WAY MAN WI L L S AN D ADMINISTRATIONS P E OGAT O RT OF ANTE B Y R R IV E C U C R U R , — 1 3 8 3 1 8 21 . M . A. F . S . J. HARV E Y BLO OM , , G I E AU THOR O F THE G R FFIN S o r DIN GL Y , “ ” DI S or THE FAM II Y O F B OU RN E TC . E TC . PE GREE E , , ] P INTED FOR P IVATE DI T I TI N R R S R BU O . LONDON . 1 922. CONTE NTS . 1 ntroduction 1 Wills Adm inistration s Glossary In dex I R D T NT O U C ION. THE of m essence a will is said to be threefold, na ely The testam ent (1 ) can be set aside or revoked ; (2) It can affect property not i n possession of the testator e at the date of execution, but acquir d before death ; (3) It can m ake a representative to act for the testator t when he is dead . In the twelf h century a m an could not give away his freehold land by will ; it 1 540 was not so allowed until . Even then the lawyers held that it could only affect land that was in the ’ t s m tes ator s pos ession when his will was ade, and this rem ained good law until 1 837 ; but in any case th It h ad n o l e will was revocable . action unti its w old id owner died . The English ill is the Saxon Cw e. In the oldest form there was no expressed difli culty in a m an v m i at m m o f gi ing so eth ng the o ent writing, yet retaining possession for life . He could both give away . m m b n o and keep his land Later it beca e i possi le, since f t gift took e fec without delivery (seisin) . This ancient - doctrine is known as the post obit gift . The second i m portant characteristic of a will w as the death-bed con f ion . o f : ess Confession consists three stages contrition , u of m m . the act al act confession, and the a end ent The real purport o f m any of the clauses in early wills appears ’ to be an endeavour to satisfy the priest of the dyi ng m an s m m t m m real earnest ness about his a end en . This a end ent is in practice the undoing as far as m ay be of wrongs To v m for done . this end he lea es su s tithes forgotten, so m ethin g towa rds the repair of the chur ch and oth er m i a es like pious purposes , so eth ng for M ss for his soul . vi INTRODU CTION . It m atters little whether or no these gifts are revocable m m a and a bulatory , s ce it very rarely h ppens in practice h t c um t at a m an will recover after he h a s received Vi a i . x a r m an Through these gifts e ecutorship ose . The dying is h anding o ver to som e other person certain property for I n t h - a id e the good of his soul . e Anglo S xon Cw a - l saying) the post obit gift and the last words coa esce, and have m uch the appearanc e of a m ore m odern will . The testator provides for his kinsfolk an d rem em bers his a dependants, but it shews scarce sign of its revocable i m a character, or its power to g ve what its owner y possess in the future but does not possess at the m om ent . n Moreover, the consent of the Ki g was necessary and a t an d heriot had to be paid . Grow h was slow changes very gradual . They were brought about by the following m alterations ade in the twelfth and thirteenth centuries . ’ (1 ) The King s Court condem ned the post-obit gift and all u 2 dealings in land, except in certain boro ghs . ( ) The claim of prim ogeniture becam e a rbitrary ; the heir as m an such has nothing to do with the chattels of the dead , m e 3 which beco generally the spoil of the church . ( ) The church asserted her right to protect and execute the last m will, and under her sway the will beco es, through foreign flu m in ence, a real testa ent, and the executor the dead ’ m an s representative . At length the church asserts its ’ right to adm inister the dead m an s goods for the welfare of his soul . By the twelfth century a wide gulf lay between land and th e chattels . The land went to heir . The lawyers of the l l n n a . a a d ges of Henry II and III . (G nvil e Braeto ) allowed the church to obtain co ntrol o f wh at was becom ing a real m m sa w testa ent, and fro henceforth the Courts Christian a d n . w 1 11 to the will , this will had executors These ere t m origin , nei her Ro an or English . The heir is useful . He is bound to see the executor pay the legacies ; fo r a m a ti e he looks after the land . The executor ttends to the INTRODUCTION . vii th e M d old chattels , but at end of the id le Ages the Rom an hares is called in England the executor . In the r thirteenth centu y wills are usually in Latin, then in a French , and in the second h lf of the fourteenth century w l o m Lo o Jeo d evi se English il s appear . The f r s are g , , or a n t m I wyte or beque th . The A a he a has long since passed ’ b ut fi n ot away, the testator s rst care is his estate, but his u im m ortal soul and his earthly body . His so l he bequeaths to God, our Lady, and the Holy Saints . His body he m rt om . im g ives, with a o uary, to s e church For a long t e l u S m e aborate instr ctions for plendid cere onies are the rule , m later the faces of the testators are set against idle po p . m m m a n d m Then co e nu erous onetary other legacies , ostly s left to pious use , the four orders of friars, the prisons of d London, the Mother Church . The repair of roa s and a m bridges are r rely forgotten . The testator dis isses his m him debts and the su s owing to with scarce a word . The la ter the will the m ore c are to provide for hi s ’ wife and children ; the earlier it is the m ore the dead s m a part appears . He y be in sore need of Masses for his u m m m so l . A co on for survives , he is sick in body but — whole in m in d a survival this of the dying confession . a n d w r Over above the executors, po erful f iends are asked a a . to be overseers, who are to dvise or ssist the executor E th e laborate directions, save only for funeral rites, are m m of rare, and even after the Refor ation uch the a m ediaev l Spirit has been preserved . of A word about probate . It was not until the age h n t m II r Ran ulp Gla ville ( e p . Hen . ) that the Chu ch Courts r m c om obtained cont ol of wills . They then began to clai pet en c e not only to decide the validity but also the power a c en tur to est blish it . By the thirteenth v wills were i m m proved in the Church Courts . Th s idea in co on with a o f m m a an d m th t the executors ca e fro abro d , such clai s n m F r to probate led to m any an u see ly quarrel . o r m m m instance, A chbishop Peckha exco unicated the Bishop vi INT OD TION ii R UC . o f Hereford for denyin g his jurisdiction in a case where m an h ad m d Th e the dead goods in ore than one iocese . com prom ise that a preroga tive prob ate could only be rightly cl aim ed whe n the decea sed had m ore than the worth of fi ve n d r pou ds in each of two ioceses is not ve y ancient . It is necessary to a correc t understanding to briefly state the pro cedure following up o n the dying con fessi on h m an was in . After absolution , w en the sick extrem is a m n . , the l st rites of the church were ad i istered a m m During his l st o ents the passing bell was tolled , and directly after his decea se a solem n com m endation of n his soul to God followed .