Smithley v. Infants. 1 Inst. 89 a. and descent to the heir, happening at the same instant, the title of the heir shall be preferred, as the most ancient and worthy. 23. Where a person has a grant of the next presentation to a church, it is considered as a chattel real, which, if not disposed of, will vest in his execu tor. 24. Lord Coke says, a guardian in socage of an 3156. infant, seised of a manor to which an advowson is appendant, shall not present to the church; because he can take nothing for the presentation, for which he may account to the heir; and therefore the heir shall in that case present, of what age soever he be. Arthington v. 518. This doctrine is now fully established; and in the following case it was determined that an infant, who was not a year old, might nominate or present to a church. 25. Cyrill Arthington conveyed an advowson to trustees, upon trust to present such son of a particular person, as should be capable of taking the same, when the church became void: and if that person had no son qualified to take the living at that time, then in trust to present such person as the grantor, his heirs or assigns, should appoint, and in default of such nomination by the grantor or his assigns, that the trustees should present a person of their own choosing. The grantor died, leaving his son and heir, an infant of six months old. The living became vacant, and the person named in the deed having then no son capable of taking the living, the guardian of the son took him in his arms, and guided his pen in making his mark; and made him seal a writing, whereby one Hitch was nominated and appointed to the trustees, in order to be presented by them to the living. The trustees supposing the plaintiff, as an infant, unable to make such an appointment, refused to present Mr. Hitch; upon which the infant brought his bill against the trustees, to have them execute their trust, in presenting his nominee. It was argued for the defendants that the presentations of clerks to bishops for admission to churches, was an act that required judgement and discretion, which an infant was not master of; and though the law suffered them to present to their own livings, yet it was of necessity, because there was nobody else to do it, and if they could not, then a lapse must incur ; for a presentation to a living being a thing of no value, and therefore not to be accounted for, a guardian could not have it: whereas in the present case, if the grantor or his heirs neglected or were incapable of presenting, the trustees were expressly authorized to present, whose act would be considered as the act of the infant; so that no injury would be done to any body. And though, in cases of evident necessity, equity might square itself by law, yet, where no such necessity appeared, reason and common sense ought to prevail: from whence it was inferred, that the nomination, being an act requiring discretion and judgement, was void; and the trustees entitled to present their own clerk. On the other side it was contended, that in the case of presentation, as an infant just born might present at law, so the law did not look on it as an act which required discretion in the patron; nor indeed was it requisite, for infants being supposed to follow the directions of their guardians, might be informed by them, who was a proper person; or if they were not, yet a presentation being only a bare recommendation of a clerk to the bishop, and not an act which gave 3 Atk. 710. any interest in the living, and the bishop being abso 1 Inst. 89 a. n. 1. Joint Te- Wilson v. 7 Bro. Parl. lute judge of the person's abilities, there did not appear any great reason why an infant might not make it, as well as a person of full age; and it was not of necessity that they must present; for though a lapse might incur, yet the presentation of the minor, on the next vacancy, was reserved; and nothing divested out of him by the bishop's collation; so that, as to the infant, it was the same whether the bishops collated, or the trustees presented: wherefore they inferred equity ought to be bound to the law, since the case and reason of the thing was alike, for otherwise the greatest confusion and uncertainty would follow. Lord King said-" An infant of one or two years old may present at law; then why may they not nominate? Does the putting a mark and seal to a nomination require more discretion than to a presentation? The guardian is supposed to find a fit person, and the bishop to confirm his choice; and if this is permitted in law, why should a court of equity act otherwise in equitable estates?" Decree for the plaintiff. 26. Mr. Hargrave has observed, that though this decision may remove all doubts about the legal right of an infant of the most tender age to present, still it remains to be seen whether the want of discretion would induce a court of equity to control the exercise, where a presentation was obtained from an infant, without the concurrence of the guardian. 27. Where an advowson is held in joint tenancy, all the joint tenants must concur in the presentation. If an advowson is vested in trustees and their heirs, upon trust to present to the church whenever it becomes vacant, they are joint tenants; and there fore, upon any avoidance, must all join in the pre sentation. 2 365. 28. If there be two joint tenants of an advowson, 1 Inst. 186 b.. and one presents without the other, this is no usurpation upon his companion. But if the joint tenant who presented dies, it shall serve for a title in a quare impedit, brought by the survivor: if one joint tenant presents, or if they present severally, the ordinary may either admit, or refuse such a presentee; unless they all join; and after the six months, he may present by lapse. Coparceners. 1 Inst. 166 b. Plowd. 333. 29. By the common law, where an advowson descends to coparceners, and they cannot agree to present jointly, the eldest sister shall have the first turn, the second the next, and so of the rest, according to their seniority: this privilege extends, not only 2 Inst. 365. to their heirs, but to the several assignees of each coparcener, whether they acquire the estate by conveyance, or by act in law, as tenant by the curtesy, who shall have the same privilege by presenting in turn, as his wife would have had, if alive. Episc. Ex eter, 1 Ves. 30. The estate of an advowson descended to two Buller v. daughters as coparceners: the church became vacant twice in their time, and both joined in presentation : 340. the eldest married, settled her estate in the common way, and died. A vacancy happening, the husband of the eldest, entitled to her estate as tenant by the curtesy, or under the settlement, claimed to present. The question was, whether the alternate turn of presentation among coparceners continued to the grantee; that is, whether the persons to whom it was conveyed were to be considered as enjoying the same privileges of presenting in turn, as the sisters. and parceners, if they had their own estate. Mr. Baron Clarke was clearly of opinion, upon the Willes Rep. authority of the passage in 2 Inst. 365., that the husband of the eldest sister was entitled to the pre 663. 2 Inst. 365. 2 Roll. Ab. 346. Bro. Ab. Tit. Quare Imp. pl. 118. sentation. 31. By the statute Westm. 2. c. 5. it is provided, that where an advowson descends to coparceners, though one presents twice, and thereby usurps upon his coheir, yet he that was negligent, shall not be barred, but another time shall have his turn to present when it falleth. 32. Lord Coke, in his comment on this statute, says,-If a stranger usurps in the turn of any of them, this does not put her sister out of possession, in respect of the privity of estate, no more than if one coparcener takes the whole profits. 33. There were four coparceners of an advowson. The first daughter presented to the first avoidance; the second daughter to the second; on a third avoidance, a stranger usurped on the third daughter, and Vide Barker presented; the presentee was instituted and inducted and died. The fourth shall not lose her turn by the third daughter's suffering a stranger to present by usurpation, but shall present to that avoidance. v. Lomax, Willes R. 659. 1 Hen. Black. 412. 2 Inst. 365. Tenants in 2 Roll. Ab. 372. 34. Although coparceners make composition to present by turns, this being no more than the law doth appoint, expressio corum quæ tacitè insunt, nihil operatur: therefore they remain therefore they remain coparceners of the advowson; the inheritance of which is not divided. 35. Tenants in common of an advowson must all join in presenting to the church. If they present severally, the ordinary may either admit or refuse the clerk; and after six months, he may present by lapse. But if one tenant in common presents alone, this will not put the other out of possession. |