Sivut kuvina

By stat. West.
2, the ordinary
was required to

pay the deceas

ed's debts in like manner as an

executor would

have been liable.

[ *495 ]

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to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby. *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 (i), “quod ordinarii, hu"jusmodi bona nomine ecclesiæ 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 themselves (1) (under the name of the church and poor) the whole

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

(h) Ibid.

(i) L. 2, c. 57, s. 10.

(k) In Decretal. I. 5, t. 3, c. 42.
(1) The proportion given to the
priest and to other pious uses, was dif-

ferent in different countries. In the archdeaconry of Richmond in Yorkshire, this 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.

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 *dependents: and therefore the statute 31 Edw. III. c. 11, provides, 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 whichever he pleases.

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As to who may

or may not

make a will.

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.

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 (9). 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 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 four years old) might make a testament (q), and others

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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 fourteen or four-and-twenty, that will overthrow his testament. Madmen, or otherwise non compotes (10), idiots or natural Lunatics, &c. (r) Co. Litt. 89.

(10) According to Swinburne, (pt. 2, sect. 3), every person is presumed to be of perfect mind and memory, unless the contrary be proved. (See White v. Wilson, 13 Ves. 89). And, therefore, if any person go about to impugn a testament, by reason of the testator's insanity, he must prove that impediment. It is sufficient, however, (speak ing generally), for the party who pleads the insanity of the testator's mind, to prove that he was beside himself before the making of the testament; although he do not prove the testator's madness at the very time of making such testa ment; for, it being proved that the testator was once mad, the law presumeth him to continue still in that state, unless the contrary be proved. With this qualification (as laid down by Swinburne), that if a testator were beside himself but for a short time, and in some peculiar actions, having fallen into some frenzy upon some accidental cause, which cause is afterwards taken away, or it be a long time since the testator was assaulted with such mala

dy;-in these cases, the testator is not presumed to continue in his former furor, or frenzy. And, if the depositions on the subject be contradictory, (and equally balanced), that testimony is to be preferred which tends to favour the validity of the party's testament. Another observation, made by Swinburne, is, that if a lunatic, or one who is beside himself at some times, but not continually, make his testament, and it is not known whether the same were made whilst he was of sound mind and memory, or no; then, in case the testament be so conceived that no argument of frenzy or folly can thence be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions; and so the testament shall be adjudged good. Yea, though it cannot be proved that the testator used to have any clear and quiet intermissions at all, yet, nevertheless, if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament. But, if in the testament there

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)."

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

be a mixture of wisdom and folly, it is to be presumed that the same was made during the testator's frenzy; insomuch that, if there be but one word sounding to folly, it is presumed that the testator was not of sound mind when he made the same. And, therefore, in this case, the testament is void; unless it can be proved that there was an intermission of furor at that time.

The whole of this doctrine, as to lucid intervals, was most explicitly adopted by Sir Wm. Wynne, in the case of Cartwright v. Cartwright, (1 Phillim. 100). The distinguished judge just named said, "I think the strongest and best proof that can arise as to a lucid interval, is that which arises from the act itself; that I look upon as the thing to be first examined, and if it can be established that it is a rational act, rationally done, the whole case is proved. If you shew that the party did what is a rational aet, and that it was his own act entirely, nothing is left to presumption in order to prove a lucid interval: but, unquestionably there must be complete and absolute proof that the party did the act (of which the validity is in question) without any assistance. If the party has not only formed a proper plan, as to making a testamentary disposition, but has pursued that plan and carried it into execution with propriety and without assistance, that is sufficient ground for pronouncing it to be a legal will." So, Sir John Nicholl, (in White v. Driver, 1 Phillim. 88), after declaring how strongly he was impressed with the necessity of observing great caution in examining the proof of a lucid inter

val, adds, "but the law recognizes acts done during such an interval as valid, and the law must not be defeated by any overstrained demands of the proof of the fact." And, in the case cited, a will was established, which was made by a testatrix proved to have been subject to insanity for several years preceding her death, and that proof brought down to the time of four days only prior to her death. But it did not appear that the disorder was uniform: and Sir John Nicholl pronounced for the validity of the will, considering the disposition itself to be neither insane nor unnatural, though the testatrix totally excluded her own sisters, giving two thirds of her property to the children of a deceased brother, and the remaining third to his widow and her second husband.

In the case of Hall v. Warren, (9 Ves. 610), Sir William Grant stated it as clear law, that, "all acts done during a lucid interval are to be considered as done by a person perfectly capable of contracting, managing, and disposing of his affairs at that period. This has most frequently occurred upon wills. A multitude of questions has been raised upon the execution of a will during a lucid interval; and that being proved, the will has been held valid and effectual to all intents and purposes for the conveyance of real and personal estate, as if the testator had never been deranged. In one case, the manner in which the will was written and executed went a great way towards shewing it was in a lucid interval: the mode of the act being part of the evidence of the testator's sanity. However, when general lunacy is established, it is neces

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