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CHAPTER VII.

OF TITLE BY WILL AND BY ADMINISTRATION.

We now proceed to consider the two methods of acquiring property by will and by administration ; and these we shall consider in one and the same chapter, they being in their nature sufficiently connected for this purpose.

When considering the law of devises with reference to real estate, our attention was directed to the subject of wills or testaments; and we were led on that occasion to expound the nature and origin of testamentary dispositions in general, and to notice a variety of matters respecting wills which it may be material to recall thus generally to the reader's recollection, but which it is not necessary to repeat (a). Our present object is to treat exclusively of a will or of an administration considered as a method of acquiring title to personal estate, including chattels real, which subject until recently belonged (by an anomaly peculiar to our law) to the jurisdiction of the Ecclesiastical Courts, but has been now transferred to the Probate Division of the High Court of Justice, the successor of the Court of Probate, a new secular court established by the Court of Probate Act, 1857.

It is proposed, first, To trace the history of the title to personal estate by will and by administration ; secondly, To show the manner of making a will, and its requisites, when considered as a disposition of personal estate ; thirdly, To show the manner of granting an administration ; and, lastly, To select some few of the general heads appertaining to the office and duty of executors and administrators.

(a) Pide supra, bk. II., pt. I., ch. xx.

I. [Though wills operating on personalty have been of immemorial use in England, it is to be understood that this

power of bequeathing did not extend originally to all a man's personal estate. On the contrary, Glanville informs us that, by the law as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal parts ; of which one went to his lineal descendants, another to his wife, and the third only was at his own disposal. Or, if he died without a wife, he might then have disposed of one moiety, and the other moiety went to his children. And so è converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other. But if (and only if) he died without either wife or issue, the whole was at his own disposal (b). The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them (c).

This continued to be the law of the land at the time of Magna Carta (il) ; which provided that the king's debts should first of all be levied, and then that the residue of the goods should go to the executor to perform the will of the deceased, saving to the widow and children their reasonable parts,—“ salvis uxori ipsius et pueris suis rationabilibus partibus suis (e). 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 ( 1 ), though frequently pleaded as the local custom of Berks, Devon, and other counties (9) ; and Bracton lays down the doctrine of the “ reasonable part” to be the common law, in a passage which appears to have been misunderstood by Sir Edward Coke (h). Also Glanville, Magna Carta, Fleta, the Year

(b) L. 7, ch. 5; Bracton, 1. i. ch, 26; Flet. 1, ji. ch. 57.

(c) F. N. B. 122.
(dl) See cap. 26 (ed. Stubbs).
(e) Ibid.

(f) M. 30 Edw. 3, 25 ; H. 17 Edw. 3, 9.

(9) Reg. Brev. 142; Co. Litt. 176.

(h) L. ii. ch. 26, s. 2; 2 Inst. 33.

[Books, and Fitzherbert, do all agree with Bracton, that this right to the pars rationabilis was by the common law; and in the reign of Charles the First, Sir Henry Finch lays it down, expressly, to be the general law of the land (i). The like law appears to have obtained (and still to obtain) in the law of Scotland, the widow's share being there called her jus relicta, and the children's share their legitim (k), upon an apparent analogy to the quarta legitima of the Roman law (1).

But in England the common law in this particular has been now completely altered, although by imperceptible degrees ; and a man may now bequeath, and for a long time has been able to bequeath, the whole of his goods and chattels to whomsoever he will. The restricted power of bequest continued, however, in the province of York, the principality of Wales, and the city of London, until quite modern times ; but was eventually abolished, by the 4 W. & M. (1692) c. 2, (explained by the 2 & 3 Anne (1703), c. 5), for the province of York ; by the 7 & 8 Will. III. (1696) 6. 38, for the principality of Wales ; and by the 11 Geo. I. (1724) c. 18, for the city of London, these several statutes having successively enacted, that persons within those districts, and liable to their customs, might (if they thought proper) dispose of all their personal estates by will, whereby the claims of the widow, children, and other relations to the contrary were totally barred. However, even after this uniformity was introduced, every testator was bound (or at least was, by the custom of places, originally bound) to remember his lord and church, by leaving to them respectively his two best chattels, which was the original of heriots, and of mortuaries ; and then (and then only) he was left free to bequeath the remainder as he pleased.

many

(?) Inst. l. ii. t. 18, De Inoffi. cioso Testamento.

(i) Finch, Discourse, 175.

(k) Dalrymple, Feudal Property, 145; Ersk. Inst. b. iü. tr. 9,

[Where a man made no disposition of such of his goods as were testable, he was said to die intestate ; and in such case, it is said, that, by the old law, the king, as parens putrie, was entitled to seize upon his goods (m). This prerogative the king continued to exercise for some time through his ministers of justice ; but more commonly, he granted the franchise to lords of manors and others, who accordingly long enjoyed a prescriptive right to grant administration to their intestate suitors, in their own courts baron and other courts ; or to have the wills of such suitors there proved, in case they made testamentary dispositions (n). Afterwards the Crown, in favour of the church, invested divers prelates with this branch of his prerogative, which was done, saith Perkins, because it was intended by the law, that spiritual men were 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 (0). The goods, therefore, of intestates were in this manner given to the ordinary, that is, to the ordinary ecclesiastical judge of the place ; who was (generally speaking) the bishop of the diocese. And he might seize the goods, and keep them without wasting, and might also give, aliene, or sell them at his will, and dispose of the money in pios usus ; but, if he did otherwise, he broke the confidence which the law reposed in him (p). So that, properly, the whole interest and power thus given or granted to the ordinary, was but that 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 uses as the zeal of the times denominated pious (q). And, as the ordinary had thus the administration of the effects of intestates, a jurisdiction in the matter of wills, also, 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 the dead man's chattels was superseded thereby.

(m) Henslot's Case (1600), 9 Rep. 38.

(11) Ibid. 37 b.

(0) S. 486.
(p) Finch, Discourse, 173, 174.
(9) Plowd. 277.

The goods of the intestate being thus vested in the ordinary, the prelates were originally accountable only to God and to themselves (»). This led to abuse eren in Fleta's time (s) ; and the abuse appears to have been carried to a great length (t), so much so that the clergy in fact appropriated to themselves (under the name of the church and the poor) the whole residue of the deceased's estate, after the partes rationabiles of the wife and children, without paying the lawful debts of the deceased at all. For which reason it was enacted, by the statute of Westminster the Second (u), that the ordinary should be bound to pay the debts of the intestate, so far as his goods extended, in the same manner that executors were bound in case the deceased had left a will. But inasmuch as, after that statute, the residuum, after payment of the debts, still remained in the hands of the priests, to be applied to whatever purposes the conscience of the ordinary approved, therefore the legislature again interposed, to prevent the ordinaries from keeping administrations in their own hands, or in those of their dependents; and by the 31 Edw. III. (1357) c. 11, the ordinary was required, in case of intestacy, to depute the nearest and most lawful friends of the deceased to administer his goods. And these administrators were put upon the same footing, with regard to suits and to accounting, as executors appointed by will ; and that was the original of administrators, who were formerly but the officers of the ordinary, appointed by him in pursuance of this statute.

The 31 Edw. III. c. 11, as will have been observed, singled out the next and most lawful friends of the intestate ; and these were interpreted to be the next of blood under no legal disabilities (.x). But afterwards the

19;

(r) Plowd. 277.
(8) L. ii. ch. 57, S. 10.
(1) Decretal, I, v. t. 3, ch. 42.

(u) 13 Edw. 1 (1285), c. Snelling's Case (1595), 5 Rep. 83 a.

(x) Hensloe's Case (1600), 9 Rep. 39.

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