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.