CHAPTER TWENTY-SEVEN.
Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesie distribuantur, salvis unicuique debitis que defunctus ei debebat.
If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under the supervision of the church, saving to every one the debts which the deceased owed to him.
Here the Great Charter proceeds to remedy an evil connected with intestate succession, a natural sequel to the subject of testate succession. John was made to promise that he would not seize, as forfeit to his exchequer, the chattels of men who had neglected to make a will. In the Middle Ages all classes of men, good and bad alike, exhibited an extreme horror of dying intestate.[[673]] Several causes contributed towards this frame of mind. Churchmen, from motives not unmixed, diligently inculcated the belief that a dying man’s duty was to leave part at least of his personal estate (the only property over which the law allowed him powers of disposal) for religious and charitable objects. The bishop or priest, who had power to give or withhold extreme unction to the sinner who had confessed his sins, was in a peculiarly strong position to enforce his advice upon men who believed the Church to hold the keys of heaven. Thus, every man on his death-bed had powerful motives for making his will in such form as the Church approved. Motives of a more worldly kind urged him in the same direction. If he died intestate, a scramble for his personal effects would undoubtedly result. Many powerful claimants were ready to compete. In Glanvill’s day, for example,[[674]] every feudal lord claimed the goods of his intestate vassals. Such demands were difficult to defeat, although Bracton, at a later date[[675]] declared them to be illegal, at least in cases of sudden death. Then, the kinsmen—rich and poor relations—had certain rights never very clearly defined. The Church, too, stood ready, with claims judiciously vague, which might be expanded as occasion required. It arrogated, at the very lowest, the right to distribute the dead man’s chattels for the good of his soul, and there are instances when a strong-minded bishop or abbot insisted on such a distribution, although the deceased had died unrepentant, leaving no will.[[676]]
Prelates allowed themselves liberal discretion in regard to "the dead’s part" over which they thus assumed control. Something might go to the poor, but much would naturally be spent on masses for the departed soul, while a portion might openly be retained as a recompense for trouble expended in this pious cause. The king was another competitor for the goods of those who left no will; and attempts were made at various times to treat intestacy, more especially in the case of clerks, as a cause of forfeiture.[[677]] For our present purpose it is unnecessary to discuss whether this claim was founded on the royal prerogative or on the rights of the king in his capacity either as overlord or as patron of vacant sees.[[678]]
This chapter of Magna Carta was directed against all such pretensions of the Crown or its officials. Whoever else might get these windfalls, King John must not compete. So much is clear; some sort of compromise was, further, made between the two most likely claimants. Magna Carta provided for a friendly co-operation between the deceased’s kinsmen and the Church in distributing the residue of the intestate’s personal estate, after satisfying all preferential claims of creditors, wives, and children. This chapter, although afterwards struck out of all reissues of the Charter, seems to have been observed in practice.[[679]] Apparently, however, the right of the kinsfolk to share the control with the Church gradually receded into the background, while the Courts Christian assumed complete authority in all cases of intestacy; so much so, that churchmen had frequently to be reminded that they were only the dead man’s administrators, and not entitled to appropriate the goods to their own uses.
It is easy to understand the motives which, in 1216, led those responsible for the government of the young Henry III. to withdraw this provision of Magna Carta. The Crown had then need of all the money it could get, and so long as the uncertainty of the law allowed a scramble to take place for the goods of intestates, the king could not be asked to stand aside with his hands tied by a clause of Magna Carta. He would take his chance with the other claimants. It was the Church, however, and not the Crown, which finally secured the prize.[[680]]
[673]. Pollock and Maitland, II. 354.
[674]. VII c. 16.
[675]. F. 60 b.
[676]. This course was taken in 1197 by Abbot Samson, whose deeds are portrayed for us by Jocelyn of Brakelond to the delight of Thomas Carlyle. See Past and Present, passim. Cf. also Pollock and Maitland, II. 355.
[677]. See Pollock and Maitland, II. 354. Examples are readily found: “When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and saltcellars.” Pollock and Maitland, I. 504.
[678]. Royal prerogatives in the twelfth century were still elastic and undefined. Henry II. used them freely, but on the whole fairly. His sons stretched every doubtful claim to its utmost limits. The Crown was the legal heir of all Jews (cf. c. 10) and apparently of all Christian usurers as well, at least of such as died unrepentant. (See Pollock and Maitland, II. 486, and authorities there cited.) It is interesting in this connection to note that the making of a will was looked on as a necessary condition of a usurer’s repentance. (See Dialogus de Scaccario, 224–5, nn.) The king, further, took the goods of all who died a felon’s death (cf. c. 32) and of men who committed suicide (itself a felony). John, so we may infer from Magna Carta, went further, and appropriated the chattels of all intestates. Were there any precedents from his father’s reign for this wider claim? Madox (I. 346) cites an entry from the Pipe Polls of 1172, recording 60 marks due the exchequer as the value of the chattels of an intestate; and, two years later, mention is made de pecunia Gilleberti qui obiit intestatus. There is nothing to show whether such men were, or were not, usurers. The Pope was another competitor for the personal estates of intestate clerks. In 1246, he issued an edict making this demand. Even Henry III. (dependent and ally of Rome as he was) protested, and the edict was withdrawn. (See Pollock and Maitland, II. 357.)
[679]. Cf. Pollock and Maitland, II. 355. “This clause, though it was deliberately withdrawn, seems to have settled the law.”
[680]. This chapter should be compared with a corresponding provision in the Charter of Liberties granted by Henry I. William Rufus, like John, had evidently helped himself freely to the chattels of intestates. Henry I. (c. 7) made what seems to be merely a partial renunciation of this right: where the deceased had been prevented “by arms or infirmity” from making his will, his relations and vassals might distribute his goods for him. Are we to infer that Henry reserved the right to seize them in all other events? Stephen, in his second or Oxford Charter (cf. supra, p. 121 and appendix), clearly and unambiguously resigned all such rights, as far as the property of churchmen was concerned. Si vero morte preoccupatus fuerit, pro salute anime ejus ecclesie consilio eadem fiat distributio. He also confirmed full rights of making wills to churchmen. We have already seen that his successors did not observe these provisions. (See supra, pp. 383-4, and also Pollock and Maitland, 1. 503.)