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The Doctor and Student (1518)
Christopher St. Germain
Whether a gift made by one under the age of twenty-five years be good
Doct. It appeareth in summa angelica in the title donatio prima, the 7th article, that a man before the age of twenty-five years may not give, without it be with the authority of his tutor; is it not so likewise at the Common law?
Stud. The age of infants to give or sell their lands and goods in the law of England is at twenty-one years, or above; so that after that age the gift is good, and before that age it is not good, by whose assent soever it be, except it be for his meat, and his drink, or apparel, or that he do it as executor, in performance of the will of his testator, or in some other like cases, that need not to be rehearsed here: and that age must be observed in this realm in law and conscience, and not the said age of twenty-five years.
Doct. I put the case it were ordained by a decree of the church, that if any -man by his will bequeatheth goods to another, and willeth that they shall be delivered to him at his full age, and that in that case twenty-five years shall be taken for the full age; shall not that decree be observed and stand good after the law of England?
Stud. I suppose it shall not. For though it belong to the church to have the probate and ‘the execution of testaments made of goods and chattels, except it be in certain lordships and seigniories that have them by prescription; 11 yet the church may not, as me seemeth, determine what shall be the lawful age for another person to have the goods, for that belongeth to the king and his laws to determine. And therefore if it were ordained by a statute of the realm., that he should not in such case have the goods till he were of the age of twenty-five years, that statute were good, and to be observed as well in the spiritual law as in the law of the realm: and if a statute were good in that case, then a decree made thereof is not to be observed; for the ordering of the age may not be under two several powers; and one property of every good law of man is, that the maker exceed not his authority: and I think that the spiritual judge in that case ought to judge the full age after the law of the realm, seeing that the matter of the age concerneth temporal goods. And I suppose farther, that as the king by authority of his parliament may ordain that all wills shall be void, and that the goods of every man shall be disposed in such manner as by statute should be assigned, that more stronger he may appoint at what age such wills as be made shall be performed.
Doct. Thinkest thou then that the king may take away the power of the ordinary, that he shall not call executors to account.
Stud. I am somewhat in doubt therein: but it seemeth that if it might be enacted by statute, that all wills should be void,: as is aforesaid, that then it might be enacted, that no man should have authority to call none to account upon such wills, but such as the statute shall therein appoint, for he that may do the more may do the less. Notwithstandinn I will nothing speak determinately in that point at this time; ne I mean not that it were good to make a statute that all wills should be void, for l think them right expedient: but mine intent is, to prove that the Common law may ordain the time of the full age, as well in wills of temporal things as otherwise, and also that wills shall be made; and if it may so do, then much stronger it belongeth to the king’s law to interpret. wills concerning temporal things, as well when they come in argument before his judges as when they come in argument before spiritual judges, and that they ought not to be judged by several laws, (that is to say) by the spiritual judges in one manner, and by the king’s judges inn another manner.