early as Constantine, and heretics and monks were placed under a
disability to make a will or take gifts left by will. A will was often
deposited in a church. The canon law follows the Roman law
Canon
law.
with a still greater leaning to the advantage of the Church.
No Church property could be bequeathed. Manifest usurers
were added to the list of those under disability. For the validity
of a will it was generally necessary that it should be made in the
presence of a priest and two witnesses, unless where it was made in
pias causas. The witnesses, as in Roman law, must be idonei. Gifts
to the Church were not subject to the deductions in favour of the heir
and the children necessary in ordinary cases.[1] In England the Church
succeeded in holding in its own hands for centuries jurisdiction in
testamentary matters.
The Roman law of wills has had considerable effect upon English
law. In the words of Sir H. Maine, “The English law of testamentary
succession to personalty has become a modified
English
law.
form of the dispensation under which the inheritances of
Roman citizens were administered.”[2] At the same time
there are some broad and striking differences which should be borne
in mind. The following among others may be noticed. (1) A Roman
testator could not, unless a soldier, die partly testate and partly
intestate. The will must stand or fall as a whole. This is not the
case in England. (2) There is no one in English law to whom the
universitas juris of the testator descends as it did to the Roman heres,
whose appointment was essential to the validity of a formal will, and
who partook of the nature of the English heir, executor, administrator,
devisee and legatee. (3) The disabilities of testators differed
in the two systems. The disability of a slave or a heretic is peculiar
to Roman law, of a youth between fourteen and twenty-one to
English law. (4) The whole property may be disposed of in England;
but it was not so at Rome, where, except by the wills of soldiers,
children could not be disinherited unless for specified acts of
misconduct. During the greater part of the period of Roman law the
heir must also have had his Falcidian fourth in order to induce him to
accept the inheritance. (5) In English law all wills must conform to
certain statutory requirements; the Romans recognized from the
time of Augustus an informal will called codicilli. The English codicil
has little in common with this but the name. It is not an informal
will, but an addition to a will, read as apart of it, and needing the
same formalities of execution. (6) The Roman legatum applied to
both movables and immovable; in England a legacy or bequest is a
gift of personalty only, a gift of real estate being called a devise.[3]
(7) The Roman will spoke from the time of making; the English
speaks from the time of death. This difference becomes very important
in case of alteration in the position of the testator between
the making of the will and his death. As a rule the Roman will
could not, the English can, pass after-acquired property.
Liberty of alienation by will is found at an early period in England. To judge from the words of a law of Canute, intestacy appears to have been the exception at that time.[4] How far the liberty extended is uncertain; it is the opinion of some authorities that complete disposition of land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of feudalism, to use a convenient if inaccurate term, arose between real and personal property. It will be convenient to treat the history of the two kinds of will separately.
It became the law after the Conquest, according to Sir E. Coke,[5] that no estate greater than for a term of years could be disposed of by will, unless in Kent, where the custom of gavelkind prevailed, and in some manors and boroughs (especially Real property. the city of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage deathbed gifts in mortmain, a view supported by Glanvill, partly because the testator could not give the devisee that seisin which was the principal element in a feudal conveyance. By means of the doctrine of uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of the feoffor to such uses as he should appoint by his will (see Trust).[6] Up to comparatively recent times a will of lands still bore traces of Its origin in the conveyance to uses inter vivos. On the passing of the Statute of Uses lands again became non-revisable, with a saving in the statute for the validity of wills made before the 1st of May 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy an act was passed in 1540, and a further explanatory act in 1542–1543. The effect of these acts was to make lands held in fee simple devisable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing tenure by knight service, made all lands devisable. In the same reign the Statute of Frauds (1677) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds required, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three or four credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of an act in 1751–1752. making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter vivos of land devised by the will made subsequently to the date of the will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke from the time of the making, so that it could not avail to pass after-acquired property without republication, which was equivalent to making a new will. Copyholds were not revisable before 1815, but were usually surrendered to the use of the will of the copyhold tenant; an act of 1815 made them revisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with the year 1691.
The history of wills of personalty was considerably different, but to some extent followed parallel lines. In both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law Personal property. of England a man could only dispose of his whole personal property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars rationabilis. This pars rationabilis is expressly recognized in Magna Carta and was sued for by the writ de rationabili parte. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed—the province of York, Wales and the City of London—were regarded as exceptions. The right of bequest in these places was not assimilated to the general law until comparatively recent times by acts passed between 1693 and 1726. A will of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of £30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be “credible,” and it was specially enacted by an act of 1705 that any one who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in the testator's handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee. But the Executors Act 1830 made him in such an event trustee for the next of kin.
Jurisdiction over wills of personalty was till 1858 in the ecclesiastical courts, probate being granted by the diocesan court[7] if the goods of the deceased lay in the same diocese, in the provincial court of Canterbury (the prerogative court) or York (the chancery court) if the deceased had bona notabilia, that is, goods to the value of £5 in two dioceses. The ecclesiastical jurisdiction was of a very ancient origin. It was fully established under Henry II., as it is mentioned by Glanvill. In the city of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the provincial court with an appeal originally to the Court of Delegates, later to the judicial commit tee of the privy council. There were also a few special local jurisdictions, courts baron, the university courts, and others, probably for the most part survivals of the pre-Conquest period, when wills seem to have been published in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of prohibition. No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. The liability of the executor and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the executor beyond this can by the Statute of Frauds only be established by contract in writing.
Modern English Law.—Such were the principal stages in the history of the law as it affected wills made before 1838 or proved before 1858. The principal acts now in force are the Wills Act 1837, the amending act of 1852, the Court of Probate Act 1857,
- ↑ Most of the law is contained in Decretals, iii. 26, “De Testamentis.”
- ↑ Ancient Law, chap. vi.
- ↑ The distinction between bequest and devise did not always exist. For instance, the Assize of Northampton, c. 4, speaks of a devise (divisa) of chattels (see Bequest).
- ↑ Secular Laws. c. 68.
- ↑ 2 Inst. 7.
- ↑ Many instances of such conveyances occur in Sir Harris Nicolas Testamenta vetusta and in Fifty Earliest English Wills (1387–1439), edited by Dr F. J. Furnivall in 1882.
- ↑ The testamentary jurisdiction of the archdeacon's court is alluded to by Chaucer in the “Friar's Tale,” but it was afterwards completely superseded by the bishop’s court.
