Wats. 66. 1 lust. 122 a. 2 Vin. Ab. 594. it, that it passed as incident thereto, by a grant of the manor. 9. Where an advowson has at all times whereof the memory of man is not to the contrary passed with the. manor, by the words cum pertinentiis, it is to be taken as an advowson appendant. But though an advowson is said to be appendant to a manor; yet in truth it is appendant to the demesnes of a manor, which are of perpetual subsistence, and not to the rents and services, which are subject to extinguishment and destruction : Dissert. ch. 3. from which it seems to follow that an advowson may be appendant as well to a reputed as to a real manor. Long v. 1 Leon. 207. 2 Vin. Ab. 597. Advowsons in gross. Dyer 103. 10. It was found, in a special verdict, that the abbot of S. was seised of a capital messuage in F. and of one hundred 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. 11. 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. 12. Where the property of an advowson has been once separated from the manor to which it was appendant, 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. 13. 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 the advowson. 2. If the advowson is conveyed away without the manor to which it is appendant. 3. If the pro prietor of an advowson appendant presents to it as an advowson in gross. 14. 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. 15. 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, and at the expiration of the grant for life would again become appendant. 16. If a manor to which an advowson is appendant 6 Rep. 64 a. 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. pl. 19. 17. An advowson may be appendant for one turn, Dyer 259 a. 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. 18. It is said in Roll's Ab. that an advowson in gross lies in tenure, and in Brooke's Ab. tit. Tenure, Tit. Tenures, 20Vin. Ab. 200. Tit. Escheat, pl. 6. Presentative, collative, and donative. 2 Comm. 22. Idem. 1 Inst. 344 a. Wats. 170. 2 Bro. P. C. 173. pl. 15., a case is stated where, in a quare impedit, the plaintiff entitled himself, that the advowson was held of him by homage and fealty; and it was not contradicted that the advowson will lay in tenure. This doctrine is, however, contradicted in another part of Roll's Ab. where it is said, that if a man grants an advowson in gross to another in fee, and the grantee dies without heir, it seemed that it should revert to the grantor; not being held of any one. And that it seemed, if the grantor should not have it, the king should, as supreme ruler. 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 also 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 which 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 any subject by his licence, founds a church or chapel, and Shirt v. Carr, 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. Idem. How a seisin is acquired in. 22. If the patron of an advowson donative once presents to the ordinary, and allows of the admission and institution of his clerk thereon, he thereby renders his church always presentable, and it will never afterwards be donative. But if a stranger who has no title presents a clerk to the ordinary, who is instituted and inducted, this will not render the donative presentable. 23. The existence of an advowson, like that of 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 becomes void, it is impossible to acquire any thing more than a seisin in law of an advowson. 24. A person may be tenant in fee simple of an advowson, as well as of a piece of land; in which 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 cannot be discontinued; for nothing passes by the grant of it, but what the owner may lawfully give. 25. An advowson may also be limited to a person for life or years, in possession, remainder, or reversion. And it may be held in joint tenancy, coparcenary, and common. What estate therein. may be had Inst. 3226. 3 Rep. 85 b. curtesy. 26. A husband will be tenant by the curtesy of an Subject to advowson, though the church be not void during the coverture. For although, in this instance, the husband 1 Inst. 29 a. had but a seisin in law, yet as he could by no industry attain a seisin in deed, it will be sufficient. per le Curt. 27. This point appears to have been determined in 21 Edw. 3. The case is thus stated by Broke.In a quare impedit by the king against divers, the de- Ab. Tit. Ten. fendant made title that the advowson descended to pl. 2. 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 tenaut by the eurtesy by the seisin of the others. 28. It is said by Perkins, that although the church § 468. become void during the coverture, and the wife die after the six months past, before any presentment by 1 Inst. 29 a. n. And to dower. 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 a seisin in deed; and that he did not find any authority to support this doctrine, besides Mr. Perkin's name. 29. Where a widow is endowed of a manor, to which an advowson is appendant, she is entitled to it; 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 Cro. Jac. 622. advowson shall pass. A widow is also dowable of an advowson in gross, and entitled to the third presentation." 1 Inst. 379 a. May be aliened for ever. Cro. Eliz. 164. 30. 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. 31. An advowson appendant may be aliened by any 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 granted by deed; Crispe's case, 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 compensation 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. 32. An advowson may not only be aliened in fee, for life or years; but the next presentation, or any Infra, c. 2. Or for the next presentation. |