The Doctor and Student (1518)
Christopher St. Germain
Whether a prelate may refuse a legacy
Stud. It is moved in the said sum named rosella, in the title alienatio 20, the 11th article, whether a prelate may refuse a legacy? Wherein divers opinions be recited there, which, as methinketh, had need after the laws of the realm to be more plainly declared.
Doct. I pray thee shew me what the law of the realm will therein.
Stud. I think that every prelate and sovereign that may only sue and be sued in his own name, as abbots, priors, and such other, may refuse any legacy that is made to the house: for the legacy is not perfect till he to whom it is made assent to take it: for else, if he might not refuse it, he might be compelled to have lands, whereby he might in some case have great loss. But that if he intend to refuse, he must, as soon as his title by the legacy falleth, relinquish to take the profits of the thing bequeathed; for if one take the profits thereof, he shall not after refuse the legacy; but yet his successor may, if he will, refuse the taking of the profits, to save the house from yielding damages, or from arrearages of rents, if any such be. And like law is of a remainder as is in legacy. For though in the case of a remainder, and also of a devise, as most men say, the freehold is cast upon him by the law, when the remainder or devise falleth yet it is in his liberty to refuse the taking of the profits, and to refuse the remainder, if he will, as he might do of a gift of lands or goods. For if a gift be made to a man that refuseth to take it, the gift is void: and if it be made to a man that is absent, the gift taketh no effect in him till he assent, no more than if a man disseise one to another man’s use, he to whose use the desseisin is made, hath nothing in the land, ne is no disseisor, till lie agree. And to such disseisins and gifts an abbot or prior may disagree, as well as another man. But after some men, a bishop, of a devise or remainder that is made to the bishop and to the dean and chapter, nor a dean and chapter of, a devise or remainder made to them, ne yet the master of a college, of such a devise or remainder made to him and to his brethren, may not disagree without the chapter or brethren for the bishop of such land as he hath with the dean and chapter, ne the dean nor master of such land as they have with the chapter and brethren, may not answer without the chapter and brethren: and therefore some say, that if the dean or master will refuse or disclaim in the lands that they have by the devise or remainder, that disclaimer without the chapter or brethren is void. And therefore it is holden in the law, that if a bishop be vouched to warrant, and the tenant bindeth him to the warranty by reason of a lease made to him by the bishop, and by the dean and the chapter, yielding a rent, that in that case the bishop may not disclaim in the reversion without the assent of the dean and chapter:
but yet if a reversion were granted to a dean and a chapter, and the dean refuse, the grant is void. And so it appeareth that the dean may refuse to take a gift or grant of lands or goods, or of a reversion made to him and too the chapter; and yet he may not disagree to a remainder or devise. And the diversity is, because the remainder and devise be cast upon him without any assent, whereupon neither the clean nor the chapter by themselves may in no wise disagree without the assent of the other: but a gift or grant is not good to them without they both assent. And in such gifts, as I suppose, an infant may disagree as well as one of full age: but if a woman covert disagree to a gift, and the husband agree, that gift is good.
Doct. What if the lands in that case of a man and his wife be charged with damages, or be charged with more rent than the land is worth, and the husband die; shall the wife be charged to the damages or to the rent?
Stud. I think nay, if the wife refuse the occupation of the ground after her husband’s death. And I think the same law to be, if a lease be made to the husband and the wife, yielding a greater rent than the land is worth, that the wife after the husband’s death may refuse the lease, to save her from the payment of the rent: and so may the successor of an abbot.
Doct. And if the husband in that case out-live the wife, and then make his executors and die, whether may his executors in like wise refuse the lease?
Stud. If they have goods sufficient of their testator to pay the rent, I think they may not refuse it: but if they have not goods sufficient of their testator to pay the rent to the end of the term, I think, if they relinquish the occupation, they may by special pleading discharge themselves of the rent and the lease; and if they do not, they may lightly charge themselves of their own goods. And if a lease be made for term of life, the remainder to an abbot for term of life of John at Stile, reserving a greater rent than the land is worth, and after the tenant for term of life dieth; the abbot may refuse the remainder, for the cause before rehearsed: and in case that the abbot assent to the remainder, whereby he is charged to the rent during the time that he is abbot, and after he dieth or is deposed, living the said John at Stile, in that case his successor may discharge himself, by refusing the occupation of the land as is aforesaid. But I think that if such a remainder were made to a dean, and to the chapter, and the dean agree without the assent of tie chapter, that in that case the dean and the chapter may afterwards disagree to the remainder, and that the act of the dean without the assent of the chapter shall not charge the chapter in that behalf. And thus it appeareth, though the meaning of the said chapter and article in the said sum be, that a prelate may not disagree unto a legacy for hurting of the house, yet he may after the laws of the realm disagree thereto where it should hurt his house. And if in a Prcecipe quod reddat there be but one tenant, be lie spiritual or temporal, and he refuse by way of disclaimer, in such case. where he may disclaim by the law; there the land shall vest in the demandant: and if there be two tenants, then it shall vest in his fellow, if he will take the whole tenancy upon him, or else it shall vest in the demandant. But if an abbot or layman refuse the taking of the profits, and shew a special cause why it should hurt him, if he do assent, and be thereby discharged, as is said before; in whom the land shall then vest it is more doubt, whereof I will no farther speak at this time. And thus it appeareth by divers of the cases that be put in this chapter, that he that is ignorant in the law of the realm shall lack the true judgment of conscience in many cases. For in many of these cases what may be done therein by the law, must also be observed in conscience, etc.