three coparceners, who made partition to present by turns: that the eldest had her turn; afterwards the second her turn; and he married the youngest, had issue by her, and she died: the church voided; so it belonged to him to present; and did not allege that his wife ever presented, so as she had possession in fact. It was admitted that he might be tenant by the curtesy, by the seisin of the others. 28. Although the church become void during the coverture, and the wife die after the six months past, before any presentment by the husband, so that the ordinary presents for lapse to that avoidance, yet the husband shall present to the next avoidance, as tenant by the curtesy. Mr. Hargrave has observed on this passage, that such a case is not within Lord Coke's reason for allowing curtesy of an advowson, without seisin in deed; and that he did not find any authority to support the doctrine, besides Mr. Perkins's name. 29. Where a widow is endowed of a manor, to which an advowson is appendant, she is entitled to such advowson; and if the church becomes vacant during the continuance of her estate in the manor, she may present to it. So if a widow is endowed of a third part of a manor, to which an advowson is appendant, the third part of the advowson shall pass therewith. 30. A woman is also dowable of an advowson in gross, and the assignment must be of the third presentation. 31. Lord Coke says, if a man, seised of an advowson in fee, marries, his wife, by act in law, acquires a title to the third presentation; then if the husband grants the third presentation to a stranger, and dies, the heir shall present twice; the widow shall have the third presentation, and the grantee the fourth : for in this case it shall be taken to be the third presentation, which he might lawfully grant. ed for ever. 32. An advowson appendant may be aliened by May be alienany kind of conveyance that transfers the manor to which it is appendant. An advowson in gross may also be aliened, but being an incorporeal hereditament, and not lying in manual occupation, it does not pass by livery, but must always have been grant- Crispe's Case, ed by deed; and although the law does not consider the exercise of the right of presentation as of any pecuniary value, or a thing for which a price or com- infra, c. 2. pensation ought to be accepted, yet the general right to present is considered as valuable, and an object of sale, which may be conveyed for a pecuniary or other good consideration. 33. An advowson may not only be aliened in fee, for life or years, but the next presentation, or any future number of presentations, may also be granted away. Cro.Eliz.164. Or for the next Presen tation. 34. It has been stated, that where a married man ante, § 31. granted the third presentation to a church, his wife being entitled to such third presentation, as part of her dower, the grantee should have the next presentation after the wife's; because the wife's title arose from an act of law, which shall not operate to the prejudice of the grantee. But where a man granted the next 1 Inst. 378 b. presentation to A., and before the church became void, he granted the next presentation of the same church to B., the second grant was held void; for B.'s right of presentation was destroyed by the act of the party, not as in the former case, by an act in law. 35. It has been determined in a modern case, that a grant of the next presentation to a church, does not Troward v. 6 Term Rep. Videthe King v. Ep. London, 1 Show. R. 441. Winch. 94. become void by the Crown's acquiring a right to present. 36. Sir K. Clayton, being seised in fee of an advowson, the church being then full, by a deed poll, granted to M. Kenrick, his executors, &c., the next presentation, donation, and free disposition of the said church, as fully, freely, and entirely as the said Sir K. Clayton or his heirs. The person who was then incumbent was made Bishop of Rochester, whereby the church became vacant, and the King, by reason of his royal prerogative, acquired a right to present a fit person to the said church. It was contended that, in the event that had happened, this grant beCro. Ja. 691. came void; that in the case of Woodley v. Episc. Exeter, it was held, the grantee of the next avoidance must have the next, or none at all, and must lose his right by the intervention of the prerogative, on the promotion of the incumbent to a bishopric. On the other side it was argued, that the authority of the case of Woodley v. Episc. Exeter was expressly contradicted by the note in the margin of Dyer, 228 b., which was apparently the same case, where it was stated to have been resolved by the Court, that the grantee should have the next avoidance after the prerogative presentation, because that was the act of the law and the prerogative of the King, which excluded him from the first presentation, injured no one. The Court of Common Pleas held, that the grantee of the next presentation should present on the next vacancy, occasioned by the death or resignation of the King's presentee. This judgement was affirmed by 8 Bro. Parl. the Court of King's Bench; and afterwards by the House of Lords, with the assent of the Judges. Ca. 71. 37. Where a person has only a particular estate in a manor, to which an advowson is appendant, he can of course only alien the advowson for so long as his estate shall continue. 38. A tenant in tail of a manor, to which an ad- Bowles v. Walter, vowson was appendant, granted the next avoidance 1 Roll Ab. of the advowson, and died; the issue entered on the 843. manor, and the grant was held to be void. 39. Tenant in tail and his son joined in a grant of Wyvel's Case, the next avoidance of a church; the tenant in tail Hob. 45. died. It was adjudged that the grant was void against the son and heir that joined in the grant, because he had nothing in the advowson at the time of the grant, neither in possession nor right, nor in actual possibility. 40. If a tenant for life grants the next presentation Dymoke v. to a church, such grant is void as to the remainder man. Hobart, 1 Bro. Parl. Ca. 108. Debts. 3 P. Wms. 41. It is said by Lord Coke, that an advowson is Is Assets for assets to satisfy a warranty; but that an advowson in Payment of gross is not extendible upon a writ of elegit; because 1 Inst. 374 6. no annual value can be set upon it. It has however 401. been determined, that an advowson in gross, whether 3 Atk. 464. the proprietor has a legal or an equitable interest therein, is assets for the payment of debts; and will be directed, by the Court of Chancery, to be sold for that purpose. Robinson, 1 Bro. Parl. 42. John Tong being indebted to several persons, Tong v. by judgement, bond, and simple contract, in great 3 Vin. Ab. sums of money, died intestate; seised in fee, among 144. other things, of the trust of an advowson in gross. Ca. 114. Upon a bill filed by the creditors of John Tong, praying a sale of his real estate for the payment of his debts, a question arose whether this advowson was assets; Lord King decreed that it was, and should be sold for the payment of Tong's debts. Westfaling v. On an appeal from this decree to the House of Lords, it was insisted by the appellants, that this advowson was not assets at law, or liable to the demands of any of the creditors of Tong; because at law no inheritance was liable to any execution, that was not capable of raising some profits towards satisfaction of the debt, which an advowson was not. On the other side it was contended, that at common law, an advowson in fee was an hereditament descendible to the heir, valuable in itself, and saleable; and even capable, if necessary, of having an annual value put upon it; and was therefore legal assets in the hands of the heir. The decree was affirmed, with the concurrence of all the Judges. 43. In a case before Lord Hardwicke in 1746, one of the questions was, whether an advowson in gross was assets by descent. His Lordship observed, it had been said the authorities went no farther than where there had been a trust of an advowson, and did not extend to a legal interest; but that this argument was quite cut up by the roots by the determination of the House of Lords in the case of Tong v. Robinson. In the minute book of that day, it was taken down that the question proposed to be asked by the Judges was, whether an advowson in fee was assets. It must have been defectively taken by the clerk the question intended was, whether an advowson in gross in fee was assets; for there could be no doubt as to an advowson appendant to a manor, because the manor itself being assets, what was appendant must be assets likewise; and decreed that it was assets by descent, to satisfy specialty debts. |