490 gifts, and contracts. But thefe precautions would be very fhort and imperfect, if they were confined to the life only of the occupier; for then upon his death all his goods would again become common, and create an infinite variety of ftrife and confufion. The law of very many focieties has therefore given to the proprietor a right of continuing his property after his death, in fuch persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vefted in certain particular individuals, exclufive of all other perfons. The former method of acquiring perfonal property, according to the express directions of the deceased, we call a teflament: the latter, which is also according to the will of the deceased, not expreffed indeed but prefumed by the law, we call in England an adminiftration; being the fame which the civil lawyers term a fucceffion ab inteftato, and which answers to the descent or inheritance of real estates.

TESTAMENTS are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually given, of Abraham's complaining that, unless he had fome children of his body, his steward Eliezer of Damascus would be his heir, is quite conclufive to fhew that he had made him fo by will. And indeed a learned writer has adduced this very paffage to prove, that in the patriarchal age, on failure of children, or kindred, the fervants born under their mafter's roof fucceeded to the inheritance as heirs at law. But, (to omit what Eufebius and others have related of Noah's teftament, made in writing and witnessed under his feal, whereby he disposed of the whole worldɛ) I apprehend that a much more authentic instance of the early ufe of teftaments may be found in the facred writings, wherein Jacob bequeaths to his fon Joseph a portion of his in

heritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the pofterity of Jofeph were divided into two diftinct tribes, thofe of Ephraim and Manaflch, and had two several inheritances affigned them; whereas the defcendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legiflator that introduced wills into Athens ; but in many other parts of Greece they were totally discountenanced. In Rome they were unknown, till the laws of the twelve tables were com piled, which first gave the right of bequeathing': and, among the northern nations, particularly among the Ger mans m, teftaments were not received into ufe. And this va riety may ferve to evince, that the right of making wills, and difpofing of property after death, is merely a creature of the civil state"; which has permitted it in fome countries, and denied it in others: and, even where it is permitted by law, it is fubjected to different formalities and reftrictions in almoft 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 diftribution of the inteftate's eftate, after payment of the lord's heriot, is then directed to go according to the established law. "Sive quis incuria, five "morte repentina, fuerit inteftatus mortuus, dominus tamen nul❝lam rerum fuarum partem (praeter eam quae jure debetur ke"reoti nomine) fibi affumito. Verum poffeffiones uxori, liberis, "et cognatione proximis, pro fuo cuique jure, diftribuantur ?." But we are not to imagine, that this power of bequeathing extended originally to all a man's perfonal estate. On the contrary, Glanvil will inform us, that by the common law,

i Plutarch. in vita Selen.
k Pott. Antiq. 1. 4. c. 15.
Irft. 2. 22. 1.

m Tacit. de mor. Germ. 21.

n Sec pag. 13.

0 Sp, L. b. 27. c. 1. Vinnius in Int. 1 2. tit. 10.

LL. Canut. c. 68. 91.2.0.5.

as

1

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 defcendants, another to his wife, and the third was at his own difpofal: or, if he died without a wife, he might then difpofe of one moiety, and the other went to his children; and fo e converfo, 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 iffue, the whole was at his own difpofal'. The fhares of the wife and children were called their reafonable parts; and the writ de ratio nabili parte bonorum was given to recover them3.

THIS Continued to be the law of the land at the time of magna carta, which provides, that the king's debts fhall first of all be levied, and then the refidue of the goods fhall 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 fuis`.” In the reign of king Edward the third this right of the wife and children was ftill held to be the univerfal or common law; though frequently pleaded as the local custom of Berks, Devon, and other counties w; and fir Henry Finch lays it down exprefsly, 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 deceafed may now by will bequeath the whole of his goods and chattels; though we cannot trace out when firft this alteration began. Indeed fir Edward Coke is of opinion, that this never was

r Bracton. 1. 2. c. 26. Flet./. 2.c 57.
$ F. N. B. 1:2.

9 Hen. III. c. 18.

u A widow brought an action of detinue against her husband's executors, quod cum per confuetudinem totius regni Angliae battenus ufitatam et approbatam, uxores debent et folent a tempore, Sc. babe ejuamrational ilem partem bonorummaFitorum fuorum: ita videlicet, quod fi nulles babuerint liberos, tunc medietatem ; et, fi babuerint, tunc tertiam partem, &c. and that her husband died worth 200,000

marks, without iffue had between them; and thereupon the claimed the moiety, Some exceptions were taken to the plead ings, and the fact of the husband's dying without ifiue was denied; but the rule of law, as stated in the writ, feems to have been univerfally allowed (M. 39 Edw. III. 25.) And a fim lar cafe oc-, curs in H. 17 Edw. III. 9.

w Reg. Brev. 142. Co. Litt. 176.
x Law. 175.
y a inft. 33.

2

the general law, but only obtained in particular places by fpecial custom and to establish that doctrine, he relies on a paffage 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 com mon law; but mentions that as a particular exception, which fir Edward Coke has haftily 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 fifter kingdom of Scotland. To which we may add, that, whatever may have been the cuftom 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 ftandard, three ftatutes 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 perfons within those districts, and liable to thofe cuftoms, may (if they think proper) dif pofe 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 abclifhed throughout all the kingdom of England, and a man may devife the whole of his chattels as freely as he formerly could his third part or moiety. In difpofing of which, he was bound by the cuftom of many places (as was stated in a former chapter) to remember his lord and the church, by leaving them his two beft 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.

.

IN cafe a perfon made no difpofition of fuch of his goods as were testable, whether that were only part or the whole of them, he was, and is, faid to die inteftate; and in fuch cafes it is faid, that by the old law the king was entitled to feife upon his goods, as the parens patriae, and general trustee of the kingdom. This prerogative the king continued to exercife for fome time by his own minifters 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 inteftate tenants and fuitors, in their own courts baron and other courts, or to have their wills there proved, in cafe they made any difpofition". 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 confcience than laymen, and that they had more knowlege what things would conduce to the benefit of the foul of the deceafed. The goods thereforc of inteftates were given to the ordinary by the crown; and he might seise them, and keep them without wasting, and also might give, aliene, or fell them at his will, and difpofe of the money in pios ufus and, if he did otherwife, he broke the confidence which the law repofed in him. So that properly the whole interest and power which were granted to the ordinary, were only those of being the king's almoner within his diocese; in trust to distribute the inteftate's goods in charity to the poor, or in fuch fuperftitious ufes as the mistaken zeal of the times had denominated pious. And, as he had thus the difpofition of inteftates' effects, the probate of wills of courfe followed: for it was thought just and natural, that the will of the deceased should be proved to the fatisfaction of the prelate, whose right of diftributing his chattels for the good of his foul was effectually fuperfeded thereby.