[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] long enjoyed [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 (s). Afterwards the Crown, in favour of the Church, invested the prelates with this branch of the prerogative; which was done, saith Perkins (t), because it was intended by the law, that spiritual men are of better conscience than lay men, 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 by the Crown to the ordinary;] that is, to the ordinary ecclesiastical judge of the place; who was (generally speaking) the bishop of the diocese (u); [and he might seize them, and keep them without wasting, and also might give, alien, 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 (x). 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 (y).] And, as he had thus the administration of the effects of intestates, a jurisdiction in the matter of wills, also, of course (s) Hensloe's case, 9 Rep. 37 b. (t) S. 486. (u) The ordinary (ordinarius) is a name taken from the Canonists, and applied to a bishop or any other that hath ordinary jurisdiction in matters ecclesiastical. He is so called "quia habet ordinariam jurisdictionem, in jure proprio, et non per deputationem." Co. Litt. 96 a. It is to be observed, that though the bishop or other ordi- 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to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby.] To revert, however, to administrations, [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 (z). But even in Fleta's time it was complained (a), “quod ordinarii, hujusmodi 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 the fourth (b), written about the year 1250; wherein he lays it down for established canon law, that "in Britanniâ tertia pars bonorum descendentium ab intestato in opus ecclesiæ et pauperum dispensanda est." Thus, the popish clergy took to themselves (c) (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 Westminster the second (d), that the ordinary should 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 intrusted with ordinaries. But though they were now made liable to the creditors of the intestate for their just and lawful demands; (z) Plowd. 277. (a) L. ii. c. 57, s. 10. (b) In Decretal. 1. v. t. 3, c. 42. (c) The proportion given to the priest and to other pious uses, was different in different places. In the archdeaconry of Richmond in York shire, this proportion was settled by a papal bull, A. D. 1254 (Regist. Honoris de Richm. 101), and was observed till abolished by the statute 26 Hen. 8, c. 15. (d) 13 Edw. 1, c. 19; vide Snelling's case, 5 Rep. 83 a. [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 own immediate dependents: and therefore the statute of 31 Edw. III. c. 11, provided, that in case of intestacy, the ordinary should depute the nearest and most lawful friends of the deceased to administer his goods; which administrators were put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This was the original of administrators, as they were afterwards called, who were only the officers of the ordinary, appointed by him in pursuance of this statute, which singled out the next and most lawful friend of the intestate; who was interpreted (e) to be the next of blood that was under no legal disabilities. The statute 21 Henry VIII. c. 5, however, enlarged a little more the power of the ecclesiastical judge; and permitted 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, gave the ordinary his election to accept whichever he pleased.] Upon this footing stood the general law of wills and administrations, from a period at least as early as the commencement of the twelfth century, up to the year 1857 (ƒ); the spiritual jurisdiction with respect to them having been noticed by Blackstone as [a peculiar constitution of this island; as in almost all others, even popish, countries, they were under the jurisdiction of the civil magistrate (g).] But in our own times this constitution has been viewed with great disfavour, the opinion having gradually obtained that the subjects in question were not handled by the (e) 9 Rep. 39. (f) 3 Bl. Com. 97, vide post, bk. V. C. XIII. (g) 3 Bl. Com. 95. ecclesiastical courts as effectively, expeditiously, and cheaply as the interests of justice required; and this opinion has now at length led to the introduction, by act of parliament, of a new system, transferring the jurisdiction which these courts had for eight centuries enjoyed over wills and intestacies, to a court of an entirely new construction. By 20 & 21 Vict. c. 77 (g) this jurisdiction is hereafter to be exercised in the "Court of Probate" thereby created,-to be held before a single judge described as the "Judge of the Court of Probate," at such place in London or Middlesex as her Majesty in council may appoint (h); with an appeal from such judge to the House of Lords (i). But in general, and except as otherwise provided by this Act, it is to be understood that the same powers and duties, and the same practice, are to belong to the new court, as had antecedently belonged to the principal court for wills and administrations; viz., the Prerogative Court of the Archbishop of Canterbury (j). II. We shall now address ourselves to our second head of inquiry, namely, the manner and requisites of wills, considered as dispositions of personal estate. Under this head we propose to consider, 1. The capacity of persons to be testators: as to which the rule is, that all persons are capable, unless made otherwise by the special exception of the law (k); and of these exceptions it may be said, in general, that they apply to all persons who labour under any unsoundness of mind, or are restrained of their freedom of will by duress; the law in this particular being the same as before laid down in regard to the alienation of personalty in general (1). (g) This Act is to come into operation on such day, (not sooner than 1 Jan. 1858,) as Her Majesty shall by Order in Council, (to be made at least one month previously,) appoint. (Sect. 1.) (h) Sects. 4, 5. (i) Sect. 39. (j) Sects. 23, 29. (2) Vide sup. vol. 1. p. 474. Blackstone also mentions conviction of treason or felony as a ground of incompetency. But this occasions no incompetency or incapacity, though it is a cause of forfeiture of goods. Married women are also incompetent by reason of coverture; in which our law differs materially from the civil (m). For [among the Romans, there was no distinction. A married woman was as capable of bequeathing as a feme sole (n). But with us, a married woman is not only utterly incapable of devising lands] (unless in execution of a power expressly conferred on her for the purpose), [but also she is incapable of making a testament of chattels, without the licence 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 (o).] So, if a feme sole makes her will, and afterwards marries, such marriage is a revocation, in law, of the will (p). [Yet by her husband's licence she may make a testament (q);] or more properly by his assent ; for unless he sanctions the particular will in question, his previous licence to make one will not avail (r). And such assent amounts to no more than a waiver of his general right of administering his wife's effects, so that it will not be effectual unless he happens to survive her, for in that case only could he have been her administrator (s). The general rule as to the incapacity of married women is subject, however, to exception in the case of the queen consort, for [she may dispose of her chattels by will, without the consent of her lord (t): and any feme covert may make her will of goods which are in her possession in autre droit, as executrix or administratrix; for these can never be the property of her husband (u).] No civil incapacity arises except upon attainder. (Vide post, bk. vi. c. XXIII.) (m) 2 Bl. Com. 497. (n) Ff. 31, 1. 77. (0) 4 Rep. 51. (p) 7 Will. 4 & 1 Vict. c. 26, ss. 18, 19, vide sup. vol. 1. p. 595,599. (q) Dr. & St. d. 1, c. 7. And she may also freely (r) See Bro. Abr. Devise, 34; Str. 891; Henley v. Phillips, 2 Atk. 49; Bransby v. Haines, Lee's Rep. 120; Tucker v. Inman, 4 Man. & G. 1076. (s) Stevens v. Bagwell, 15 Ves. 153. (t) Co. Litt. 133. |
