Sivut kuvina

children, or kindred, the servants born under their master's roof succeeded to the inheritance as heirs-at-law (f). 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

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(7) This position is very question- termed testamentum per æs et libram. able. Long before the compilation of Sciendum est, olim quidem duo the laws of the Twelve Tables, a tes- genera testamentorum in usu fuisse ; tament might be made by a Roman, quorum altero in pace et otio uteban. and his private will converted into a tur, quod calatis comitiis appellabant; public law, by promulgation in calatis altero, cum in prælium exituri essent, comitiis. A Roman also who was girt quod procinctum dicebatur. Accessit for war, and ab to proceed to battle, deinde tertium genus testamentorum, was allowed, antecedently to the laws quod dicebatur per æs et libram, sciliof the Twelve Tables, to make what cet quod per emancipationem, id est, was termed testamentum in procinctu. imaginariam quandam venditionem And a third mode of making a will, agebatur, quinque testibus et libriwithout the formality of ratification pende civibus Romanis puberibus preby the comitia, and by persons who sentibus, et eo qui familiæ emptor were not entitled to the exclusively dicebatur. Sed illa quidem priora military privilege of making testamen- duo genera testamentorum ex veteribus tum procinctum, was in use before the temporibus in desuetudinem abierunt : introduction of the laws of the Twelve quod vero per æs et libram fiebat, diuTables :—this was by means of a ficti- tius permanserit.(Vinnius, lib. 2, tious purchase by the intended inhe- tit. 10.) Heineccius, in his commenritor, to whom the purchase money tary on this passage, observes, that was tendered, and weighed in a ba- the comitia, which were calata, or lance, before witnesses : which was convocata, for the purpose of giving

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of the distribution of a deceased's property before the conquest.

queathing (1): and, among the northern nations, particularly among the Germans (m), testaments were not received

And this variety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state (n)(8); which has permitted it in some countries, and denied it in others : and, even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven (0)(9).

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.
(n) See page 13.

(0) Sp. L. b. 27, c. l; Vinnius in Inst. 1. 2, tit. 10.

(v) LL. Canut. c. 68.

a public sanction to private wills, (9) See Vol. I. p. 7. could neither have been the comitia (10) Mr. Roberts, in his treatise centuriata, nor the comitia tributa, on “the law of wills” (Vol. I. pp. 3— but must necessarily have been the 6) agrees with our author that, with comitia curiata, quæ sola, primis tem- respect to moveables, the testamen. poribus, cum in concione testamenta tary power seems to have been exerfiebant, in urbe haberentur. Certum ciseable in this country in a very reest tempore mediæ jurisprudentie co- mote period; but he seems to doubt mitiis testari desitum fuisse. Immo, whether the power of disposing of latis tabulis xii. desiisse testamenta land by will was exercised by our in comitiis calatis fieri, verisimilli- early Anglo-Saxon ancestors. There mum est. Quis enim voluisset volun. is sufficient evidence, however, that, tatem suam submittere populi suffra- before the Norman conquest, lands giis, quum libere suoque arbitrio were devisable by will; though, whetestari posset ? Et quis maluisset ther that was an original Saxon insti. publice et palam hæredem nuncupare, tution, or whether it was borrowed quam jure uti xii. tabularum con- from the laws of the Romans, and cesso?

established by that great people when (8) But see ante, pp. 11, 12, 13, they ruled this country, may be ques. with the notes.

tionable. 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 (9), 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).

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 sub

ject. first 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

terations in the

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(2) L. 2, c. 5.

and that her husband died worth (r) Bracton, 1. 2, c. 26 ; Flet. I. 2, 200,000 marks, without issue had bec. 57.

tween them; and thereupon she (8) F. N. B. 122.

claimed the moiety. Some exceptions (t) 9 Hen. III. c. 18.

were taken to the pleadings, and the (u) A widow brought an action of fact of the husband's dying without detinue against her husband's execu- issue was denied ; but the rule of law, tors, quod cum per consuetudinem as stated in the writ, seems to have totius regni Angliæ hactenus usitatam been universally allowed. (M.30 Edw. et approbatam, uxores debent et solent III. 25.) And a similar case occurs atempore, &c. habere suam rationabi- in H. 17 Edw. III. 9. lem partem bonorum maritorum suo - (w) Reg. Brev. 142; Co. Litt. 176. rum: ita videlicet, quod si nullos ha. (x) Law. 175. buerint liberos, tunc medietatem ; et, (y) 2 Inst. 33. si habuerint, tunc tertiam partem, &c.

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 (z) 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



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

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(11) Or rather it should seem, by a Sheer, there cited, was a decision “ testament,” in which an executor, several years subsequent to the sta(or an hæres testamentarius, see An- tute of 2 & 3 Ann. c.5. As to the drovin v. Poilblanc, 3 Atk. 301,) is doctrine of the pars rationabilis, where named: see ante, p. 490, note, and that doctrine is still allowed ever to observe, that the case of Wheeler v. operate, see post, p. 518.

pose of by will,


the original of heriots and mortuaries; and afterwards he was left at his own liberty, to bequeath the remainder as he pleased.

*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

charity to the 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 (9). 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. (d) Ibid. 37.

(9) Plowd. 277. (e) S. 486.

(12) See Vol. III. p. 95.

(13) See post, p. 509.

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