Bracton: Thorne Edition: English. Volume 2, Page 72

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Volume 2, Page 72

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[001] you do not have heirs of your body let the land so given revert to such persons,’
[002] one or several, together or in succession.¹ There is also a tacit condition phrased
[003] affirmatively, as where it is said, ‘If A is not heir I substitute B and C in turn’,²
[004] that is, I make them heirs;³ if one of them dies first the survivor succeeds. Some
[005] conditions [are single], others double: [double], ‘if you have no heirs of your body,
[006] or if you have them and they fail, let the land given then revert to me and my
[007] heirs.’ Others are double and phrased affirmatively, as ‘If you have heirs and they
[008] die within age let the land revert etc.’ Others are double and phrased partly in the
[009] negative and partly in the affirmative, as ‘If my son is insane, or if he is not and
[010] dies before reaching puberty,⁴ I wish you to be my heir,’ and the like. A gift may
[011] also be made subject to a modus with several conditions attached,⁵ as where I say,
[012] ‘I give you this thing that you do such a thing (or ‘that you do not do it’) and if
[013] you do not do it (or ‘if you do it’) that the land revert to me,’⁶ or ‘I give that you
[014] not do such act without my consent and if you do that I may re-enter and hold
[015] myself there quit of you and your heirs.’⁷ Hence, when the aforesaid conditions,
[016] or the agreements and the documents in which they are contained, are denied in
[017] court, it does not suffice if the instruments and conditions or agreements are proved
[018] unless it is established by positive proof, or at least by a presumption effective
[019] until the contrary is proved, that the condition was satisfied [or not satisfied,] for
[020] if the instrument is proved it may still be that the condition was [not] satisfied.⁸
[021] ⁹[It is otherwise] if one gives subject to a modus which depends on the will and
[022] power of another, for example, if one gives another the advowson of a church that
[023] he establish a priory there, [which] cannot be accomplished without the assent
[024] of the bishop or other ordinary; if they are unwilling to consent, that must not be
[025] charged to the donee, and the gift will be good, especially if the donee has done everything
[026] in his power to conclude the matter.

If [a gift is made] because of a precedent act or causa.

[028] A gift sometimes is made for a past causa, [sometimes] for one to follow: ¹⁰for a
[029] past causa, as where I say, ‘I give you this thing because you have served me well,’
[030] and here the gift is good though he has not served well, for the addition of a false
[031] causa no more destroys a gift than it does a legacy.¹¹ If it is made for a causa

Notes

1. Supra 70, infra 200

2. Reading: ‘Si A. non sit heres B. et C. invicem substituo’

3. ‘heredes’

4. Reading: ‘si filius meus fuerit furiosus vel si non fuerit et intra pubertatem decesserit’: D.28.6.8

5. Supra 66

6. Infra iii, 145

7. Infra 145, 147, iii, 145

8. Infra iii, 146

9. This portion belongs supra 71, line 27, after ‘donatio non valebit’; reading: ‘[Secus] si quis dederit sub modo qui ex alterius ... prioratum, quod sine . . . donatario et tenebit’

10. This section belongs supra 70 at n. 3; om: ‘Fit etiam . . . subsequente,’ redactor's introductory phrase

11. Inst. 2.20.30: ‘falsa demonstratione legatum non peremi.’