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the general law, but only obtained in particular places by special custom: and to establish that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which fir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which also continues to this day to 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 principality 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 fame standard, three statutes have been provided; the one 4 & 5 W. & M. c. 2. explained by 2 & 3 Ann. c. 5. for the province of York; 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 perfonal 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 abclished 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 chapter 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.
b pag. 426.
2 1. 2. c. 26. 82.
In cafe a person made no disposition of such of his goods as were testable, whether that were only part or the whole of them, he was, and is, said to die intestates and in such cases it is said, that by the old law the king was entitled to stise upon his goods, as the parens patrine, and general trustee of the kingciom. This prerogative the king continued to ex. . ercise 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 disposio tion". Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative ; which was done, faith Perkins“, because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowlege what things would conduce to the benefit of the soul of the deceased. The goods thereforc 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 ufus : 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 ora dinary, 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 8. And, as he had thus the disposition of inteftates'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 folemn and conscientious trust, the reverend prelates were therefore not accountable to any, but to God and themselves, for their conducth. But even in Fleta's time it was complained i, “ quod ordinarii, hujusmodi bona « noinine occlcfiae occupantes, nullam vel faltem indebitam faciunt « distributionem." And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of pope Innocent IVk; written about the year 1250 ; wherein he lays it down for ettablished canon law, that " in Britannia " tertia pars bonorum decedentium ab inteftato in opus ecclefiae et « pauperuin difpenfanda eft.” 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. that the ordinary shall be bound to pay the debts of the inteftate 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. 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 paymeni of debts, remained still in their hands, to be applied to whatever purposes the confcience of the ordinary should approve. The flagrant abuses of which power oc. cafioned the legislature again to interpofe, in order to prevent the ordinaries from keeping any longer the adminifiration in their own hands, or those of their immediate de
Plowd. 277. il.2.c. 57. $ 10. k in Dardal. 1.5. t. 3. 6. 42.
I The proportion given to the prielt, and to other pious uses, was diferent in different countries, In the arcbde:cos
rv of Richniond in Yorkihire, this pro-
pendents : and therefore the statute 31 Edw. III. 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 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 fine gles out the next and most lawful friend of the intestate ; who is interpreted n 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 fame 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.
I PROCEED now, secondly, to inquire 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 ng Rep. 39.
• Godolph, Orph. Leg. p. 1. c. 7. Qq 2
accounts ; for want of sufficient discretion ; for want of susficient 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 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(1) years old) might make a testament”, and others have denied that under eighteen he is capable', yet as the eccle. astical court is the judge of every testator's capacity, this cafe 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 teitament. Madmen, or otherwise non compotes, ideots or natural fools, per. sons grown childish by reason of old age or distemper, such as have their senses befotted with drunkenness—all these are incapable, by reason of mental disability, to make any will so long as such disability lasts (2). 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 understanding, are incapable of having animum teftandi, and their testaments are therefore void.
2. Such persons, as are intestable for want of liberty or freedom of will, are by the civil law of various kinds; as
p Godolph. p. 1. c. 8. Wentw. 212. 4 Perkins. $ 503. 2 Vern. 104. 469. Gilb. Rep. 74. "Co. Litt. 89.
(1) This has been thought an error of the press, and that four by mistake was printed for fourteen. See this subject learnedly investigated by Mr. Hargrave, who concludes with the learned Judge, that a will of personal estate may be made by a male at the age of fourteen, and by a female at the age of twelve, and not fooner. Harg.Co. Litt.99.
(2) But it a person of sound mind makes his will, this will is not revoked nor affected by his subsequent insanity.' 4 Co.61.