children, or kindred, the servants born under their master's roof succeeded to the inheritance as heirs-at-law (ƒ). But (to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world (g),) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings (h), wherein Jacob bequeaths to his son Joseph a portion of his *inheri- [ * 491 ] tance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens (i); but in many other parts of Greece they were totally discountenanced (k). In Rome they were unknown, till the laws of the twelve tables were compiled (7), which first gave the right of be (f) See pag. 12. (g) Selden, de succ. Ebr. c. 24. (h) Gen. c. 48. (7) This position is very questionable. Long before the compilation of the laws of the Twelve Tables, a testament might be made by a Roman, and his private will converted into a public law, by promulgation in calatis comitiis. A Roman also who was girt for war, and about to proceed to battle, was allowed, antecedently to the laws of the Twelve Tables, to make what was termed testamentum in procinctu. And a third mode of making a will, without the formality of ratification by the comitia, and by persons who were not entitled to the exclusively military privilege of making testamentum procinctum, was in use before the introduction of the laws of the Twelve Tables-this was by means of a fictitious purchase by the intended inheritor, to whom the purchase money was tendered, and weighed in a balance, before witnesses: which was (i) Plutarch. in vita Solon. termed testamentum per æs et libram. "Sciendum est, olim quidem duo genera testamentorum in usu fuisse ; quorum altero in pace et otio utebantur, quod calatis comitiis appellabant; altero, cum in prælium exituri essent, quod procinctum dicebatur. Accessit deinde tertium genus testamentorum, quod dicebatur per æs et libram, scilicet quod per emancipationem, id est, imaginariam quandam venditionem agebatur, quinque testibus et libripende civibus Romanis puberibus præsentibus, et eo qui familiæ emptor dicebatur. Sed illa quidem priora duo genera testamentorum ex veteribus temporibus in desuetudinem abierunt: quod vero per æs et libram fiebat, diutius permanserit." (Vinnius, lib. 2, tit. 10.) Heineccius, in his commentary on this passage, observes, that the comitia, which were calata, or convocata, for the purpose of giving Of the distribution of a deceased's property before the conquest. queathing (1): and, among the northern nations, particu- With us in England this power of bequeathing is coeval with the first rudiments of the law: for we have no traces or memorials of any time when it did not exist (10). Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. "Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, "dominus tamen nullam rerum suarum partem (præter eam quæ jure debetur hereoti nomine) sibi assumito. Verum "possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur" (p). But we are not to ima (1) Inst. 2, 22, 1. (m) Tacit. de mor. Germ. 21. a public sanction to private wills, (8) But see ante, pp. 11, 12, 13, (0) Sp. L. b. 27, c. 1; Vinnius in Inst. 1. 2, tit. 10. (p) LL. Canut. c. 68. (9) See Vol. I. p. 7. (10) Mr. Roberts, in his treatise on "the law of wills" (Vol. I. pp. 36) agrees with our author that, with respect to moveables, the testamentary power seems to have been exerciseable in this country in a very remote period; but he seems to doubt whether the power of disposing of land by will was exercised by our early Anglo-Saxon ancestors. There is sufficient evidence, however, that, before the Norman conquest, lands were devisable by will; though, whether that was an original Saxon institution, or whether it was borrowed from the laws of the Romans, and established by that great people when they ruled this country, may be questionable. See ante, p. 373. gine, that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us (q), that by the common law, *as it stood in the [* 492 ] reign of Henry the second, a man's goods were to be divided into three equal parts: of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal: or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but, if he died without either wife or issue, the whole was at his own disposal (r). The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them (s). 66 terations in the ject. This continued to be the law of the land at the time of The various almagna carta, which provides, that the king's debts shall law on this subfirst of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased: and, if nothing be owing to the crown, "omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partibus suis" (t). In the reign of king Edward the third, this right of the wife and children was still held to be the universal or common law (u); though frequently pleaded as the local custom of Berks, Devon, and other counties (w): and Sir Henry Finch lays it down expressly (x), in the reign of Charles the first, to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now, by will, bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed, Sir Edward Coke (y) is of (2) L. 2, c. 5. (r) Bracton, 1. 2, c. 26; Flet. 1. 2, c. 57. (8) F. N. B. 122. (t) 9 Hen. III. c. 18. (u) A widow brought an action of detinue against her husband's executors, quod cum per consuetudinem totius regni Angliæ hactenus usitatam et approbatam, uxores debent et solent a tempore, &c. habere suam rationabilem partem bonorum maritorum suorum: ita videlicet, quod si nullos habuerint liberos, tunc medietatem; et, si habuerint, tunc tertiam partem, &c. and that her husband died worth (w) Reg. Brev. 142; Co. Litt. 176. opinion, that this never was the general law, but only obtained in particular places by special custom: and to establish that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton (2) lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which also continues to this day to be the general law of our sister kingdom of Scotland (a). To which we may add, that, whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the ancient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times: when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided the one 4 & 5 W. & M. c. 2, explained by 2 & 3 Ann. c. 5, for the province of York; another 7 & 8 Will. III. c. 38, for Wales; and a third, 11 Geo. I. c. 18, for London: whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will (11); and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus, is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter(b)) to remember his lord and the church, by leaving them his two best chattels, which was (z) L. 2, c. 26, s. 2. (a) Dalrymp. of Feud. Property, (11) Or rather it should seem, by a "testament," in which an executor, (or an hæres testamentarius, see Androvin v. Poilblanc, 3 Atk. 301,) is named: see ante, p. 490, note, and observe, that the case of Wheeler v. 145. (b) Pag. 426. Sheer, there cited, was a decision several years subsequent to the statute of 2 & 3 Ann. c. 5. As to the doctrine of the pars rationabilis, where that doctrine is still allowed ever to operate, see post, p. 518. the original of heriots and mortuaries; and afterwards he was left at his own liberty, to bequeath the remainder as he pleased. goods of a per tate as he had pose of by will, the ordinary to charity to the usus. *In case a person made no disposition of such of his goods Formerly, such as were testable, whether that were only part or the whole son dying intesof them, he was, and is, said to die intestate; and in such a right to discases it is said, that by the old law the king was entitled to were vested in seize upon his goods, as the parens patriæ, and general distribute in trustee of the kingdom (c). This prerogative the king con- poor, and in pios tinued to exercise for some time by his own ministers of jus-[494] tice; and probably in the county court (12), where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts baron, and other courts, or to have their wills there proved, in case they made any disposition (d). Afterwards, the crown, in favour of the church, invested the prelates with this branch of the prerogative; which was done, saith Perkins (e), because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods, therefore, of intestates were given to the ordinary (13) by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios usus: and, if he did otherwise, he broke the confidence which the law reposed in him (f). So that, properly, the whole interest and power which were granted to the ordinary, were only those of being the king's almoner within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious (g). And, as he had thus the disposition of intestates' effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of dis (c) 9 Rep. 38. (f) Finch, Law, 173, 174. (12) See Vol. III. p. 95. (13) See post, p. 509. |