The Doctor and Student (1518)

Christopher St. Germain

Who shall succeed a clerk that dieth intestate

In the said sum, called rosella, in the chapter clericus quartus, the 7th article, is asked this question, Who shall succeed to a clerk that dieth intestate? And it is answered, That in goods gotten by reason of the church, the church shall succeed; but in other goods his kinsmen shall succeed after the order of the law, and if there be no kinsman, then the church shall succeed. And it is said farther, That goods gotten by a canon secular by reason of his church or prebend shall not go to his successor in the prebend, but to the chapter. But where one that is beneficed is not of the congregation, but he hath a benefice clearly separate, as if he be a parson of a parish-church, or is a president, or an archdeacon not beneficed by the chapter, then the goods gotten by reason of his benefice shall go to his successor, and not to the chapter. And none of these sayings hold place in the laws of England.

Doct. What is then the law, if a parson of a church or a vicar in the country die intestate, or if a canon secular be also a parson, and have goods by reason thereof, and also by a prebend that he hath in a cathedral church, and he die intestate, who shall have his goods?

Stud. At the Common law the ordinary in all these cases may administer the goods, and after he must commit administration to the next faithful friends of him that is dead intestate that will desire it, as he is bound to do where laymen that have goods die intestate. And if no man desire to have administration, then the ordinary may administer, and see the debts paved; and he must beware that he pay the debts in such order, as is appointed in the Common law: for if he pay debts upon simple contracts before an obligation, he shall be compelled to pay the debt upon the obligation of his own goods, if there be not goods sufficent of him that died intestate. And though it be suffered in such case that the ordinary may pay pound and. poundlike, that is, to apportion the goods among the debtors after his discretion, yet by the rigour of the Common law he, might be charged to him that can first have his, judgment against him. And furthemore, by that is said before in the last chapter it appeareth, that if a bishop that hath goods of his bishoprick or of his patrimony, or a master of a college, or a dean, of goods that they have of their own only to themselves, die intestate, that the ordinary shall commitadministration thereof, as before appeareth: and if they make executors, then the executors shall have the ministration thereof. But the heirs nor the kinsman, by that reason only that they be heirs or of kin to him that is deceased, shall have no meddling with his goods, except it be by custom of some countries, where the heirs shall have heirlooms, or where the children (the debts and legacies paid) shall have a reasonable part, of the goods, after the custom of the country.