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same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.
XIX. And for preventien of fraudulent practices in setting up nuncupative wills, which have been the occasion of much perjury; (2) be it enacted by the authority aforesaid, That from and after the aforesaid four and twentieth day of June no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof; (3) nor unless it be proved that the testator at the time of pronouncing the same, did bid the persons present, or some of them, bear witness, that such was his will, or to that effect; (4) nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath been resident for the space of ten days or more next before the making of such will, except where such person was surprized or taken sick, being from his own home, and died before he returned to the place of his or her dwelling.
XX. And be it further enacted, That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.
XXI. And be it further enacted, That no letters testamentary or probate of any nuncupative will shall pass the seal of any court, till fourteen days at the least after the decease of the testator be fully expired; (2) nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same, if they please.
XXII. And be it further enacted, That no will in writing concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise or bequest therein, be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least.
XXIII. Provided always, That notwithstanding this act, any sol
dier being in actual military service, or any mariner or seaman being at sea, may dispose of his moveables, wages and personal estate, as he or they might have done before the making of this act.
XXIV. And it is hereby declared, That nothing in this act shall extend to alter or change the jurisdiction or right of probate of wills concerning personal estates, but that the prerogative court of the archbishop of Canterbury, and other ecclesiastical courts, and other courts having right to the probate of such wills, shall retain the same right and power as they had before, in every respect; subject nevertheless to the rules and directions of this act.
XXV. And for the explaining one act of this present parliament, intituled, An act for the better settling of intestates estates; (2) be it declared by the authority aforesaid, That neither the said act, nor any thing therein contained, shall be construed to extend to the estates of feme coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same, as they might have done before the making of the said act.*
30 CAR. II. CAP. 7. [A.D. 1677.]
An act to enable creditors to recover their debts of the executors and administrators of executors in their own wrong.
Whereas the executors and administrators of such persons who have possessed themselves of considerable personal estates of other dead persons, and converted the same to their own use, have no remedy by the rules of the common law, as it now stands, to pay the debts of those persons whose estate hath been so converted by their testator or intestate, which hath been found very mischievous, and many creditors defeated of their just debts, although their debtors left behind them sufficient to satisfy the same, with a great overplus :
II. For remedy whereof, be it enacted by the King's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and the commons, in this present parliament assembled, and by the authority thereof, That all and every the executors and administrators of any person or persons, who as executor or executors in his or their own wrong, or administrators, shall from and after the first day of August next ensuing waste or convert any goods, chattels, estate or assets of any person deceased, to their own use, shall be
*Made perpetual by 1 Jac. II. c. 17, § 5.
liable and chargeable in the same manner as their testator or intestate would have been if they had been living. (2) This act to continue in force for three years, and from thence to the end of the next session of parliament, and no longer.*
1 JAC. II. CAP. 17. [A.D. 1685.]
An act for reviving and continuing several acts therein mentioned.
V. And be it enacted by the authority aforesaid, That one other act made in the seventeenth year of his said late Majesty's reign, intituled, An act for avoiding unnecessary suits and delays, and also one other act made in the two and twentieth and three and twentieth years of his late Majesty's reign, intituled, An act for the better settling intestates estates, (which said latter act is explained by a clause in one other act made in the nine and twentieth year of his said late Majesty's reign, intituled, An act for prevention of frauds and perjuries) both which said acts, with the said clause, are continued by one other act made in the thirtieth year of his said late Majesty's reign, intituled, An act for reviving both the said former acts. All which said acts and
clauses shall be in force, and is hereby made perpetual.
VI. Provided always, and it is hereby further enacted, That no administrator shall, from the four and twentieth day of July next, be cited to any the courts in the said last act mentioned, to render an account of the personal estate of his intestate (otherwise than by an inventory or inventories thereof) unless it be at the instance or prosecution of some person or persons in behalf of a minor, or having a demand out of such personal estate as a creditor or next of kin, nor be compellable to account before any the ordinaries or judges by the said last act impowered and appointed to take the same, otherwise than as is aforesaid; anything in the said last acts contained to the contrary notwithstanding.
VII. Provided also, and it is further enacted by the authority aforesaid, That if after the death of a father, any of his children shall die intestate without wife or children, in the life-time of the mother, every brother and sister, and the representatives of them, shall have an equal share with her; anything in the last mentioned acts to the contrary notwithstanding.
VIII. Provided, and it is hereby, for the determining some doubts
* Made perpetual and enlarged by 4 & 5 W. & M. c. 24, § 12.
arising upon the acts aforementioned, for the better settling intestates estates, enacted and declared, That the clause therein, by which it is provided, that that act, or anything therein contained, should not any ways prejudice or hinder the customs observed within the city of London, and province of York, was never intended, nor shall be taken or construed to extend, to such part of any intestate's estate, as any administrator, by virtue only of being administrator, by pretence or reason of any custom, may claim to have, to exempt the same from distribution, but that such part in the hands of such administrator shall be subject to distribution as in other cases within the said act.*
3 & 4 WM. & MARY. CAP. 14. [A.D. 1691.]
An act for relief of creditors against fraudulent devises.
Whereas it is not reasonable or just, that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts; and nevertheless it hath often so happened that where several persons having by bonds or other specialties bound themselves and their heirs, and have afterwards died seized in fee-simple of and in manors, messuages, lands, tenements, and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have to the defrauding of such their creditors, by their last wills or testaments devised the same, or disposed thereof in such manner as such creditors have lost their said debts: For remedying of which, and for the maintenance of just and upright dealing,
II. Be it enacted and declared by the King's and Queen's most excellent majesties, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by authority of the same, That all wills and testaments, limitations, dispositions, or appointments, of or concerning any manors, messuages, lands, tenements, or hereditaments, or of any rent, profit, term, or charge out of the same, whereof any person or persons, at the time of his, her, or their decease, shall be seized in fee-simple, in possession, reversion, or remainder, or have power to dispose of the same by his, her, or their last wills or testaments, to be made after the five and twentieth day of March, in the year of our Lord God one thousand six hundred ninety and two, shall be deemed and taken (only as against such creditor or creditors as aforesaid, his, her, and their
* Vide 11 Geo. IV. & 1 Wm. IV. c. 47.
heirs, successors, executors, administrators, and assigns, and every of them) to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and of none effect; any pretence, colour, feigned or presumed consideration or any other matter or thing to the contrary notwithstanding.
III. And for the means that such creditors may be enabled to recover their said debts, be it further enacted by the authority aforesaid, That in the cases before mentioned, every such creditor shall and may have and maintain his, her, and their action and actions of debt, upon his, her, and their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee or devisees, jointly by virtue of this act; and such devisee or devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended.
IV. Provided always, and be it enacted by the authority aforesaid, That where there hath been or shall be any limitation or appointment, devise or disposition, of or concerning any manors, messuages, lands, tenements, or hereditaments for the raising or payment of any real and just debt or debts, or any portion or portions, sum or sums of money, for any child or children of any person, other than the heir at law, according to, or in pursuance of, any marriage contract or agreement in writing bonâ fide made before such marriage, the same and every of them shall be in full force; and the same manors, messuages, lands, tenements, and hereditaments, shall and may be holden and enjoyed by every such person or persons, his, her, and their heirs, executors, administrators, and assigns, for whom the said limitation, appointment, devise, or disposition was made, and by his, her, and their trustee or trustees, his, her, and their heirs, executors, administrators, and assigns, for such estate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid, and satisfied; any thing in this act contained to the contrary notwithstanding.
V. And whereas several persons being heirs at law, to avoid the payment of such just debts, as in regard of the lands, tenements, and hereditaments descending to them they have by law been liable to pay, have sold, aliened, and made over such lands, tenements, or hereditaments, before any process was, or could be issued out against them; be it further enacted by the authority aforesaid, That in all