Bracton: Thorne Edition: English. Volume 4, Page 33

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Volume 4, Page 33

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[001] she had claimed while alive, the exception of gift could be raised against her, against
[002] which she could replicate that she could not gainsay her husband, [which] replication
[003] does not lie in the mouth of the heir, because when he says ‘my mother could not gainsay,’
[004] by that he shows that the replication lies for the mother and not for him, nor
[005] could the heir properly say that his mother had to do the will of her lord, nor may the
[006] heir be certain as to the intention of his mother, who perhaps, had she lived, would
[007] never have revoked the gift.¹ ²<In truth though he has no inheritance³ from his
[008] father, and thus is not his heir, as is evident, he cannot claim since he is bound to warrant,
[009] though the mother could claim; he is bound to warrant as heir, because here he
[010] will be the heir of his father because of the homage and service which ought to descend
[011] to him from his father's seisin, though the feoffment was made of the mother's inheritance.
[012] For one may give another's property to hold of himself and his heirs, and
[013] by reason of such feoffment his son will be his heir, though no other inheritance descends
[014] to him, but he is not bound to escambium except from that which descends to
[015] him from his father's inheritance.⁴ It would be otherwise if the father gave it to be
[016] held of others than his heirs, as of the chief lords or others.⁵ And what if he says of the
[017] wife and her heirs? This does not bind the wife nor her heirs. But what if the wife
[018] claims and the common heir is vouched to warranty? He is bound to warrant, for the
[019] reason aforesaid; she will recover, and the common heir, since he has nothing from
[020] the paternal inheritance, will not be bound to escambium, though he is bound to
[021] warrant, and after her death he will succeed her in that land and is not bound to give
[022] escambium from it.⁶ Hence it is evident, whatever others may say, that if the mother
[023] dies before her husband, and her heir by the same husband claims, that since he is
[024] bound to warrant, he ought to be barred from suing for what he could not recover,
[025] though he is not bound to escambium from the mother's inheritance. In truth if
[026] neither the father nor the mother has another heir, as where the father has no son by
[027] another wife nor the wife by another husband, but the two have a single heir, such
[028] heir cannot revoke his father's gift of his mother's inheritance since he is bound to
[029] warrant as heir, for the reason aforesaid. But the mother may do so if she survives her
[030] husband, and thus the thing so given may descend to the common heir, since by the
[031] mother's act the father's gift is destroyed, which cannot be done by the common heir.
[032] If they do not have a common heir, the mother's heir may well reclaim the gift, and
[033] the father's heir by another will be bound to warrant and escambium,

Notes

1. Supra iii, 135

2. Supra i, 411

3. ‘hereditatem’

4. Supra 32

5. Supra 31-2

6. Supra 31