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♦Tewkesbury, before 1183 : Clark, Cartae de Glamorgan, iii. 78.*

The same formula is used in the royal charters with few excep-
tions : * the king promises that if any burgesses should die within
his dominions testate or intestate, he will not cause their chattels
to be confiscated, but the heirs shall have them intact, in so far as
it can be shown that they belonged to the deceased, provided that
sufficient knowledge or proof of the heirs can be had."^ Perhaps the

1 " £t [si] burgensis ejusdem villae quacumque morte et quocumque loco sive in
terra sive in man sive cum testamento sive sine testamento moriatur, heres suusomnes
res suas habeat per donandum xii. d. de relevio."

^ " Si burgensis de villa morte subitanea obierit, uxor ejus et heredes sui omnia
catalla sua et terras suas quiete habebunt. Ita quod dominus suus nee justiciarii
manum ponant in domibus vel in catallis defuncti nisi publice excommunicatus f uerit,
sed consilio sacerdotis et vicinorum in elemosinis expenduntur."

* Reginald de Valle Torta grants to his burgesses : " et quisquis illorum obierit de
quacunque morte fuerit, heres ejus catalla ipsius in pace habebit et terram suam per
triginta denarios releviabit ad plus."

* " Concedimus quod si quis burgensium praedictorum morte subita, quod absit,
moriatur, omnia catalla sua sibi fore salva et heredem suum in hereditatem suam per
relevium xii. d. libere introire."

' Customal of Cardiff and Tewkesbury. See above, under Cardiff.

* The exceptions are Chester, Cork, and Pembroke. In the charters of Chester and
Cork the formula is merely abbreviated.

7 " Si dicti burgenses aut eorum aliqui infra terram et potestatem nostram testati
decesserint vel intestati, nos vel heredes nostri bona ipsorum confiscari non faciemus,
quin eorum heredes ea integre habeant, quatenus dicta catalla dictorum defunctorum
fuisse constiterit, dum tamen de dictis heredibus notitia aut fides sufficienter habeatur."
This formula is also used in the baronial charters of Laugharne and Oswestry, and in
a grant made by Henry III. to the burgesses of St. Omer (Cal. of Charter Rolls, i.
441); instead of "heirs" the charter of Oswestry (1407) has "heirs and executors."
The formula, as set forth above, should be compared with that of a charter granted
during the reign of Henry II. by his son Richard to the men of La Rochelle : " Qui-
cumque ex illis sive testatus sive intestatus sive confessus sive non morietur, omnes
res ejus et possessiones integre et quiete remaneant heredibus suis et genero suo "
(Ordonnances des Rois, xi. 318, from the inspeximus of Louis VIII., 1224). An in-
speximus of Alphonse of Poitiers, 1 241, adds the words "id est " after " intestatus " :
Besly, Histoire des Comtes de Poitpu, 500. For other grants of this privilege to
French towns, see Ordonnances des Rois, zi. 319,321,337, 495; Auffroy, Evolution du
Testament, 557.



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128 HARVARD LAW REVIEW,

demand for this privilege was stimulated in 1256-57 and 1284 by
the negotiations between the crown and the papacy.^ The charters
of baronial towns which state that the chattels of burgesses who die
suddenly or " by any sort of death " shall go to their heirs, doubt-
less refer to cases of intestacy. A grant of Henry II. to La Rochelle
tells us that a burgher who breaks his neck or is drowned, has not
an opportunity to confess and make his will ; therefore his prop-
erty is to be distributed by his kinsmen and friends for the good
of his soul.^

The town records of England give little information concerning
the disposition of the goods of the intestate. The rule laid down
in the Preston customal seems to mean that out of his estate pro-
vision was to be made for the benefit of his soul by the parish
priest and the dead man's friends or kinsmen.' According to the
customal of Sandwich, which probably records the usages of the
fourteenth and fifteenth centuries, the mayor and jurats have
the administration of the bona intestatorum in the following manner.
The mayor takes with him the jurats and sometimes the rector or
vicar of the dead man's parish, and they ascertain what he pos-
sessed in money, goods, and debts at the time of his death. Then
they appoint two executors, who are sworn to make an inventory.
After payment of debts and funeral expenses, the residue is divided
into three equal parts, if there is a wife and children; into two
equal parts, if there is a wife but no children. Then the dead man's
part (the third or halQ is distributed for the benefit of his soul ; and
finally the executors render an account before the mayor and jurats,
the friends or kinsmen, and the rector or vicar, if they desire to be
present. The record adds that this practice has been in use from
ancient times without any contradiction on the part of the arch-
deacon of Canterbury or any other ordinary.* The dead man's

1 Above, p. 122.

* ** Si vero aliquis eorum colli fractione vel submersione vel aliquo catu subita morte
praeventus f uerit et spatium confitendi non habuerit, concedo at secundum rationabilem
dispositionem et considerationem parentum et amicorum suorum res suae distribuantur
et eleemosynae fiant proanima ipsius " : Ordonnances des Rois, zL 319. See also the
claim of the clergy of Normandy in iiQoJn Ralph of Diceto, Imagines Hist., iL88 : " Si
quis vero subitanea morte vel quolibet alio fortuito casu praeoccupatus fuerit, ut de
rebus suis disponerenon possit, distributio bonorumejus ecdesiastica auctoritate fiet."

» Above, p. 127, n. 2.

^ " Ita semper quod de bonis ipsi def uncto pro portione accidentibus fiat testamentum
per visum et auxilium amicorum suorum, si interesse voluerint, et distributio [sit] per
manus ipsorum executorum debita et fidelis [secundum quod] credunt quod voluntas
sua f uerit dum vizerit, et ad elemosinam et vias emendendas pro anima sua juxta



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THE MEDIEVAL LAW OF INTESTACY, 1 29

part was probably expended for pious uses in other towns, like
London, York, Chester, Bristol, Dublin, and Newcastle-upon-Tyne,
where the tripartite division of the chattels of a man with wife and
children existed.^ But Bracton, after speaking of th-i law of in-
testacy and the tripartite division of chattels, vaguely intimates that
other rules prevailed in some boroughs and cities.^ Most of the
records say that the personal property of the intestate shall go to
his heirs or to his wife and children, without specifying any limi-
tation or legitim. The heirs would, however, probably regard it
as a religious duty to do something for the repose of the intestate's
soul ; and, as at Preston, this would naturally be done with the help
or advice of the parish priest. But we hear nothing of the inter-
vention of the ordinary, except at Dublin in 1268, when the citi-
zens resented it ; ^ and the Sandwich customal expressly excludes
any intervention of this sort. Such opposition to the assertion of
episcopal authority was to be expected in towns the magistrates
of which had the probate of wills. In many boroughs during the

bonorum quantitatem. . . . £t haec solent fieri ab antique usque ad nunc sine aliqua
contradictione domini archidiaconi Cantuariensis vel alicujus alterius ordinarii *' : Boys,
Hist, of Sandwich, 524-5. In some parts of France the priest or the kinsmen might
make a will on behalf of the intestate : Auffroy, Evolution du Testament, 557 ; Recueil
des Monuments In^dits, ed. Thierry, iv. 408. Many bequests were made by the citizens
of Brbtol for the repair of highways : Wadley, Abstracts of Wills, passim. Another
chapter of the Sandwich customal says that the movables of orphans are at the dispo-
sition of the mayor and jurats, " quia apud nos catalla et bona mobilia non accidunt
hereditarie heredibus defuncti prout accidunt tenementa, redditus et possessiones," but
a portion of such chattels is set aside for masses, the repair of roads, and similar works
of charity ; thus in 1351 two-thirds were distributed in this way, and only one-third went
to the heirs: Boys, 514.

1 For London, York, and Chester, see Sharpe, Cal. of Wills, i. p. xxxiii. ; Pollock and
Maitland, English Law, 2nd ed., ii. 350; Widdrington, Analecta Eboracensia, 68, 300;
Statutes of the Realm (Rec Com.), vi. 372. The rule laid down in the Chester charter
(c, 1200, above, p. 126) seems to imply that there was a definite divbion of the chattels
in that dty. The Bristol wills often make a threefold division of movables : Wadley,
Abstracts of Wills, p. 104, " tertia vero pars sit mihi hoc modo " ; cf, ibid.^ pp. 49, 75-
77, 81, 90, 91, 100, 103, etc. For " the dead's portion " (a third) at Dublin, see Gilbert,
Cal. of Records, i. 129, 131. The custom of Newcastle-upon-Tyne, that the third part of
all the goods of a burgher should be inherited by his children, was adopted by the Scotch
burghs : Ancient Laws of the Burghs of Scotland, ed. Innes, 55, 17a. Pollock and
Maitland, ii. 362, believe that the eldest son or heir could claim no bairn's part ; but,
according to the Newcastle custom, he was to have the same portion of the goods as
any of the other children. The Leges Burgorum, ch. 116, also give a long list of heir-
looms ox principalia which he inherits: Ancient Laws, 56, cf, ibid.^ 171.

> Bracton, f. 61 ; Fleta, bk. ii. ch. 57, § 10; ^ Pollock and Maitland, ii. 350, for a
criticism of Bracton's statement regarding London.

s Above, p. 122. In the same year the citizens of London were excommunicated
for admitting wills to probate in the hustings : Liber de Antiquis Legibus, 106.

9



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I30 HARVARD LAW REVIEW.

thirteenth and fourteenth centuries the municipal magistrates pro-
nounced on the validity of wills ^ and administered justice on behalf
of the legatee whose legacy was withheld,^ though this jurisdiction
was evidently regarded with disfavor by the prelates.* The mu-
nicipal authorities before whom wills were proved would naturally
claim the right to administer the intestate's property. "The
right to regulate the administration of intestates was too closely
connected with the testamentary jurisdiction to be conveniently
separated from it."*

While we have tried to show that there are indications of a
struggle of the feudal lords to obtain or maintain their right to con-
fiscate the chattels of intestates — a struggle which lasted from the
time of Cnut to the time of Edward I., and of which we still find
reminiscences in the records of the fourteenth century, — the main



1 For probate in the hustings of London from 1256 onward, see Sharpe, Cal. of
Wills, i. pp. xlii-xlvi ; Liber Albus, 180, 403, 407 ; Ricart's Kalendar, 97-99 ; Pollock
and Maitland, ii. 331. See also Domesday of Ipswich, ed. Twiss, 70-86; Bacon, Annals
of Ipswich, 10, 16, 25-27, 41-46, 50-55, 59-61, 68-73, etc. (wills proved from 1269 on-
ward); Placitorum Abbreviatio, 211, 216, 235 (Canterbury, Oxford, and London, Ump^
Edw. I.) ; Little Red Book of Bristol, ed. Bickley, i. 32, 52-54 (ordinance concerning
probate, 1344, etc.) ; Hist. MSS. Com. zL pt. iiL 188 (grant by Edw. II. that wills
touching tenements in King's Lynn shall be proved and enrolled before the mayor) ;
Owen and Blakeway, Hist, of Shrewsbury, L 382 ; Oliver, Hist, of Exeter, 222 ; Wid-
drington, Analecta Eboracensia, 71. These references suffice to modify or confute the
opinion of Bracton and the decision of the royal judges, 19 Edw. I. (Pollock and Mait-
land, ii. 330), that the jurisdiction over bequests of burgage tenements belonged to the
ecclesiastical courts. In some boroughs a will was proved first before a representative
of the bishop, and afterwards before a town magistrate in the gildhall : Wadley, Ab-
stracts of Bristol Wills, 3, 5, 7, etc. ; Manship, Hist, of Yarmouth, 405 ; Bacon, Annals
of Ipswich, 41 ; Tighe and Davis, Annals of Windsor, i. 324 ; Registers of Walter
Bronescombe, etc., ed. Hingeston-Randolph, 436 (Exeter) ; Hist. MSS. Com., xi.pt.
iii. 233-4 (King's Lynn). Perhaps a canon of Boniface's Constitutions (1261, Wilkins,
Concilia, i. 754 ; cf. ibid,, i. 550, ii. 705) may be directed against this practice : ** Item
testamentis coram ordinariis locorum probatis et approbatis eorundem probatio seu
approbatio testamentorum a laids nullatenus exigatur." Though the records empha-
size the claim of the burgesses that wills devising burgage tenements should be proved
in the borough court, many of the wills thus proved (for example, at London, Brbtol,
and King's Lynn) bequeathed chatteb only, or both chattels and land.

* Since the first half of the fourteenth century we hear of actions in the borough
courts by the writ ex gravi querela to recover bequests of burgage tenements : Little
Red Book of Bristol, ed. Bickley, i. 33; Liber Assisarum, f. 232, 250; Law Quarterly
Review, i. 265. As early as 1291 the legatee had a remedy in the borough court of
Ipswich against the executors who would not g^ve him seisin : Domesday of Ipswich,
ed. Twiss, 72, 82.

* Liber de Antiquis Legibos, 106; Letters from Northern Registers, 71.

^ Stubbs, in Report of Eccles. Courts Commission, 1883, p. xxiiL He makes this
statement in speaking of the jurisdiction of the church tribunals.



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THE MEDIEVAL LAW OF INTESTACY, 131

object of this paper has been to call attention to the fact that
throughout the thirteenth century many boroughs were purchasing
from their lords a favor or privilege which, according to Bracton,
was the right of every free man. In the very decade when Bracton
was asserting that the lord shall not meddle with the intestate's
goods, the lords were selling a burghal franchise which implied
that they had the right to seize such goods. The importance of
personal property in boroughs, which was due to the predominance
of mercantile over agricultural interests, would naturally make both
the lords and the burgesses inclined eagerly to assert their claims
against the pretensions of the prelates. The old law of intestacy,
as set forth by Glanvill, pressed more heavily upon the tradesmen,
whose wealth was made up mainly of chattels, than upon rural free-
holders and villeins. It is not strange, therefore, that the town law
since the thirteenth century strove to reject the pretensions of both
lords and prelates, and to establish the rule that the chattels of the
intestate should go to his kinsmen, who would, however, be ex-
pected to devote a portion of his property to pious works for the

atonement of his sins and the benefit of his soul.

Charles Gross.



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Online LibraryCharles GrossThe medieval law of intestacy → online text (page 2 of 2)