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be the general law of our sister kingdom of Scotland. 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 antient
method continued in use in the province of York, the princi-
pality 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 sta-
tutes have been provided; the one 4 W. & M. c. 2. explained
by 2&3 Ann. c. 5. for the province of York; (1) 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 abo-
lished 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 chap-
ter 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 as [ 494 ] were testable, whether that were only part or the whole of

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(1) The statute of W. & M. excepted from its operation the city of Chester as well as York, and the statute of Anne only repeals the exception in respect of York; upon which it is observed, that the custom still prevails as to the former city. Co. Litt. 176. b. n. 5. H. & B's ed. I am not able to state whether Chester has any local custom in this respect, without reference to its being part of the province of York; if not, as it is within the archdeaconry of the same name, which until the 33 of H. 8. formed part of the diocese of Litchfield and Coventry within the province of Canterbury, the exception in the statute of W. & M. seems to have been unnecessary in the first instance, and to have been inserted owing to the framers of the statute not adverting to the time, when it became part of the province of York.

495 ]

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 patriæ, and general trustee of the kingdom. 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. Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative: which was done, saith Perkins, 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 seise 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 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 . 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". But even in Fleta's time it

9 Rep. 38.

a Ibid. 37.

e § 486.

f Finch. Law. 173, 174.
Plowd. 277.

h Ibid.

66

66

was complained', "quod ordinarii, hujusmodi bona nomine "ecclesiae occupantes, nullam vel saltem indebitam faciunt dis"tributionem." And to what a length of iniquity this abuse was carried most evidently appears from a gloss of pope Innocent IV., written about the year 1250; wherein he lays it down for established canon law, that "in Britannia tertia pars bonorum decedentium ab intestato in opus ecclesiae et pauperum dispensanda est." Thus the popish clergy took to themselves' (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.TM, 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. (2) 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 of [496 ] 31 Edw. III. st. 1. 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

i l. 2. c. 57. § 10.

* in Decretal. 1. 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 propor

tion 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 IS Edw. I. c. 19.

(2) In Snelling's case, 5 Rep. 85. it was resolved that this statute was but in affirmance of the common law, and that the ordinary was equally bound before it passed.

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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" 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.

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.

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I PROCEED now, secondly, to enquire who may, or may not, make a testament; or what persons are absolutely obliged by law to die intestate. And this law 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 [497] 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

a 9 Rep. 39.

Godolph. Orph. Leg. p. 1. c. 7.

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 (3) years old) might make a testament, and others have
denied that under eighteen he is capable', yet as the eccle-
siastical 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. Mad-
men, or otherwise non compotes, idiots or natural fools, per-
sons grown childish by reason of old age or distemper, such
as have their senses besotted with drunkenness all these
are incapable, by reason of mental disability, to make any will,
so long as such disability lasts.
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 un-
derstanding, are incapable of having animum testandi, and
their testaments are therefore void.

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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. 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 persons 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. But with us a mar- [ 498 ] ried 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 licence of her husband. For all her per

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(3) This has been supposed to be merely an error of the press in Perkins, and that iiii was printed for xiiii. See Co. Litt. 89. n. 6.

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