allow him to administer the goods of intestates.1 The lords also continued, in some parts of England at least, to confiscate the chattels of their villeins dying intestate.2 In the marches of Wales the old law in favor of the lords seems to have been maintained long after the reign of Edward I. In 1278 the lord of Kemes agreed to waive his claim to the property of intestates. In 1352 Edward III. ordered three commissioners to inquire whether Sir Henry Hastings, a tenant-in-chief, and others died intestate, and whether, according to the custom of the marches of Wales, all the chattels of tenants dying intestate belonged to their lords. A jury sworn before two of the commissioners in 1354 declare that from time immemorial it has been customary for the lords to have all such chattels. They say that Sir Henry left a will, but that Grono ap Ievan died intestate during the present reign; his chattels are worth 40s.5 An attempt was made to enforce the old custom as late as the reign of Edward VI.6 Attention must finally be called to the town charters, which, though they contain many references to intestacy, have been passed over in silence by all writers on this subject. Their examination will confirm the view that long after Bracton wrote his law-book the king and other lay lords still remembered their old right, and that their tenants, in the boroughs at least, regarded exemption from its exercise as a privilege. The following list of references to the evidence on this subject does not profess to be exhaustive.7 1 Memoranda de Parliamento, 1305, ed. Maitland, 73. The king answered that he would not interfere with the custom of the country, meaning perhaps the custom of Wales. For conflicts arising from the claims of the prelates in France, see Auffroy, Evolution du Testament, 558-60. 2 Court Rolls of the manor of Wakefield, ed. Baildon, i. 256, 260; Rotuli Hundredorum, ii. 758; Pollock and Maitland, 2nd ed., i. 417. Some lords did not permit their serfs to make wills or impeded their execution: Letters from Northern Registers, 73; Wilkins, Concilia, i. 724, 740, 754, ii. 155, 553, 705. 3 "Item si aliquis liber homo de Kemeis decedat intestatus praedictus dominus nihil habebit de bonis intestati": Baronia de Kemeys (Cambrian Archaeol. Assoc.), 59. • "Consuetudo est in marchia Walliae optata [? obtenta] et usitata quod domini partium illarum omnia bona et catalla tenentium suorum in partibus illis intestatorum decedentium ratione dominii sui praedicti habent et habere consueverunt a tempore quo non extat memoria." Baronia de Kemeys, 14, 71. • Ibid., 15. In 1485 we hear of the office of selling goods of intestates in the county of Flint, - an office which seems to have been in the gift of the king: Rotuli Parl., vi. 353. 7 The references are to town charters, excepting those concerning Cardiff, Hereford, Preston, and Tewkesbury, which are to customals or to Domesday Book. The asterisk indicates that the privilege was granted by a baron. Where there is no asterisk the reference is to a royal charter, except in the cases of Hereford and Preston. Bala, 1289: Record of Caernarvon, 175. Bath, 1256: Warner, History of Bath, app. xlv. Bere, 1284 Archaeologia Cambrensis, 1849, iv. 216. *Cardiff, before 1183: Clark, Cartae de Glamorgan, iii. 78.1 Conway, 1284: Record of Caernarvon, 163. *Haverfordwest, 1219-31: English Hist. Review, xv. 518. a." Hereford, 1086: Domesday Book, i. 179 a. *Kells, temp. John: Chartae Hiberniae, 17.' *Kidwelly, 1329: Archaeologia Cambrensis, 1856, ii. 276.7 *Newport (Pembrokesh.), 1192 (?): Baronia de Kemeys, 15, 50.8 1 "Item quacunque morte burgensis praeoccupatus fuerit, nisi per nequitiam dampnatus, uxor ejus et liberi sui habebunt catalla mortui vel proximi parentes ipsius tanquam heredes si non habuerit uxorem vel liberos." From a customal of the twelfth century. 2 "Et si aliquis civis de praedicta civitate in servitio meo occisus fuerit, de catallis suis fiat ac si ipse rationabile testamentum fecisset." Whether they die testate or intestate, the goods of the citizens are not to be confiscated by the king but are to go to their heirs. "Heres burgensis quacumque morte praeoccupati habeat hereditatem et catallum patris sui." "Si quis morte praeventus non divisisset quae sua erant, rex habebat omnem ejus pecuniam." "Quicumque praedictorum burgensium de K. sive in terra sive in mari testatus vel intestatus obierit, heres ipsius duodecim denarios in relevium pacabit et hereditatem suam quiete possidebit." Henry, duke of Lancaster, grants, 2 Edw. [III.], that if any burgher should die intestate his son and heir shall have his property" without challenge of us or our heirs." * "Item si burgensis moritur de quacunque morte morietur, nisi per judicium pro felonia vitam suam amittat, ego nihil habebo de catallo nisi relevium scilicet xii. d." *Oswestry, 1407: ibid., ii. 199. Oxford, 1257: Ogle, Royal Letters, 11. Pembroke, temp. Hen. II. : Cal. of Patent Rolls, 1377-81, p. 107.1 *Saltash, temp. Hen. III.: Luders, Reports, ii. 119.3 Shrewsbury, 1256: Owen and Blakeway, Hist. of Shrewesbury, i. 121. *Tenby, temp. Hen. III.: English Hist. Review, xvi. 103. *Tewkesbury, before 1183: Clark, Cartae de Glamorgan, iii. 78." 6 The same formula is used in the royal charters with few exceptions: the king promises that if any burgesses should die within his dominions testate or intestate, he will not cause their chattels to be confiscated, but the heirs shall have them intact, in so far as it can be shown that they belonged to the deceased, provided that sufficient knowledge or proof of the heirs can be had. Perhaps the 1 "Et [si] burgensis ejusdem villae quacumque morte et quocumque loco sive in terra sive in mari sive cum testamento sive sine testamento moriatur, heres suus omnes res suas habeat per donandum xii. d. de relevio." 2 "Si burgensis de villa morte subitanea obierit, uxor ejus et heredes sui omnia catalla sua et terras suas quiete habebunt. Ita quod dominus suus nec justiciarii manum ponant in domibus vel in catallis defuncti nisi publice excommunicatus fuerit, sed consilio sacerdotis et vicinorum in elemosinis expenduntur." * Reginald de Valle Torta grants to his burgesses: "et quisquis illorum obierit de quacunque morte fuerit, heres ejus catalla ipsius in pace habebit et terram suam per triginta denarios releviabit ad plus." "Concedimus quod si quis burgensium praedictorum morte subita, quod absit, moriatur, omnia catalla sua sibi fore salva et heredem suum in hereditatem suam per relevium xii. d. libere introire." 5 Customal of Cardiff and Tewkesbury. See above, under Cardiff. The exceptions are Chester, Cork, and Pembroke. In the charters of Chester and Cork the formula is merely abbreviated. " 7" Si dicti burgenses aut eorum aliqui infra terram et potestatem nostram testati decesserint vel intestati, nos vel heredes nostri bona ipsorum confiscari non faciemus, quin eorum heredes ea integre habeant, quatenus dicta catalla dictorum defunctorum fuisse constiterit, dum tamen de dictis heredibus notitia aut fides sufficienter habeatur." This formula is also used in the baronial charters of Laugharne and Oswestry, and in a grant made by Henry III. to the burgesses of St. Omer (Cal. of Charter Rolls, i. 441); instead of "heirs" the charter of Oswestry (1407) has "heirs and executors The formula, as set forth above, should be compared with that of a charter granted during the reign of Henry II. by his son Richard to the men of La Rochelle: "Quicumque ex illis sive testatus sive intestatus sive confessus sive non morietur, omnes res ejus et possessiones integre et quiete remaneant heredibus suis et genero suo" (Ordonnances des Rois, xi. 318, from the inspeximus of Louis VIII., 1224). An inspeximus of Alphonse of Poitiers, 1241, adds the words "id est " after "intestatus": Besly, Histoire des Comtes de Poitou, 500. For other grants of this privilege to French towns, see Ordonnances des Rois, xi. 319, 321, 337, 495; Auffroy, Evolution du Testament, 557. demand for this privilege was stimulated in 1256–57 and 1284 by the negotiations between the crown and the papacy. The charters of baronial towns which state that the chattels of burgesses who die suddenly or "by any sort of death" shall go to their heirs, doubtless refer to cases of intestacy. A grant of Henry II. to La Rochelle tells us that a burgher who breaks his neck or is drowned, has not an opportunity to confess and make his will; therefore his property is to be distributed by his kinsmen and friends for the good of his soul.2 The town records of England give little information concerning the disposition of the goods of the intestate. The rule laid down in the Preston customal seems to mean that out of his estate provision was to be made for the benefit of his soul by the parish priest and the dead man's friends or kinsmen.3 According to the customal of Sandwich, which probably records the usages of the fourteenth and fifteenth centuries, the mayor and jurats have the administration of the bona intestatorum in the following manner. The mayor takes with him the jurats and sometimes the rector or vicar of the dead man's parish, and they ascertain what he possessed in money, goods, and debts at the time of his death. Then they appoint two executors, who are sworn to make an inventory. After payment of debts and funeral expenses, the residue is divided into three equal parts, if there is a wife and children; into two equal parts, if there is a wife but no children. Then the dead man's part (the third or half) is distributed for the benefit of his soul; and finally the executors render an account before the mayor and jurats, the friends or kinsmen, and the rector or vicar, if they desire to be present. The record adds that this practice has been in use from ancient times without any contradiction on the part of the archdeacon of Canterbury or any other ordinary. The dead man's 1 Above, p. 122. 2 "Si vero aliquis eorum colli fractione vel submersione vel aliquo casu subita morte praeventus fuerit et spatium confitendi non habuerit, concedo ut secundum rationabilem dispositionem et considerationem parentum et amicorum suorum res suae distribuantur et eleemosynae fiant pro anima ipsius": Ordonnances des Rois, xi. 319. See also the claim of the clergy of Normandy in 1190, in Ralph of Diceto, Imagines Hist., ii. 88: "Si quis vero subitanea morte vel quolibet alio fortuito casu praeoccupatus fuerit, ut de rebus suis disponere non possit, distributio bonorum ejus ecclesiastica auctoritate fiet." 8 Above, p. 127, n. 2. 4 "Ita semper quod de bonis ipsi defuncto pro portione accidentibus fiat testamentum per visum et auxilium amicorum suorum, si interesse voluerint, et distributio [sit] per manus ipsorum executorum debita et fidelis [secundum quod] credunt quod voluntas sua fuerit dum vixerit, et ad elemosinam et vias emendendas pro anima sua juxta part was probably expended for pious uses in other towns, like London, York, Chester, Bristol, Dublin, and Newcastle-upon-Tyne, where the tripartite division of the chattels of a man with wife and children existed. But Bracton, after speaking of the law of intestacy and the tripartite division of chattels, vaguely intimates that other rules prevailed in some boroughs and cities. Most of the records say that the personal property of the intestate shall go to his heirs or to his wife and children, without specifying any limitation or legitim. The heirs would, however, probably regard it as a religious duty to do something for the repose of the intestate's soul; and, as at Preston, this would naturally be done with the help or advice of the parish priest. But we hear nothing of the intervention of the ordinary, except at Dublin in 1268, when the citizens resented it; and the Sandwich customal expressly excludes any intervention of this sort. Such opposition to the assertion of episcopal authority was to be expected in towns the magistrates of which had the probate of wills. In many boroughs during the bonorum quantitatem. . . . Et haec solent fieri ab antiquo usque ad nunc sine aliqua contradictione domini archidiaconi Cantuariensis vel alicujus alterius ordinarii": Boys, Hist. of Sandwich, 524-5. In some parts of France the priest or the kinsmen might make a will on behalf of the intestate: Auffroy, Evolution du Testament, 557; Recueil des Monuments Inédits, ed. Thierry, iv. 408. Many bequests were made by the citizens of Bristol for the repair of highways: Wadley, Abstracts of Wills, passim. Another chapter of the Sandwich customal says that the movables of orphans are at the disposition of the mayor and jurats, "quia apud nos catalla et bona mobilia non accidunt hereditarie heredibus defuncti prout accidunt tenementa, redditus et possessiones," but a portion of such chattels is set aside for masses, the repair of roads, and similar works of charity; thus in 1351 two-thirds were distributed in this way, and only one-third went to the heirs: Boys, 514. 3 1 For London, York, and Chester, see Sharpe, Cal. of Wills, i. p. xxxiii.; Pollock and Maitland, English Law, 2nd ed., ii. 350; Widdrington, Analecta Eboracensia, 68, 300; Statutes of the Realm (Rec. Com.), vi. 372. The rule laid down in the Chester charter (c. 1200, above, p. 126) seems to imply that there was a definite division of the chattels in that city. The Bristol wills often make a threefold division of movables: Wadley, Abstracts of Wills, p. 104, "tertia vero pars sit mihi hoc modo "; cf. ibid., pp. 49, 7577, 81, 90, 91, 100, 103, etc. For "the dead's portion" (a third) at Dublin, see Gilbert, Cal. of Records, i. 129, 131. The custom of Newcastle-upon-Tyne, that the third part of all the goods of a burgher should be inherited by his children, was adopted by the Scotch burghs: Ancient Laws of the Burghs of Scotland, ed. Innes, 55, 172. Pollock and Maitland, ii. 362, believe that the eldest son or heir could claim no bairn's part; but, according to the Newcastle custom, he was to have the same portion of the goods as any of the other children. The Leges Burgorum, ch. 116, also give a long list of heirlooms or principalia which he inherits: Ancient Laws, 56, cf. ibid., 171. 2 Bracton, f. 61; Fleta, bk. ii. ch. 57, § 10; cf. Pollock and Maitland, ii. 350, for a criticism of Bracton's statement regarding London. 3 Above, p. 122. In the same year the citizens of London were excommunicated for admitting wills to probate in the hustings: Liber de Antiquis Legibus, 106. |