II.: The Right to Bequeath.

The main interest of this chapter, for the historian of law and institutions, lies in a different direction; in the light thrown on the right of making Wills in 1215. The early law of England had difficulty in deciding how far it ought to acknowledge the claims made by owners of property, both real and personal, to direct its destination after death. Various influences were at work, prior to the Norman Conquest, to make the development of this branch of law illogical and capricious. Of the law of bequests in the twelfth century it is possible to speak with greater certainty; definite principles had by that time received recognition. All testamentary rights over land or other real estate were then denied, not, as has sometimes been maintained, in the interests of the feudal lord, but rather of the expectant heir. Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their spiritual influence to wring bequests from dying men to the impoverishment of the heir. Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, ultimately, but not before the reign of Henry III., made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels.

Under Henry II. no such right had been admitted. The Assize of Northampton (1176) directed that heirs should divide the chattels according to the provisions made in the Will, without any reference to the supervision of the bishop or his clergy. Glanvill twice gives a writ directing the sheriff to uphold the Will of a testator; but no trace of any similar writ appears in the Registers of the early years of Henry III.: “the state has had to retreat before the church.”

This victory of the ecclesiastical courts was probably won shortly after 1215. John’s Charter makes no admission of any right of the church in the “proving” of Wills; but it does admit (in chapter 27) the church’s right to “superintend” the division of the goods of intestates, an insidious privilege, which was used as a lever during the minority of Henry (a ward of Holy See), and thus helped to give the courts Christian an excuse for deciding also as to the validity of Wills. It was apparently in John’s reign that the practice of appointing executors to carry out the Will of the deceased became general. Henry II. in his own case had entrusted this duty to individuals whom he named, but did not describe as “executors,” a word, however, used in its technical sense in King John’s Will.

John claimed that his subjects could not make valid Wills without his consent, which had, as usual, to be paid for. Such, at least, is the inference to be drawn from the existence of writs granting licences to make a Will, or confirming one that had been made. The King’s interference in this province seems to have been regarded as an illegal encroachment.

Magna Carta declares that all the chattels (or the residue after paying Crown debts) “shall go to the deceased” for “the executors to fulfil the will of the deceased,” but immediately adds the saving clause, that “all the chattels” means only what remains after deducting the “reasonable shares” of wife and children. This seems to exclude, by implication, the King’s right to interfere on the plea that he had not licensed a Will, while it keeps alive an ancient rule that a testator could only dispose of part of his pecunia (or personal estate), his widow and children having absolute claims to the rest.

The Charter did not define these “reasonable shares”; but custom had already fixed them at the same proportions of the whole as the law of Scotland observes at the present day. When a Scotsman dies, leaving wife and children, his movable or personal estate falls into three equal parts, known respectively as the widow’s part (or jus relictae), the “bairns’ ” part (or legitim, the legitima portio of the Roman law), and “the dead’s part.” If he attempts to dispose of his entire estate, wife and children may claim their legal rights, and “break the Will.” Where a wife survives, but no children (or a child and no wife), the division is into two equal portions. Magna Carta recognizes a similar division; and we know from Glanvill that, if the dead man’s Will had attempted to defeat the just claims of wife or children, the writ de rationabili parte bonorum would give them relief.

The conception of a “dead’s part” or portion to be dispensed in charity and good works for the benefit of the deceased’s soul was, of course, in great measure due to the influence of the church, which was not unwilling to stimulate the belief that one of the best methods of affecting this was to leave money to itself. Under Henry III. the bishop of the diocese made good his claim to “prove” Wills (that is to determine whether they were valid), and to control the “executors” in carrying out the dead man’s instructions. Where the testator’s intentions were ambiguous, the “ordinary” would see to it that deceased’s soul did not suffer through giving too little to the church.

The reissue of 1216 makes no alteration on this chapter of John’s Charter: that of 1217 omits “et pueris,” probably through a clerical blunder, for the words were restored in 1225. As mere disuse does not abrogate an English statute, this provision remained in force until repealed by implication by the Wills Act of 1837.

Long subsequent to the thirteenth century, the laws of England and Scotland as to the rights of succession of wife and children seem to have remained identical: but, while Scots law is unaltered to the present day, English law has, by slow steps, the details of which are obscure, entirely changed. The rule that acknowledged the children’s right to one third of the personal estate was gradually relaxed, while the testator became sole judge what provision he ought to make for his sons, until at last a purely nominal sum of money was all that was required. The law of England, at the present day, does not compel a father to leave son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may perpetuate the tradition of an intermediate stage of English law, where some provision, however inadequate, had to be made, if the Will was to be allowed to stand.