[241] The text receives considerable confirmation from the customs of Gavelkynd, highly probable as it is, that those customs are the valuable relics of the old common Law. “Let the goods of gavelkynd Persons,” says the Custumal of Kent, “be parted into three parts, after the funerals and the debts paid, if there be lawful Issue in life. So that the dead have one part, and his lawful sons and daughters another part, and the wife the third part: and, if there be no lawful issue in life, let the dead have the one half, and the wife alive the other half.” (vide Robins. on Gavelkynd, 287.) Lord Hale recognises the doctrine in the text, which, he tells us, was conformable to the ancient Law of England and the custom of the North to this day. (Hist. Com. Law. 192. 225.) It is likewise confirmed by the Regiam Majestatem, (L. 2. c. 37) and in substance by Bracton, and Fleta.—Yet, notwithstanding all this, Lord Coke, in his Commentary on Magna Carta, roundly asserts, that the doctrine laid down in the text, never was the Common Law; (2 Inst. 32) and, in support of this position, he cites a passage from Bracton.
To that passage, I have turned. Bracton there confirms the text of Glanville, and tells us, that the Law is so, unless in some cities and boroughs.—This leads him to mention the custom of London, and some floating opinions about its extent. He is of opinion, that the will of a citizen of London ought to be free, and unrestrained by any such limitation, as was imposed upon wills by the common Law. But Lord Coke has hastily assumed, that what Bracton spoke of the custom of London only, related to the kingdom at large. As this assumption fails, the deduction that flowed from it fails also. Sir William Blackstone, I find, has mentioned and refuted Lord Coke’s mistake. (2 Comm. 492) as has Mr. Somner in his Treatise on Gavelkynd, p. 96. To these authors, the reader may refer, as also to Reeves’s Hist. Eng. Law. 2. 334. 335. and F.N.B. 270. In concluding this note, I shall mention, the course of distribution of an Intestate’s Effects under the Laws of Canute, and the conqueror. Under the former, the Lord took the Heriot, and the remainder was distributed between the wife, children, and relatives, cuilibet pro dignitate quæ ad cum pertinet. (LL. Canuti, 68.) Under the latter, the children divided the Inheritance equally between them. (LL. Gul. Conq. 36.)
[242] Bracton and Fleta perfectly concur with our author, except that they use the word children instead of Heir, adding, that if the deceased had no children, then, the one half was at his own disposal, the other belongs to the wife; and, if he had neither wife nor child, the whole was at his own disposal. (Bracton 60. b. Fleta L. 2. c. 57. s. 10.) Before we quit the present chapter, it may not be amiss to observe, that Glanville has been thought grossly to contradict himself in the course of it. But this has been inconsiderately imputed to him by those, who have not attended to the context. He states, that according to certain customs, which prevailed in particular places, a man was bound to remember his Lord, and the Church, previously to his making his will. But, says he, whatever those customs inculcate, yet, according to the Law of the realm, no man is bound to leave any thing to any particular person, unless it be his inclination, for every man’s will is free, over that part of his property which the Law permits him to dispose of, namely, a third, or, eventually, a half—When our author laid it down, that a man’s will was to be free, he did not mean to assert, that he was at liberty to dispose of all his property. Should it in the present day be laid down, that a Testator’s will was free, and that he was not bound to give any thing to any particular individual, would it be a fair inference, that a man could devise his entailed Lands? It we apply this to Glanville, he is consistent, and will be understood to speak, with reference to persons, what he has been considered to speak, with respect to things. That the division of the property, mentioned in the text, did not long survive the time of Glanville, is most probable. (See Somner on Gavelk. p. 98.) Swinburne seems strangely to have blundered in thinking, that our author took part of his text from Magna Carta, (Swinburne on Wills, part 3. section 16.) The passing of which was an event clearly posterior in time to Glanville.
[243] Vide F.N.B. 270.
[244] “If the goods of the defunct are not sufficient for payment of his Debts, by the Law, his Heir should pay the same of his own proper goods.” (Reg. Maj. L. 2. c. 39.) This Rule was soon altered. Quatenus, says Bracton, ad ipsum pervenerit, scilicet, de hereditate defuncti et non ultra, nisi velit de gratia, et si nihil multo fortius. (See Bracton 61. a. Fleta L. 2. c. 57. s. 10.) Notandum est, quod nullus de antecessoris debito tenetur respondere ultra valorem quod de ejus hereditate dignoscitur possidere. (Le Grand Cust. de Norm. c. 88.)
[245] Hereon generally, see Bracton 86. b.
[246] Vide Statute of Marlebridge, chap. 16. and Lord Coke’s Comment thereon. (2 Inst. 133.)
[247] Of the Custody and Marriage of the Minor, we may form a general notion, when we understand, that they were considered as chattels and moveables, which the Lord might dispose of in extremis. See Fleta and Bracton, Sparsim.
[248] Vide Craig Jus feud. L. 2. D. 17. s. 17. and L. 2. D. 20. s. 17.—Bracton 86. b.
[249] Vide Craig Jus feud. L. 2. D. 17. s. 37.—LL. Hen. 1. c. 70.—Bracton 86. b. This, it seems, is still the age by the custom of Gavelkynd. (Robins. on Gavelk. 185.)