a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of nonpayment by the drawer, the several endorsees of the promissory note have the same remedy, as upon bills of exchange, against the prior endorsers.

Chapter XXXI.

OF TITLE BY BANKRUPTCY.

471-489.

The chapter treats of 1, Who may become a bankrupt. 2, What acts make a bankrupt. 3, The proceedings on a commission of bankruptcy. 4, How goods may be transferred by bankruptcy. The chapter is mainly historical and of small practical benefit now.

Chapter XXXII.

OF TITLE BY TESTAMENT, AND ADMINISTRATION.

489-518.

There yet remains to be examined, in the present chapter, two other methods of acquiring personal estates, viz., by testament and administration.

XI, XII. I shall, first, enquire into the original and antiquity of testaments and administrations; shall, secondly, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show what an executor and administrator are, and how they are to be appointed; and lastly, shall select some few of the general heads of the office and duty of executors and administrators. Original of Testaments.

First as to the original of testaments and administrations.
Testaments are of very high antiquity.

With us in England, this power of bequeathing is coeval with the first rudiments of the law: for we have no traces or memorials of any time when it did not exist.

But we are not to imagine that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil informs us that by the common law, as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal 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 then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but if he died without either 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 King Edward the Third, this right of the wife and children was still held to be the universal or common law.

But this law is at present altered by imperceptible degrees, and the deceased may now, by will, bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began.

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 case it is said, that by the old law the king was entitled to seize upon his goods, as the parens patrie, and general trustee of the kingdom. This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts-baron, and other courts, or to have their will, there proved, in case they made any disposition. Afterwards, the crown, in favour of the church, invested the prelates with this branch of the prerogative. The goods, therefore of intestates were given to the ordinary by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, 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. 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. And as he had thus the disposition of the intestate's effects, the probate of wills 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 his chattels for the good of his soul was effectually superseded thereby.

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. Thus the popish clergy, took to themselves (under the name of the church and the 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. For which reason, it was enacted by the statute of Westm. 2, that the ordinary shall be bound to pay the debts of the intestate so far as his

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goods will extend, in the same manner that the executors were bound in case the deceased had left a will. This was the first check given to that exorbitant power, which the law had entrusted with 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 to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate dependents: and therefore the statute 31 Edw. III. c. II, provides that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods: which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5, enlarges a little more the power of the ecclesiastical judge; and permits 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, gives the ordinary his election to accept whichever he pleases.

Who May or May Not Make a Testament.

I proceed now, secondly, to inquire who may, or may not, make a testament. Regularly, every person hath full power and liberty to make a will, that is not under some special prohibition by law or custom: which prohibitions are principally upon three accounts: for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal conduct.

1. In the first species are to be reckoned infants, under the age of fourteen if males, and twelve if females. Madmen, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness,-all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class also may be referred such persons as are born deaf, blind and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.

2.

Such persons as are intestable for want of liberty or freedom of will are, by the civil law, of various kinds: as prisoners,

captives, and the like. But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi. And, with us a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 and 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the license of her husband. For all her personal chattels are absolutely his; and he may dispose of her chattels real, or shall have them to himself if he survives her; it would be therefore extremely inconsistent to give her a power of defeating that provision of the law, by bequeathing these chattels to another. Yet by her husband's license she may make a testament: and the husband, upon marriage, frequently covenants with her friends to allow her that license; but such license is more properly his assent for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will. Yet it shall be sufficient to repel the husband from his general right of administering his wife's effects; and the administration shall be granted to her appointee, with such testamentary paper annexed. So that, in reality, the woman makes no will at all, but only something like a will; operating in the nature of an appointment, the execution of which the husband, by his bond, agreement, or covenant, is bound to allow.

3. Persons incapable of making testaments, on account of their criminal conduct, are, in the first place, all traitors and felons, from the time of conviction: for then their goods and chattels are no longer at their own disposal, but forfeited to the king. Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture. Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time. As for persons guilty of other crimes short of felony, who are by the civil law precluded from making testaments (as usurers, libellers, and others of worse stamp), by common law their testaments may be good.

Nature of a Testament.

Let us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make. The definition of the old Roman lawyers is, "the legal declaration of a man's intentions, which he wills to perform after his death."

Written and Verbal Wills.

These testaments are divided into two sorts: written, and verbal or nuncupative; of which the former is committed to writing, the latter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing. A codicil, codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament: being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator. This may also be either written or nuncupative.

Nuncupative Wills and Codicils.

But, as nuncupative wills and codicils (which were formerly more in use than at present, when the art of writing is become more universal) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II, c. 3, hath laid them under many restrictions; except when made by mariners at sea, and soldiers in actual service. As to all other persons, it enacts: 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved; and unless the same be proved to have been so done by the oaths of three witnesses at the least; who by statute 4 and 5 Anne, c. 16, must be such as are admissible upon trials of common law. 2. That no nuncupative will shall in any wise be good, where the estate bequeathed exceeds 30l., unless proved by three such witnesses, present at the making thereof (the Roman law requiring seven), and unless they or some of them were specially required to bear witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwellinghouse, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow or next of kin, to contest it, if they think proper. The testamentary words must be spoken with an intent to bequeath, not any loose, idle discourse in his illness; for he must require the bystanders to bear witness of such his intention: the will must be made at home, or among his family or friends, unless by unavoidable accident; to prevent imposition from strangers: it must be in his last sickness; for, if he recovers, he may alter his dispositions, and has time to make a written will; it must not be proved at too long a distance