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PART THE FIRST,
OF THE APPOINTMENT OF EXECUTORS AND
BOOK THE FIRST.
OF THE ORIGIN OF WILLS OF PERSONAL ESTATE : AND OF
THEIR NATURE AND INCIDENTS.
CHAPTER THE FIRST.
OF THE ORIGIN OF WILLS OF PERSONAL ESTATE.
ALTHOUGH from the time of the Norman Conquest, until the passing of the Statute of Wills (32 & 34 H. VIII.), a subject of this realm had, generally speaking, no Testamentary power over Land; yet the power of making a Will of Personal Property appears to have existed and continued from the earliest period of our Law. And, under the description of personal property so disposable, are not only to be considered goods and chattels, but also terms for years and chattel interests in Land, which, on account of their original imbecility and insignificance, were deemed personalty, and as such were disposable by Will (a).
But this power, it seems, did not extend to the whole of at common law a man's personal estate, unless he died without either wife a man could not
bequeath the or issue ; for by the common law, as it stood, according to whole of his
(a) Co. Lit. 111, b. note (1), by Hargrave.
personal estate, Glanvil, in the reign of Hen. II., a man's goods were to be unless he died without either divided into three equal parts; one of which went to his wife or chil. dren :
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, è 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 issue, the whole was at his own disposal (b). The shares of the wife and children were called their reasonable parts : And the writ
de rationabili parte bonorum was given to recover them (c). writ de ratio. This writ lay for the wife against the executors of her nabili parte bonorum :
husband, and was founded on a complaint that the said executors unjustly detained from the plaintiff her reasonable part of the goods and chattels which were of the deceased, and refused to render the same to her (d). And the sons and daughters were entitled to the like writ against the executors in case their third part was withheld (e).
It must indeed be remarked, that there has been a concontroversy was the general troversy whether this was the general law of the land, or law, or only only such as obtained in particular places by custom. obtaining in particular Fitzherbert, in his commentary on the Writ de rationabili places by custom :
parte bonorum, contends that the distribution, which excludes the testamentary power from a certain portion of the personal estate, was in his time the common law of the land, and therefore needed not a special custom to support it ($). And Mr. Justice Blackstone (g) expresses a strong opinion to the same effect, citing Glanvil, Bracton, Magna Charta, the Year Books, aud a passage from Sir Henry Finch; the last of which authorities expressly lays it down, in the reign of Charles I., to be the general law of the land. But
(6) 2 Bl. Comm. 492.
(c) F. N. B. 122, L. 9th Edit. 2 Saund. 66, n. (9).
(d) F. N. B. ubi supra.
(e) The word “pueri” was used in the writ, but was taken as meaning children of both sexes, it being
held that sons and daughters might join in the writ: Co. Lit. 176, 6. n. (3), by Hargrave.
(f) F. N. B. ubi supra. Co. Lit. 176, b. note (6), by Hargrave.
(9) 2 Comm. 492.
on the other hand Lord Coke says, that it appears by the Register, and many of our books, that there must be a custom alleged in some county, &c., to enable the wife and children to the writ de rationabili parte bonorum, and that so it had been resolved in Parliament (1). The law, however, whether general, or prevailing in parti. Alteration of
the law : cular places only by custom, has been 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 the alteration began (i). In the province of York (j), the principality of Wales, and in the City of London, the ancient method continued in use till modern times: when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes were by certain
statutes, for the provided; one, 4 & 5 W. & M. c. 2, (explained by 2 & 3
province of Anne, c. 5,) for the province of York: another, 7 & 8 W. III. York, Wales, C. 38, for Wales: and a third, 2 Geo. I. c. 18, for London :
and London :
(h) Co. Lit. 176, b. “Mr. Justico Blackstone considers the passage cited by Lord Coke from Bracton, as making directly against his opinion, and regards Fleta also as a clear authority to the same purpose. But Mr. Somner, whose very learned and extended discussion of this subject seems to have escaped the author of the Commentaries, though not inclined to an entire agreement with Lord Coke, cites various passages of the same ancient authors, from which it appears, that their writings in this respect are contradictory. See in Somn. Gavelk. 91, a dissertation on the question, Whether the urit de rationabili parte bonorum uas by the common law or by custom. Nor is it a slight testimony of its being settled law in Lord Coke's time, not to allow of the writ de rationabili parte bonorum without a special custom, that Jr. Somner, whose book, before cited, was finished as early as 1647,
though not published till the Res-
(1) 2 Black. Comm. 492.
6) What Bishopricks the province of York contains, See (o. Lit. 94 ; and post, Pt. I. Bk. IV.
whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal 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 abolished 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 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 (li).
Mr. Hargrave, in a note to Coke upon Littleton (1), observes: “Sir Wm. Blackstone treats the testamentary power over personal estate as now prevailing through all England. But if there be no other statutes than those he cites, I take this to be a mistake, so far at least as regards the city of Chester. The fact is, that both the cities of York and Chester were excepted in the 4th of W. & M., and that the 2 & 3 Anne takes away the exception as to the city of York only: As, too, the statutes, which subject the custom of dividing the personal estate of deceased persons to the testamentary power, do not name any place in England, except London and the province of York, it follows, that the local custom of any other part of England, on this subject, is not disturbed by any statutory provision.” But with respect to the city of Chester, it was remarked by Lord Alvanley, in Pickering v. Stamford (m): “A vulgar error prevailed, that the custom of York goes through the whole province. The Legislature themselves fell into it by reserving to the citizens of York and Chester the customs of those cities; the latter of which has no custom. When by another Act they repealed that as to the city of York, they left Chester just as it was by the first Act. The (k) 2 Black. Comm. 493. (1) 176 b. note (5).
(m) 3 Ves, 338.
custom of York never attached upon any part of the province, that was not so at the time of Henry VIII. : and Chester was annexed since that period” (1).
And now by stat. 1 Vict. c. 26, (which, however, does not 1 Vict. c. 26. extend to any Will made before Jan. 1, 1838,) it is enacted, that it shall be lawful for every person to devise, bequeatlı, and dispose of, by his Will executed as required by that Act, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his deatlı (0)
(n) Chester is situate within the Archdeaconry of Chester, which was part of the ancient diocese of Lichtield and Coventry, and was incorporated with the Archdeaconry of Richmond, in the diocese of York, to form the newly erected diocese of Chester, by statute 33 Henry VIII. c. 31.
(See this enactment (s. 3), verbutim, Preface. The Interpretation Clause (s. 1) enacts that the words
“personal estate” shall extend to