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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 ($). So that, properly, the
whole interest and power which were granted to the ordi-
nary, 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 satis-
faction of the prelate, whose right of distributing his chattels

for the good of his soul was effectually superseded thereby. By stat. West. *The goods of the intestate being thus vested in the or2, the ordinare dinary upon the most solemn and conscientious trust, the pay the deceas. reverend prelates were, therefore, not accountable to any, ed's debts in like

but to God and themselves, for their conduct (h). But even
executor would in Fleta's time it was complained (i), quod ordinarii, hu-
have been liable.
[ *495 )

jusmodi 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 decen-
dentium ab intestato in opus ecclesiæ et pauperum dis-
pensanda est.” Thus, the popish clergy took to them-
selves (I) (under the name of the church and poor) the whole
(s) Finch, Law, 173, 174.

ferent in different countries.

In the (g) Plowd. 277.

archdeaconry of Richmond in York(1) Ibid.

shire, this proportion was settled by a (i) L. 2, c. 57, s. 10.

papal bulle, A. D. 1254. (Regist. ho(k) In Decretal. I. 5, t. 3, c. 42. noris de Richm. 101), and was observ

(1) The proportion given to the ed till abolished by the statute 26 Hen. priest and to other pious uses, was dif- VIII. c. 15.

manner as an

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residue of the deceased's estate, after the partes rationa-
biles, or two thirds, of the wife and children were deducted;
without paying even his lawful debts, or other charges there-
on. 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 ordi-
naries. But, though they were now made liable to the cre-
ditors 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 con-
science 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 im-

[ * 496 ] mediate *dependents: and therefore the statute 31 Edw. III. And by 31 Edw. c. 11, provides, that, in case of intestacy, the ordinary shall III. c. 11, he is

directed to apdepute the nearest and most lawful friends of the deceased to point an admiadminister his goods; which administrators are put upon the

same footing, with regard to suits and to accounting, as ex-
ecutors appointed by will. This is the original of adminis-
trators, 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 ecclesias-
tical 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 whichever he pleases.

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or may not

Upon this footing stands the general law of administrations at this day. I shall, in the farther progress of this chapter, mention a few more particulars, 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. As to who may

I proceed now, secondly, to inquire who may, or may not,

make a testament; or what persons are absolutely obliged make a will.

by law to die intestate (9). And this law (0) 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 prin[ * 497 ] cipally upon three *accounts: for want of sufficient discretion;

for want 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 fourteen if males, and twelve if females; 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 fourt years old) might make a testament (9), and others

(o) Godolph. Orph. Leg. p. 1, c. 7. Vern. 104. 469. Gilb. Rep. 74.
(p) Godolph. p. 1, c. 8. Wentw. 212. (9) Perkins, s. 503.


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

+ Mr. Christian observes, that “this who, in a note to pt. 2, sect. 2, of his has been thought an error of the Treatise, speaks of the passage in Perpress in Perkins, and that four by mis- kins as impressio vitiosa, literd (1) take was printed for fourteen.” [The omissá, nam quod sic scribitur iiij. correction was first made by Swinburn, scribi debuit xiiij.”—ED.] “ See this

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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 admitted 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 four-
teen or four-and-twenty, that will overthrow his testament.
Madmen, or otherwise non compotes (10), idiots or natural Lunatics, &c.

(r) Co. Litt. 89.

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(10) According to Swinburne, (pt. 2, dy ;-in these cases, the testator is not sect. 3), every person is presumed to presumed to continue in his former be of perfect mind and memory, unless furor, or frenzy. And, if the deposithe contrary be proved. (See White tions on the subject be contradictory, v. Wilson, 13 Ves. 89). And, there- (and equally balanced), that testimony fore, if any person go about to impugn is to be preferred which tends to favour a testament, by reason of the testator's the validity of the party's testament. insanity, he must prove that impedi- Another observation, made by Swinment. It is sufficient, however, (speak. burne, is, that if a lunatic, or one who ing generally), for the party who pleads is beside himself at some times, but the insanity of the testator's mind, to not continually, make his testament, prove that he was beside himself before and it is not known whether the same the making of the testament; although were made whilst he was of sound he do not prove the testator's madness mind and memory, or no; then, in case at the very time of making such testa, the testament be so conceived that no ment; for, it being proved that the tes- argument of frenzy or folly can thence tator was once mad, the law presumeth be gathered, it is to be presumed that him to continue still in that state, un- the same was made during the time of less the contrary be proved. With this his calm and clear intermissions; and qualification (as laid down by Swin- so the testament shall be adjudged burne), that if a testator were beside good. Yea, though it cannot be prorhimself but for a short time, and in ed that the testator used to have any some peculiar actions, having fallen clear and quiet intermissions at all, into some frenzy upon some accidental yet, nevertheless, if the testament be cause, which cause is afterwards taken wisely and orderly framed, the same away, or it be a long time since the ought to be accepted for a lawful testestator was assaulted with such mala-. tament. But, if in the testament there

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subject learnedly investigated by Mr. of fourteen, and by a female at the age
Hargrave, who concludes with the of twelve, and not sooner. (Harg. Co.
learned Judge, that a will of personal Litt. 90).
estate may be made by a male at the age

fools (11), persons grown childish by reason of old age or

be a mixture of wisdom and folly, it val, adds, “but the law recognizes acts is to be presumed that the same was done during such an interval as valid, made during the testator's frenzy; in- and the law must not be defeated by somuch that, if there be but one word any overstrained demands of the proof sounding to folly, it is presumed that of the fact.” And, in the case cited, a the testator was not of sound mind will was established, which was made when he made the same. And, there- by a testatrix proved to have been fore, in this case, the testament is void; subject to insanity for several years unless it can be proved that there preceding her death, and that proof was an intermission of furor at that brought down to the time of four days time.

only prior to her death. But it did not The whole of this doctrine, as to appear that the disorder was uniform: lucid intervals, was most explicitly and Sir John Nicholl pronounced for adopted by Sir Wm. Wynne, in the the validity of the will, considering the case of Cartwright v. Cartwright, (1 disposition itself to be neither insane Phillim. 100). The distinguished nor unnatural, though the testatrix tojudge just named said, “I think the tally excluded her own sisters, giving strongest and best proof that can two thirds of her property to the chilarise as to a lucid interval, is that dren of a deceased brother, and the rewhich arises from the act itself; that maining third to his widow and her I look upon as the thing to be first ex. second husband. amined, and if it can be established In the case of Hall 4. Warren, (9 that it is a rational act, rationally done, Ves. 610), Sir William Grant stated it the whole case is proved. If you shew as clear law, that, "all acts done durthat the party did what is a rational ing a lucid interval are to be considered aet, and that it was his own act entirely, as done by a person perfectly capable nothing is left to presumption in order of contracting, managing, and disposing to prove a lucid interval: but, un- of his affairs at that period. This bas questionably there must be complete most frequently occurred upon wills. and absolute proof that the party did A multitude of questions has been raised the act (of which the validity is in ques- upon the execution of a will during a tion) without any assistance. If the par- lucid interval; and that being proved, ty has not only formed a proper plan, as the will has been held valid and effecto making a testamentary disposition, tual to all intents and purposes for the but has pursued that plan and carried it conveyance of real and personal estate, into execution with propriety and with- as if the testator had never been deout assistance, that is sufficient ground ranged. In one case, the manner in for pronouncing it to be a legal will." which the will was written and execut. So, Sir John Nicholl, (in White v. ed went a great way towards shewing Driver, 1 Phillim. 88), after declaring it was in a lucid interval: the mode of how strongly he was impressed with the act being part of the evidence of the the necessity of observing great caution testator's sanity. However, when gein examining the proof of a lucid inter- neral lunacy is established, it is neces.

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