In strict law, rights of testation, though prohibited quoad land, were recognized quoad personal estate. It must not, however, be supposed that the testator was at liberty to divide or “devise” all his money and chattels. The reasonable claims of wife and children must first be respected, and only the free balance, after satisfying these, could be distributed. It was long before any exact rule was established for determining the amount of these “reasonable” claims. Much could be said for an elastic rule which allowed the proportion of personal estate falling to wife and children to vary with the circumstances of each case; but this vagueness had one grave objection; it inevitably led to friction and family quarrels. Magna Carta in this respect simply confirmed existing practice, and made no attempt at definition. During the thirteenth century, however, the lawful shares of wife and children were definitely fixed by the English common law, and that, too, at exactly the same proportions of the entire personal estate as are recognized to the present day by the law of Scotland. Where a Scots testator dies leaving wife and children, his moveable or personal estate is regarded as falling naturally into three equal parts, known as the widow’s part, the bairn’s part, and the dead’s part, respectively. It is only with the last mentioned third of his own moveables that he can do as he likes. If he disposes of the rest, wife and children may claim their legal rights and “break the Will.” Where a wife survives but no children, or vice versa, the division is into two equal portions. Magna Carta recognises a similar threefold or twofold decision, and contains a clear acknowledgment of what Scots law to the present day quaintly describes as "the dead’s part." It was only the residue of the deceased’s chattels after claims of wife and children had been satisfied, which was “to fall to the deceased,” and which is also spoken of as the portion of personal estate left to the executors “to fulfil the testament of the deceased.” This portion was appropriated “to the use of the dead”: that is, his executors, under the guidance of the Church Courts, would use it for the salvation of his soul. The deceased might either have given specific directions, or have left full powers to his executors (frequently churchmen) to make the division for charitable and religious purposes according to their own discretion. Part might go to needy relations, or to the poor of the district; part to endow religious houses; and part in masses for his eternal welfare.
Long subsequent to the thirteenth century, the laws of England and Scotland as to the rights of succession of wife and children seem to have remained identical: but, while Scots law is the same to the present day, recognizing still the widow’s jus relictae and the children’s legitim, the English law has, by slow steps, the details of which are obscure, entirely changed. The rule which acknowledged the children’s right to one third of the personal estate was gradually relaxed, while the testator became sole judge what provision he ought to make for his sons, until at last a purely nominal sum of money was all that was required. Finally the power to bequeath personal estate has (in sympathy with exaggerated modern conceptions of the sacredness of rights of “property”) expanded to such an extent that a father may leave his children entirely penniless; and the law will not interfere. The law of England, at the present day, does not compel him to leave his son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may possibly perpetuate a now forgotten tradition of an intermediate stage of English law, where some provision, however inadequate, had to be made, if the Will was to be allowed to stand.[[672]]
[667]. Cf. the use of the phrase “a liquid debt” in Scots law.
[668]. Cf. what is there said of the sheriff’s oppressions and the attempts made to put an end to them.
[669]. The subject is exhaustively discussed by Pollock and Maitland, II. 312-353.
[670]. See Pollock and Maitland, II. 324.
[671]. On 30th August, 1199 (New Rymer, I. 78) John confirmed the testament of Archbishop Hubert Walter; and on 22nd July, 1202, (Ibid., I. 86) he granted permission to his mother, the dowager Queen Eleanor, to make a Will.
[672]. The reissue of 1216 makes no alteration here, but that of 1217 omits “et pueris,” thus protecting the wife’s “reasonable portion” but not that of the sons. The words omitted were restored in 1225. It was probably a mere clerical error.