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CHAP. II.

OF THE CHANGES IN THE LAW OF SUCCESSION INTRODUCED INTO THE LAW OF ENGLAND, BY LAPSE OF TIME, AND BY STATUTE.

It is matter for observation, that though the rules of the common law in England were of a general nature in regard to the division of personal estate into the dead's part and the partes rationabiles of the wife and children, as laid down in Glanvil and other writers from a very early period, yet there appear to have then existed customs of a different kind in some parts of England. After laying down the general rule of law as already stated, Bracton says, "Et ea quæ dicta sunt locum habent et tenent nisi sit consuetudo "quæ se habet in contrarium, sicut in civitatibus, burgis, "et villis ;" and then he goes on to cite the custom of the city of London in regard to dower, as controlling the general rules of law in this matter (a): and the same thing appears in Fleta in the same words. (b)

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There is a good deal of obscurity in regard to the introduction of that important change into the law of England, which converted the law of reasonable partition into a custom of particular parts of the kingdom, instead of being one of general observance. This change appears to have been made silently, and by lapse of time, without any statute or general regulation to this effect.

Some brief notices appear upon this subject in the Natura Brevium of Fitzherbert. (c) He mentions that the writ de rationabile parte bonorum, by the statute of Magna

(a) Bracton, 61.

(b) Fleta, lib. 2. c. 57. (c) Fitzherbert, N. B. 122. ed. 1794.

Carta, seemed to be the common law of the realm, and that the same so appeared in Glanvil. In 31 Edward III. a woman demanded the moiety of her husband's goods because he had no children, and counted upon the general custom of the realm. This was adjudged to be good. But in after times, and by degrees, it became the practice to count for the same upon the special customs of particular places.

Accordingly in the Register the writs of partition rehearse only the customs of particular counties, and not the general law. (d) Any more minute enquiry into this subject would be more curious than profitable. In the lapse of time it came to be well understood that the law de rationabile parte bonorum had ceased to obtain in the greater part of the province of Canterbury, where a person might grant or dispose of his whole personal estate by will. But it still continued in some parts of the principality of Wales, in the province of York, and in the city of London, mixed up, in these districts and places, with various local differences and regulations.

Thus England, in regard to personal succession, became divided between the general and the customary law. This division appears to have existed during several centuries, while personal estate was of less importance, without attracting observation in regard to its manifest inconvenience. The distinctions between the general and the customary law still remain in full force, though both have been modified by the statutes to be afterwards mentioned.

While this very important change was silently taking place in the common law of England, several other

(d) Even as late as the reign of Charles I., Sir Henry Finch lays down the law of the rationabiles partes as the common law of the land. Finch's Law, 175.

important changes were also introduced by statutes passed from time to time. The first of them was made by the statute of Westminster the second in 1285. (e) It had by this time, probably, become intolerable, that the goods of a person dying intestate, should be seized by the ordinary, and disposed of as he saw fit, without being subject to the payment of the debts of the deceased.

It was therefore thus laid down in this statute: "Cum post mortem alicujus decedentis intestati, et obligati aliquibus in debito, bona deveniant ad ordinarius disponenda, obligeter de cætero ordinarius ad respondendum de debitis quatenus bona defuncti sufficiunt, eodem modo quo executores hujusmodi respondere tenerentur si testamentum fecisset.”

Sir Edward Coke observes upon this statute, that it was made in affirmance of the common law (ƒ); and it has been seen that an equitable provision to the same effect had been contained in the Great Charter of John. In the turbulent period which had intervened, this had probably been lost sight of.

In the 31st of Edward III. two acts were passed of great importance in regard to the law of succession in England. The first of them was for "redressing of extortion in bishop's officers in proving of wills." (g)

In this statute, on the recital, that, "the ministers of bishops, and other ordinaries of holy church, take of the people grievous and outrageous fine for the probate of testaments, and for the making of acquittances thereof, the King hath charged the Archbishop of Canterbury, and the other bishops, that they cause the same to be amended; and if they do not, it is accorded that the King shall cause to be enquired by his justices of such oppressions and extortions, to hear them

(e) 13 Edward 1. c. 19.

(f) 2 Instit. 397.

and determine them, as well at the King's suit, as at the suit of the party, as in old time hath been used."

The next statute which was then passed was very remarkable, being that which first introduced administrations and administrators into the law of England; it is in these

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“Item, It is acorded and assented, that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to administer his goods; which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the King's Court, for to administer and dispend for the soul of the dead; and shall answer also in the King's Court to other to whom the said dead person was holden and bound, in the same manner as executors shall answer. And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past, as the time to come.”

Thus the powers which the ordinaries had before exercised by themselves or their own officers, were now to be deputed to the next and most lawful friends of the deceased. This must, at that period, have been an improvement of great importance. The ordinaries, from their high rank and sacred character, must have been exempt from suits (i): it appears, also, from several of the legatine and provincial constitutions, that the extortions were committed more by the officers of ordinaries, than by the ordinaries themselves.

After this period, and for a considerable while downward, the persons deputed by the ordinary were termed executors and executors dative (k); but the word administer having appeared first in this statute, the persons so ap

(h) 31 Edw. 3. c. 11.

(i) Plowden, supra, p. 12.

(k) Snelling's case, 5 Rep. Swinburne, p. 684.

pointed were afterwards termed administrators, to distinguish them from the executors of a testament; and this description has now, and for several centuries, been in universal use.

In the reign of Henry V. an act was made (1), again taking notice of the oppressive fees exacted for proving of wills, and it was ordained, that ordinaries should take no more for proving of testaments with their inventories, than was taken in the time of Edward III.; but this act was only to last for a year, and was not renewed.

Matters remained upon this footing till the act was made in the reign of Henry VIII. (m), as well in regard to the expenses of probates and of letters of administration, as for regulating, in all future cases, to whom letters of administration, in cases of intestacy, should be granted.

This act recites the before-mentioned statutes of the 31st of Edward III. and 3d of Henry V., in regard to the expenses of probates, and the oppressions and exactions practised in regard to the same, and "that the said unlawful exactions of the said ordinaries and their ministers be nothing reformed nor amended, but greatly augmented and increased, against right and justice, and to the great impoverishing of the king's subjects." - The act therefore proceeds to lay down rules in regard to the fees of probates and administrations, which were to be observed from the 1st of April, 1536, in time coming.

But the most important part of this statute is that which relates to the parties, to whom administration was to be granted, in case of intestacy. Before this period, at common law, no person had a right to obtain administration of the goods and effects of a party deceased; but it

(1) 3 Hen. 5. c. 8.

(m) 21 Hen. 8. c.5.

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