successions to real property; and it lays down certain guiding principles in relation to the jurisdiction which it had assumed.

(a) The King's Court appropriates the word heir, and gives to it the technical meaning which it bears at the present day.

The word is used in English law to indicate the person who succeeds ab intestato to the deceased's real estate. The rule is as old as Glanvil; 'only God,' he says, 'can make an heir, not man';' though he does not always strictly confine the term to the successor to real estate. There are two classes of heirs; heirs apparent, and heirs presumptive. 'Heirs apparent,' says Blackstone', 'are such whose rights of inheritance are indefeasible provided they outlive their Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born.'

ancestor

(b) The King's Court lays it down that a man can freely dispose of his land in his life, both as against his heir and as against his lord.

(c) It prevents any attempt at a testamentary disposition. From the abolition of post obit gifts by the King's Court to the rise of uses there is no such thing as a will of lands3.

These two latter rules need a short explanation. The extent to which a man can freely dispose of his lands is not quite settled at the time of Glanvil. The position of the old customary rules, and the new rules of the King's Court, is not yet finally fixed. A man may generally freely give away his land in his lifetime by way of a fair sale, or as

1 vii. I.

2 Bl. Comm. ii. p. 208. Cf. p. 222, note: 10: 'the expression heir-at-law must always be used with reference to a specific estate, e. g. if an only child has taken an estate by descent from his father, and from his mother, upon his death without issue these estates descend to two different persons.'

3 Except a few cases of burgage tenements devisable, P. and M. ii. pp. 328, 329.

a marriage portion, or to the Church. He cannot generally make gifts when he is dying. Even then, however, the gift may be good if the heir's consent is obtained. But as a general rule he must always leave to the heir, or heirs (if the land by some custom is equally divided between heirs), their reasonable portions. Though as a rule he has more power over acquired than inherited land, he cannot alienate even this if it is needed to secure to the heir his reasonable portion. With limitations, then, a man can dispose of his property in favour of strangers. But the law as it stood in Glanvil's time prohibited gifts to younger children more rigidly than it prohibited gifts to strangers. This may be due to the antiquity of its rules. At a time when each child was entitled to his fair share, at a time when there was no trade in land, it was such attempts at undue preference that would be specially noticed'. It was just at this period that the King's Courts were laying down the rule that land goes to the eldest son only. Thus the effect of the old customary rule and the new rule taken together was to make the consent of the heir necessary to a gift to a younger brother, when it might not be necessary to a stranger-was to make the position of a bastard preferable from this point of view to the position of a legitimate child. The rule, thus reduced to an absurdity, had disappeared from English law by the time of Bracton. The heir cannot prevent his ancestor from alienating his land in his lifetime. But, by way of compensation, the King's Court made the heir's rights indefeasible after the ancestor's death. It condemns the post obit gift of land. It is true that Bracton almost seems to contemplate in one passage the possibility of a procedure which shall enforce such a gift. This is opposed both to Glanvil and to other

1

Cp. Britton, ii. p. 245. When the ancestor has agreed to give his wife dower, he cannot increase it to the heir's prejudice-this may be a survival. Cf. Bracton, f. 95 b. 4 vii. 5.

2 Bracton, f. 49; P. and M. ii. p. 247.

3 f. 19.

passages in Bracton'. The test, hinted at by Glanvil, and applied by Bracton, to distinguish between valid and invalid gifts is the obtaining of seisin in the life of the donor 2. If the donor has not got seisin in the life of the donor the gift cannot be supported.

There are still slight traces in the law of succession of the interest that a man's lord once had in the lands. We shall see that this interest in all probability accounts both for the descent of land to the eldest son, and for the descent of land equally among daughters. We shall see traces of it both in the law of dower and the law of curtesy, in the relief, in the heriot, and in the right of escheat. But by Bracton's time the heirs of a man have a right to succeed to the estates held in fee simple by their ancestor. The owner

in fee simple has a right to alienate inter vivos with the vague restriction which lasted till the Statute of Quia Emptores, (A. D. 1290), that he must not alienate so much that from the residue he cannot perform his due services. The right of inheritance was perhaps precarious immediately after the Conquest. But the relief even of baronies was fixed by Magna Carta 3.

The Church, except in the case of a few copyhold customs ceases to have any claims upon the dead man's land.

1 f. 60 b.

3

Magna Carta, 1217, cap. 39.

2 Glanvil, vii. 1; Bracton, ff. 27 b, 43. 4 P. and M. i. pp. 295, 296.

5 Magna Carta, 1215, cap. 2. It would appear that in the time of Bracton a gift to a man and his heirs (though it gives nothing to the heirs) did not necessarily last beyond the existence of heirs, because, when they failed, there was no one to warrant the gift (Bracton, f. 17 b; P. and M. ii. p. 14. n. 1). If, on the other hand, the gift was to a man and his heirs or to whomsoever he might assign it, then the lord on the death of heirs would be obliged to warrant the gift (Bracton, f. 20 b). Bracton was strongly in favour of free alienation, which, he contended, did not cause any injuria though it might cause damnum to the lord: the preamble to de donis showed that his colleagues shared this bias (Bracton, f. 45 b; Digby, p. 224). At any rate, after Quia Emptores every man held land on an alienation in fee simple of the donor's lord: that lord, at all events, if he took homage, must warrant the gift (Bl. Comm. ii. p. 301). Thus a feoffment to a man and his heirs after this Statute would have a similar legal effect to a feoffment to a man and his heirs or to whomsoever he might wish to assign it, before the Statute. Thus,

The Church ceases to have anything to do with the real estate. In return it gets complete control over successions to personal property.

2. The King's Court for the moment entirely abandons jurisdiction over succession to personal property. That jurisdiction falls to the Ecclesiastical Courts.

The jurisdiction which was thus handed over to the Ecclesiastical Court was large. It comprised (a) jurisdiction over the probate of wills; (b) jurisdiction over legacies left by will; (c) jurisdiction over intestate successions to personal property. But it only acquired this extensive jurisdiction by degrees. The limits of the jurisdiction which it possessed in the past were as vague as the subject matter of the law of succession.

It is clear that the Church Courts did not get this jurisdiction either from the civil or the canon law'. (a) Justinian forbade the Church Courts to have anything to do with the 'insinuation' of testaments. There is nothing in the laws of the Greek Empire or in the Lombard capitularies to give it to the Church. Similarly the bishops, by the canon law, were forbidden to have anything to do with the probate of wills. (b) According to the civil law the bishop might have concurrent jurisdiction with the Lay Courts over legacies left in pios usus. There is a vague provision made by some council of Mentz which seems 4 to give the bishops an indefinite right of interference. But this does not seem in other countries to have given the bishops any jurisdiction beyond that over legacies left in pios usus. (c) There is

perhaps, a gift to a man and his heirs gets its modern meaning. The lord gets his feudal incidents, but he practically loses control over the land itself. Possibly this old interpretation of a gift to a man and his heirs explains the old interpretation of a gift to a man and the heirs of his body before de donis turned the conditional fee into a fee tail (cf. P. and M. ii. p. 17).

1 Selden, Original of the Ecclesiastical Jurisdiction of Testaments, chap. i. 2 Ibid. chap. ii. 3 Ibid. chaps. iii. and iv.

4 'Si heredes jussa testatoris non impleverint, ab episcopo loci illius omnis res quae eis relicta est canonice interdicatur cum fructibus et caeteris emolumentis ut vota defuncti impleantur.'

no evidence that they possessed any rights whatever over intestate succession.

Nor do we find that the Church Courts get an exclusive jurisdiction in the Saxon and Norman period.

(a) Selden says 'I could never see an express probate in any particular case older than about Henry III After what has been said as to the law of succession in early times this will not be surprising. Those days of customary law knew no such formal juristic act. We hear of the protection of the will by the lord, or by the alderman of the shire. This protection was given by King John, and by a bishop and a justiciar of Henry III. The effect might be somewhat similar to a grant of probate. But it is probable that the jurisdiction in cases of a disputed will had gone, as early as the reign of Henry II, to the Ecclesiastical Court. Glanvil says definitely that this was the law in his day'; and amid all the disputes of Henry II's reign as to the respective limits of the spiritual and secular jurisdiction, no claim to exercise jurisdiction of this kind was put forth by the King's Courts. Once admit that the Ecclesiastical Courts have this power to decide cases of disputed wills, and a jurisdiction over probate will naturally follow. At the same time old ideas die hard. Some lords of manors successfully asserted the right to have all the wills of their tenants tried in their Courts. Possibly in some cases this is a survival from the days before probate, properly so-called, existed; though in other cases they may, as Professor Maitland suggests, have originated in later grants from the Pope.

1 Selden, Original of the Ecclesiastical Jurisdiction of Testaments, chap. vi. 2 P. and M. ii. p. 339.

3 vii. 8: 'Placitum illud in Curia Christianitatis audiri debet et terminari quia placitum de testamentis coram judice ecclesiastico fieri debet.'

4 Selden, Original of the Ecclesiastical Jurisdiction of Testaments, chap. v. ō Hensloe's Case, 9 Coke Rep. 36.

6 P. and M. ii. p. 340. Alexander II. granted to the Cistercians in England the right to grant probate of the wills of their tenants and farmers. Britton, i. p. 75, does not mention this among the royal franchises. In other cases