Origin and History of Wills.

Jurists do not quite agree as to the full extent of a man’s interest in, and control of, the property he acquires. There are different theories as to the real title to property; most all, however, agree that occupation, united with labor, is the best ground of a title to exclusive ownership of property. But how long will this ownership or control continue? During lifetime, or for a longer period? Some maintain that, by the law of nature, it only lasts during the life of the owner, and after his decease the property again becomes merged with the general stock of the public—it becomes publici juris; and that to permit one to order and control its disposition after he has ceased to live, is a privilege or a concession of society, and not any inherent natural right. For a large amount of property is owned in societies advanced in civilization before the right of testamentary disposition is exercised, which would show that this right is not coeval with the foundation of society or the acquisition of property, and therefore nations are not impelled to it by a natural instinct and impulse. It is claimed that the jus disponendi is a necessary incident of property—an inseparable quality; but if, by this term, we understand a right of disposal while a man lives, we can admit that it belongs to ownership; but it is quite a different thing when a man ceases to live; for then, naturally, he ceases to have dominion; and if he has a natural right to dispose of his goods for a short time after death, why not for millions of years?[4]

It is not a natural inherent right of the individual to dispose of his property after his decease; it is no more or less than a right given by positive law—a right which is founded on convenience and concession.

For a very obvious reason, we do not find this right in the early constitution of society, either given or exercised. Society, in early times, was founded on the family as the initial unit or group, which was only recognized by the State as entitled to maintenance. Naturally, by right of this principle in early society, the property acquired by an individual went into the general stock of the family, as a necessary appanage, and was in the name of the head of that family, and at his decease, by a principle of early law, devolved in due course upon the successor, or the hÆres of the Roman law, who took it with all the obligations of the deceased. Society had not yet so advanced as to make the individual an object of its care and government, and recognize him as a distinct unit apart from the family; and succession—“universal succession,” as it was called—to the property in the family, was the usual disposition of property. It took a long while before society permitted the individual to dispose of his property out of his family, because this was so abnormal and unnatural as to be only dictated by caprice, passion, or prejudice, insomuch that whenever attempted among the Romans, the will was set aside as inofficious, and it was not permitted at all in the early English law; and even now is a presumed ground of imbecility or insanity in a testator.

The will, as we understand it, is unquestionably of Roman origin—it is purely a creature of that law, the corpus juris, “the public reason of the Romans.” The laws of Solon only permitted wills when the testator had no children.[5] Among the Hindoos, the right of adoption as a succession to property effected the same purpose as a will,[6] while among the Teutonic nations wills were unknown, and the children inherited.[7]

At first, among the Romans, a will was neither secret, revocable, nor of effect, until after death—characteristics which we necessarily associate with a will in modern times. A will then was more like a conveyance in a man’s lifetime—a sale of the family rights, property, and obligations, in the presence of witnesses, to a person known as the Emptor FamiliÆ, who assumed the place of the testator as head of the family. He might be compared to an assignee under our law, with this difference, that the latter is only liable as far as he has assets. Wills were usually witnessed by seven witnesses, who sealed outside upon a thread, and after some time, deposited in the archives during the life of the testator, and opened in the presence of the prÆtor or other officer, after decease, and any person might have a copy, being matter of record.[8]

The Roman law did not permit the entire disposition of property by will, if a man had a family. By a law of Justinian, one-fourth, at least, was required for the children, and when there were four children, they could claim one-third, which became a general law throughout Europe.[9]

The Roman influence, connection, and dominion in Great Britain necessarily introduced Roman laws and usages. It was a connection lasting fully three hundred years, during which time the country was visited by Roman jurists, and the people became familiarized with the administration of the civil law, both through the civil courts and the churches. Accordingly, while wills were not in use among kindred Teutonic people in the north of Europe, they were well known and general in the Saxon period in England, where an unlimited and absolute right of devise was given. In the laws of King Canute, provision is made for the disposition of property in cases of intestacy, which makes it evident that testamentary dispositions were recognized;[10] and Canute himself left a will.[11] There are notices of some twenty-five Anglo-Saxon wills extant. Nearly all of the testators were people of prominence and distinction, and these wills are preserved in monastic houses to which they devised property. King Alfred’s will, from its antiquity and its formal character, is one of the most interesting ancient documents existing. (He died A. D. 900.) It opens thus: “I, Alfred, King by God’s grace, and with Ethered’s the Archbishop’s counsel, and all the West Saxon Wights, witness, have considered about my soul’s thrift, and about the inheritance that to me, God and mine Ancestors did give, and about the inheritance that Ethulf, King, my father to us, three brothers, bequeathed, Ethelbold, Etherad and me.” He provides for masses thus: “And so divide for me and my father, and for the friends that be interceded for, and I intercede for, two hundred of pounds, fifty to the mass priests over all my kingdom, fifty to God’s poor ministers, fifty to the distressed poor, fifty to the church that I at shall rest; and know not certainly whether the money so much is, nor I know not but of it more may be, but so I ween.”

It appears that King Alfred’s will was prepared by the Archbishop’s counsel, and published in the presence of the West Saxon Wights, or Wise Men. This gives us a glimpse at the interference of the clergy in such important affairs, and leads us on a most interesting and important inquiry as to the connection of wills with ecclesiastical courts.

The clergy of that time possessed a monopoly of the learning of the day, and especially of the learning of the civil law, having made it a matter of study. Reasonably they would be consulted on subjects on which the civil or Roman law had such a bearing; and as a matter of fact, they soon became presiding judges with the civil magistrate in cases of probate of wills. In the early Saxon period, the bishop sat with the earl in the county court in the administration of testamentary matters; and this was the case up to the time of the Normans. But the clergy had occasion to interfere on other grounds, at a very early period. At a very early day, they sought jurisdiction in probate matters. The practice was probably favored by the sanction given by the civil law to the intervention of the bishop to compel the execution of a will where there were legacies in pios usus—to pious uses.[12] When any legacy was disposed of to pious uses, for the use of the church, for monasteries, or for the poor, the bishops were to sue for the same, and see to the administration thereof.[13] But Justinian would not allow further than this, and he prohibited the bishops interfering generally in the probate of wills.[14] Upon which a writer remarks: “Here we see the clergy in those days had set their foot upon the business, and I suppose since that time they never pulled it wholly out again.”

The popes, as their power increased, endeavored to obtain the jurisdiction over testaments. Pope Innocent the Fourth claimed for the bishop the power to dispense property left to a charity, if there be no executor appointed by the will, and if there be an executor, and he does not discharge the duty faithfully, the bishop may assume administration.[15]

As a matter of history, in European countries, except England, the church did not pretend that wills were of ecclesiastical cognizance sua natura, but only such wills as were made for pious uses.[16] So that the origin of the jurisdiction of ecclesiastical courts touching testamentary matters is by the custom of England, and not by ecclesiastical law. Blackstone says: “The spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate.”[17]

We have seen that during the Saxon period the bishop presided with the earl in the administration of testamentary matters; but in the eighteenth year of William the Conqueror, a separate court was organized for the bishop, who no longer sat with the civil authorities. This was the beginning of the ecclesiastical jurisdiction; though at first power was granted only to adjudicate on such matters as were for the good of the soul, an expression which the bishops subsequently made very elastic and comprehensive. The clergy did not acquire the exclusive jurisdiction till the reign of Henry I, who by charter first established this jurisdiction.[18] In the time of Richard I, when he was in confinement, the clergy were more fully established in this right, for they obtained from him a confirmation of the ecclesiastical immunities.[19]

The proof of wills was thus well settled and established, for it is spoken of as an ordinary and undisputed usage, and through all the animated disputes in the reign of Henry II, as to the civil and ecclesiastical jurisdiction, it is observable that nothing is advanced against the authority of the spiritual courts in testamentary causes. In the reign of Richard II the county courts were prohibited to infere with the probate of wills.[20]

By the early common law of England, if a man had a wife and children, he had only a testamentary disposition of one-third of his property; the remainder, the shares of the widow and children, were called rationabiles partes, which must be intact. The personal attendance of the clergy on the dying would ordinarily lead to the disposition of the third which a person was privileged to bequeath by testament; and, from ancient wills, it is very evident this power was liberally and generally exercised in favor of religious uses, such as were deemed for the soul’s health of the testator. Whenever, by accident or extreme feebleness, the exercise of this right was prevented, the third thus left at the disposal of a person was of right claimed by the clergy, as the “dead man’s part,” to be appropriated for his benefit, pro animÆ salute. This would lead to the intervention of the spiritual courts in the distribution of an intestate’s estate, especially as they had full power over the probate. So it became the invariable custom to take the third of an intestate’s goods for pious uses, which were, to assist in paying for masses for the benefit of the “defunct’s soul,” to assist the poor and infirm, to pay for church lights, religious services, and anniversaries. If a man died without wife or children, the Ordinary, as the bishop was termed, had the administration of the whole of an intestate’s property, subject to the payment of the debts of the deceased. It is easy to see what immense power and revenue accrued to the church in consequence of the establishment of these privileges; and the influence gained thereby, and the flagrant abuses resulting from this prerogative, caused just alarm to the civil power, and led to a struggle to curtail such powers in the reign of Edward III,[21] when a law was passed providing that the Ordinary should grant the administration to the next of kin. The Statute of Distribution, in the reign of Charles II, destroyed the old common-law right to the pars rationabilis, and made the estate distributable among the widow and next of kin, leaving still, however, in the hands of the administrator, for his own use, the third formerly retained by the church; and finally, by statute, in the first year of James II, it was provided that this third should also be distributed. So, after a struggle of many years, the administration of the goods of an intestate was taken out of the hands of the spiritual courts, and rightfully given to the family of the deceased. The long, slow process is an interesting phase of history for the general reader, as it is for the lawyer, who finds it necessary to follow it, because the rules and decisions of the ecclesiastical courts as to the probate of wills and the administration of personal property have become incorporated into the body of our law, and form a part of it.[22]

Up to the thirty-second year of Henry VIII, there was no power to make a will of real estate. In his reign the Statute of Wills was passed, which first gave this power, and after that time a person had the right to make wills of real as well as personal property; but the ecclesiastical courts had only cognizance of the wills of personal property; the common-law courts had the jurisdiction of wills relating to real estate.

The next statute that affected wills was the Statute of Frauds, in the twenty-ninth year of Charles II, which required wills affecting real estate to be in writing, signed by the testator, and attested in the presence of three or four credible witnesses. This statute had an immense influence on our jurisprudence, and is substantially adopted in all our States, with slight variations.[23] In that statute certain formalities were insisted upon, but only in regard to a will of real estate; a will of personal property was not required to be executed in the same manner and with the like formalities.[24] Before the Statute of Frauds, according to 32 Henry VIII, it was only necessary for the will to be in writing; and accordingly, where a man beyond the sea wrote a letter, in which he declared his will to be that his land should go in a certain way, it was adjudged a good will.[25] And a will written without the appointment of the testator, if read to him and approved by him, was held good, signing and sealing not being necessary.[26]

Now, by statute I Vict., ch. 26, in England, there are required the same formalities in a will of personal estate as by the Statute of Frauds are required in a will of real estate, and the same is now the case in nearly all our States; and, by the same statute, a person has a full testamentary disposition of all real estate, as well as personal, to which he is entitled, either in law or in equity, at the time of his death.

Our American States generally, after the Revolution, adopted the English common law, as it was at certain periods—some taking one date, and others a different one; but in all substantially the common law was taken as the foundation of our municipal law, with the exception of Louisiana. Hence the law relating to the execution and probate of wills, as administered in the ecclesiastical courts, was engrafted here, subject to certain statutory modifications suitable to our polity and circumstances. But we, having no recognition of an established religion, have given this jurisdiction to special civil courts, denominated Probate Courts in some States, as in California; the Orphan’s Court, as in New Jersey; the Surrogate’s Court, as in New York. The name Surrogate again brings to our mind a reminiscence of the former ecclesiastical jurisdiction; it was the name given to the bishop’s deputy. However, in all, no matter by what name known, the precedents, the decisions, and rules, as established in the ecclesiastical courts in England, in regard to testamentary matters, have authority and force; and it is for this reason the history and adjudication of these courts are so necessary to the lawyer of the present day.[27]