Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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’a prior terce ftill fubfifling, the fecond tereer has only
right to a third of the two thirds that remain unafFtjfted
by the firft tercfe. But upon the death of the 6rlt widow,
whereby the lands are dilburdened of her terce, the leffer
terce becomes enlarged, as if the firft had never exifled.
widow, who has accepted of a fpecial provifion from her
hufband, is thereby excluded from the terce, unlefs fuch
provifion fhall contain a claufe that fhe fhall have right
to both.
27. The widow has no title of poflefllon, ard fo can¬
not receive the rents in virtue of her terce, till fhe be
ferved to it; and in order to this, fhe muft obtain a brief
out of the chancery, diredted to the Sheriff, who calls an
inqueft, to take proof that fhe was wife to the deceafed ;
and that the deceafed died infeft in the fubjefts contained
in the brief. The feryice or fentence of the jury, find¬
ing thefe points proved, does, without the neceffity of a
retour to the chancery, intitle the wife to enter into the
poffeffion ; but fne can only poflefs with the heir pro in-
divifo, and fo cannot remove tenants, till the fheriff kens
her to her terce, or divides the lands between her and
the heir. In this divifion, after determining by lot or
kavil, whether to begin by the fun or the fhade, i. e. by
the eaft or the weft, the fheriff fets off the two firft acres
for the heir, and the third for the widow. Sometimes
the divifion is executed, by giving one entire farm to the
\iddow, and two of equal value to the heir. The widow’s
eight is not properly conftituted by this fervice ; it was
conftituted before, by the hufband’s feifin, and fixed by
his death ; the fervice only declares it, and fo intitles her
to the third part of the rents retro to her hufband’s death,
preferable to any rights that may have affedted the lands
in the intermediate period between that and her own fer¬
vice. The relidt, if fhe was reputed to be lawful wife
to the deceafed, muft be ferved, notwithftanding any ob-
jedtions by the heir againft the marriage, which may be
afterwards tried by the commiflary,
28. Cpurtefy is a liferent given by law, to the furvi-
ving huflj^nd, of all his wife’s heritage in which fhe died
infeft, if there was a child of the marriage born alive.
A marriage, though of the longeft continuance, gives no
right to the courtefy, if there was no iffue of it. The
child born of the marriage muft be the mother’s heir: If
fhe had a child of a former marriage, who is to fucceed
to her eftate, the hufband has no right to the courtefy
while fuch child is alive; fo that the courtefy is due to
the hufband, rather as father to an heir, than as hufband
to an heirefs. Heritage is here oppofed to conqueft, and
fo is to be underftood only of the heritable rights to
which the wife fucceeded as heir to her anceftors, ex¬
cluding what fhe herfelf had acquired by Angular titles.
29. Becaufe the hufband enjoys the liferent of his
wife’s whole heritage, on a lucrative title, he is confider-
ed as her temporary reprefentative, and fo is liable in
payment of all the yearly burdens chargeable on the fub-
jedt, and of the current intereft of all her debts, real and
perfonal, to the value of the yearly rent he enjoys by the
courtefy. The courtefy needs no folemnity to its confu¬
tation : That right, which the hufband had to the rents
ef his wife’s eftate, during the marriage, jure mariti, is
continued with him after her death, under the name of
W. 915
courtefy, by an aft of the Jaw itfelf. As in the terce,
the hufband’s feifin is the ground and meafure of the
wife’s right; fo in the courtefy, the wife’s feifin is the
foundation of the hufband’s ; and the two rights are, in
all other refpefts, of the fame nature; if it is not that
the courtefy extends to burgage holdings, and to fuperi-
orities.
30. All lifererters muft ufe their right falva ret fub-
Jiantia : Whatever therefore is part of the fee itfelf,
cannot be encroached on by the liferenter, e g. woods
or growing timber, even for the neceffary ufes of the
liferented tenement. But, where a coppice or Ji/va
cadua has been divided into hags, one of which was in
ufe to be cut annually by the proprietor, the liferenter
may'continue the former yearly cuttings ; becaufe thefe
are confidered as the annual fruits the fubjeft was intend*
ed to yield, and fo the proper fubjeft of a liferent.
31. Liferenters are bound to keep the fubjeft liferented in
proper repair. They are alfo burdened with the alimony of
the heir, where he has not enough for maintaining him-
felf. The bare right of apparency founds the aftion a-
gainft the liferenter. It is a burden perfonal to the life-
renter himfelf, and cannot be thrown upon his adjudging
creditors, as coming in his place by their diligences.
Liferenters are alfo fubjefted to the payment of the year¬
ly cefles, ftipends, <bc. falling due during their right,
and to all other burdens that attend the fubjeft liferented.
32. Liferent is extinguifhed by the liferenter’s death.
That part of the rents which the liferenter had a proper
right to, before his death, falls to his- executors; the
reft, as never having been in bonis oi the deceafed, goes
to the fiar. Martinmas and Whitfunday are, byourcu-
ftom, the legal terms of the payment of rent : Confe-
quently, if a liferenter of lands furvives the term of
Whitfunday, his executors are intitled to the half of that
year’s rent, becaufe it was due the term before his death ;
and if he furvives the Martinmas, they have right to the
whole. If the liferenter, being in the natural poffelfion,
and having firft fowed the ground, fhould die, even be¬
fore the Whitfunday, his executors are intitled to the
whole crop, in refpeft that both feed and indultry were
his. In a liferent of money conftituted by a moveable
bond, the executors have a right to the intereft, down to
the very day of the liferenter’s death, where no terms
are mentioned for the payment thereof; but in the cafe
of an heritable bond, or of a money liferent fecured on
land, the interefts of liferenter and fiar (or of heir and
executor, for the fame rules ferve to fix the interefts of
both) are both governed by the legal terms of land-rent,
without regard to the conventionaL
Tit. 17. Of Teinds.
x. Teinds, or tithes, are that liquid proportion of
our rmts or goods, which is due to churchmen, for per¬
forming divine fervice, ot exerciling the other fpiritual
functions proper to their feveral offices. Moft of the
canonifts affirm, that the precife proportion of a tenth,
not only of the fruits of the ground, but of what is ac¬
quired by perfonal induftry, is due to the Chriftian clergy,
of divine right, which -they therefore call the proper pa¬
trimony,