Statutes of the Realm: Volume 5, 1628-80. Originally published by Great Britain Record Commission, s.l, 1819.
This free content was digitised by double rekeying. All rights reserved.
Reasons for passing this Act.
Parol Leases and Interests of Freehold, &c. to have the Force of Estates at Will only.
For prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury Bee it enacted by the Kings most excellent Majestie by and with the advice and consent of the Lords Spirituall and Temporall and the Commons in this present Parlyament assembled and by the authoritie of the same That from and after the fower and twentyeth day of June which shall be in the yeare of our Lord one thousand six hundred seaventy and seaven All Leases Estates Interests of Freehold or Termes of yeares or any uncertaine Interest of in to or out of any Messuages Mannours Lands Tenements or Hereditaments made or created by Livery and Seisin onely or by Parole and not putt in Writeing and signed by the parties soe makeing or creating the same or their Agents thereunto lawfully authorized by Writeing, shall have the force and effect of Leases or Estates at Will onely and shall not either in Law or Equity be deemed or taken to have any other or greater force or effect, Any consideration for makeing any such Parole Leases or Estates or any former Law or Usage to the contrary notwithstanding.
II. Except Leases not exceeding Three Years, &c.
Except neverthelesse all Leases not exceeding the terme of three yeares from the makeing thereof whereupon, the Rent reserved to the Landlord dureing such terme shall amount unto two third parts at the least of the full improved value of the thing demised.
III. No Leases or Estates of Freehold or Copyhold, &c. to be granted or surrendered but by Writing signed.
And moreover That noe Leases Estates or Interests either of Freehold or Terms of yeares or any uncertaine Interest not being Copyhold or Customary Interest of in to or out of any Messuages Mannours Lands Tenements or Hereditaments shall at any time after the said fower and twentyeth day of June be assigned, granted or surrendred unlesse it be by Deed or Note in Writeing signed by the party soe assigning granting or surrendring the same or their Agents thereunto lawfully authorized by writeing or by act and operation of Law.
IV. No Action against Executors, &c. upon a special Promise, or upon any Agreement, or Contract for Sale of Lands, &c. unless Agreement, &c. be in Writing and signed.
And bee it further enacted by the authoritie aforesaid That from and after the said fower and twentyeth day of June noe Action shall be brought whereby to charge any Executor or Administrator upon any speciall promise to answere damages out, of his owne Estate or whereby to charge the Defendant upon any speciall promise to answere for the debt default or miscarriages of another person or to charge any person upon any agreement made upon consideration of Marriage or upon any Contract or Sale of Lands Tenements or Hereditaments or any Interest in or concerning them or upon any Agreement that is not to be performed within the space of one yeare from the, makeing thereof unlesse the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized.
V. Devises of Lands to be in Writing and signed and attested by Three or Four Witnesses.
And bee it further enacted by the authority aforesaid That from and after the said fower and twentyeth day of June all Devises and Bequests of any Lands or Tenements deviseable either by force, of the Statute of Wills or by this Statute or by force of the Custome of Kent or the Custome of any Burrough or any other perticular Custome shall be in Writeing and signed by the partie soe deviseing the same or by some other person in his presence and by his expresse directions and shall be attested and subscribed in the presence of the said Devisor by three or fower credible Witnesses or else they shall be utterly void and of none effect.
VI. How the same Devise to be revocable.
And moreover noe Devise in Writeing of Lands Tenements or Hereditaments nor any Clause thereof shall at any time after the said fower and twentyeth day of June Be revocable otherwise then by some other Will or Coddicill in Writeing or other Writeing declareing the same or by burning cancelling teareing or obliterating the same by the Testator himselfe or in his presence and by his directions and consent but all Devises and Bequests of Lands' and Tenements shall remaine and continue in force untill the same be burnt cancelled torne or obliterated by the Testator or his directions in manner aforesaid or unlesse the same be altered by some other Will or Codicill in Writeing or other Writeing of the Devisor signed in the presence of three or fower Witnesses declareing the same, Any former Law or Usage to the contrary notwithstanding.
VII. Declarations or Creations of Trusts of Lands to be in Writing signed.
And bee it further enacted by the authoritie aforesaid That from and after the said fower and twentyeth day of June all Declarations or Creations of Trusts or Confidences of any Lands Tenements or Hereditaments shall be manifested and proved by some Writeing signed by the partie who is by Law enabled to declare such Trust or by his last Will in Writeing or else they shall be utterly void and of none effect.
VIII. Proviso for Trusts arising, transferred or extinguished by Implication of Law.
Provided alwayes That where any Conveyance shall bee made of any Lands or Tenements by which a Trust or Confidence shall or may arise or result by the Implication or Construction of Law or bee transferred or extinguished by an act or operation of Law then and in every such Case such Trust or Confidence shall be of the like force and effect as the same would have beene if this Statute had not beene made. Any thing herein before contained to the contrary notwithstanding.
IX. Assignments of Trusts shall be in Writing.
And bee it further enacted That all Grants and Assignments of any Trust or Confidence shall likewise be in Writeing signed by the partie granting or assigning the same [or (fn. 1) ] by such last Will or Devise or else shall likewise be utterly void and of none effect.
X. Lands, &c. of Cestui que Trust liable to the Judgments, &c.
and held free from the Incumbrances of the Persons seized in Trust. Trust shall be Assets by Descent.
And bee it further enacted by the authoritie aforesaid That from and after the said fower and twentyeth day of June it shall and may be lawfull for every Sheriffe or other Officer to whome any Writt or Precept is or shall be directed at the Suite of any person or persons of for and upon any Judgement Statute or Recognizance hereafter to be made or had, to doe make and deliver Execution unto the partie in that behalfe sueing of all such Lands Tenements Rectories Tythes Rents and Hereditaments as any other person or persons be in any manner of wise seised or possessed [or hereafter shall be seised or possessed (fn. 1) ] in Trust for him against whome Execution is soe sued like as the Sheriffe or other Officer might or ought to have done if the said partie against whome Execution hereafter shall be soe sued had beene seised of such Lands Tenements Rectories Tythes Rents or other Hereditaments of such Estate as they be seized of in Trust for him at the time of the said Execution sued. Which Lands Tenements Rectories Tythes Rents and other Hereditaments by force and vertue of such Execution shall accordingly be held and enjoyed freed and discharged from all Incumbrances of such person or persons as shall be soe seised or possessed in Trust for the person against whome such Execution shall be sued. And if any Cestuy que Trust hereafter shall dye leaveing a Trust in Fee simple to descend to his Heire, there, and in every such case such Trust shall be deemed and taken and is hereby declared to be Assetts by descent and the Heire shall be lyable to and chargeable with the Obligation of his Auncestors for and by reason of such Assetts as fully and amply as he might or ought to have beene if the Estate in Law had descended to him in possession in like manner as the Trust descended, Any Law Custome or Usage to the contrary in any wise notwithstanding.
XI. But Heir shall not by reason thereof become chargeable of his own Estate.
Provided alwayes That noe Heire that shall become chargeable by reason of any Estate or Trust made Assetts in his hands by this Law shall by reason of any kinde of Plea or confession of the Action or suffering Judgement by Nient dedire or any other matter bee chargeable to pay the Condemnation out of his owne Estate but Execution shall be sued of the whole Estate soe made Assetts in his hands by descent in whose hands soever it shall come after the Writt purchased in the same manner as it is to be at and by the Common Law where the Heire at Law pleading a true Plea Judgement is prayed against him thereupon. Any thing in this present Act contained to the contrary notwithstanding.
XII. Estates pur auter vie devisable;
and to be Assets in the Hands of the Heir; and where no special Occupant, to go to Executors.
And for the amendment of the Law in the particulars following Bee it further enased by the authorise aforesaid That from henceforth any Estate per auter vie shall be deviseable by a Will in writeing signed by the party soe deviseing the same or by some other person in his presence and by his expresse diresions attested and subscribed in the presence of the Devisor by three or more Witnesses, and if noe such Devise thereof be made the same shall be chargeable in the hands of the Heire if it shall come to him by reason of a speciall Occupancy as Assetts by descent as in case of Lands in Fee simple And in case there be noe speciall Occupant thereof it shall goe to the Executors or Administrators of the partie that had the Estate thereof by vertue of the Grant and shall be Assetts in their hands.
XIII. Recital of Mischiefs arising from the Relation of Judgments to the First Day of the Term, &c.
The Day of signing any Judgment to be entered on the Margin of the Roll without Fee:
And whereas it hath beene found mischievous that Judgements in the Kings Courts at Westminster doe many times relate to the first day of the Terme whereof they are entred or to the day of the Returne of the Originall or fileing the Baile and binde the Defendants Lands from that time although in trueth they were acknowledged or suffered and signed in the Vacation time after the said Terme whereby many times Purchasers finde themselves agrieved Bee it enacted by the authorise aforesaid That from and after the said foure and twentyeth day of June any Judge or Officer of any of his Majestyes Courts of Westminster that shall signe any Judgements shall at the signeing of the same without Fee for doeing the same sett downe the day of the moneth and yeare of his soe doeing upon the Paper Booke Dockett or Record which he shall signe which day of the moneth and yeare shall be alsoe entred upon the Margent of the Roll of the Record where the said Judgement shall be entred.
XIV. And such Judgments as against Purchasers shall relate to such time only.
And bee it enacted That such Judgements as against Purchasers bona fide for valueable consideration of Lands Tenements or Hereditaments to be charged thereby shall in consideration of Law be Judgements onely from such time as they shall be soe signed and shall not relate to the first day of the Terme whereof they are entred or the day of the Returne of the Originall or fileing the Baile Any Law, Usage or Course of any Court to the contrary notwithstanding.
XV. Writs of Execution to bind the Property of Goods but from the time of their Delivery to the Officer.
And bee it further enacted by the authority aforesaid That from and after the said fower and twentyeth day of June noe Writt of Fieri facias or other Writt of Execution shall binde the Property of the Goods against whome such Writt of Execution is sued forth but from the time that such Writt shall be delivered to the Sheriffe Under Sheriffe or Coroners to be executed, And for the better manifestation of the said time the Sheriffe Under Sheriffe and Coroners their Deputyes and Agents shall upon the receipt of any such Writt (without Fee for doeing the same) endorse upon the backe thereof the day of the moneth [or (fn. 2) ] yeare whereon he or they received the same.
XVI. In what Cases only Contracts for Sales of Goods for £10 or more to be binding.
And bee it further enacted by the authority aforesaid That from and after the said fower and twentyeth day of June noe Contract for the Sale of any Goods Wares or Merchandises for the price of ten pounds Sterling or upwards shall be allowed to be good except the Buyer shall accept part of the Goods soe sold and actually receive the same or give some thing in earnest to bind the bargaine or in part of payment, or that some Note or Memorandum in writeing of the said bargaine be made and signed by the partyes to be charged by such Contract or their Agents thereunto lawfully authorized.
XVII. The Day of Enrolment of Recognizances to be set down;
and Lands in the Hands of Purchasers bound from that time only.
And bee it further enacted by the authority aforesaid That the day of the moneth and yeare of the Enrollment of the Recognizances shall be sett downe in the Margent of the Roll where the said Recognizances are enrolled, and that from and after the said fower and twentyeth day of June noe Recognizance shall binde any Lands Tenements or Hereditaments in the hands of any Purchasor bona fide and for valueable consideration but from the time of such Enrollment, Any Law Usage or Course of any Court to the contrary in any wise notwithstanding.
XVIII. No Nuncupative Will good where Estate exceed £30 in Value;
unless proved by Three Witnesses on Oath, and made; in last Sickness of Testator, and where he had been resident Ten Days or more ; Exception.
And for prevention of fraudulent Practices in setting up Nuncupative Wills which have beene the occasion of much Perjury Bee it enacted by the authority aforesaid That from and after the aforesaid fower and twentyeth day of June noe Nuncupative Will shall be good where the Estate thereby bequeathed shall exceede the value of thirty pounds that is not proved by the Oathes of three Wittnesses (at the least) that were present at the makeing thereof, nor unlesse it be proved that the Testator at the time of pronounceing the same did bid the persons present or some of them beare wittnesse that such was his Will or to that effect, nor unlesse such Nuncupative Will were made in the time of the last sicknesse of the deceased and in the House of his or her habitation or dwelling or where he or she hath beene resident for the space of ten dayes or more next before the makeing of such Will except where such person was surprized or taken sick being from his owne home and dyed before he returned to the place of his or her dwelling.
XIX. No Testimony to be received after Six Months. Exception.
And bee it further enased That after six monethes passed after the speaking of the pretended Testamentary words noe Testimony shall be received to prove any Will Nuncupative except the said Testimony or the substance thereof were committed to writeing within six dayes after the makeing of the said Will.
XX. Probates of Nuncupative Wills.
And bee it further enacted That noe Letters Testamentary or Probate of any Nuncupative Will shall passe the Seale of any Court till fowerteene dayes at the least after the decease of the Testator be fully expired, Nor shall any Nuncupative Will be at any time received to be proved unlesse Processe 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.
XXI. In what Cases only Wills of Personal Estate may be revoked or altered by Parol.
And bee it further enacted That noe Will in writeing concerning any Goods or Chattells or Personall 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 onely except the same be in the life of the Testator committed to writeing and after the writeing thereof read unto the Testator and allowed by him and proved to be soe done by three Wittnesses at the least.
XXII. Proviso for Soldiers and Mariners Wills.
Provided alwayes That notwithstanding this Act any Soldier being in actuall Military Service or any Marriner or Seaman being at Sea may dispose of his Moveables, Wages and Personall Estate as he or they might have done before the makeing of this Act.
XXIII. Proviso for the Jurisdision of Courts granting Probate.
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 Personall Estates but that the Prerogative Court of the Archbishop of Canterbury and other Ecclesiasticall Courts and other Courts haveing Right to the Probate of such Wills shall retaine the same Right and Power as they had before in every respect subject neverthelesse to the Rules and Directions of this Act.
XXIV. 22 & 23 C.II. c.10. Husbands not compellable to make Distribution of the Personal Estates of their Wives.
And for the explaining one Act of this present Parlyament entituled An Act for the better setleing of Intestates Estates Bee 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 dye Intestate, but that their Husbands may demand and have Administration of their Rights Credits and other Personall Estates and recover and enjoy the same as they, might have done before the makeing of the said Act .