Testamentary law history

A further development of the principles of the Roman Law through ecclesiastical influence was in the matter of the disposition of personal property upon the decease of the owner. Originally, as it will be remembered, the feudal tenure was only for life. Upon the death of the occupant every feudal holding reverted to the feudal lord. When the right of inheritance was introduced, it only applied to real estate. In fact, in our system it applies to real estate now. Personal property continued to be seized and appropriated by the feudal lord. It is true there was usually not much of it within the domain and the sphere of action of Feudalism. Cattle and agricultural implements constituted the bulk of it. But what little there was became the spoil of the feudal lord as soon as the owner had been called away by death; and wife and children were ruthlessly deprived of the support which it might have been to them.

It was a case of brutal oppression and wrong, under the form of law, if the word law is not desecrated by the application to the infamous usage, which justified the most forcible intervention on the part of the ecclesiastical authorities. Appeal was made to the conscience of the feudal lord. Perhaps, there should be an apology for the use of the word conscience in any such connection. At all events, the thunders of the Church were invoked against the feudalist who insisted upon the exercise of his feudal prerogative; and the Church finally succeeded in getting the personal property of deceased persons into its own possession for the benefit of their families and relations. Thereupon, each ordinary or bishop within his own diocese, immediately upon the happening of a death, became the lawful custodian and administrator of all personal property within his territorial jurisdiction. The administration he committed to competent persons as each case arose; and he himself only retained the jurisdiction to see that it was properly conducted.

On the continent of Europe, with the revival and extension of the Roman Law, this ecclesiastical jurisdiction ceased at a comparatively early date. In England it continued to be the usual system down even beyond the middle of the second last century. The administration of the personal estates of deceased persons was no part of the Common Law of that country; it belonged to the ecclesiastical authorities. The courts for that purpose, courts of probate, as they have been called, because they take the probate of wills for the transmission of personal property, were the courts of the bishops; and the law administered by them was notoriously the Canon, and the Civil Law of Rome. The custom has left its impression upon our American law. For, although our ancestors brought with them what is called the Common Law of England, and although they could not, and did not bring with them the bishops and ecclesiastical courts, and were compelled immediately to supply the deficiency by the establishment, through the instrumentality of statute, of special courts for the purpose, generally known through-out the country either as Orphans' Court or Courts of Probate, it is a curious fact that the law which they administer is and always has been the Roman Law. A remarkable illustration of it is the fact, that, our laws for the distribution of personal property are purely those of the Civil Law of Rome. We have retained the tradition of the ecclesiastical jurisdiction; and in the exercise of this jurisdiction the bishops were unfettered by feudal restraint.

With his usual misrepresentation, and even deliberate mendacity, for he knew better, where the Church was concerned in her relations to the feudal power, Blackstone wishes us to believe that the Kings voluntarily surrendered their right to the personal property of those who died intestate to the ordinary or bishop for proper distribution of them, that the ordinary was often recreant to his trust, and that it required two statutes to compel him to execute the trust properly and to depute the administration to the next of kin or some near friend of the deceased. A careful consideration of these statutes and of the circumstances under which they were made will show that the great commentator has wilfully misrepresented their tenor and import, and that they were enacted at the solicitation of the bishops themselves for the purpose of having a uniform law through-out all England. There was no question in them of breach of trust on the part of the bishops or ordinaries and even if breach of trust there had been, of which there may well have been individual instances, the fact does not militate against our contention that the ecclesiastical action in rescuing personal property of deceased persons from the grasp of the king or feudal lord was a check to Feudalism and a revival to that extent of the principles of the Roman Law.