[still held to be the universal or common law (i); though frequently pleaded as the local custom of Berks, Devon and other counties (k); and, in the reign of Charles the first, Sir Henry Finch lays it down, expressly, to be the general law of the land (7). But this law is at present altered by imperceptible degrees; and a man may now, by will, bequeath the whole of his goods and chattels to whomsoever he will, though we cannot trace out when first this alteration began. Indeed Sir Edward Coke is of opinion, that the right of the wife and children never was the general law, and only obtained in particular places by special custom; but to establish that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion (m). For Bracton lays down the doctrine of the "reasonable part" to be the common law; and mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule (n). And Glanvil, Magna Charta, Fleta, the Year Books, Fitzherbert, and Finch, do all agree with Bracton that this right to the pars rationabilis was by the common law; as it also continues to this day to be the general law of Scotland (0). 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 antient method continued in use in the province of York, the principality of Wales, and in the city of London, until modern times: when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes were provided the one 4 W. & M. c. 2, (explained by 2 & 3 Ann. c. 5,) for the province of York; another, 7 & 8

(i) M. 30 Edw. 3, 25; H. 17 Edw. 3, 9.

(k) Reg. Brev. 142; Co. Litt. 176.

(7) Finch, Law, 175. (m) 2 Inst. 33.

(n) L. 2, c. 26, s. 2.

(0) Dalrymple on Feudal Property, 145. In Scotland the widow's share is called jus relicta, and that which falls to the children the legitim. (Ersk. Instit. b. iii. tr. 9, s. 15.)

[Will. III. c. 38, for Wales: and a third, 11 Geo. I. c. 18, for London; whereby it was enacted, that persons within those districts, and liable to their customs, might (if they thought proper) dispose of all their personal estates by will; and the claims of the widow, children and other relations to the contrary, were 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 to remember his lord and the Church, by leaving them his two best chattels; which was the original of heriots, of which we have already treated (p), and of mortuaries, to which we shall advert hereafter (q); 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 patriæ, and general trustee of the kingdom (r). This prerogative the king continued to exercise for some time by his own ministers of justice, and probably in the county court of the sheriff, where matters of all kinds used to be determined. And it was granted as a franchise to many lords of manors and others, who long enjoyed 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 testamentary disposition (8). Afterwards the Crown, in favour of the Church, invested the prelates with this branch of the prerogative; which was done, saith Perkins, because it was intended by the law, that spiritual men are of better conscience than lay men, and that they had more knowledge what things would (p) Vide sup. vol. 1. p. 629. (r) 9 Rep. 38. (2) Vide post, bk. IV. pt. II. c. II.

(s) Hensloe's case, 9 Rep. 37 b.

[conduce to the benefit of the soul of the deceased (t). The goods, therefore, of intestates were given by the Crown to the ordinary (u): that is, to the ordinary ecclesiastical judge of the place; who was (generally speaking) the bishop of the diocese. And he might seize them, and keep them without wasting, and might also give, alien, 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 (x). 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 (y). And, as he had thus the administration of the effects of intestates, a jurisdiction in the matter of wills, also, 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 the dead man's chattels for the good of his soul was effectually superseded thereby (s).

(t) S. 486.

(u) The ordinary (ordinarius) is a name taken from the Canonists, and applied to a bishop or other person with "ordinary" jurisdiction in matters ecclesiastical. He is so called "quia habet ordinariam jurisdictionem, in jure proprio, et non per deputationem." (Co. Litt. 96 a.) It is to be observed, that though the ordinary was properly the judge to whose jurisdiction the administration upon intestacy and the probate of wills belonged,-yet the eccle. siastical court in such matters was in fact held before the chancellor of the diocese (or commissary) sitting for the bishop in his consistory court.

(x) Finch, Law, 173, 174. (y) Plowd. 277.

(*) Blackstone (vol. iii. p. 96) observes, that the precise period when the church acquired jurisdiction over intestacies and testaments, is not ascertained; and that Lindewode (fol. 263) confesses "cujus regis temporibus hoc ordinatum sit, non reperio." The commentator proceeds to add, that the jurisdiction was, however, of undoubted antiquity; Stratford, temp. Edw. 3, mentioning it as "ab olim ordinatum," and Cardinal Othobon, (52 Hen. 3,) speaking of it as an antient tradition. (And see Bracton, lib. 5, c. 10.) Moreover, we find that the disposition of intestates' goods, "per visum ecclesiæ," was one of the articles confirmed by Magna Charta.

[To revert, however, to administrations; 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 (a). But even in Fleta's time it was complained, "quod ordinarii, hujusmodi bona nomine ecclesiæ occupantes, nullam vel saltem indebitam faciunt distributionem" (b). And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of Pope Innocent the Fourth, written about the year 1250: wherein he lays it down for established canon law, that "in Britanniâ tertia pars bonorum descendentium ab intestato in opus ecclesiæ et pauperum dispensanda est" (c). Thus, the popish clergy took to themselves (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 (d). For which reason, it was enacted by the statute of Westminster the second (e), that the ordinary should be bound to pay the debts of the intestate, so far as his goods extended, 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 intrusted to 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 (a) Plowd. 277.

(b) L. ii. c. 57, s. 10.

(c) In Decretal. 1. v. t. 3, c. 42. (d) The proportion given to the priest and to other pious uses, was different in different places. In the archdeaconry of Richmond in York

shire, this proportion was settled by a papal bull, A.D. 1254 (Regist. Honoris de Richm. 101), and was observed till abolished by the statute 26 Hen. 8, c. 15.

(e) 13 Edw. 1, c. 19; see Snelling's case, 5 Rep. 83 a.

[to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their own immediate dependents: and therefore the statute 31 Edw. III. c. 11, provided, that, in case of intestacy, the ordinary should depute the nearest and most lawful friends of the deceased to administer his goods; which administrators were put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This was the original of administrators, as they were afterwards called, who were only the officers of the ordinary, appointed by him in pursuance of this statute, which singled out the next and most lawful friend of the intestate; who was interpreted to be the next of blood that was under no legal disabilities (f). The statute 21 Henry VIII. c. 5, however, enlarged a little more the power of the ecclesiastical judge; and permitted 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, gave the ordinary his election to accept whichever he pleased.]

Upon this footing stood the law of wills and administrations, from at least as early as the commencement of the twelfth century, up to the year 1857; the ecclesiastical jurisdiction as to these, having been a peculiar constitution of this island; inasmuch as in almost all other, even popish, countries, they were under the jurisdiction of the civil magistrates (g). But in our own times, this constitution came to be viewed with great disfavour; the opinion having gradually obtained that the subjects in question were not handled by the ecclesiastical courts as effectively, expeditiously, and cheaply as the interests of justice required; and this opinion at length led to the introduction, by act of parliament, of a new system, whereby the jurisdiction which these courts during eight centuries enjoyed over wills and intestacies was wholly taken away. For by 20 & 21 Vict. c. 77-amended by 21 & 22 Vict. (g) See 3 Bl. Com. 95, 97.

(f) 9 Rep. 39.