CHAP. IX.[245]
This leads us to observe, that some Heirs are evidently of Age, some as clearly not of full age, but others of whom it may be doubtful, whether they have attained their age or not. The first description of Heirs may, immediately upon the deaths of their Ancestors, hold themselves in possession of their Inheritance,[246] although their Lords may take the Fee, together with the Heir, into their hands. This, however, ought to be done with such moderation, as not to cause any Disseisin to the Heirs, who may, indeed, should it be necessary, resist the violence of their Lords, provided they are prepared to pay their Reliefs, and to render to them such other services as are justly due. But, if it be evident that the Heir is under age, and he hold by Military service, he is considered to be in the Custody[247] of his Lord, until he attains his full age.
The full age of an Heir, if the son of a Knight, or of one holding by Military service, is when he has completed his twenty-first Year.[248] But, if the Heir be the Son of a Sockman, he is esteemed to be of full age when he has completed his fifteenth Year.[249] If he is the son of a Burgess, he is understood to have attained his full age,[250] when he has discretion to count Money and measure Cloth, and in like manner to manage his Father’s other concerns.
In so extensive a sense have Lords the Custody of the Sons and Heirs of their Homagers and of their Fee, that they, for example, exercise an absolute controul with respect to presenting to Churches in their Custody, in marrying Females, (if they fall into wardship), and in regulating other matters, in the same manner as if they were their own. The Law, however, does not permit the Lords to make any absolute disposition of the Inheritance. In the mean time, the Lord should maintain the Heir in a manner suitable to his Dignity and the extent of his Inheritance, and should discharge the Debts of the deceased, so far as the Estate and the length of the Custody will admit.[251] Hence they are bound by the Law to answer the Debts of the Ancestors.
The Lords may also manage the concerns of the Heir, and commence and prosecute all Suits for the recovery of his rights, provided no exception be taken on account of the Minor’s Age.[252] But the Lord is not bound to answer for the Heir, neither in a question of Right nor of Disseisin, except in one instance—when one Minor has the Custody of another, after the decease of his Father. Should the latter Minor, upon his attaining his full age, be refused his Inheritance, he may have an Assise and Recognition of the Death of his Ancestor; nor shall the Recognition, in such case, cease, on Account of the Minority of the Lord. But if a Minor be appealed of any Felony,[253] then he shall be attached by safe and secure pledges. Yet, whilst he continues within age, he shall not be compelled to answer, nor until he has attained his full age. Those persons who have the Custody are bound to restore the Inheritance to the Heirs in good condition,[254] and discharged from Debts, in proportion to the duration of the Custody, and the extent of the Inheritance. But if it be doubtful, whether the Heir be of full age or a Minor, then, undoubtedly, the Lord shall have the Custody as well of the Heir as of his Inheritance, until the full age of the Heir be reasonably proved by the oaths of lawful men of the Vicinage.
CHAP. X.
If those Heirs, liable to be in Custody, have more Lords than one, the chief Lord, that is, the one to whom the Heir owes allegiance for his first Fee, shall have the Custody. But this is not to deprive the Lords of the other Fees of their Beliefs and rightful services; but the Custody shall remain to them entire, under the form before mentioned. Yet should it be observed, that when any one hold of the King in Capite, the Custody of him belongs exclusively to the King, whether the Heir has any other Lords or not; because the King[255] can have no equal, much less a superior.[256] But yet, by reason of Burgage Tenure,[257] the King is not preferred in the Custody to others. If the King should commit the Custody to another,[258] then, a distinction is to be made, whether it is unconditionally, and in such manner as not to render the person to whom it was committed accountable to the Exchequer, or whether it is under restrictions. If it is committed to him in such unconditional manner, then he can present to vacant Churches, and, generally, as far as consistent with Justice, manage the concerns of the Heir, as if they were his own.