Bracton: Thorne Edition: English. Volume 2, Page 95

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Volume 2, Page 95

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[001] as will be explained below,] nor is the chief lord entitled to seisin by reason of any
[002] decedent's portion, for if he should put himself in seisin he would disseise the
[003] survivors, since, no partition having been made,¹ he cannot distinguish one part from
[004] another.² But what if one dies leaving an heir within age? Quaere in whose wardship
[005] he will be and what portion the guardian ought to have in wardship, since none is
[006] ascertained or determined. Under such circumstances partition of the thing given
[007] must of necessity be made, that the chief lord may have a specified portion in
[008] wardship. ³<A gift made to a minor, as to one of full age, may be pretended⁴
[009] and feigned between donor and curator, which may be ascertained in many ways,
[010] by what follows after and the use made, and from reasons outside the gift,⁵ as
[011] where the gift⁶ is held to defraud creditors, donees or purchasers.>

[A gift made] to the several bastards of a concubine.

[013] A gift may be made to several bastards as it may to several legitimate children, as
[014] where it is made to a person's bastard⁷ children, two or several, [and their heirs],⁸
[015] and there, if within age, they can be given curators, as above. If one of them dies
[016] without an heir of his body, quaere whether the decedent's portion ought to revert
[017] to the donor for the failure of an heir, since there are none of the decedent's body,
[018] and one may not succeed the other by right of succession since each is a stranger to the
[019] other in that regard.⁹ It appears that the decedent's portion ought to revert to the
[020] donor, after partition made, unless one says it ought to accrue to the survivors by
[021] the ius accrescendi since it may not by the ius successionis.¹⁰ If a gift is made to
[022] both legitimates and bastards, and their heirs, and he who is legitimate dies leaving
[023] heirs, no partition having been made, let it be made as above, for the bastards may
[024] have heirs of their bodies. If he who is legitimate leaves no heirs, it is submitted that
[025] the right of accruer ought to operate, as in the case of the bastard expounded above.
[026] Thus it seems that as long as one of them or any of the heirs survives nothing ought
[027] to revert to the donor, only when all have failed.¹¹ A gift may be made to several
[028] children, named or unnamed, born or to be born, absent or present, because¹² if they
[029] are minors and a tutor is given them, no matter where they are, present or absent,
[030] born or to be born, [possession] is acquired for them by the tutor, who is in possession
[031] in their name, for they possess in whose name a thing is possessed,¹³ and a thing is
[032] acquired for those absent by a curator as by a procurator,¹⁴ just as [it is acquired]
[033] for a lord

Notes

1. ‘nulla partitione facta,’ as below

2. ‘unam partem ab alia’

3. Supra i, 376; an addicio not in V; belongs supra 94, n. 10

4. ‘imaginaria donatio:’ infra 132; ‘traditio:’ 133. D. 44.7.54; 50.17.16

5. Infra 130, 131, 153

6. ‘donatio’

7. ‘bastardis,’ LA

8. Supra 54

9. Supra 76

10. Supra 54, 76, 94, infra iii, 272; ius accrescendi: D. 9.7.2.1, 3, 6 etc.; ius successionis: Inst. 3.11.7; D. 50.16.208

11. Supra 54-5, infra iii, 272

12. ‘quia’

13. D. 41.2.18. pr.: ‘nam possidet cuius nomine possidetur’

14. D. 41.2.1.20: ‘Per procuratorem tutorem curatoremve possessio nobis adquiritur.’; infra 96, 135, 136, 139