Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Title by Testament, and Administration
THERE yet remain to be examined, in the present chapter, two other methods of acquiring personal estates, viz. by testament and administration. And there I propose to consider in one and the same view; they being in their nature so connected and blended together, as makes it impossible to treat of them distinctly, without manifest tautology and repetition.
XI. XII. IN the pursuit then of this joint subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show what an executor and administrator are, and how they are to be appointed; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators.
FIRST, as to the original of testaments and administrations. We have more than once observed, that, when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, gifts, and contracts. But these precautions would be very short and imperfect, if they were confined to the life only of the occupier; for then upon his death all his goods would again become common, and create an infinite variety of strife and confusion. The law of very many societies has therefore given to the proprietor a right of continuing his property after his death, in such persons as he shall name; and, in defect of such appointment or nomination, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other persons.1 The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law,2 we call in England an administration; being the same which the civil lawyers term a succession ab intestato [from an intestate], and which answers to the descent or inheritance of real estates.
TESTAMENTS are of very high antiquity. We find them in use among the ancient Hebrews; though I hardly think the example usually given,3 of Abraham’s complaining4 that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir, is quite conclusive to show that he had made him so by will. And indeed a learned writer5 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 the inheritance as heirs at law.6 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 world7) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings,8 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;9 but in many other parts of Greece they were totally discountenanced.10 In Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathing:11 and, among the northern nations, particularly among the Germans,12 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;13 which has permitted it in some countries, and denied it in others: and, even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven.14
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,15 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. “Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem (praeter eam quae jure debetur hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur.” [“If any one through negligence or sudden death die intestate, let not the lord take any part of his effects, except what is due to him of right as a heriot. But let his possessions be distributed among his wife, children, and next of kin, to every one according to their right.”] But we are not to imagine, that the power of bequeathing extended originally to all a man’s personal estate. On the contrary, Glanvil will inform us,16 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 [conversely], 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.17 The shares of the wife and children was called their reasonable part; and the writ de rationabili parte bonorum [the reasonable share of the goods] was given to recover it.18
THIS continued to be the law of the land at the time of Magna Carta, which provides, that the king’s debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased: and, if nothing be owing to the crown, “omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partis suis” [“let them resign all the chattels to the will of the deceased; reserving to his wife and children their reasonable shares”].19 In the reign of king Edward the third this right of the wife and children was still held to be the universal or common law;20 though frequently pleaded as the local custom of Berks, Devon, and other counties:21 and Sir Henry Finch lays it down expressly,22 in the reign of Charles the first, to be the general law of the land. 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 began. Indeed Sir Edward Coke23 is of opinion, that this never was the general law, but only obtained in particular places by special custom: and to establish that doctrine he relies on a passage in Bracton, which in truth, when compared with the context, makes directly against his opinion. For Bracton24 lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule. And Glanvil, Magna Carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which also continues to this day to be the general law of our sister kingdom of Scotland.25 To which we may add, that, whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the ancient method continued in use in the province of York, the principality of Wales, and the city of London, till very modern times: when, in order to favor the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided; the one 4 & 5 W. & M. c. 2. explained by 2 & 3 Ann. c. 5. for the province of York; another 7 & 8 W. III. c. 38. for Wales; and a third, 11 Geo. I. c. 18. for London: whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely, as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter26) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty, to bequeath the remainder as he pleased.
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 patriae [parent of the nation], and general trustee of the kingdom.27 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.28 Afterwards the crown, in favor of the church, invested the prelates with this branch of the prerogative; which was done, says Perkins,29 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, alien, or sell them at his will, and dispose of the money in pios usus [for pious uses]: and, if he did otherwise, he broke the confidence which the law reposed in him.30 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.31 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.32 But even in Fleta’s time it was complained,33 “quod ordinarii, hujusmodi bona nomine ecclesiae occupantes, nullam vel saltem indebitam faciunt distributionem.” [“That the ordinaries, who take possession of goods of this kind in the name of the church, make no distribution of them, or at least no due distribution.”] And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of pope Innocent IV,34 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 ecclesiae et pauperum dispensanda est.” [“In Britain a third part of the goods left by an intestate is to be distributed for the benefit of the church and the poor.”] Thus the popish clergy took to themselves35 (under the name of the 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. 2.36 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 [residual], 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 dependents: 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 interpreted37 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 administrations at this day. I shall, in the farther progress of this chapter, mention a few more particulars, with regard to who may, and who may not, be administrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only serving to show the original and gradual progress of testaments and administrations; in what manner the latter was first of all vested in the bishops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular persons nominated expressly by the law.
I PROCEED now, secondly, to inquire who may, or may not make a testament; or what persons are absolutely obliged by law to die intestate. And this law38 is entirely prohibitory; for, regularly, every person has full power and liberty to make a will, that is not under some special prohibition by law or custom: which prohibitions are principally upon three accounts; for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal conduct.
1. IN the first species are to be reckoned infants under the age of fourteen if males, and twelve if females; which is the rule of the civil law.39 For, though some of our common lawyers have held that an infant of any age (even four years old) might make a testament,40 and others have denied that under eighteen he is capable,41 yet as the ecclesiastical court is the judge of every testator’s capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admitted to the will of an infant of fourteen, merely for want of age: but, if the testator was not of sufficient discretion, whether at the age of fourteen or four and twenty, that will overthrow his testament. Madmen, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness, all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they want the common inlets of understanding, are incapable of having animum testandi [testamentary discretion], and their testaments are therefore void.
2. SUCH persons, as are intestable for want of liberty or freedom of will, are by the civil law of various kinds; as prisoners, captives, and the like.42 But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court of judge, upon the consideration of the particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi [liberty to make a testament]. And, with regard to feme-coverts, our laws differ still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole.43 But with us a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5. but also she is incapable of making a testament of chattels, without the license of her husband. For all her personal chattels are absolutely his own; and he may dispose of her chattels real, or shall have them of himself if he survives her: it would be therefore extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another.44 Yet by her husband’s license she may make a testament;45 and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license is more properly his assent; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand has given her permission to make a will.46 Yet it shall be sufficient to repel the husband from his general right of administering his wife’s effects; and administration shall be granted to her appointee, with such testamentary paper annexed.47 So that in reality the woman makes no will at all, but only something like a will;48 operating in the nature of an appointment, the execution of which the husband by his bond, agreement, or covenant, is bound to allow. A distinction similar to which, we meet with in the civil law. For, though a son who was in potestate parentis [in the parent’s power] could not by any means make a formal and legal testament, even though his father permitted it,49 yet he might, with the like permission of his father, make what was called a donatio mortis causa [donation upon death].50 The queen consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord:51 and any feme-covert may make her will of goods, which are in her possession in auter droit [in another’s right], as executrix or administratix; for these can never be the property of the husband:52 and, if she has any pinmoney or separate maintenance, it is said the may dispose of her savings thereout by testament, without the control of her husband.53 But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation if law, and entirely vacates the will.54
3. PERSONS incapable of making testaments, on account of their criminal conduct, are in the first place all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king. Neither can a felo de se [suicide] make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture.55 Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time.56 As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making testaments, (as usurers, libelers, and others of a worse stamp) at the common law their testaments may be good.57 And in general the rule is, and has been so at least ever since Glanvil’s time,58 quod libera sit cujuscunque ultima voluntas [that the last will of every one be free].
LET us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make; or the nature and incidents of a testament. Testaments both Justinian59 and Sir Edward Coke60 agree to be so called, because they are testatio mentis [mental testimony]; an etymon [root word], which seems to favor too much of the conceit; it being plainly a substantive derived from the verb testari [testify], in like manner as juramentum [an oath], incrementum [increase], and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; “voluntatis nostrae justa sententia de eo, quod quis post mortem suam fieri velit“:61 which may be thus rendered into English, “the legal declaration of a man’s intentions, which he wills to be performed after his death.” It is called sententia to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostrae sententia, because its efficacy depends on its declaring the testator’s intention, whence in England it is emphatically styled his will: it is justa sententia; that is, drawn, attested, and published with all due solemnities and forms of law: It is de eo, quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator.
THESE testaments are divided into two sorts; written, and verbal or nuncupative; of which the former is committed to writing, the latter depends merely upon oral evidence, being declared by the testator in extremis [just before death] before a sufficient number of witnesses, and afterwards reduced to writing. A codicil, codicillus, a little book or writing, is a supplement to a will; or an addition made by the testator, and annexed to, and to be taken as part of, a testament: being for its explanation from, the former dispositions of the testator.62 This may also be either written or nuncupative.
BUT, as nuncupative wills and codicils, (which were formerly more in use that at present, when the art of writing is become more universal) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II. c. 3. enacts; 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved; and unless the same be proved to have been so done by the oaths of three witnesses at the least; who, by statute 4 & 5 Ann. c. 16. must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in any wise be good, where the estate bequeathed exceeds 30£ unless proved by three such witnesses, present at the making thereof (the Roman law requiring seven63) and unless they or some of them were specially required to bear witness thereto by the testator himself, and unless it was made in his last sickness, in his own habitation or dwelling-house, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hat first issued to call in the widow, or next of kin, to contest it if they think proper. Thus has the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself is fallen into disuse; and hardly ever heard of, but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness; for he must require the bystanders to bear witness of such his intention: the will must be made at home, or among his family or friends, unless by unavoidable accident; to prevent impositions from strangers: it must be in his last sickness; for, if he recovers, he may alter his dispositions, and has time to make a written will: it must not be proved at too long a distance from the testator’s death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience, or surprised.
AS to written wills, they need not any witness of their publication. I speak not here of devises of lands, which are entirely another thing, a conveyance by statute, unknown to the feudal or common law, and not under the same jurisdiction as personal testaments. But a testament of chattels, written in the testator’s own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good; provided sufficient proof can be had that it is his hand-writing.64 And though written in another man’s hand, and never signed by the testator, yet if proved to be according to his instructions and approved by him, it has been held a good testament of the personal estate.65 Yet it is the safer, and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses; which last was always required in the time of Bracton;66 or, rather, he in this respect has implicitly copied the rule of the civil law.
No testament is of any effect till after the death of the testator. “Nam omne testamentum morte consummatum est, et voluntas testatoris est ambulatoria usque ad mortem.”67 [“For every testament is established by death, and the will of the testator is revocable until his death.”] And therefore, if there be many testaments, the last overthrows all the former:68 but the republication of a former will revokes one of a later date, and establishes the first again.69
HENCE it follows, that testaments may be avoided three ways: 1. If made by a person laboring under any of the incapacities before-mentioned: 2. By making another testament of a later date: and, 3. By canceling or revoking it. For, though I make a last will and testament irrevocable in the strongest words, yet I am at liberty to revoke it: because my own act or words cannot alter the disposition of law, so as to make that irrevocable, which is in its own nature revocable.70 For this, says lord Bacon,71 would be for a man to deprive himself of that, which of all other things is most incident to human condition; and that is, alteration or repentance. It has also been held, that, without an express revocation, if a man, who has made his will, afterwards marries and has a child, this is a presumptive or implied revocation of his former will, which he made in his state of celibacy.72 The Romans were also wont to set aside testaments as being inofficiosa, deficient in natural duty, if they disinherited or totally passed by (without assigning a true and sufficient reason73) any of the children of the testator.74 But if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause: and in such case no querela inofficiosi testamenti [complaint of an unkind will] was allowed. Hence probably has arisen that groundless vulgar error, of the necessity of leaving the heir a shilling or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such wild suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficiosi, to set aside such a testament.
WE are next to consider, fourthly, what is an executor, and what is an administrator; and how they are both to be appointed.
AN executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as feme-coverts, and infants: nay, even infants unborn, or in ventre sa mere, may be made executors.75 But no infant can act as such till the age of seventeen years; till which time administration must be granted to some other, durante minore aetate [during minority].76 In like manner as it may be granted durante absentia [during absence], or pendente lite [pending suit]; when the executor is out of the realm,77 or when a suit is commenced in the ecclesiastical court touching the validity of the will.78 This appointment of an executor is essential to the making of a will:79 and it may be performed either by express words, or such as strongly imply the same. But if the testator makes his will, without naming any executors, or if he names incapable persons, or if the executors names refuse to act; in any of these cases, the ordinary must grant administration cum testamento annexo [with the will annexed]80 to some other person; and then the duty of the administrator, as also when he is constituted only durante minore aetate, etc., of another, is very little different from that of an executor. And this was law so early as the reign of Henry II, when Glanvil81 informs us, that “testamenti executores esse debent ii quos testator ad hoc elegerit, et quibus curam ipse commiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere.” [“Those should be executors of a will whom the testator shall have chosen, and to whom he himself shall have committed the trust; but if the testator shall not have named any, the relations of the deceased may take this duty upon themselves.”]
BUT if the deceased died totally intestate, without making either will or executors, then general letters of administration must be granted by the ordinary to such administrator as the statutes of Edward the third, and Henry the eighth, before-mentioned, direct. In consequence of which we may observe; 1. That the ordinary is compellable to grant administration of the goods and chattels of the wife, to the husband, or his representatives:82 and, of the husband’s effects, to the widow, or next of kin; but he may grant it to either, or both, at his discretion.83 2. That, among the kindred, those are to be preferred that are the nearest in degree to the intestate; but, of persons in equal degree, the ordinary may take which he pleases.84 3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians;85 and not of the canonists, which the law of England adopts in the descent of real estates:86 because in the civil computation the intestate himself is the terminus a quo [limit from which] the several degrees are numbered; and not the common ancestor, according to the rule of the canonists. And therefore in the first place the children, or (on failure of children) the parents of the deceased, are entitled to the administration: both which are indeed in the first degree; but with us87 the children are allowed the preference.88 Then follow brothers,89 grandfathers,90 uncles of nephews,91 (and the females of each class respectively) and lastly cousins. 4. The half blood is admitted to the administration as well as the whole: for they are of the kindred of the intestate, and only excluded from inheritances of land upon feudal reasons. Therefore the brother of the half blood shall exclude the uncle of the whole blood:92 and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his own discretion.93 5. If none of the kindred will take out administration, a creditor may, by custom, do it.94 6. If the executor refuses, or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin.95 And, lastly, the ordinary may, in defect of all these, commit administration (as he might have done96 before the statute Edw. III.) to such discreet person as he approves of: or may grant him letters ad colligendum bona defuncti [collecting the goods of the deceased], which neither make him executor nor administrator; his only business being to keep the goods in his safe costody,97 and to do other acts for the benefit of such as are entitled to the property of the deceased.98 If a bastard, who has no kindred, being nullius filius [no one’s son], or any one else that has no kindred, dies intestate and without wife or child, it has formerly been held99 that the ordinary might seize his goods, and dispose of them in pios usus. But the usual course now is for some one to procure letters patent, or other authority, from the king; and then the ordinary of course grants administration of such appointee of the crown.100
THE interest, vested in a executor by the will of the deceased, may be continued and kept alive by the will of the same executor: so that the executor as A’s executor is to all intents and purposes the executor and representative of A himself:101 but the executor of A’s administrator, or the administrator of A’s executor, is not the representative of A.102 For the power of an executor is founded upon the Special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence: but the administrator of A is merely the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased has reposed no trust at all; and therefore, on the death of that officer, it results back to the ordinary to appoint another. And, with regard to the administrator of A’s executor, he has clearly no privity or relation to A; being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore, in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the ordinary to commit administration afresh, of the goods of the deceased not administered by the former executor or administrator. And this administrator, de bonis non, is the only legal representative of the deceased in matters of personal property.103 But he may, as well as an original administrator, have only a limited or special administration committed to his care, viz. of certain specific effects, such as a term of years and the like; the rest being committed of others.104
HAVING thus shown what is, and who may be, an executor or administrator, I proceed now, fifthly and lastly, to inquire into some few of the principal points of their office and duty. These in general are very much the same in both executors and administrators; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and, secondly, that an executor may do many acts before he proves the will,105 but an administrator may do nothing till letters of administration are issued; for the former derives his power from the will and not from the probate,106 the latter owes his entirely to the appointment of the ordinary. If a stranger takes upon him to act as executor, without any just authority (as by intermeddling with the goods of the deceased,107 and many other transactions108) he is called in law an executor of his own wrong, de son tort, and is liable to all the trouble of an executorship, without any of the profits or advantages: but merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling, as will charge a man as executor of his own wrong.109 Such a one cannot bring an action himself in right of the deceased,110 but actions may be bought against him. And, in all actions by creditors against such an officious intruder, he shall be named an executor, generally;111 for the most obvious conclusion, which strangers can form from his conduct, is that he has a will of the deceased, wherein he is named executor, but has not yet taken probate thereof.112 He is chargeable with the debts of the deceased, so far as assets come to his hands:113 and, as against creditors in general, shall be allowed all payments made to any other creditor in the same or a superior degree,114 himself only excepted.115 And though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages;116 unless perhaps upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt.117 But let us now see what are the power and duty of a rightful executor or administrator.
1. HE must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed, previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased.118
2. THE executor, or the administrator durante minore aetate or durante absentia, or cum testamento annexo, 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.119 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 probate. 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. If all the goods of the deceased lie within the same jurisdiction, a probate before the ordinary, or an administration granted by him, are the only proper ones: but if the deceased had bona notabilia [notable goods], or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved, or administration taken out, before the metropolitan of the province, by way of special prerogative;120 whence the court where the validity of such wills is tried, and the office where they are registered, are called the prerogative court, and the prerogative office, of the provinces of Canterbury and York. Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele, interprets these hundred shillings to signify solidos legales [lawful shillings]; of which he tells us seventy two amounted to a pound of gold, which in his time was valued at fifty nobles or 16£ 13 s. 4 d. He therefore computes121 that the hundred shillings, which constituted bona notabilia, were then equal in current money to 23£ 3 s. 0¬ d. This will account for what is said in our ancient books, that bona notabilia in the diocese of London,122 and indeed every where else,123 were of the value of ten pounds by composition: for, if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to an hundred and fifty nobles, we shall extend the present amount of bona notabilia to nearly 70£. But the makers of the canons of 1603 understood this ancient rule to be meant of the shillings current in the reign of James I, and have therefore directed124 that five pounds shall for the future be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation: that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are in effect no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased, other than such as lay within their own dioceses, beyond which their episcopal authority extends not. But it would be extremely troublesome, if as many administrations were to be granted, as there are dioceses within which the deceased had bona notabilia; besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid. A prerogative is therefore very prudently vested in the metropolitan of each province, to make in such cases one administration serve for all. This accounts very satisfactorily for the reason of taking out administration to intestates, that have large and diffusive property, in the prerogative court: and the probate of wills naturally follows, as was before observed, the power of granting administrations; in order to satisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of administering the effects.
3. THE executor or administrator is to make an inventory125 of all the goods and chattels, whether in possession or action, of the deceased; which he is to deliver in the ordinary upon oath, if thereunto lawfully required.
4. HE is to collect all the 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,126 and having the same property in his goods as the principal had when living, and the same remedies to recover them. And, if there be two or more executors, a sale or release by one of them shall be good against all the rest;127 but in case of administrators it is otherwise.128 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;129 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. Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him: which are the next thing to be considered; for,
5. THE executor of administrator must pay the debts of the deceased. In payment of debts he must observe the rules of priority; otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. And, first, he may pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the king on record or specialty.130 Thirdly, such debts as are by particular statutes to be preferred to all others; as the forfeitures for not burying in woolen,131 money due on poors rates,132 for letters to the post-office,133 and some others. Fourthly, debts of record; as judgments (docketed according to the statute 4 & 5 W. & M. c. 20.) statutes, and recognizances.134 Fifthly, debts due on special contracts; as for rent, (for which the lessor has often a better remedy in his own hands, by distraining) or upon bonds, covenants, and the like, under seal.135 Lastly, debts on simple contracts, viz. upon notes unsealed, and verbal promises. Among these simple contracts, servants wages are by some136with reason preferred to any other: and so stood the ancient law, according to Bracton137 and Fleta,138 who reckon, among the first debts to be paid, servitia servientium et stipendia famulorum [the services of attendants and wages of servants]. Among debts of equal degree, the executor or administrator is allowed to pay himself first; by retaining in his hands so much as his debt amounts to.139 But an executor of his own wrong is not allowed to retain: for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased; and would besides be taking advantage of their own wrong, which is contrary to the rule of law.140 If a creditor constitutes his debtor his executor, this is a release or discharge of the debt, whether the executor acts or no;141 provided there be assets sufficient to pay the testator’s debts: for, though this discharge of the debt shall take place of all legacies, yet it were unfair to defraud the testator’s creditors of their just debts by a release which is absolutely voluntary.142 Also, if no suit is commenced against him, the executor may pay any one creditor in equal degree his whole, debt, though he has nothing left for the rest: for, without a suit commenced, the executor has no legal notice of the debt.143
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: but he may not give himself the preference herein, as in the case of debts.144
A LEGACY is a bequest, or gift, of goods and chattels by testament; and the person to whom it is given is styled the legatee: which every person is capable of being, unless particularly disabled by the common law or statutes, as traitors, papists, and some others. This bequest transfers an inchoate property to 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.145 For in him all the chattels are vested; and it is his business first of all to see whether there is a sufficient fund 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; or, as Bracton expresses the sense of our ancient law,146 “de bonis defuncti primo deducenda sent ea quae sunt necessitatis, et postea quae sunt utilitatis, et ultimo quae sunt voluntatis.” [“From the effects of the deceased are to be answered, first, the demands of necessity; afterwards, what expediency requires; and lastly, the requisitions of bequest.”] 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 way of abatement, unless there be not sufficient without it.147 Upon the same principle, if the legatees have been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid.148And this law is as old as Bracton and Fleta, who tell us,149 “si plura sunt debita, vel plus legatum fuerit, ad quae catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio.” [“If there are more debts, or legacies bequeathed, than the deceased’s chattels can satisfy, let an equal abatement be made on all the legacies, except the king’s privilege.”]
IF the legatee dies before the testator, the legacy is a lost or lapsed legacy, and shall sink into the residuum. And if a contingent legacy be left to any one; as, when he attains, or if he attains, the age of twenty one; and he dies before that time; it is a lapsed legacy.150 But a legacy to one, to be paid when he attains the age of twenty one years, is a vested legacy: an interest which commences in praesenti [immediately], although it be solvendum in futuro [paid in the future]: and, if the legatee dies before that age, his representatives shall receive it out of the testator’s personal estate, at the same time that it would have become payable, in case the legatee had lived. This distinction is borrowed from the civil law;151 and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations; and that the subject should have the same measure of justice in whatever court he sued.152 but if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir;153 for, with regard to devises affecting lands, the ecclesiastical court has no concurrent jurisdiction. And, in case of a vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, interest shall be payable thereon from the testator’s death; but if charged only on the personal estate, which cannon be immediately got in, it shall carry interest only from the end of the year after the death of the testator.154
BESIDES these formal legacies, contained in a man’s will and testament, there if also permitted another death-bed disposition of property; which is called a donation causa mortis [at death]. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, (under which have been included bonds, and bills drawn by the deceased upon his banker) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa.155 This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession;156 and so far differs from a testamentary disposition: but seems to have been handed to us from the civil lawyers,157 who themselves borrowed it from the Greeks.158
7. WHEN all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if any be appointed by the will, and, if there be none, it was long a settled notion that it devolved to the executor’s own use, by virtue of his executorship.159 But, whatever ground there might have been formerly for this opinion, it seems now to be understood160 with this restriction; that, although where the executor has no legacy at all the residuum shall in general be his own, yet wherever there is sufficient on the face of a will, (by means of a competent legacy or otherwise) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin, the executor then standing upon exactly the same footing as an administrator: concerning whom indeed there formerly was much debate,161 whether or no he could be compelled to make any distribution of the intestate’s estate. For though (after the administration was taken in effect from the ordinary, and transferred to the relations of the deceased) the spiritual court endeavored to compel a distribution, and took bonds of the administrator for that purpose, they were prohibited by the temporal courts, and the bonds declared void at law.162 And the right of the husband not only to administer, but also to enjoy exclusively, the effect of his deceased wife, depends still on this doctrine of the common law: the statute 29 Car. II. declaring only that the statute of distributions does not extend to this case. But now these controversies are quite at an end; for by the statute 22 & 23 Car. II. c. 10. it is enacted, that the surplusage of intestates’ estates, except of femes-covert,163 shall (after the expiration of one full year from the death of the intestate) be distributed in the following manner. One third shall go to the widow of the intestate, and the residue in equal proportions to his children, or, if dead, to their representatives; that is, their lineal descendants: if there are no children or legal representatives subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin in equal degree, and their representatives: but no representatives are admitted, among collaterals, farther than the children of the intestate’s brothers and sisters.164 The next of kindred, here referred to, are to be investigated by the same rules of consanguinity, as those who are entitled to letters of administration; of whom we have sufficiently spoken.165 And therefore by this statute the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate and without wife or issue: in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father; but by statute 1 Jac. II. c. 17. if the father be dead, and any of the children die intestate without wife or issue, in the lifetime of the mother, she and each of the remaining children, or their representatives, shall divide his effects in equal portions.
IT is obvious to observe, how near a resemblance this statute of distributions bears to our ancient English law, de rationabili parte honorum, spoken of at the beginning of this chapter;166 and which Sir Edward Coke167 himself, though he doubted the generality of its restraint on the power of devising by will, held to be universally binding upon the administrator or executor, in the case of either a total or partial intestacy. It also bears some resemblance to the Roman law of successions ab intestato:168 which, and because the act was also penned by an eminent civilian,169 has occasioned a notion that the parliament of England copy it from the Roman praetor: though indeed it is little more than a restoration, with some refinements and regulations, of out old constitutional law; which prevailed as an established right and custom from the time of king Canute downwards, many centuries before Justinian’s laws were known or heard of in the western parts of Europe. So likewise there is another part of the statute of distributions, where directions are given, that no child of the intestate, (except his heir at law) on whom he settled in his lifetime any estate in lands, or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters; but if the estates so given them, by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. This just and equitable provision has been also said to be derived from the collatio bonorum [equalizing of goods] of the imperial law:170 which is certainly resembles in some points, though it differs widely in others. But it may not be amiss to observe, that, with regard to goods and chattels, this is part of the ancient custom of London, of the province of York, and of our sister kingdom of Scotland: and, with regard to lands descending in coparcenary, that it has always been, and still is, the common law of England, under the name of hotchpot.171
BEFORE I quit this subject, I must however acknowledge, that the doctrine and limits of representation, laid down in the statute of distributions, seem to have been principally borrowed from the civil law: whereby it will sometimes happened, that personal estates are divided per capita, and sometimes per stirpes; whereas the common law knows no other rule of succession but that per stirpes only.172 They are divided per capita, to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure repraesentationis, in the right of another person. As if the next of kin be the intestate’s three brothers, A, B, and C; here his estate is divided into three equal portions, and distributed per capita, one to each: but if one of these brothers, A, had been dead leaving three children, and another, B, leaving two; then the distribution must have been per stirpes; viz. one third to A’s three children, another third to B’s two children, and the remaining third to C the surviving brother: yet if C had also been dead, without issue, then A’s and B’s five children, being all in equal degree to the intestate, would take in their own rights per capita, viz. each of them of fifth part.173
THE statute of distributions expressly excepts and reserves the customs of the city of London, of the province of York, and of all other places having peculiar customs of distributing intestates effects. So that, though in those places the restraint of devising is removed by the statutes formerly mentioned,174 their ancient customs remain in full force, with respect to the estates of intestates. I shall therefore conclude this chapter, and with it the present book, with a few remarks on those customs.
IN the first place we may observe, that in the city of London,175 and province of York,176 as well as in the kingdom of Scotland,177 and therefore probably also in Wales, (concerning which there is little to be gathered, but from the statute 7 & 8 W. III. c. 38.) the effects of the intestate, after payment of his debts, are in general divided according to the ancient universal doctrine of the pars rationabilis. If the deceased leaves a widow and children, his substance (deducting the widow’s apparel and furniture of her bed-chamber, which in London is called the widow’s chamber) is divided into three parts; one of which belongs to the widow, another to the children, and the third to the administrator: if only a widow, or only children, they shall respectively, in either case, take one moiety, and the administrator the other:178 if neither case, take one moiety, and the administrator shall have the whole.179 And this portion, or dead man’s part, the administrator was wont to apply to his own use,180 till the statute 1 Jac. II. c. 17. declared that the same should be subject to the statutes of distribution. So that if a man dies worth 1800£ leaving a widow and two children, the estate shall be divided into eighteen parts; whereof the widow shall have eight, six by the custom and two by the statute; and each of the children five, three by the custom and two by the statute: if he leaves a widow and one child, they shall each have a moiety of the whole, or nine such eighteenth parts, six by the custom and three by the statute: if he leaves a widow and no child, the widow shall have three fourths of the whole, two by the custom and one by the statute; and the remaining fourth shall go by the statute to the next of kin. It is also to be observed, that if the wife be provided for by a jointure before marriage, in bar of her customary part, in puts her in a state of non-entity, with regard to the custom only;181 but she shall be entitled to her share of the dead man’s part under the statute of distributions, unless barred by special agreement.182 And if any of the children are advanced by the father in his lifetime with any sum of money (not amounting to their full proportionable part) they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to any benefit under the custom:183 but, if they are fully advanced, the custom entitles them to no farther dividend.184
THUS far in the main the customs of London and of York agree: but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty one, before which they cannot dispose of it by testament:185 and, if they die under that age, whether sole or married, their share shall survive to the other children; but, after the age of twenty one, it is free from any orphanage custom, and, in case of intestacy, shall fall under the statute of distributions.186 The other, that in the province of York, the heir at common law, who inherits any lands either in fee or in tail, is excluded from any filial portion or reasonable part.187 But, notwithstanding these provincial variations, the customs appear to be substantially one and the same. And, as a similar policy formerly prevailed in the every part of the island, we may fairly conclude the whole to be of British original; or, if derived from the Roman law of successions, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points (particularly in the advantages given to the widow) it very considerably differs: though it is not improbable that the resemblances which yet remain may be owing to the Roman usages; introduced in the time of Claudius Caesar, (who established a colony in Britain to instruct the natives in legal knowledge188) inculcated and disused by Papinian (who presided at York as praefectus praetorio [judge of the court] under the emperors Severus and Caracalla189) and continued by his successors till the final departure of the Romans in the beginning of the fifth century after Christ.