WILLS OF PERSONAL PROPERTY, AND ADMINISTRATION OF THE GOODS OF THOSE WHO DIE INTESTATE. TESTAMENTS are of very high antiquity. We find them in use among the ancient Hebrews; though I hardly think the example usually given of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir, is quite conclusive to shew that he had made him so by will. And indeed a learned writer has adduced this very passage to prove, that in the patriarchal age, on failure of children, or kindred, the servants born under their master's roof succeeded to their inheritance as heirs at law. But, to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world, I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings, wherein Jacob bequeaths to his son Joseph a portion of his inheritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided. into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens; but in many other parts of Greece they were totally discountenanced. In Rome they were unknown till the laws of the twelve tables were compiled, which first gave the right of bequeathing; and, among the northern nations, particularly among the Germans, testaments were not received into use. And this variety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state, which has permitted it in some countries, and denied it in others; and even where it is permitted by law, it is sub jected to different formalities and restrictions in almost every nation under heaven. With us in England this power of bequeathing is coeval with the first rudiments of the law; for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. But we are not to imagine that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us, that by the common law, as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal parts of which one went to his 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 e 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. The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them. : But this law is at present 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 this alteration begun. A man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In case a person made no disposition of such of his goods as were testable, whether that were only part or the whole of them, he was, and is, said to die intestate; and in such cases it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom. This prerogative the king continued to exercise for some time by his own ministers of justice, and probably in the county court, where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts baron and other courts, or to have their wills there proved, in case they made any disposition. Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative: which was done, says Perkins, because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods therefore of intestates were given to the ordinary by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios usus; and if he did otherwise, he broke the confidence which the law reposed in him. So that properly the whole interest and power which were granted to the ordinary, were only those of being the king's almoner within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious. And, as he had thus the disposition of intestates' effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby. The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were therefore not accountable to any, but to God and themselves, for their conduct. But even in Fleta's time it was complained, quod ordinarii, hujusmodi bona nomine ecclesiæ occupantes, nullam vel saltem indebitam faciunt distributionem." And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of pope Innocent IV. written about the year 1250; wherein he lays it down for established canon law, that "in Britannia tertia pars bonorum decedentium ab intestato in opus ecclesiæ et pauperum dispensanda est.” Thus the clergy took to themselves (under the name of church and poor) the whole residue of the deceased's estate, after the partes rationabiles, or two-thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reason it was enacted by the statute of Westm. 2. that the ordinary shall be bound to pay the debts of the intestate so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will: a use more truly pious, than any requiem, or mass for his soul. This was the first check given to that exorbitant power, which the law had entrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary should approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate dependants; and therefore the statute 31 Edw. III. c. 11, provides, that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5, enlarges a little more the power of the ecclesiastical judge; and permits him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion: and where two or more persons are in the same degree of kindred, gives the ordinary his election to accept whichever he pleases. Upon this footing stands the general law of administration at this day. Let us now see what are the power and duty of an executor or administrator. 1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. 2. The executor must prove the will of the deceased; which is done either in common form, which is only upon his own oath before the ordinary, or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed. When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him: all which together is usually styled the pro bate. In defect of any will, the person entitled to be administrator must also at this period take out letters of administration under the seal of the ordinary; whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him; and he must, by statute 22 & 23 Car. II. c. 10, enter into a bond with sureties, faithfully to execute his trust. 3. The executor or administrator is to make an inventory of all the goods and chattels, whether in possession or action*, of the deceased; which he is to deliver in to the ordinary upon oath, if thereunto lawfully required. 4. He is to collect all goods and chattels so inventoried : and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased, and having the same property in his goods as the principal had when living, and the same remedies to recover them. Whatever is so recovered, that is of a saleable nature, and may be converted into ready money, is called "assets" in the hands of the executor or administrator; that is, sufficient or enough, (from the French assez,) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. 5. The executor or administrator must pay the debts of the deceased. 6. When the debts are all discharged, the legacies claim the next regard; which are to be paid by the executor so far as his assets will extend. A legacy is a bequest or gift of goods and chattels by testament; and the person to whom it was given is styled the legatee; but the legacy is not perfect without the assent of the executor; for if I have a general or pecuniary legacy of 100%. or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor. For in him all the chattels are vested; and it is his business first of all to see whether there is a sufficient sum left to pay the debts of the testator: the rule of equity being, that a man must be just before he is permitted to be generous. And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; but a specific legacy, of a piece of plate, a horse, or the like, is not to abate at all, or allow any thing by * Unpaid debts, and claims against others, are technically said to lie in action. |