Bracton: Thorne Edition: English. Volume 4, Page 362

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Volume 4, Page 362

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[001] in an assise of mortdancestor or novel disseisin, and in a proprietary, by writ of entry
[002] or a writ of right.>

The reply to the foregoing exception.

[004] A replication may be made to the foregoing exception on the ground that there was
[005] no birth at all, or though there was, that no cry was heard, because it was dead in the
[006] womb or died at birth. Or though a cry was heard, a child was not born but substituted,
[007] or if it was born, it had not the form of a man but of a monster. Also that if it was
[008] born, it was proved to be a bastard, in some way, so that it could not be an heir, near
[009] or remote, for any reason. Or that he who puts forward the exception was not the
[010] woman's lawful husband, but another was, whose heirs claim the inheritance, [or]
[011] that he contrived the death of his wife. [Or] though the birth took place and a cry
[012] was heard and the tenant is the woman's lawful husband, the land in question never
[013] fell in during the life of the wife, so that it belongs to the true heirs or the chief lord.
[014] Or because the land was the inheritance of the first husband or first wife, or because
[015] his wife held it in the name of dower not of succession, [or] because the wife and mother
[016] of the child did not die seised as of fee, [or] because the land in question was given in
[017] maritagium, subject to the tacit or express condition that if they had no children,
[018] or if they had and they failed, that the land should revert to the donor, and because
[019] there were no children at all, or if there were they died, the land given in maritagium
[020] ought to revert to the donor, [or] if children were born and procreated, they cannot
[021] be heirs, near or remote, no more than bastards may be, because they can claim nothing
[022] of the woman's inheritance, because that inheritance or maritagium was given
[023] to such a man [the first husband] in maritagium with the woman and the heirs born
[024] of their bodies, and hence he [the second] ought not to hold the inheritance for life
[025] by the law of England.¹

If there is no heir in existence and the tenant keeps himself in seisin by force.

[027] If there is no heir at all and after his wife's death the husband holds himself in her
[028] inheritance by force, against the true heir, under pretence and colour of the law of
[029] England, the heir is aided by the writ drawn by William of Ralegh for Ralph of
[030] Dodescumbe:² ‘The king to the sheriff, greeting. A. has shown us that whereas B. of
[031] N. and C. his wife held so much land with the appurtenances in such a vill as the right
[032] and inheritance of the said C., who, as it is said, recently died without an heir born of
[033] her body, so that the land ought to descend to the aforesaid A. as the nearer heir of the
[034] said C., because the aforesaid C. died without an heir born of her body,

Notes

1. B.N.B., no. 487

2. Ralph was one of the two knights (John de Arundel the other) sent by the bp. of Exeter to the muster of 1245: Sanders, Feudal Military Service, 131