by will, with certain exceptions. These exceptions
were gavelkind land (chiefly in Kent), and land situated
in certain ancient boroughs or manors. 3 Of the rights

1 Immoveables and moveables, terms derived from Roman law, are
seldom used as English technical terms, though they perhaps express
better than any others what may be called the natural dutvMMM in
the classification of property. They are not quite equivalent to real
and personal property, or realty and personalty ; for instance, a
leasehold estate is in its nature an immoveable, but is regarded by
English law as personalty. Another division, recognised by the
legislature, is into real and personal estate. It is, however, to some
extent misleading, as there can be no estate properly so called in
personal property.

8 This restriction seems to have applied at first only to land in-
herited by the deceased, not to land purchased. But gradually the
restriction appears to have included purchased as well as descended
land.

* In manors the distinction just noticed between land inheriti !



REAL ESTATE 11

in boroughs, that of free devise possessed by citizens of
London was the most important. Though, however,
direct devise was not competent, more than one mode of
giving effect to an indirect devise was discovered. One
was to direct the executors of the will of the deceased
(in whom of course the personalty of the deceased
vested at his death) to purchase land and convey it to
a particular person. Another and more usual mode
was to make a conveyance during life to a feoffee to
hold on uses to be declared by will, the will taking the
form of a declaration to uses, similar to that of a con-
veyance to uses inter vivos, and not unlike the Scotch
disposition and settlement. This no doubt explains
why a will of lands was at one time sealed, 1 and also
the law that, up to 1838, a will of lands passed only
lands in the possession of the testator at the time of
making it, while a will of personalty passed after-
acquired property. To pass after-acquired real estate
needed republication, which was practically equivalent
to a new will. The same reason serves to explain
why a will before 1838 could be revoked by presump-
tion of an alteration in circumstances, and by a subse-
quent conveyance inter vivos of land devised by the
testator, even though the conveyance were void, the
attempt to make it being presumed to prove an animus
revocandi. The doctrine of the use of land, as dis-
tinguished from its nominal ownership, would not be
difficult to ecclesiastics familiar with the usufruct of



and land purchased seems to have existed at least into the 14th
century. Two cases of devise of terra acquisita or terra prequisita,
according to the custom of the manor of King's Ripton, are recorded
in 1301 (Select Pleas in Manorial Courts, published by the Selden
Society, vol. ii., 125, 127).

1 See rule 6 of Lord Coke's rules, p. 37.



12 HISTORY OF THE WILL

Roman law, and it was by such ecclesiastics that the
doctrine of uses was probably introduced. After the
passing in 1535 of the Statute of Uses (which contained
an exception in favour of wills of uses made before
May 1536), the alienation of land by devise of the use
became impossible, as the use was in the same position
with regard to devisability as the land itself, and the
court had not yet construed the statute in a way not
foreseen by its framers, a construction by which the
trust succeeded to the legal position of the old use. 1
The restraint on alienation being found inconvenient, if
not intolerable, especially when a large amount of land
had come into the market after the dissolution of the
monasteries, a modified power of devise was introduced
by two statutes of 1540 and 1542 (32 Hen. VIII, c. 1,
34 and 35 Hen. VIII, c. 5), which are still law as to
wills made before 1838. These acts were very partial
in their operation, for they applied in the case of lands
held by tenure of chivalry only to two-thirds of such
lands, only those held in socage being wholly devisable.
A reservation was made of primer seisins, reliefs, and
other feudal dues, and of wardship of one-third of the
lands held by knight -service. When the act of 12
Car. II, c. 24, turned all the old tenures in chivalry
(with a few exceptions) into free and common socage,
the whole lands of a deceased became devisable. 2 It
was therefore necessary to enforce a certain amount of
solemnity in the execution of wills, the acts of Henry

1 See the work on Real Property in this series.

3 The only exceptions at the present day appear to be (1) entailed
estates where the entail has not teen duly barred, an entail not being
barrable by will, 3 and 4 Will. IV, c. 74, s. 40 ; (2) entailed estate*
granted for public services under the provisions of private Acts of
Parliament, such as Blenheim and Strathfiddsaye, and rendered in-
alienable by such acts.



REAL ESTATE 13

VIII only exacting that the will should be in writing.
Simple notes in another person's handwriting, if pub-
lished by the testator as his will, were sufficient to
satisfy the acts. Accordingly, by the Statute of Frauds
(29 Car. II, c. 3), it was required that devises of land
should be signed by the testator, or by some other
person for him in his presence and by his express
direction, and that they should be subscribed in his
presence by three or four credible witnesses. Owing to
a series of decisions of the courts on the credibility of
witnesses under the act, it was enacted by 25 Geo. II,
c. 6, that gifts to attesting witnesses were void, but that
the witnesses still remained credible, and that creditors
were credible witnesses. The Statute of Frauds still
governs wills made before January 1838, now a rapidly
diminishing quantity. A will of lands did not need
probate, the original will being itself a document of
title. Such probate, in exceptional cases, was introduced
for the first time by the Court of Probate Act, 1857.
It might, however, be admitted to probate, where an
executor was appointed. Many technical constructions
of terms used in wills were altered by the Wills Act. 1
Up to 1838 a man could make a will at fourteen, a
woman at twelve.

The liability of the devisee for the debts of the
testator has only been established by slow degrees. In
the time of Glanvill (who wrote in the reign of Henry
II), the heir of a deceased person was, according to
the better opinion, bound to the extent of his inherit-
ance to warrant the reasonable gifts of his ancestor to
the grantees and their heirs, and to pay such of the
debts of his ancestor as the ancestor's estate was in-
1 See chap. ix.



14 HISTORY OF THE WILL

sufficient to satisfy. But this state of the law was
gradually trenched upon, partly by the courts and
partly by the legislature. A rude kind of remedy was
given by the Statute of Merchants in 1285 (13 Edw.
I, st 3), which empowered a merchant to seize the
lands of a deceased debtor under a statute-merchant,
and exclude the heir until he had satisfied his debt. It
became a rule of the courts, dating from about the
same period, and applying to others besides merchants,
that the heir was not bound (except to the Crown)
unless charged by the deed of his ancestor. Where
the heir was so charged by deed under seal, wherein he
was expressly named (by specialty, as it was called), he
was bound to the extent of the lands descended, but no
further. 1 Such lands became assets in his hands, and
were all in the nature of real estate that the creditors
had to resort to unless the testator had charged his lands
by will with payment of his debts. In such a case the
lands were called equitable assets, and simple contract
creditors were allowed by the Court of Chancery to
rank equally with specialty creditors. Various acts
were passed at different times to remedy the unjnst
exclusion of all but specialty creditors, but the devisee
was not liable to debts until 1691, and it was not until
1833 that lands of all persons alike became subject to all
debts, but with a preference (in the absence of a charge
of debts upon the land) to specialty creditors. Simple
contract and specialty creditors did not rank equally
until 1870. Estates pur autre vie and trust estates were
first made assets by descent by the Statute of Frauds.

1 The heir of lands conveyed to uses was not so bound until the
Statute of Uses. That statute for the first time made the use assets of
the deceased.



REAL ESTATE 15

Two subjects are of sufficient interest to demand a
special notice, viz. copyholds and mortmain. Before
the present Wills Act, testamentary alienation of copy-
holds, which were first made devisable in 1815 by 55
Geo. Ill, c. 192, was generally made by surrender to
the use of the will of the copyhold tenant. The sur-
render was made into the hands of the lord, and the
steward entered a presentment of the surrender (if made
out of court, as it generally was) on the court rolls of
the manor. After the decease of the tenant the devisee
generally brought the will into court, and a presentment
was made of the tenant's decease and of the terms
of his will. This presentment was made unnecessary by
4 and 5 Viet., c. 35. By the Wills Act, copyholds may
be devised directly like lands of any other tenure.
Copyholds devised were not subject to debts until 1833,
even where charged with the payment of debts, and
even in favour of the Crown. A fine is generally
payable on admittance of any copyholder succeeding
by descent. But in many cases enfranchisement has
abolished the right to the fine. The right to a heriot,
either the tenant's best beast, or a pecuniary composi-
tion in lieu thereof, still exists in some manors. It is
said to be of Danish origin.

The Mortmain Acts constitute a series of measures
dictated by public policy, their object being to prevent
the accumulation of real estate in the hands of corpora-
tions. Lands belonging to corporations were said to be
in mortud rnanu or in mortmain, because, owing to the
perpetual existence of the corporation, they produced no
benefit to the feudal lord by escheat or otherwise.
Mortmain proper only applies to gifts to corporations,
though the term is often used with regard to gifts of



16 HISTORY OF THE WILL

land for any purpose where the alienation of the land
would be restricted. Restraints on gifts to corporations
were well known to Roman law. For instance, in the
time of the Pagan emperors only certain deities could be
instituted heirs, and in the time of the Christian emperors
gifts to ecclesiastical corporations, such as monasteries,
were bound to be duly registered. The earliest mortmain
provision in England is the Constitutions of Clarendon
(1164), the latest the Mortmain and Charitable Uses
Act, 1888 (chiefly a consolidating act). The Constitu-
tions of Clarendon by 2 enact that no gift is to be
taken by the Church without the licence and assent of
the Crown, the earliest mention of a licence in mortmain.
Between 1164 and 1888 the law passed from a stage of
absolute to one of limited disqualification, and the
modern tendency is to allow testamentary gifts of
personalty to charities in all cases and gifts of realty up
to a limited amount to charities of a certain kind. 1 The
most important act before 1888 was 9 Geo. II, c. 36,
much of which is re-enacted by the act of 1888. The
terms used in the two acts as to personalty savouring
of realty are, however, sufficiently different to make it a
question whether the law as to personalty savouring of
realty has been in any way altered by the later act.
There appears to be a divergence of opinion among text-
writers on the subject

Personalty. The history of wills of personalty to a
certain extent moved in parallel lines. In both real and
personal property partial preceded complete power of
disposition. The opinion of the best authorities is that
by the common law of England a testator could only
dispose of his whole personal property if he left no wife
1 See p. 45.



PERSONALTY 17

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, which is recognised by
Magna Carta. 1 At what period the right of disposition
of the whole personalty superseded the old state of the
law is uncertain ; that it did so is certain, and the places
where the old rule still existed, the province of York,
the principality of 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 com-
paratively recent times by acts passed between 1693
and 1726. At different times limited powers of dis-
position over goods not alienable by will at common law
were given by various Acts of Parliament, some of which
are still law, though practically superseded by the larger
powers of the Wills Act of 1837. Among these earlier
acts are the Statute of Merton, 1235 (20 Hen. Ill, c.
2), enabling widows to bequeath the corn on their lands,
and 28 Hen. VIII, c. 11. s. 4 (1535), enabling incum-
bents to bequeath the profits of corn so\yn on their
glebes. At one time a will of personalty was not valid
unless an executor was appointed, but this rule has long
been obsolete. In early wills an overseer as well as an
executor was often appointed.

At common law a will might be either written or
verbal (otherwise called nuncupative). A written will
must have been published, that is, declared in the
presence of witnesses, as the -testator's last will; a
nuncupative will was simply recited and might be
proved by the evidence of those who had heard it. The

1 Omnia catalla cedant defuncto, salvis uxori ipsius et pueris suis
rationalibus partibus suis, 26 of the Magna Carta of John.



18 HISTORY OF THE WILL

Statute of Frauds provided that no nuncupative will
should be good where the estate bequeathed should
exceed the value of 30, unless proved by the oaths of
three witnesses at least, who were present at the making
thereof. There were also other restrictions, the most
important perhaps being that the words of a nuncu-
pative will must be committed to writing within six
days. A will in writing could not be altered by word
of mouth. If holograph, that is, entirely in the writing
of the testator, it was valid without signature. The
effect of legislation and custom combined was that
before the Wills Act there were ten different ways in
which a will could be made, and the Real Property
Commissioners in 1833 strongly recommended uni-
formity. 1 Up to 11 Geo. IV and 1 Will. IV, c. 40, the
executor took for his own benefit any residue undisposed
of as the general representative of the testator; since
that act he holds it as trustee for the next of kin.

The jurisdiction over probate of wills of personalty
was until 1858 in the ecclesiastical courts. This was a
relic of the old theory by which the personalty of the
deceased was regarded as being primd facie a fund for
providing masses for his soul. 2 The ecclesiastical juris-
diction was of very ancient origin ; it is noticed by
Glanvill, and is generally supposed to have been assumed
after the Conquest by the prelates and their officers, in
accordance with the general law of Christian Europe.
The courts which had jurisdiction were those of the

1 Fourth Report, 12.

1 In pre- Reformation wills a bequest for masses is almost invariable,
and by the statute of 1357 (see below), the surplus was to be n]>i>lir<l
to such purposes. The statutory sanction of masses for the soul was
finally withdrawn in the reign of Edward VI by the act making gifts
for masses superstitious (see below).



PROBATE 19

ordinary, 1 who might be archbishop, bishop, or arch-
deacon. The jurisdiction of the archdeacon, though
mentioned by Chaucer in his " Friar's Tale," had become
obsolete long before 1858, and the only courts (with the
exception of certain peculiars and local courts) 2 which
had jurisdiction up to that date were the court of the
archbishop of the province (called the Prerogative Court),
and the court of the archbishop or bishop of the diocese
(called the Consistory Court). If the deceased had
bona notdbilia, i.e. goods to the value of more than one
hundred shillings, 3 in two distinct dioceses, the will had
to be proved in the Prerogative Court, in other cases
the Consistory Court had jurisdiction. The archbishops
and bishops did not sit as judges in person, but by their
representatives, the chancellors or commissaries of
dioceses, the official principals of the Prerogative Courts.
The judge of the Provincial Court of Canterbury was
the Dean of Arches, not necessarily, but by virtue of
long custom. 4 The Prerogative Court was an appellate
court from the diocesan courts, but as a matter of fact



1 In ecclesiastical law the ordinary is a judge who exercises im-
mediate and not delegated jurisdiction ; the word is derived from
Roman law, and no doubt depends for its meaning in the last resort
on the distinction familiar in the Roman system between judicia
ordinaria and judicia extraordinaria.

2 From 1258 to 1688 wills made in the City of London were proved
and enrolled in the Hustings or Husting Court, with or without having
been proved in the Court of the Ordinary. The proof in the Hustings
Court was in open court on the oath of a witness. See the Calendar
of Wills proved and enrolled in the Court of Husting, by R. R.
Sharpe, 1889. Wills of members of the Universities were at one time
proved in the Chancellors' Courts.

3 In the diocese of London, bona notdbilia were by custom double
this amount.

4 The original jurisdiction of the Dean of Arches was confined to
peculiars of the province of Canterbury. Of some of these peculiars
he was judge of first instance, of others commissaries were judges, an
appeal lying from them to the Court of Arches.



20 HISTORY OF THE WILL

contentions cases generally came before it in the first
instance, either because the goods were in most cases
bona notabilut, or because letters of request were issued
by the diocesan court to remove the case for trial to
the Prerogative Court Such duties as are now per-
formed by registrars then devolved upon surrogates.
An appeal lay from the Prerogative Court to the
Delegates, commissioners appointed by the King in
Chancery, to whom by 25 Hen. VIII, c. 19, appeals
from the archbishop were to be made. From 1832 to
1858 the appeal was to the Judicial Committee of the
Privy Council The practice was wholly in the hands
of advocates and proctors, barristers and solicitors had
no right of appearance or audience in the ecclesiastical
courts. The jurisdiction of the ecclesiastical courts
was entirely confined to wills of personalty ; if they
attempted to assume jurisdiction over wills of land, they
were subject to writs of prohibition from the temporal
courts. The same was the case even in wills of per-
sonalty, if the ecclesiastical court construed a statute
in a manner not approved by the temporal courts.
The judge of the Prerogative Court was appointed by
the archbishop, the chancellor or commissary of the
diocesan court by the archbishop or bishop. Many
of the early judges, if one may rely upon the language
of statutes, 1 laid themselves open to prosecution for
corruption and extortion, and in the reign of James I
Sir John Bennct was impeached for corruption in his
office as judge of the Prerogative Court. These pro-
ceedings appear to have dropped, but in 1G22 he was

1 For instance, 31 Edw. Ill, st. 1, c. 4 (1357), and 21 Hon.
VIII, c. 5 (1529), the latter net attempting a reform l>y fixing the
fees demandable in probate and administration.



PROBATE 21

fined 20,000 by the Star Chamber. He afterwards
obtained a pardon from Charles I. 1 The proceedings of
the ecclesiastical courts, even where the judges were
above suspicion, were dilatory and expensive, and the
abolition of their jurisdiction in testamentary matters
was regretted by few. In 1857, by the Court of Probate
Act of that year, the ecclesiastical jurisdiction was
transferred to the court created by the act; and in 1875,
by the Supreme Court of Judicature Act, 1873, the
jurisdiction of the Court of Probate was merged in that
of the High Court of Justice, and specially assigned to
the Probate, Divorce, and Admiralty Division of that
court. Contentious jurisdiction in probate was first
conferred upon the County Courts by the act of 1857.

The liability of executors and legatees for the debts
of the deceased seems to have been established at least
as early as that of heirs and devisees. It existed in the
time of Bracton, who wrote in the reign of Henry III
and is treated as clear law by Lord Coke in 1612. 2 In the
period of formal pleading no action could have been
brought against an executor in any case in which the
testator, if living, could have waged his law. 3 For that
reason an action of debt on a simple contract lay against
the executor only in the Court of Exchequer, where
wager of law was not allowed. Power to sue for torts
to the property of the deceased was first given to
executors by 4 Edw. Ill, c. 7. They were allowed
an action of account by 13 Edw. I, c. 23, but no

1 An account of the proceedings will be found in 2 State Trials,
1146, and in the Dictionary of National Biography, s.v. Bennet, Sir
John.

2 Pinchon's Case, 9 Coke's Rep., 86.

3 That is, have sworn that he did not owe the debt, confirming his
oath with that of eleven of his neighbours, who swore that they
believed his denial to be true.



22 HISTORY OF THE WILL

such action lay against them until 4 and 5 Anne, c. 16.
All these statutes have been superseded by later acts,
as will appear in a subsequent chapter.

Before recent legislation a married woman was under
certain testamentary disabilities. She could not at
common law make a will of any property, for it was not
hers to leave. Equity, however, allowed her to dispose
by will (under certain restrictions) of property settled to
her separate use. In some cases the husband could
dispose of her property by will, in others not. A
provision was often inserted in the marriage settlement
where there was one enabling the wife to make an
appointment disposing of personalty below a certain
value. She could always make a will under a power
of appointment, or, when executrix, continue the repre-
sentation by appointing another executor. She could
not act as executrix or take a grant of probate without
her husband's concurrence. Her position was gradually
ameliorated by the Married Women's Property Acts of
1870 and 1874, and still more by the act of 1882. 1 It
seems to have been completely assimilated to that of the
unmarried woman by the rule of the Probate Division
of 29th March 1887, under which it is not necessary to
recite in a grant of probate of the will of a married
woman that she was entitled to separate estate.

1 See p. 71.



CHAPTER II

THE HISTORY OF INTESTATE SUCCESSION IN ENGLAND

THE law of sucession to real estate depends on what, for
want of a better word, may be called feudal principles,
the law of succession to personal estate is based on that
existing in the later period of Roman law, when cognatic
had taken the place of agnatic relationship. As in the
case of wills, it will be necessary to consider separately
the history of succession to the two kinds of property.
A short sketch of the history is necessary for explaining
much of the significance of the existing law.

Real Estate. In the pre-Conquest period land de-
scended as a rule, that is, where no custom modified the
general law, to all the sons equally, the rule of primo-
geniture being of Norman introduction. 1 By the reign
of Henry II (when Glanvill wrote) the law had become

1 Both the Mosaic and the Mohammedan law occupy a position
midway between pre- and post-Conquest law in England. By the
former the eldest son had a double portion for his birthright, by the
latter a son had double the portion of a daughter, but the eldest son
had no special privilege. In the United States the right of the eldest
son has been abolished in all the States, and real and personal property
generally descend in the same manner, the main differences appearing
in variations of the law as to the respective rights of succession of the
husband and the wife. Bills for the assimilation of the succession in
real estate to that of the succession in personal estate have often been
introduced into the House of Commons of the United Kingdom, but
hitherto without success.



24 HISTORY OF INTESTATE SUCCESSION