Sivut kuvina

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 W. 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; 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 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 [494] as were testable, whether that were only part or the whole of them, he was, and is, said to die intestate; and in such cases it is said, that by the old law the king was entitled to seize upon his goods, as the parens patria, and general trustee of the kingdom (c). This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, 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 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

(a) Dalrymp. of Feud. Property, 145.

(b) Page 426.

(c) 9 Rep. 38.

(d) Ibid. 37.

(e) 486.

(f) Finch, Law, 173, 174.
(g) Plowd. 277.

of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby.

[*495] *The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were, therefore, not accountable to any, but to God and themselves, for their conduct (h). But even in Fleta's time it was complained (1), "quod ordinarii, hujusmodi bona nomine ecclesie occupantes nullam vel saltem indebitam faciunt distributionem." And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of Pope Innocent IV. (k), written about the year 1250; wherein he lays it down for established canon law, that “in Britannia tertia pars bonorum decendentium ab intestato in opus ecclesiæ et pauperum dispensanda est." Thus, the popish clergy took to themselves (1) (under the name of the church and poor) the whole residue of the deceased's estate, after the partes rationabiles, or two thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reason, it was enacted by the statute of Westm. 2 (m), that the ordinary shall be bound to pay the debts of the intestate so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will: a use more truly pious, than any requiem, or mass for his soul. This was the first check given to that exorbitant power, which the law had entrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary should approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the

administration in their own hands, or those of their immediate [*496] *dependents: and therefore the statute 31 Edw. III. c. 11, pro

vides, that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted (n) to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5, enlarges a little more the power of the ecclesiastical judge; and permits him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion; and where two or more persons are in the same degree of kindred, gives the ordinary his election to accept which ever he pleases.†

Upon this footing stands the general law of administrations at this day.

(h) Plowd. 277.

(i) l. 2, c. 57, ◊ 10.

(k) In Decretal. l. 5. t. 3, c. 42.

1) The proportion given to the priest and to other pious uses, was different in different countries. In the archdeaconry of Richmond in Yorkshire, this

+ By 2 R. S. 74, 27, 28, the order of granting administration is determined, and the widow is preferred to all others, next the children, then the father, &c. ; males are preferred to females. The husband alone can take out

proportion was settled by a papal bulle, A. D. 1254.
(Regist. honoris de Richm. 101), and was observed
till abolished by the statute 26 Hen. VIII. c. 15
(m) 13 Ed. 1. c. 19.
(n) 9 Rep. 39.

administration on his wife's estate, (id. and ◊ 29,) unless he neglects or is incompetent to act: he takes her personal estate to his own use, subject only to her debts. lb.

I shall, in the farther progress of this chapter, mention a few more particu lars, with regard to who may, and who may not, be administrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only serving to shew the original and gradual progress of testaments and administrations; in what manner the latter was first of all vested in the bishops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular persons nominated expressly by the law.

I proceed now, secondly, to inquire who may, or may not, make a testament; or what persons are absolutely obliged by law to die intestate (3). And this law (o) is entirely prohibitory; for, regularly, every person hath full power and liberty to make a will, that is not under some special prohibition by law or custom which prohibitions are principally upon three accounts: for want of sufficient discretion; for want [497] of sufficient liberty and free will; and on account of their criminal conduct.

1. In the first species are to be reckoned infants, under the age of four. teen if males, and twelve if femalest; which is the rule of the civil law (p). For, though some of our common lawyers have held that an infant of any age (even four years old) might make a testament (q), and others have denied that under eighteen he is capable (r), yet, as the ecclesiastical court is the judge of every testator's capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admit ted to the will of an infant of fourteen, merely for want of age: but, if the testator was not of sufficient discretion, whether at the age of fourteen or four-and-twenty, that will overthrow his testament. Madmen, or other wise non compotes§, idiots or natural fools (4), persons grown childish by reason of old age or distemper (5), such as have their senses besotted with drunkenness (6)—all these are incapable, by reason of mental dis

(0) Godolph. Orph. Leg. p. 1, c. 7.

(p) Godolph. p. 1, c. 8. Wentw. 212. 2 Vern. 104. 469. Gilb. Rep. 74.

(3) In pursuing this inquiry, our author appears to have taken Swinburne for his guide; the second part of whose Treatise on Wills and Testaments he has closely followed.

(4) See Swinburne, pt. 2, sect. 4, an idiot, according to juridical definition, is one who, from his nativity, by a perpetual infirmity, is non compos mentis. (Co. Litt. 246 a).

(5) See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party's incapacity; (Lewis v. Pead, 1 Ves. jun. 19); but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction; (Griffiths v. Robins, 3 Mad. 192); for, that hy

In New-York males must be 18, females 16 years of age. 2 R. S. 60, ◊ 21.

Mr. Christian observes, that "this has been thought an errour of the press in Perkins, and that four by mistake was printed for four teen." The correction was first made by Swinburne, who, in a note to pt. 2, sect. 2, of his Treatise, speaks of the passage in Perkins as " impressio vitiosa, literá (x) omissá, mam quod sic scribitur iiij. scribi debuit xiiij.”

(q) Perkins, 503.
(r) Co. Litt. 89.

pothetical disability which is always supposed to exist during infancy, may really subsist when the party is of age, and even a much greater degree of incapacity, though the case be not one of insanity, or of lunacy, strictly speaking. (Sherwood v. Saunderson, 19 Ves. 283. Ridgway v. Darwin, 8 Ves. 67. Ex parte Cranmer, 12 Ves. 449).

(6) See Swinburne, pt. 2, sect. 6. A commission of lunacy has issued against a party who, when he could be kept sober, was a very sensible man; but whose constant habits were those of intoxication. (Anonym, cited in 8 Ves. 66). And in the case of Rex v. Wright, (2 Burr. 1099), a rule was made upon the de"See this subject learnedly investigated by Mr. Hargrave, who concludes with the learned Judge, that a will of personal estate may be made by a male at the age of fourteen, and by a female at the age of twelve, and not sooner. (Harg. Co. Litt. 90)."

(See Swinburne, pt. 2, sect. 3. 1 Phillim. 100. 88. 9 Ves. 610. 3 Br. 444. 11 Ves. 11. 1 Adams, 284.

ability, to make any will so long as such disability lastst. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void (7).

2. Such persons as are intestable for want of liberty or freedom of will, are, by the civil law, of various kinds; as prisoners, captives, and the like (s) (8). But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such person could be supposed to have liberum animum testandi. And, with regard to feme-coverts, our law differs still more materially from the civil. Among the Romans there was no distinction; a married

woman was as capable of bequeathing as a feme-sole (t). But [*498] with us a "married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the license of her husband.‡ For all her personal chattels are absolutely his; and he may dispose of her chattels real, or shall have them to himself if he survives her: it would be therefore extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another (v). Yet by her husband's license she may make a testament ("); and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license is more properly his assent; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will (w). Yet it shall be sufficient to repel the husband from his general right of administering his wife's effects; and administration shall be granted to her appointee, with such testamentary paper annexed (x). So that, in reality, the woman makes no will at all, but only something like a will (y); operating in the nature of an appointment, the execution of which the husband, by his bond, agreement, or covenant, is bound to allow. A distinction similar to which we meet with in the civil law. For though a son who was in potestate parentis could not by any means make a formal and legal testament, even though his father permitted it (z), yet he might, with the like permission of his father, make what was called a donatio mortis causa (a). The queen consort is an exception to this general rule, for she

(s) Godolph. p. 1, c. 9.

(1) Ff. 31. 1. 77.

(v) 4 Rep. 51.

(u) Dr. & St. d. 1, c. 7.

(w) Bro. Abr. tit. Devise, 34. Stra. 891.

fendants, to shew cause why a criminal information should not be exhibited against them, for the misdemeanor of using artifices to obtain a will from a woman addicted to liquor,

"But, if a person of sound mind makes his will, this will is not revoked nor affected by his subsequent insanity. (4 Co. 61)." For what the law requires is, that a testator should be of capacity at the time he makes his will. (Swinb. pt. 2, sect. 3). Therefore, if a child, before he has reached the age prescribed by law, makes a written disposition of his ef

(x) The King v. Bettesworth, T. 13 Geo. II. B. R. (y) Cro. Car. 376. 1 Mod. 211.

(z) Ff. 28. 1. 6.

(a) Ff. 39. 6. 25.

when she was under very improper circumstances of mind to make one.

(7) See Swinburne, pt. 2, sect. 10 and 11. (8) See Swinburne, pt. 2, sect. 8. fects, that disposition will be of no validity, though he should afterwards attain the age at which he might make a testament; unless he then expressly confirms his previous testa mentary disposition; which is, in fact, mak ing a new will. (Swinb. pt. 2, sect. 2).

2 R. S. 60, § 21.

may dispose of her chattels by will, without the consent of her lord (b): and any feme-covert may make her will of goods, which are in her possession in auter droit, as executrix or administratrix; for these can never be the property of the husband (c): and, if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout by testament, without the control of her husband (d). [*499] But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will (e) (9).

3. Persons incapable of making testaments, on account of their criminal conduct, are, in the first place, all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king (10). Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture (f) (11).† Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time (g) (12). As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making testaments, (as usurers, libellers, and others of a worse stamp), by the common law their testaments may be good (h) (13). And in general the rule is, and has been so at least ever since Glanvil's time (i), quod libera sit cujuscunque ultima voluntas.

Let us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make; or, what are the nature and incidents of a testament. Testaments, both Justinian (j) and Sir Edward Coke (k) agree to be so called, because they are testatio mentis: an etymon which seems to savour too much of the conceit; it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; "voluntatis nostræ justa sententia de eo, quod quis post mortem suam fieri velit (1) :" which may be thus rendered into English," the legal declaration of a man's intentions, *which he wills to be performed after his death (14)." It is call- [*500] ed sententia, to denote the circumspection and prudence with which it is supposed to be made it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator's intention, whence in England it is emphatically styled his will: it is justa sententia; that is,


(b) Co. Litt. 133.

(c) Godolph. 1. 10

(d) Prec. Chan. 44.

(e) 4 Rep. 60. 2 P. Wms. 624.

(f) Plowd. 261.

(g) Fitz. Abr. tit. Descent, 16.

(9) See Swinburne, pt. 2, sect. 9.

(10) See Swinburne, pt. 2, sections 12 and

(11) Lands never were forfeited without an attainder by course of law; (3 Inst. 55); and now, no attainder, except for high treason, petit treason, or murder, or abetting those crimes, extends to the disinherison of any heir; nor to the prejudice of the right or title

(h) Godolph. p. 1, c. 12.

(i) l 7, c. 5.

(1) Inst. 2, 10.

(k) 1 Inst. 111. 322.

(1) Ff. 23. 1. 1.

of any other persons than the offenders. (Stat. 54 Geo. III. c. 145).

(12) See Swinburne, pt. 2, sect. 21.

(13) See Swinburne, pt. 2, section 16, 17, 19, as to the restraints which the civil law imposed upon the testamentary dispositions of usurers, incestuous persons, and libellers. (14) See Swinburne, pt. 1, sections 3 and 4.

t No conviction, except upon an outlawry for treason, would have this effect in NewYork. 2 R. S. 701, § 22.



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