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The medieval law of intestacy online

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[Reprintkd from the Harvard Law Review, Vol. XVIII., No. 2]

Copyright, 1904, .
By The Harvard Law Review Association




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DURING the middle ages the last will was usually the epilogue
of the last confession.^ The intestate was regarded with
horror as an infamous person who had died unconfessed. For if
he had made confession on his death-bed, the priest before grant-
ing absolution would have persuaded the dying man to make a
will by which he would bestow a part of his movables on the
church and the poor for the repose of his soul.* The intestate,
therefore, must have died without providing for his salvation ; he
could not be buried in consecrated soil, and in some parts of
Europe his personal property was forfeited to his feudal lord.* In
England during the first half of the thirteenth century the prelates
secured the right to distribute such property, but a statute of
1 35 7 required the ordinary to commit the work of administration
" to the next and most lawful friends of the dead," who were to
make provision for the welfare of his soul and were accountable to
the ordinary. The rule was after payment of debts to give a
third of his . movables to the wife and a third to the children (the
bairns' part), while the other third (the dead's part) was expended
for pious works ; if he left a wife but no children, or children but
no wife, the dead's part was a half.*

It has recently been asserted that intestacy was rare in England
because it was easy to make a will and because the chroniclers

1 Auffroy, Evolution du Testament en France, 555 ; cf, ibid., 376-84. ** Very often
a man makes no will until he feels that death is near " : Pollock and Maitland, English
Law, 2nd ed., ii. 340.

^ The prelates order that when a man makes a will he should dispose of part of
his property for the good of his soul ; also that a priest should be present when a will
is made : Wilkins, Concilia, 1. 583, 638, ii. 155, 156.

* Du Cange, Glossarium,' s. v. intestatio ; fitablissements de Saint Louis, ed. VioUet,
iv. 42-49 ; Caillemer, Confiscation et Administration des Successions par les Pouvoirs
Publics, 43-54 ; Pollock and Maitland, bk. ii. ch. vi. § 4. Caillemer believes that in
some parts of France the confiscation of the intestate's goods by the lord was not a
punishment for a religious offense, but a stage in the development by which serfs
obtained the right to dispose of their property.

* On the history of the English law of intestacy, see Selden, The Disposition of
Intestates* Goods (Collected Works, iii. 1677) J Moore, Reports of Cases heard by the
Judicial Committee of the Privy Council, v. 434-98 ; Makower, Const. Hist, of the
Church of England, 428-31 ; Pollock and Maitland, bk. ii. ch. vi. § 4 (the best account
of the subject) ; on the history of legitim, ibid.^ bk. ii. ch. vi. § 3.

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treat intestacy as a scandal.^ While the paucity of references to
intestates in the records tends to confirm this view, most of the
cases referred to by the chroniclers seem to relate to men who had
fair warning that death was approaching, not to those who died
suddenly ; and the coroners' rolls show that such sudden deaths
were very common. Therefore, since a man usually made his will
on his death-bed,* intestacy could not have been rare; and the
records which we shall soon examine show clearly that intestates
who died suddenly were regarded with less horror than those who
died under normal conditions.

Much obscurity overhangs the English law of intestacy before
the thirteenth century. Blackstone, adopting the opinion of
Coke,' says that " by the old law the king was entitled to seize
upon his [the intestate's] goods, as the parens patriae and general
trustee of the kingdom." * On the other hand, Selden and Pollock
and Maitland deny that this was ever a prerogative of the crown.
Though Coke's contention appears to be untenable, it would not
have been strange if the strong English monarchy, adopting the
principle of the Norman law, had insisted that the movables of
intestates should be dealt with in the same way as those of de-
ceased usurers. The Grand Coutumier of Normandy says that all
the chattels of those who, after an illness of nine days or more, die
unconfessed, belong to the duke, though some lords possess this
right by charter or prescription ; ^ and, according to an inquest
made by order of Philip Augustus in 1205 regarding the laws
which Henry II. and Richard I. had observed in Normandy, all
the movables of an intestate who lay ill in bed three or four days
before his death were forfeited to the king or to the lord.^ In
1 190 the clergy of Normandy claimed, however, that if any one
dies suddenly without leaving a will his personal estate should be
distributed by the church J This was evidently a mooted question

1 Pollock and Maitland, ii. 360, rejecting Selden's oi>inion that intestacy was

2 [bid.y ii. 34a

* Reports, ix. 38 b.

^ Commentaries, bk. ii. ch. 32.

* Coutumiers de Normandie, ed. Tardif, ii. 56, ch. 20.

* " Omnia mobilia ipsius domini regis debent esse aot illius in cujos terra est " :
Teulct, Layettes du Tr^sor des Chartes, i. no. 785 ; Duchesne, Hist. Norm. Scriptorcs,
1060 cf. Tardif, Coutumiers de Normandie, i. pt. ii. 93; Delisle, Cat. des Actes
de Philippe- Auguste, no. 961.

7 " Distributio bonorum ejus ecclesiastica auctoritate fiet " : Ralph of Diceto, Im-
agines Historiarum (Rolls Series), ii. 88.

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in Normandy regarding which there were disputes between the lay
and ecclesiastical authorities.

Certain passages may be found in the records which at first view
seem to lend some support to the theory of Coke and Blackstone,
but when carefully scrutinized they fail to carry conviction. For
example, in 1255 Henry III. grants to the burgesses of St. Omer
that if any of them shall die in the king's dominions testate or in-
testate, he will not confiscate their goods, but will allow their heirs
to have them ;^ probably Henry III. is here merely safeguarding
the men of St Omer against reprisals.^ In 1268 the citizens of
Dublin contended that the movable property of intestates be-
longed to the crown, but for this and other misdemeanors they
were excommunicated.® Moreover, various passages in the rolls
of the twelfth and thirteenth centuries show that the chattels of in-
testates were sometimes seized by the king,^ but in these cases he
was probably exercising this right because he was the feudal lord.
In 1284 Edward I. craved a grant of the goods of intestates from
Pope Martin IV., to help pay the expenses of his proposed cru-
sade, and met with a refusal,^ though a grant of this sort had been
made in 1256.® These negotiations with the papacy imply that

1 Cal. of Charter Rolls, i. 441. ^ Cf. Rot Lit. Claus., i. 620.

* "Nullus praelatus vel judex ecclesiasticus . . . de bonis eorum qui intestati
decedunt se aliquatenus intromittat, sed fisco bona hujusmodi applicentur " : Gilbert,
Historic Documents (Rolls Scries), 181 ; Chartae Hiberniae, 32.

* "Aldredus de Muchelegate debet Ix. marcas de catallis Reginaldi qui obiit in
domum suam (sic) sine divisa" : Pipe Roll, 16 Hen. II. p. 46. ** Rogerus [de Floketorp]
cepit de Emma quae fuit uxor Hugonis Flaxenebert de Kyneburi* per manum Eustacii
Noth de eadem, executoris diet! Hugonis, eo quod imposuit els quod dictus Hugo de-
cessit intestatus et quod medietas bonorum suorum fuit domino regi, et ideo cepit
XX. s. ad opus suum proprium " : 3 Edw. I., Rotuli Hundredorum, i. 447. This was
wrongfully exacted, for a jury found that Hugh had died testate. Roger was the bailiff
of a manor that had escheated to the king. See ibid.y i. 445, 449. See also Rot. Lit.
Claus., i. 537 (writ, 7 Hen. III., stating that Richard Fitsdune did not die intestate,
and therefore his chattels seized on behalf of the king are to be given to his executors) ;
Close Roll, 17 Hen. III., cited by Selden, Works, iii. 1682 (writ ordering that a parson
is to have his mortuary out of the chattels of Robert de Weston, who died intestate).
It is difficult to accept Selden's contention that the writ of 7 Hen. III. refers to seizure
for a debt due to the king.

^ Cal. of Papal Registers, i. 474.

^ '* Omnia bona niobilia ab intestato decedentium sive de regno Angliae sive de
aliis terris [regis Angliae] . . . pro ilia portione quae juxta patriae consuetudinem de-
cedentes contingit ... ad opus . . . regis Angliae ut votum suum efficacius exequi
valeat " : Rymer's Foedera (Rcc. Com.), i. 345. In 1248 Innocent IV. decreed that the
goods of intestates should be set aside by the bishops for the needs of the Holy Land:
Fournier, Les Officialit^s, 89. At the pariiament of Carlisle, in 1307, complaint was
made that officers of the pope demand for his use all the goods of intestates : Rotuli
Pari., i. 220.

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Henry III. and Edward I. did not regard such goods as the
property of the crown.

The evidence at our disposal indicates that, according to the
older law of England, the personal property of the intestate was
forfeited to the feudal lord. Cnut*s doom seems to imply that
already before the Norman Conquest the lords were trying to
obtain this right : " If anyone dies intestate, be it through his
neglect or through sudden death, then let not the lord draw more
from his property than his lawful heriot; and according to his
direction let the property be distributed very justly to the wife and
children and relations." ^ Domesday Book tells us that in the time
of Edward the Confessor the king could seize all the goods of his
citizens of Hereford dying without a will* The rule set forth in
Leis Willelme, ch. 34, that the children of an intestate shall divide
the inheritance among them equally,* may be construed as an
assertion against the claims of the lords. The coronation charter
of Henry I. says that if any royal vassal meets a sudden death by
arms or sickness and makes no disposition of his effects {pecunia),
his wife, children, kinsmen, or liege men shall distribute them for
the good of his soul.* This regulation applies only to royal vas-
sals, and it seems to imply that, except in cases of sudden death,
the king as lord might exercise the power of confiscation.^ Glan-
vill clearly states that when any one dies intestate all his chattels
are understood to belong to his lord,® and this seems to be con-
firmed by some entries in the Pipe Rolls of Henry 11.^ The
chapter of John's Great Charter enacting that the chattels of a

1 Cnuf s Laws, ii. ch. 70 : Liebermann, Gesetze, L 356.

2 Below, p. 126, n. 5.

* Liebermann, Gesetze, L 514.

* Ibid.y i. 522. According to King Stephen's charter, the goods of intestate clerics
were to be distributed for the benefit of the soul by the counsel of the church : Stubbs,
Select Charters, 120; cf. Pollock and Maitland, English Law, 2nd ed., i. 519. In 1190
the clergy of Normandy claimed that such goods do not belong to the secular power,
but should be distributed by episcopal authority for pious uses : Ralph of Diceto,
Imagines Hist., ii. 87.

* According to the Grand Coutumier of Normandy and the Ctablissements de
Saint Louis, desperati or inconfessi do not forfeit their movables in case of sudden
death, but only after a fatal illness of eight or nine days : Aufiroy, Evolution du Tes-
tament, 556 ; Du Cange, s. v. intestatio. See also the rule laid down by the clergy of
Normandy in 1190 and the inquest made in 1205, above, p. 121.

< 6k. vii. ch. 16 : " Cum quis vero intestatus decesserit omnia catalla sua sui domini
esse intelliguntur ; si vero plures habuerit dominos, quilibet eorum catalla sua recu-
perabit quae in feodo suo reperiet."

7 18 Hen. II., pp. 98, 133.

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free man who dies intestate should be distributed by the hands of
his near kinsmen or friends under the supervision of the church,^
seems to have transferred power from the king and other lords to
the prelates ; and, though this chapter was omitted in the con-
firmations of the charter, probably because it collided with the in-
terests of the lay lords, the church exercised the right to distribute
the personal property of intestates since the second quarter of the
thirteenth century* and perhaps since the early part of Henry III/s
reign. The constitutions of Walter of Cantilupe, bishop of Worces-
ter (1240), assert that the distribution should be made under
the supervision of the lord and him whom the bishop shall have
deputed for that purpose.' This arrangement looks like a com-
promise in a struggle between the barons and the prelates or be-
tween the principles set forth in Cnut's doom and in John's
charter. Bracton's statement of the law of his time is also reminis-
cent of the older law : " If a free man dies intestate and suddenly,
his lord should in no wise meddle with his goods, save in so far as
this is necessary in order that he may get what is his, namely, his
heriot,*but the administration of the dead man's goods belongs to
the church and to his friends, for a man does not deserve punish-
ment although he has died intestate." *

There are, moreover, indications that in Bracton's day and later
the lords remembered their old right, and sometimes tried to assert
it in defiance of the church. In the articles presented to Henry III.
by the bishops in 1257, it is stated that the king and other feudal
lords seize the goods of intestates, and do not permit their debts
to be paid or the residue to be applied by the ordinary to the use
of the children or kinsmen and to other pious uses.^ Lords who
do this were threatened with excommunication at the Council of
Merton in 1258, and at the Council of Lambeth in I26i.* In 1279
Archbishop Peckham rebukes Llewellyn, prince of Wales, for con-
fiscating " bona intestatorum vestrorum " ; ^ and in 1305 the bishop
of LlandafT complains to Edward I. that the magnates will not

1 Stubbs, Select Charters, 300, ch. 27.

* In 1239 a rule is made regarding the administration of the goods of intestates in
the absence of the bishop : Wilkins, Concilia, i. 664.

« Ibid., i. 675.

* Bracton, f. 60 b, ed. Twiss, i. 480. Bracton's text is open to the interpretation
that if intestacy is not occasioned by sudden death it may be a cause of forfeiture.

• Matthew Paris, Chronica Majora, ed. Luard, vi. 358 ; Wilkins, Concilia, i. 728 ; cf,
ibid,, i. 724.

• Ibid., i. 740, 754; ^ **^'^-» ii- 7oS- ^ Registrum J. Peckham, i. 77.

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allow him to administer the goods of intestates.^ The lords also
continued, in some parts of England at least, to confiscate the
chattels of their villeins dying intestate.^

In the marches of Wales the old law in favor of the lords seems
to have been maintained long after the reign of Edward I. In 1278
the lord of Kemes agreed to waive his claim to the property of
intestates.* In 1352 Edward III. ordered three commissioners to
inquire whether Sir Henry Hastings, a tenant-in-chief, and others
died intestate, and whether, according to the custom of the marches
of Wales, all the chattels of tenants dying intestate belonged to their
lords. A jury sworn before two of the commissioners in 1354 de-
clare that from time immemorial it has been customary for the
lords to have all such chattels.* They say that Sir Henry left a
will, but that Grono ap levan died intestate during the present
reign ; his chattels are worth 40^.* An attempt was made to enforce
the old custom as late as the reign of Edward VI.^

Attention must finally be called to the town charters, which,
though they contain many references to intestacy, have been passed
over in silence by all writers on this subject. Their examination
will confirm the view that long after Bracton wrote his law-book
the king and other lay lords still remembered their old right, and
that their tenants, in the boroughs at least, regarded exemption
from its exercise as a privilege. The following list of references
to the evidence on this subject does not profess to be exhaustive.^

1 Memoranda de Parliamento, 1305, ed. Maitland, 73. The king answered that he
would not interfere with the custom of the country, meaning perhaps the custom of
Wales. For conflicts arising from the claims of the prelates in France, see Auffroy,
Evolution du Testament, 558-60.

3 Court Rolb of the manor of Wakefield, ed. Baildon, L 256, 260; Rotuli Hun-
dredorum, ii. 758; Pollock and Maitland, 2nd ed., i. 417. Some lords did not permit
their serfs to make wills or impeded their execution : Letters from Northern Registers,
73; Wilkins, Concilia, i. 724, 740, 754, ii. 155, 553, 705.

* ** Item si aliquis liber homo de Kemeis decedat intestatus praedictus dominus nihil
habebit de bonis intestati " : Baronia de Kemeys (Cambrian Archaeol. Assoc.), 59.

^ " Consuetudo est in marchia Walliae optata [? obtenta] et usitata quod domini
parti um illarum omnia bona et catalla tenentium suorum in partibus illis intestatorum
decedentium ratione dominii soi praedicti habent et habere consueverunt a tempore quo
non eztat memoria.*'

* Baronia de Kemeys, 14, 71.

* Ibid.^ 1 5. In 1485 we hear of the office of selling goods of intestates in the county of
Flint, — an office which seems to have been in the gift of the king : Rotuli Pari., vi. 353.

' The references are to town charters, excepting those concerning Cardiff, Hereford,
Preston, and Tewkesbury, which are to customals or to Domesday Book. The aster-
isk indicates that the privilege was granted by a baron. Where there is no asterisk
the reference is to a royal charter, except in the cases of Hereford and I^eston.

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Bala, 1289 : Record of Caernarvon, 175.

Bath, 1256 : Warner, History of Bath, app. xlv.

Beaumaris, 1296 : Record of Caernarvon, 159.

Bere, 1284 : Archaeologia Cambrensis, 1849, iv. 216.

Bristol, 1256 : Seyer, Charters of Bristol, 22.
♦Cardiff, before 1183 : Clark, Cartae de Glamorgan, ill 78.*

Cardigan, 1284: Placita de quo Warranto, 821.

Carmarthen, 1257 : Charters of Carmarthen, 7.

Carnarvon, 1284: Record of Caernarvon, 185.
♦Chester, c, 1200 : Hist MSS. Com., viii. 356.*

Chester, 1300 : ibid.^ viii. 357.'

Conway, 1284: Record of Caernarvon, 163.

Cork, 1242 : Chartae Hiberniae, 25.'

Criccieth, 1284: Record of Caernarvon, 197.

Flint, 1284 : Taylor, Notices of Flint, 32.

Guildford, 1257 : CaL of Charter Rolls, i. 456.

Harlech, 1284: Record of Caernarvon, 193.
♦Haverfordwest, 12 19-31 : English Hist. Review, xv. 518.*

Haverfordwest, 1291 : ibid,

Hereford, 1086 : Domesday Book, i. 179 a.*
♦Kells, temp. John: Chartae Hiberniae, 17. •
♦Kidwelly, 1329 : Archaeologia Cambrensis, 1856, il 276.'

Kingston-upon-Thames, 1256 : Roots, Charters of Kingston, 28.
*Laughame, 1300 : Archaeologia Cambr., 1879, x. suppL xlii.

Newborough, 1284: Record of Caernarvon, 179.
♦Newport (Pembrokesh.), ii92(?) : Baronia de Kemeys, 15, 5o.'

Northampton, 1257 : Cal. of Charter Rolls, i. 459.

Oswestry, 1398 : Shropsh. Archaeol. Soc, Trans., ii. 192.

^ ** Item quacunque morte burgensis praeoccupatus f uerit, nisi per nequitiam dampna-
tU8,uxor ejus et liberi sui habebunt catalla mortui vel prozimi parentes ipsius tanquam
heredes si non habuerit uxorem vel liberos." From a customal of the twelfth century.

* " £t si aliquis civis de praedicta civitate in servitio meo occisus fuerit, de catallis
suis fiat ac si ipse rationabile testamentum fecisset."

* Whether they die testate or intestate, the goods of the citizens are not to be con-
fiscated by the king but are to go to their heirs.

* " Heres burgensis quacumque morte praeoccupati habeat hereditatem et catallum
patris sui."

^ " Si quis morte praeventus non divisisset quae sua erant, rex habebat omnem ejus

* " Quicumque praedictorum burgensium de K. sive in terra sive in man testatus
vel intestatus obierit, heres ipsius duodecim denarios in relevium pacabit et hereditatem
suam qaiete possidebit."

' Henry, duke of Lancaster, grants, 2 Edw. [III.], that if any burgher should die
intestate his son and heir shall have his property " without challenge of us or our heirs."

' " Item si burgensis moritur de quacunque morte morietur, nisi per judicium pro
felonia vitam suam amittat, ego nihil habebo de catallo nisi relevium scilicet xii. d."


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♦Oswestry, 1407 : ibid,y ii. 199.
Oxford, 1257: Ogle, Royal Letters, 11.

Pembroke, temp. Hen. II. : Cal. of Patent Rolls, 1377-81, p. 107.*
Preston, temp. Hen. II. (?) : English Hist Review, xv. 499."
Rhuddlan, 1279: Cal. of Patent Rolls, 1272-81, p. 324.

♦Saltash, temp. Hen. HI. : Luders, Reports, ii. ii9.'
Shrewsbury, 1256: Owen and Blakeway, Hist, of Shrewesbury, i. 121.
Stamford, 1257 : Cal. of Charter Rolls, i. 472.

♦Tenby, temp. Hen. III. : English Hist. Review, xvi. 103.*


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