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pretty certain, that this testamentary power over land did not survive the Norman conquest, except in particular cities and boroughs, where, by particular favour, the Saxon institutions were suffered to breathe (2): it ceased by the operation of the feudal system of property, which necessarily excluded all voluntary alienations of possessions with which personal services and duties were inseparably connected But with respect to moveables, the testamentary power seems, in this country, with more or less restraint, to have been exerciseable in a very remote period. The ready mode of authenticating the property in goods by the possession, and of transferring the possession by manual delivery, and the usufructuary and revocable quality of terms of years, caused them at an early period to be considered as proper subjects for every kind of alienation. But though testaments of moveables were permitted by the ancient law of England, according to Glanville and Bracton, yet the power extended only to one-third, called the dead man's part ; which limitation seemed to prevail in London and York, after it had fallen into disuse in other parts of the kingdom, till at length by several statutes the

· Vide 1 Eq. Ca. Abr. 401.

have been written according to the testator's instructions, and approved by him, it is a good will to dispose of chattels. Comyns, 452, et seq.

(2) Whether gavelkind lands in Kent were deviseable by custom seems to be a matter in dispute. See the arguments pro et con, in Rob. Gavel. 235.

testamentary power over goods was thrown generally open (3).

According to the author of the Commentaries, "by the ancient common law of the land, and which continued at the time of Magna Charta, a man's goods were to be divided into three 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 dispose of one moiety, and the other went to his children. If he had no children, the wife was entitled to one moiety, and he might bequeath the other; but if he died without wife, or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts, and the writ de rationabili parte bonorum, was given to recover them.

In the reign of Edward the Third, this right of the wife and children was still held to be the common law, though frequently pleaded as the local custom of

(3) By the 4th W. and M. c. 2. persons within the province of York may dispose by will of all their personal estate, in as large and ample a manner as within the province of Canterbury, and elsewhere; and the widows and children, and other kindred of such testator, are barred of their claims under the custom. But the citizens of the cities of York and Chester, who were freemen, inhabiting there, being excepted out of this statute, the 2d and 3d Anne, c. 5, was made to repeal this exception, and to put them upon the same footing, in this respect, as persons within the province of York. And by the 11th G. 1. c. 18, the citizens and freemen of the city of London are also enabled to devise and dispose of their personal estate, in

Restraints upon

the testamentary power by the customs of York removed by sta

and London,


Berks, Devon, and other counties; and Sir Henry Finch lays it down expressly to be the general law of the land,' in the reign of Charles the First. But the law has since been altered by imperceptible degrees, and the deceased may now hy will bequeath the whole of his goods and chattels, though it would be difficult to trace out when this alteration began." (4)

2 Bl. Com. 491. 2.

such manner as they shall think fit, except where they enter into any agreement on marriage, or otherwise, that their personal property shall be subject to or distributed by the custom. In cases of intestacy, the property becomes subject to, and distributable according to the custom.

(4) This difference in importance between land and goods Of the power

arose out of the principles of the feudal system. According to the of bequeathing law of Rome, no such difference subsisted.

The general reprelegacies in the different stages

sentative was the heir, and by that title he succeeded as well to the of the Roman law.

moveables as immoveables. And when the whole substance de. volved, the difference was only between him who was appointed heir by the will, and was called the heres institutus*, and him who succeeded to the intestate as his natural heir. It has been endeavoured, in a preceding note, to help the student to understand the nature of this appointment of an heir, by will, in the law of Rome, before and after the law of the Twelve Tables, by the clause “ uti quisque legassit, &c." (which was construed to comprise the heredum institutiones, as well as the legata) confirmed the general testamentary power. A slight summary of the practice and fornis of bestow. ing particular parts of a man's possessions by way of legacy, under the different stages of the Roman law, may perhaps be not unacceptable.

* If of the goods only, he was called bæres testamentarius; and it was shewed by Lord Hardwicke that executor was a barbarous term unknown to the civil law,

3 Atk. 300.

With respect to land, the feudal system was long in giving way to the encreasing

encreasing propensity of

The legata et fidei-commissa were the two modes whereby the testamentary disposition of property in particular things was effected; in contradistinction to a gift of the universal inheritance or substance of the testator; in the disposal whereof, and in the institution or appointment of the universal heir, consisted properly the testamenti factio.

Another very important distinction between the hereditas ex testamento and the legatum was this—that the latter was purely lucrative, whereas the former was often burthened with obligations, and some. times to such an extent as to be thereby rendered unprofitable. By the text of the imperial law, the legacy or legatum was defined to be donatio quædam a defuncto relicia, ab herede præstanda,and great stress was laid by the commentators on the word • quadam, as importing something having the quality of a gift in some respects, and yet essentially differing from it in others. A gift they said it could rot be, because a gift was properly a transaction between two persons, and requiring for its perfection the acceptance of the donee.

A legacy did not depend upon the acceptance of the legatee, nor was it a transaction between two persons; it was the creature of the testator's will only, ambulatory and suspended during his life. In a strict sense, indeed, it was considered as expecting the acceptance or assumption of the inheritance by the heir, with the function belonging to it; post mortem testatoris adhuc pendet ab additione haree ditatis. And yet it was quædam donatio, as proceeding from the benevolence of the testator, and conferring a title of emolument only-- titulus, mere lucrativus. The latter words of the definition * ab hærede præstanda, are to be understood as implying, that, although the property in the thing bequeathed passes directly to the legatee, the possession was nevertheless to be looked for at the hande of the heir.

We learn from Justinian's Institutes, tit. de legatis, what were the ancient methods and forms of bequeathing, which, by their strictness and technicality imposed great difficulties upon, and sometimes disappointed the wishes of, the testator. These various forme

individuals to make provisions that were to take place after death. It seems, however, that with the.

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gave a diversity of rights and remedies to the legatary, and were of unequal efficacy in respect to the disposing power of the testator : as for example, by one form a testator could dispose only of what was already his own property, by another, he could dispose of the possessions of other men, provided they were saleable, as far as his assets in the hands of the heir would suffice for the purchase : some gave a right of action in rem, and some in personam. These and other particulars respecting them, the reader will find well explained in the Commentary of Vinnius, tit. de legatis. The enquiry is, however, only a matter of curiosity, as Justinian, by a sensible law, reduced these various forms to one and the same operation.

But as the general strictness belonging to them all still remained, though the intricacy of distinction between them was removed, the same Emperor, by a stroke of liberal policy, levelled the distinction in point of effect, between the legata and the fidei-commissa, and thereby, the rigid forms of expression, the necessity of the previous appointment of an heir, the testator's inability to extend the benefit beyond the life of the heir, or to bequeath it by an instrument less solemn than a regular testament, or codicil confirmed by a testament, were all removed, and the same indulgence given to the bequest by way of direct legacy, as to that which was effected through the medium of a trust.

In virtue of this ordinance, and in prosecution of its spirit, a more liberal interpretation obtained in the construction of testaments, in which from thenceforward the intention of the testator was the prin. cipal object of enquiry, and a numerous description of persons whom the rigour of the jus civilis had deemed incapable of taking by way of legacy, such as the banished, the childless, persons living in celibacy, and strangers, were rendered capable of taking by will, and the circuity and precariousness of a trust were avoided ; and, on the other hand, to equalize the advantages respectively belonging to the legata and the

fidei-commissa, instead of the extraordinary and sometimes dilatory process by which the fidei-commissa were enforced, the ordinary remedy by the actio ex testamento, and even the rei vis

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