Development of the Law of Wills in England: Personal property

Personal property

The history of wills of personalty was considerably different, but to some extent followed parallel lines. In both cases partial preceded complete power of disposition. The general opinion of the best authorities is that by the common law of England a man could only dispose of his whole personal property if he left no wife or children; if he left either wife or children he could only dispose of one-half, and one-third if he left both wife and children. The shares of wife and children were called their pars rationabilis. This pars rationabilis is expressly recognized in Magna Carta and was sued for by the writ de rationabili parte. At what period the right of disposition of the whole personalty superseded the old law is uncertain. That it did so is certain, and the places where the old rule still existed—the province of York, Wales and the City of London–were regarded as exceptions. The right of bequest in these places was not assimilated to the general law until comparatively recent times by acts passed between 1693 and 1726. A will of personalty could be made by a male at fourteen, by a female at twelve. The formalities in the case of wills of personalty were not as numerous as in the case of wills of land. Up to 1838 a nuncupative or oral will was sufficient, subject, where the gift was of £30 or more, to the restrictions contained in the Statute of Frauds. The witnesses to a written will need not be “credible,” and it was specially enacted by an act of 1705 that any one who could give evidence in a court of law was a good witness to a will of personalty. A will entirely in tile testator’s handwriting, called a holograph will, was valid without signature. At one time the executor was entitled to the residue in default of a residuary legatee, but the Executors Act 1830 made him in such an event trustee for the next of kin.

Jurisdiction over wills of personalty was until 1858 in the ecclesiastical courts, probate being granted by the diocesan court if the goods of the deceased lay in the same diocese, in the provincial court of Canterbury (the prerogative court) or York (the chancery court) if the deceased had bona notabilia, that is, goods to the value of £5 in two dioceses. The ecclesiastical jurisdiction was of a very ancient origin. It was fully established under Henry II, as it is mentioned by Glanvill. In the city of London wills were enrolled in the Court of Hustings from 1258 to 1688 after having been proved before the ordinary. Contested cases before 1858 were tried in the provincial court with an appeal originally to the Court of Delegates, later to the Judicial Committee of the Privy Council. There were also a few special local jurisdictions, courts baron, the university courts, and others, probably for the most part survivals of the pre-Conquest period, when wills seem to have been published in the county court. The ecclesiastical courts had no jurisdiction over wills of land, and the common law courts were careful to keep the ecclesiastical courts within their limits by means of prohibition. No probate of a will of land was necessary, and title to real estate by will might be made by production of the will as a document of title. The liability of the executor and legatee for the debts of the testator has been gradually established by legislation. In general it is limited to the amount of the succession. Personal liability of the executor beyond this can by the Statute of Frauds only be established by contract in writing.

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