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faction made to all the creditors, the commission may be super-
w i Atk. 244.
(38) Bills and notes, in which interest is not named, carry intereft only between the protest and the date of the commisjon,
ondert e codiks
CHAPTER THE THIRTY-SE COND.
OF TITLE BY TESTAMENT,
THERE yet remain to be examined, in the present
1 chapter, two other methods of acquiring personal estates, viz. by testament and administration. And these I propose to consider in one and the same view ; they being in their nature so connected and blended together, as makes it impossible to treat of them distinctly, without manifest tautology and repetition.
XI, XII. In the pursuit then of this joint subject, I shall, first, inquire into the original and antiquity of teftaments and administrations; shall, secondly, shew who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and it's incidents ; shall, fourthly, shew what an executor and administrator are, and how they are to be appointed; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators.
First, as to the original of testaments and administrations. We have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations,
gifts, and contracts. But these precautions would be very
TESTAMENTs are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually givens, of Abraham's complaining a that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir, is quite conclusive to Mew that he had made him so by will. And indeed a learne ed writer has adduced this very passage to prove, that in the patriarchal age, on failure of children, or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at laws. But, (to omit What Eusebius and others have related of Noah's testament, made in writing and witnessed under his feal, whereby he disposed of the whole world) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings", wherein Jacob bequeaths to his son Joseph a portion of his ina Puff. L. of N. b. 4. c. 10.
e Taylor's elem, civ. law. 519.
f See pag. 12.
Gen. c. 48.
heritance double to that of his brethren : which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them ; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens i; but in many other parts of Greece they were totally discountenanced k. In Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathing': and, among the northern nations, particularly among the Germans m, testaments were not received into use. And this va. riety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil staten; which has permitted it in some countries, and denied it in others : and, even where it is permitted by law, it is subjected to different formalities and restrictions in al. most every nation under heaven'.
With us in England this power of bequeathing is co-eval with the first rudiments of the law : for we have no traces or memorials of any time when it did not exist. Mention is made of inteftacy, in the old law before the conquest, as being merely accidental; and the distribution of the inteftate's estate, after payment of the lord's heriot, is then directed to go according to the established law. “ Sive quis incuria, fiue “ morte repentina, fuerit inteftatus mortuus, dominus tamen nule “ lam rerum fuarum partem (praeter eam quae jure debetur leo “ reoti nomine ) fibi affumito. Verum podeliones uxori, liberis, " et cognatione proximis, pro fuo cuique jure, distribuantur ?." But we are not to imagine, that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us“, that by the common law,
i Plutarch. in vita Solon.
.Sp. L. b. 27. C. I. Vinnius is Int. I 2. lit. 10.
Y LL. Canut. c. 68.
as it stood in the reign of Henry the fecond, a man's goods were to be divided into three equal parts : of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal : or, if he died without a wife, he might then dispose of one moiety, and the other went to his children, and so a converso, if he had no children the wife was entitled to one moiety, and he might bequeath the other : but, if he died without either wife or iflue, the whole was at his own disposal'. The shares of the wife and children were called their reasonable parts; and the writ de ratio. nabili parte bonorum was given to recover them'.
This continued to be the law of the land at the time of magna carta, which provides, that the king's debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased : and, if nothing be owing to the crown, “omnia catalla cedant defuncto ; « falvis uxori ipfius et pueris fuis rationabilibus partibus fuise." 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"; though frequently pleaded as the local custom of Berks, Devon, and other counties w: and sir Henry Finch lays it down expressly ·, in the reign of Charles the first, to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels.; though we cannot trace out when first this alteration began. Indeed fir Edward Coke Y is of opinion, that this never was
Bracton. I. 2. c. 26. Fler.l. 2. c. 57. marks, without issue had between them; $ F. N. B. I!2.
and thereupon the claimed the moiety, 19 Hen. III. c. 18.
Some exceptions were taken to the plead. U A widow brought an action of de ings, and the fact of the husband's dying tinue against her husband's executors, without ifiue was denied; but the rule quod cum per consuetudinem totius regni of law, as itated in the writ, seems to Anglia: baftenus ufitaran ci approbatam, have been univerfully allowed (M. 30 uxorus diberit et jelent a rumpore, c.ba. Edw. III. 25.) And a lim lar cale oca, bucuumsutionalilin parten: bonorumina. curs in H. 17 Edcu. III. 9. ritorum fuorum: ita videlicet, quod fi nullos w Reg. Brev. 142. Co, Lict. 176. babuerint liberos, tunc medietatem ; cf, fi * Law. 175. babuerint, tunc tertiam partem, &c. and Y a Inft. 33. that her husband died worth 205,000