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]