senting a clerk to the bishop, whenever the church became vacant. 1 Inst. 17 b. 6. An advowson* is therefore a right of presenta- Description tion to a church, or ecclesiastical benefice. The word of. is derived from advocatio, which signifies, in clientelam recipere. For in former times the person to whom this right belonged was called advocatus ecclesiæ; because he was bound to defend and protect, both the rights of the church, and the incumbent clerks, from oppression and violence. Hence the right of presentation acquired the name of advowson, and the person possessed of this right was called the patron of the church. 7. Lord Coke says, there may be several patrons, Idem. and two several incumbents, in one church: the one of the one moiety thereof, and the other of the other moiety; and one part, as well of the church as of the town, allotted to the one, and the other part thereof to the other. And this is called advocatio medietatis ecclesiæ. Plowd. 529. 8. The right of presentation, and that of nomina- Right of Notion to a church, are sometimes confounded; but they mination. are distinct things. Presentation is the offering a Wats. 90. clerk to the bishop: nomination is the offering a clerk to the person who has the right of presentation. These rights may exist in different persons, at the same time. Thus, a person seised of an advowson may grant to A. and his heirs, that whenever the church becomes vacant, he will present such person as A. or his heirs shall nominate. This is a good grant; and the and the person to whom the right of nomination * The law of advowsons is here only treated of, as far as lay patrons are concerned. Tit. 12. is thus granted is, to most purposes, considered as patron of the church. 9. Where the legal estate in an advowson is vested in trustees, they have the right of presentation in them; but the right of nomination is in the cestui Tit. 15. c. 2. que trust. So. in the case of a mortgagee of an advowson, the mortgagee has the right of presentation, but the mortgagor has the right of nomination. 51. Advowsons appendant. 10. The right of presentation, which was originally allowed to the person who built or endowed a church, became by degrees annexed to the manor in which it was erected; for the endowment was supposed to be parcel of the manor, and held of it; therefore it was natural that the right of presentation should pass with the manors, from whence the advowson was said to be appendant, being so closely annexed to the manor, that it passed as incident thereto, by a grant of the manor. But though an advowson is said to 1 Inst. 132 a. be appendant to a manor, yet, in truth, it is appendant to the demesnes of the manor, which are of perpetual subsistence; and not to the rents. and services, which are subject to extinguishment and destruction. 2 Vin. Ab. 594. Long v. 1 Leon. 207. 1 Roll. Ab. 231. pl. 19. 2 Vin. Ab. 597. 11. It was found, in a special verdict, that the abbot of S. was seised of a capital messuage in F. and of 100 acres of land there; that there was a tenancy holden of such capital messuage by certain services; that the said capital messuage had been known, time out of mind, by the name of the manor of F.; and that the advowson was appendant to it. The Court was of opinion, that here was a sufficient manor, to which an advowson might be well appendant. 12. It is said, that if a person seised of a manor, to which an advowson is appendant, grants one or two acres of the manor, una cum advocatione, the advowson will become appendant to such one or two acres; but the land and the advowson must be granted by the same clause. 13. Where the property of an advowson has been In gross. once separated from the manor, by any legal conveyance, it is then called an advowson in gross, and never can be appendant again, except in a few cases, which will be mentioned hereafter. 14. An advowson appendant may become in gross by various means. 1. If the manor to which it is appendant is conveyed away in fee simple, excepting Dyer, 103. the advowson. 2. If the advowson is conveyed away without the manor to which it is appendant. 3. If the proprietor of an advowson appendant presents to Wats. 69. it as an advowson in gross. 15. Where a manor, to which an advowson is ap- 1 Inst. 122 a. pendant, descends to coparceners, who make partition of the manor, with an express exception of the advowson, it ceases to be appendant, and becomes in gross; but if coparceners make partition of a manor to which an advowson is appendant, without saying any thing of the advowson, it remains in coparcenary; and yet in every of their turns, it is appendant to that part which they have. 16. An advowson may cease to be appendant for Wats. 69. a certain time, and yet become again appendant. Thus, if an advowson is excepted in a lease for life of a manor, it becomes in gross during the continuance of the lease; but upon its expiration, it again becomes appendant. So, if an advowson appendant is granted to a person for life, it becomes in gross; if afterwards another person is enfeoffed of the manor to which it is appendant, with the appurtenances, in fee simple, the reversion of the advowson would pass, 6 Rep. 64 a. Dyer, 259 a. pl. 19. Presentative. Collative. Donative. Wats. 170. and at the expiration of the grant for life, would again become appendant. 17. If a manor to which an advowson is appendant, descend to two coparceners, and upon a partition the advowson is allotted to one, and the manor to the other, by this means the advowson is become in gross; but if the coparcener, to whom the advowson was allotted, dies without issue, and without disposing of the advowson, it will descend to the other, and again become appendant. 18. An advowson may be appendant for one turn, and in gross for another. Thus, if a person, having an advowson appendant, grants every second presentation to a stranger, it will be in gross for the turn of the grantee, and appendant for the turn of the grantor. 19. Advowsons are also presentative, collative, and donative. An advowson presentative is that which has been already described, namely, where the patron has a right of presentation to the bishop or ordinary, and, moreover, to demand of him to institute his clerk, if duly qualified. 20. An advowson collative is where the bishop and patron are one and the same person. In whioh case, as the bishop cannot present to himself, he does, by the one act of collation or conferring the benefice, the whole that is done in common cases by both presentation and institution. 21. An advowson donative is where the king, or 1 Inst. 344 a. any subject by his licence, founds a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron, subject to his visitation only, not to that of the ordinary, and vested absolutely in the clerk, by the patron's deed of donation, without presentation, institution, or induction. 22. If the patron of an advowson donative once I Inst. 344 b. presents to the ordinary, and his clerk is admitted and instituted, the church is by that means become presentative, and shall never after be donative. 23. The existence of an advowson, like that of How a Seisin is acquired. every other incorporeal hereditament, being merely in idea and abstracted contemplation, it is not capable of corporeal seisin or possession; therefore a presentation to the church is allowed to be equivalent to a corporeal seisin of land. But till the church 1 Inst. 29 a. becomes void, it is impossible to acquire any thing more than a seisin in law of an advowson. therein. 24. A person may be tenant in fee simple of an What Estate advowson, as well as of a piece of land; in which may be had case, he and his heirs have a perpetual right of presentation. It may also be entailed within the statute De Donis, being an hereditament annexed to land ; but an estate tail in an advowson, or any other incorporeal hereditament, cannot be discontinued; for 1 Inst. 322 b. 3 Rep. 85 b. nothing passes by the grant of this species of perty, except what the owner may lawfully give. 25. An advowson may be held in joint tenancy, coparcenary, and common. and common. It may also be limited to a person for life or years, in possession, remainder, or reversion. pro 1 Inst. 29 a. 26. A husband shall be tenant by the curtesy of an Subject to advowson, though the church was not void during Curtesy. the coverture. For although, in this instance, the husband had but a seisin in law, yet as he could by no industry attain any other seisin, it shall be sufficient. Ab Tit. Ten. 27. This point appears to have been determined in 21 Edw. III. The case is thus stated by Broke.In a quare impedit by the king against divers, the defendant made title that the advowson descended to pl. 2. per le Curt. |