Bracton: Thorne Edition: English. Volume 2, Page 76

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Volume 2, Page 76

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[001] was enfeoffed to hold in fee, without condition, freely and absolutely, and a thing
[002] begins at once to be a fee, though there are no heirs or assigns, or though there are
[003] they fail, which is not [given to] certain heirs, expressly specified, and is not
[004] conditional, as above.¹ But how will the woman obtain her dower when she has no
[005] warrantor, any more than he to whom a gift is made by a bastard can have a
[006] warrantor in the absence of heirs, assigns and legatees? ²How will she, though out
[007] of seisin and apparently without a warrantor, recover what [donees] lose for lack
[008] of a warrantor though they hold and are in possession?³ I answer, she has a quasi-warrantor,
[009] he to whom the land so given ought to revert, [who], particularly
[010] because her husband, though a bastard, was enfeoffed absolutely and unconditionally
[011] ⁴to hold in fee, will be a quasi-heir and stand in the place of the heir⁵ in
[012] the absence of heirs. He will thus be a warrantor of dower,⁶ not of a gift, and the
[013] reason may be because immediately after the death of such donors, the thing given
[014] reverts of necessity to the [first] donor for lack of an heir who must warrant the
[015] [bastard's] gift, but dower does not revert immediately, only after a time, and in
[016] dower there will be⁷ no exheredation as there is in gifts; and especially for that
[017] reason, because it is to revert to the donor after the death of the wife. Now suppose
[018] a gift is made to two brothers, both bastards; we must then distinguish whether
[019] it is made to them both together and in common or to each separately and by
[020] himself. If separately and by himself, and one dies without heirs or assigns,
[021] [his portion of] the thing given will revert to the donor for lack of heirs or assigns,
[022] for his bastard brother is completely foreign to him with respect to succession,
[023] though not with respect to blood relationship.⁸ But if it is so given them, to hold
[024] in common, and one dies without heir or assign, his bastard brother will
[025] succeed him, not by right of succession but by right of accruer,⁹ as in the case of
[026] the concubine and her children.¹⁰ If both have heirs, let them all hold together
[027] in common, unless they wish to proceed to division and partition. If both die without
[028] heirs or assigns, or if they have such and they fail, the thing given will revert
[029] to the donor in its entirety.

If land is given in maritagium; how a gift in maritagium is made.

[031] A maritagium sometimes reverts to the donor by tacit condition or express. We
[032] consequently must see [what a maritagium is and] how

Notes

1. Reading: ‘non est certis heredibus expressis et [non] conditionalis, ut supra.’; supra 50, 68, infra 82, 144, 267. It is simple and pure if not subject to a condition or a modus: supra 49, 66. An absolute gift a fee: infra 144, iii, 394

2-3. Reading: ‘Sed qualiter ... ut videtur quod ipsi amittunt ... in possessione?’

5. Infra 195, iii, 361

4-7. Reading: ‘tenendi in feodo, erit quasi heres ... defectu heredum. Et sic erit ... sed post tempus et in dote non erit’; ‘donatorum’ for ‘donatariorum’

6. Infra 82, 267

8. Infra 95

9. Supra 54, infra 94, iii, 272

10. Supra 54, infra 96