Page images

ing, or where he or she hath been resident for the space of ten days, or more, next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling.

20. And be it further enacted, that after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said tesmony, or the substance thereof, were committed to writing, within six days after the making of the said will.

21. And be it-further enacted, that no letter testamentary, or probate of any nuncupative will, shall pass the seal of any court, till fourteen days at the least after the decease of the testator be fully expired. 2. Nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same, if they please.

22. And be it further enacted, that no will, in writing, concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered or charged by any words, or will, by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof, read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least.

• [ 289 ] '23. Provided always, that notwithstanding this act, any soldier, being in actual military service, or any mariner or seaman being at sea, may dispose of his moveables, wages, and personal estate, as he or they might have done before the making of this act.

Execution of Wills.

A short ac- IT has been before observed, that the authorised and direct

count of the means of disposition by will, of immoveable property, was a very progress of „ . ... - , ,

the testa- late fruit of the growing policy of our ancestors. Land was by

mentary slow (wrms rendered alienable, inter vivos, in gradual superpower. °

viency to the spreading wants of mankind, assisted by the multiplication of a circulating medium of universal valuation; but alienations to take effect after death, not being influenced by the same causes, would naturally take place at a later stage in the progress of society; not to mention, too, that after the hand that held and maintained the - possession was withdrawn, an acquiescence in this posthumous controul, implies a conception of the sacredness of property, and a state of order and security, not very common in the beginnings of nations.( 112) Accordingly, it appears doubtful whether, among the Romans, before the introduction of the laws of the Twelve Tables, or among the Athenians before the legislation of Solon, the direct testamentary disposition even of moveables was established; and we are *told by "[ 290] Tacitus, of the Germans, at the time of his writing concerning them, that the children succeeded to the possessions of the parent, and that he had no power to alienate them by his will. If he had no children, the next steps in the order of inheritance and succession were the patrea /iairui avunculi.^ 113)

(112) Omnino rationi naturali repugnat, alicui jus esse statuendi de rebus suis ita, ut voluntas post mortem valere incipiat; ubi jam vclle desiit et mors omnia solvit. Hert. Elem. Polit. pars 2, sect. 11, § 53. Vid. Vinn. Comm. tit. de test, ordin.

(113) Tacit, de Mor. Germ. c. 20.—The succession to the heirs of the Progress of

bodv, and in case of the defect of such representatives, to the next in thclrrtawei*

u factio in

proximity of blood, if not a law of nature, seems so to correspond with ^e Homara its dictates, that history hardly carries us bark to a time when the no- jurisprution and admission of this claim did not prevail among mankind. The dence. suggestions of a common feeling appear, therefore, to have made this an universal rule of transmission, and to have established it in communities widely separated by time and space. Thus the representation in the channel of blood and proximity seems to have its foundation higher than any positive institutions, though to positive institutions we must of course refer the modification) of this rule of succession; which, indeed, has been so variously ordered, that no two nations exactly resemble each other in their institutions regarding it. That the right of controuling this succession by the private will of the possessor, was the product of an improved period of legislation, there is much concurrent testimony to show. Till the legislation of Solon, the Athenians did not possess this privilege, as it appears from many authorities, particularly ficm Plutaich, in his life of Sol n, page 196, edit. Bryan, and the orations of Isxus, especially de Phittcttmonit Heredi

*If the power of disposing of land by will was exercised by our t [ 292 ] Anglo-Saxon ancestors, it seems much less likely that itlori^inated with themselves, than that they adopted it from those laws

tate; nor, according to Selden, de Success, de ban. Hear. c. 24, did it exist among the ancient Jews; nor, as we learn from Tacitus, de Mor. Germ. c. 20, among. the Germans in his day ; and the tenderness which continued to prevail among. the Romans for the legal heir, is strongly displayed in their provisions by the laws t'uria, Vocenia, and Falci.Ha, and more pointedly, perhaps, by their remedy of querela inofficiusi testamenti, whercer a will was made against the order of natural affection, without reasonable cause. With respect to the question how far the right of disposition by will existed among the Romans, before the laws of the Twelve Tables, there seems to be much variety of opinion. The text of Justinian propounds the order in which the form of the testamentiJ'actio proceeded, which the student will consult, with pleasure, in the Commentary of Vinnius, edited with notes, by Heineccius, in the title de Testamentis Ordinandit. It appears, that the most ancient mode of making a testament, among the Romans, was, by converting a man's private will into a public law, for such seems to have been the object and intention of the promulgation or celebration of a testament in the calatis comitiis, i. the presence of the Roman people summoned before the Sacerdotal College per curias. And, according to Heineccius, these assemblies were not convened specially for the purpose of giving sanction to wills, sed legum fererularum magistratuumque creandorum causa immo et ob alia negocia publico, helium, pacem, judicia, Cec.

Thus was this private disposition by testament of the property of an individual promulged and ratified in the same manner as a public law; and for this reason, i. e. ex causa efficient.!, the tettamenti factia has been denominated in the text of the imperial law non privati sedpublici juris, D. 28, c 3, and again by Ulpian, it is said, legatum est, quod legit mod* tcstamento relinquitur, Ulp.tit. 24, § 1. Another form of testament which existed antecedently to the laws of the Twelve Tables, was that called testamentum procinctum or in procinctu, which was the privilege only of those who were on the eve of going to battle, or girt for the war, with the uncertainty on their minds of their ever returning, and was among the immunities in regard to property conferred by the Romans upon the defenders of their country. But as the comitia were held but twice a year, so that a man might be surprised without having the opportunity of thus solemnizing his last will, and the attendance upon these public assemblies was often difficult or impossible to the sick, and furthermore, as women were by these forms precluded from making any testament, as not having any communion with these comitia, according to Gellius, lib. 5, c. 19, a third method was struck out, which might facilitate the accomplishment of this ultimate disposal of private property which' the Roman government had established and *left standing in this country. It appears, however, pretty certain, that this testamentary power over land did not survive the Norman conquest,

to all descriptions of persons, otherwise competent; and this last method was called the tettamentum per tcs et libram, which was a fictitious purchase of the family inheritance or heirship, by money weighed in a balance, and tendered by the intended inheritor to the testator, before witnesses. Thus it is said to be imago velusti morit in venditione atque alienatione rerum mancipi, qua, una verbo, mancipntio dicitur, nimirunx ut is in quern hte res transferebantur, eat emeret domino are et libra, appenso rf(nomoucharin) nummouno. And it seems that this fictitious proceeding was still retained after the promulgation of the law of the Twelve Tables had authorised the making of wills by the clause,of paterfam. uti legassit, Ore. ita jus esto; for it was still regarded as necessary to raise the will of a private man to a level with the laws of the state, that it should take the shape of a strict legal transaction inter vivos, for testandi de pecunia sua legibus certis facultas est permissa, non autem juris dictionis mutareformam, vel juri publico derogare cuiquam permissum est. C. 6, 23, 13. The two former methods, by the testamentum in procinctu, and calatis comitiis, were thrown into total disuse by the testamentum per its et libram; but this last form of willing again made way for others of a more convenient description. The methods above-mentioned were referrible to the jus civile, or, as we express it, the law of the land, but from the edict of the prxtor, other forms at length were brought into practice, by virtue of which jus honorarium the mancipatio, and the weighing and delivering of money, were dispensed with, and, in their stead, the solemnity of signing by seven witnesses was introduced, the presence only, and not the signature of witnesses being necessary by the jus civile.

At length, however, by gradual use and progressive alterations, as the text of Justinian informs us, the lex pretoria and the jus civile were in some degree incorporated, and a compounded regulation took place, whereby it became requisite to the valid constitution of a will, that the witnesses should be present (the presence of witnesses being the rule of the^'a* civile); that they and also the testator should sign, according to the superadded institution of positive law; and lastly, that in virtue of the prattorian edict, their seals should be affixed, and that the number of witnesses should be seven. Afterwards, the further solemnity of naming the heir in the testament was added by Justinian, and again abrogated by the same emperor, in Nov. 119, c. 9, and, at length, the excess of testimony was corrected by the canon law in the pontificate of Alexander the Third, by which it was declared sufficient to prove < except in particular cities and boroughs, where, by particular favour, the Saxon institutions were suffered to breathe :(114) it ceased by the operation of the feudal system of property, which necessarily excluded all voluntary alienations of possessions, with which personal services and duties were inseparably conneeted.(a) But with respect to moveables, the testamentary power seems, in this country, with more or less partial restraint, to have been exerciseable in a very remote period. The ready mode of uuthen* I 294 ] ticating *the property by the possession, and transferring the possession by the manual delivery of goods, and the usufructuary and revocable quality of terms of years, disposed our ancestors to consider them as floating acquisitions, and a proper subjtct for every kind of alienation. But though testaments of moveables were permitted by the ancient law in England, according to Glanville and Bracton, yet it extended only to one-third, called the dead man's part; which limitation seemed to prevail in Lon

(a) Vid. 1 Eq. Ca. Abr. 401.

testament by two or three witnesses, the.parochial minister being added; imprabata conttitutions jurit civilis de septem tettibus adhibendis ut nimis longe recedente ab eo quod tcriptum ettin ore duorum vet trium testium stet omne verbum, Sviinb. 64. Deut. c 18. Matth. c. 18, which reJbrmation has received the sanction of universal usage.

Swinburn says, that this institution has also been reformed by the general custom of this realm, "which distinctly requires no more than two witnesses, so they be free from any just cause of exception ;** which observation he repeats in several places of his treatise on wills, on the authority of Linwood, in Stat. Verb. Prob. de Tett. I. 3 Provineial Constit. Cant. Bracton also has the following passage : "Fieri autern debet testamentum liberi hominis ad minus coram duobus vet pluribut viris legalibus et honest it, clericis vel laicis ad hoc specialiter convocatis, ad probandum testamentum defuncti, si opus fuerk, si de testamento dubitatur." Bract, lib. 32, fol. 61; but these words import a recommendation, and not an imperative rule; and nothing seems now to be better understood, than that a will of personalty needs neither the attestation of witnesses, or the testator's seal or signature; and though written in another hand, yet if proved to have been written according to the testator's instructions, and approved by him, it is a good will to dispose of chattels. Comyns, 452, et seq.

(114) Whether gavelkind lands in Kent were devisable by custom, seems to be a matter in dispute. See die arguments pro et con. in Rob. «aveL 235.

« PreviousContinue »