Bracton: Thorne Edition: English. Volume 2, Page 99

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Volume 2, Page 99

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[001] not because of the affection growing out of the marriage itself,¹⁶ as was touched
[002] upon above. And if such gifts could be made because of love between husband and
[003] wife, one of them might be destroyed by want and poverty, which cannot be
[004] tolerated. Hence a gift between husband and wife is invalid ab initio and cannot
[005] later become valid, unless after the death of one or the other a confirmation is
[006] made by the heirs who can confirm such a gift. The confirmation of such heirs makes
[007] valid a gift that was invalid earlier and cures every defect.¹⁷

Whether a felon may make a gift after the felony.

[009] Among other things we must consider whether he who has committed a felony
[010] may make a gift, either¹⁸ enfeoff or demise for a term, so that the gift or demise
[011] may be good; and whether what he has done before the felony committed, when
[012] he had the will and power, ought to be valid and binding, whether he demised
[013] for a term or gave in fee; and also whether anything done after the felony ought
[014] to be valid and binding, for a time or forever. [To answer such questions] we must
[015] see whether the gift, for a term or in fee, was made and completed when he had the
[016] intention and capacity to make it; [if so] whatever was done is valid, the term
[017] as well as the feoffment.¹⁹ The feoffment, of course, is clear. As to the term there
[018] might be doubt, for it seems at first sight that land so given for a term before the
[019] felony committed ought to be the escheat of the chief lord immediately after
[020] condemnation, though the term has not ended, because of the absence of a warrantor,
[021] by analogy to what is said [of wardship],²⁰ that if [B.] has demised land to
[022] another [C.] for a term of years and, before the term completed, he who demised
[023] dies, leaving an heir within age, if [A.] the chief lord (assuming he has not confirmed
[024] the demise) ejects the termor, the land will remain in his hand, with the crops and
[025] fruits found upon it, until the full age of the heir, although the heir is bound to
[026] warrant that term. Thus it seems evident a fortiori that in the absence of a warrantor
[027] the termor can be ejected after [his lessor] has committed felony and been convicted.
[028] ²¹<Nor can the father of a felon [make a valid gift] if his eldest son has
[029] committed felony during the life of the father, and the father, seeing that the
[030] heritage cannot descend to his remote heirs,²² makes a gift; it will not be valid
[031] unless permitted by the modus of the gift, as where the father was enfeoffed by
[032] charter ‘to him and his heirs or to whomsoever he wishes to give and assign;’
[033] if the gift is only to him and his heirs he cannot do so.>²³ And the same may be
[034] seen [in the case] of a felon's wife seeking her dower, for the exception that she has
[035] no warrantor of her dower will bar her.²⁴ But in the present case we must distinguish
[036] whether the land [was given], or the tenement demised

Notes

17. Supra 51, 78, 94

18. ‘vel’

19. Supra 82

20. Supra 82, infra 100

21. Supra i, 377

22. Infra 367, 377

23. Infra 378

24. Supra 82, infra 100, iii, 361