

8-10. Glanvill, vi, 17: ‘Verum si domui religiosae ecclesiam ipsam concesserit ipse maritus, debet ecclesia illa post mortem ipsius ipsi mulieri deliberari, its quod in vita sua liberam habebit inde praesentationem. Post mortem vero ipsius mulieris et illius clerici qui ad eius praesentationem institutus fuerit persona, iterum ad domum religiosam revertetur ecclesia ipsa illi perpetuo remansura’

9. Supra 278-9

11. New paragraph