CHAPTER I.

OF THE EARLIER RULES IN THE LAW OF SUCCESSION IN PERSONAL ESTATE IN ENGLAND AND IN SCOTLAND.

BEFORE proceeding to consider the state of the law as it now is upon the subject of succession in personal estate, it is not unimportant to see how it stood in more remote times. The chief object of entering into this inquiry is to endeavour to discover, whether or not there was, at that period, a coincidence between the laws of the two countries in regard to personal succession.

SECT. I.

Early Rules of Succession in the Law of England.

THE power of bequeathing personal property by a will or testament, appears to be coeval in England with the first rudiments of the common law. (e)

We find it stated in Glanvil, in the reign of Henry II., that every free man, not being involved in great debts, might make a will of his personal estate; but under certain regulations:-" Quod dominum suum primo de me"liore, et principaliore re quam habet, recognoscat; deinde "Ecclesiam; postea vero alias personas pro voluntate “sua.” (ƒ) In a subsequent part of the same chapter it is laid down, that a wife and children were entitled to certain parts of the personal estate, of which they could not be de

(e) Co. Litt. 111., and note (1) by Hargrave. 2 Bla. Com. 491. (f) Glanvil, lib. 7. c. 5.

prived by will. Upon this subject Glanvil says, "Cum quis " in infirmitate positus testamentum facere voluerit, si de"bitis non sit involutus, tunc omnes res ejus mobiles in "tres partes dividentur æquales, quarum una debet hæredi; ❝ secunda uxori; tertia vero ipsi reservatur. De qua tertia "liberam habebit disponendi facultatem. Verum si sine "uxore decesserit, medietas ipsi reservatur." (g)

In the Great Charter of King John, it is laid down in regard to the tenant of a lay fee holden of the Crown, that in case of his death none of his chattels were to be removed till his debts to the crown were paid; it is added, “ et re"siduum relinquatur executoribus ad faciendum testa"mentum defuncti ; et si nihil nobis debeatur ab ipso, " omnia catalla cedant defuncto, salvis uxori ipsius et "pueris rationabilibus partibus suis." (h)

In the immediately subsequent chapter of the same Charter, there is this regulation in regard to the intestacy of a free man:-"Si aliquis liber homo intestatus deces“serit, catalla sua per manus propinquorum parentum et "amicorum suorum, per visum ecclesiæ, distribuantur, salvis "unicuique debitis quæ defunctus ei debebat.” (¿)

Again, in the Great Charters of the 1st and 9th of Henry III., the provision in regard to the deceasing tenant of a lay fee holden of the Crown, is adopted in the same words as in the Charter of John. (k) But the equitable pro

(g) Glanvil, lib. 7. c. 5.

(h) Magna Carta Joannis, c. 26.

(i) Ibid. c. 27. (k) Great Charter, 1 Henry III. c. 20. Magna Carta, 9 Henry III. c. 18. In another great charter of Henry III. granted in 1217, as printed by the commissioners of the public records, there is a difference of expression from that in the other two charters of the same king, in the head referred to. The words in that charter are, "Salvis "uxori ipsius rationabilibus partibus suis :"- The words "et pueris” are omitted, apparently from mistake, as they are necessary to the sense of the passage.

vision in regard to the succession of a free man in case of intestacy, contained in that Charter, is not stated in either of the Charters of Henry.

Bracton, who wrote in the reign of the last-mentioned king, gives it as the general law of the realm of England, that after debts and other necessary charges were deducted, the whole residue of the personal estate of a person deceased should be divided into three parts, of which the children, if there were any, should have one part; the wife, if she survived, another part; and that the third part should be at the disposal of the deceased. If there were no children, one moiety went to the deceased, the other was reserved to the wife; if no wife, but only children survived, then the deceased was to have one moiety, and the children were to have the other; if a person died without wife or children, the whole was at the disposal of the deceased. (7)

In the time of Bracton also, in making a will, it was necessary for the testator to acknowledge his lord "de "meliori re quam habuerit, et postea ecclesiam de alia me"liori." He might then bequeath his effects (as far as they were at his disposal by will) to his relations, and to such other persons as he should see best.

The same rules are given by the author of Fleta, almost in the same words; and he says, as Bracton had said before, that this was the law, unless there were any local custom to the contrary. (m)

Thus, the common law of England, regulated by the Great Charters of John and of Henry III., appears to have been, that a widow and children (where such existed) were entitled in their own right to certain parts of the personal estate, and that the father had only the power of disposing

(1) Bracton, lib. 2. 60, 61.

(m) Fleta, lib. 2. c. 57.

by will of that portion of it which was not affected by the rights of his wife and children. (n)

But these lay authorities alone do not give a clear view of what were then the rules of the law of England, in regard to personal succession. At this period, all questions relating to wills and testaments, and to the disposition of the personal estates of intestates, had become matter of ecclesiastical jurisdiction in England. Formerly the jurisdiction, in matters of this kind, appears to have been part of the royal prerogative; and it was granted as a franchise to many lords of manors and others, some of whom, to this day, have a prescriptive right to the granting of probates of wills, and administrations of the estates of intestates, in their own courts baron, or other courts. (0)

But it was chiefly conferred upon, or assumed by, the bishops, in their respective dioceses, who were thence termed the ordinaries, as if the other judges were in this behalf incompetent or extraordinary. (p)

In that system of laws, which had been compiled, and promulgated to the western Christian world, under the influence of successive Popes, and which was known under the title of the Canon Law, all matters regarding personal succession were specially regulated. In England the authority of this body of laws, however, was at all times much restricted. Coke lays it down as a conclusion, and for this he cites the authority of Glanvil, that no foreign

(n) Sir Edward Coke, I am aware, states that this reasonable partition never was a rule of the common law (2 Inst. on Magna Carta, p. 32.); but all the early authorities as quoted above are against him; and Blackstone has no doubt upon this subject: he shows that Sir Edward Coke had misapprehended the meaning of a passage in Bracton. (2 Bla. Com. 493.)

(0) 2 Bla. Com. 494. Report to His Majesty of the Commissioners on Ecclesiastical Courts, 1832, p. 24.

(p) Swinburne, 684.

canon or constitution made by authority of the Popes, was binding in England, if it was contra jus et consuetudinem Angliæ. (q)

We have, therefore, to look for the actual state of the law, less to the general rules of the canon law, upon this subject, than to those particular rules which were made by ecclesiastical persons of competent authority in England at this period. (r)

In the legatine Constitutions of Otho and Othobon, made in the English national councils, in the thirteenth century (s); and in the Constitutions of the archbishops of Canterbury, made in their provincial synods, as collected by Lyndwood (t), we see in contemporary authorities many of those canons of the ecclesiastical law in regard to personal succession, which prevailed in England in those days. The clergy not only laid down rules which were to be binding in all matters in regard to the probates of wills,

(q) 2 Inst. (on the Statute of Merton) 97.

(r) Blackstone, in his Commentaries, notices a gloss of Pope Innocent IV. (in Decretal. lib. 5. t. 3. c. 42.), as laying it down [for established canon law, about the middle of the 13th century, that in Britain a third part of the goods of intestates was to be dispensed for the use of the church and of the poor. Though the name of Blackstone is never to be mentioned but with respect, it is proper to state, that the words of this gloss are not very correctly given by him. Innocent, alluding to customs in various places, which, if existing, were to be enforced, says, "ut sicut in Venetüs solvitur in morte decima mobilium, “ in Britannia tertia, in opus ecclesiæ et pauperum dispensanda." But he does not apply this to cases of intestacy only, but to a case of death. Such a rule is not alluded to in any of the English constitutions that I have seen.

(s) Constitutiones legatinæ D. Othonis et D. Othoboni Cardinalium, &c. Cum annotat. Joannis de Athon. Oxon. 1679. Othobon was afterwards Pope, by the name of Adrian V.

(t) Lyndwood's Provinciale, Oxon. 1679. These were constitutions of the province of Canterbury, but were received by the province of York, in convocation, in the year 1463. (1 Burn's Eccles. Law, 'pref,