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In the last forty years historical jurists have made much more profound investigations than formerly into the origins of common law institutions. Many obscure or debatable points have been cleared up; but in the process much accepted legal history has been utterly demolished. Much needed work of investigation, analytic and synthetic, remains to be done before the true genesis of many legal institutions and the vital living principles of English law shall be ready for a new expression in some comprehensive code.

Venia Testandi. In New York our present law of devises and testamentary succession is derived wholly from English law, although it now exists on an independent sovereign and statutory basis.10 So it is with our law regarding executors, intestate succession, distribution, and in short with all the subjects now dealt with in the following sections of the "Decedent Estate Law." Venia testandi, or the privilege of men in political society to make a will and pass on their property to others when death intervenes, is a very ancient privilege or right in English law, and one thus far jealously preserved in this country. It, in short, has come to be an incident in our "conception of property" rather than a privilege, so thoroughly is it grounded. It is generally stated by profound scholars, that venia testandi, or the power to make wills among Germanic races, including the English, is due to Rome11 and the influence of its disciples.

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The Roman law made a distinction between a "will" and a testament." A testament was a formal embodiment of the last will, “ultima voluntas." This distinction was familiar to the ecclesiastical lawyers of England. Furnivall's "Fifty Earliest English Wills," published in 1882, shows this fact. "Testamentum" is there invariably employed by testators; "ultima voluntas" never. The common expression in these wills is "Condo testamentum meum in hunc modum." Whether this distinction ultimately gave rise to the existing distinction between a will and a testament in

10 The Public Admr. v. Watts, I Will," 11 Harv. Law Rev. 69-79; Paige, 347; Brinkerhoff v. Remsen, 8 Paige, 488.

11 Maine, Ancient Law, chap. 6; Bigelow, "Rise of the English

Bradford's Introduction, 1 N. Y. Surrogate's Reports, XIII (a most valuable paper).

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The differences are too marked
There is, however, by the old

English law is, however, uncertain. to conclude that it originated it. law of England a great distinction between a "will" or "devise and a testament." The former refers to real property and the latter to personalty.12 The real legal distinction in English law between a will or devise and a testament is not a matter of words, but largely one of origin.13 The Anglican laws relating to dispositions of lands and tenements to take effect only on death of the owner, and the laws regulating like dispositions of personalty took very difficult paths in their journeys down the Middle Ages. A brief and general survey of these two paths, which tend to converge in time, will materially aid us in the construction of even the very modern statute which is the subject of this treatise. Let us then glance backward for a little while to the history of devises in English law; premising the present state of historical knowledge of the earlier periods still leaves much to be desired, although of late years modern investigators have cleared up many doubts. There are still but two comprehensive histories of English law: that of Reeves, written before 1787; and the admirable summary by Holdsworth, which is very recent, but fragmentary and incomplete. Pollock and Maitland in their history of English law deal only with the origins of English law and they end their survey with the year 1272 (1 Edw. I).

Brief History of English Devises or Wills. Some distinguished law writers, such as Hargrave in his Notes to Coke on Littleton,1 and Chancellor Kent in his Commentaries,15 assume or repeat that lands were generally devisable among the Anglo-Saxons and the Danes in England prior to the Conquest. It is possible that this assumption may be warranted by the fact, for either the Roman settlements,16 or the introduction of Christianity and the subsequent influence of the Roman law, certainly led to some 14 Note 138, Co. on Litt. 111b.

12 West, Symboleography (ed. 1594), 632; Parson on Wills, 1; 1 Powell on Devises, 9; 4 Kent. Comm. 502; Wood's Inst., tit. Devises; Conklin v. Egerton's Admr., 21 Wend. 430, 436.

13 Co. on Litt. 111a; Williams on Executors (Lond. ed. 1838), 6.

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recognition by the Anglo-Saxons of wills in some form.17 The Roman church, imbued with the civil law, always favored wills greatly.18 But precisely to what extent wills were in use in England prior to the reign of the first William, called the Conqueror, is a much more profound question than the legal historians of the eighteenth and the early nineteenth centuries imagined. There are very few so-called Saxon wills extant, and these are susceptible of a double construction, as post obit gifts by privileged persons.1o If we assume that lands in England were devisable prior to the Conquest, it still remains a question how far "family lands" could be thus disposed of without the consent of the family.20 When communal lands became private lands or lands owned by individuals the power to dispose of them doubtless embraced testamentary dispositions in some form. But this is about the extent of the historical knowledge of the Anglo-Saxon law of wills up to the present. That the Germans before they came into close contact with the Roman power had no clear conception of testamentary dispositions is one of the accepted truisms of history.21

With the Anglo-Saxon period of English history comes that portion of the law of England which is roughly described as “mediæval law." The more thorough historical scholarship of recent times has made it apparent, even to lawyers, that the common-law writers after the days of Henry VIII and down to and including Blackstone were much too dogmatic on controverted questions of legal history even when they possessed the requisite training and the historical sense to deal at all with such questions.

The history of early English law is yet in great part to be written. The scientific historians have not been jurists, and the English lawyers have rarely been very profound historians. Even the scien

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tific historians, in the absence of documents, find it often necessary to resort to inferences from known institutions of later date. They then reason" from the known to the unknown." Such a process must be very accurate to inspire confidence, and as a correct inference of this kind must exclude every other hypothesis, the learning necessarily involved in the process has been possessed by very few legal historians.22 Judged by critical canons, it cannot be stated that the evidences of the early laws of the Anglo-Saxons concerning wills or devises is as yet entirely satisfactory. That to some extent and in some way some persons in England, prior to the Conquest, could dispose of some part of their lands by an instrument in the nature of a will, is about all that the evidences prove up to the present.23 In other words, the Saxon law of status (which is the principal law of primitive peoples) undoubtedly allowed some men in England to make some disposition, to take effect at their death, of that part of their lands which they enjoyed as property in their lifetime. That such a disposition was in effect a will must, we think, now be conceded, although definitions of a will differ.25 It has always seemed to this writer that the best evidence that lands were generally devisable under the Saxons is to be found in the surviving local customs, such as those of Kent, to devise land. These certainly point to an origin of great antiquity.26 That mere copyholders, or those tenants of manors where the tenure was by a copy of court roll at the will of the lord, could not devise by custom,27 is to be deduced from Coke's omission to mention any customs to surrender to the use of devisees in his

22 The individual theories of the origin of the free village community, the mark, or manor, are all open to the objection that they do not exclude all other hypotheses. For this reason scholars do not yet receive the theories as established.

23 Stubbs, Const. Hist. III, 345. 24 White, Outlines of Legal Hist. 191; Bradford's Introduc., 1 Surrogate's Reports; P. & M. II, 26, 115, 312; Holdsworth, H. E. Law.

25 Cf. 2 Hist. Eng. Law (P. & M.), 312-324; Maine, Ancient Law, chap. VI; Jenks, Law and Politics in Middle Ages, 234.

26 Sandy's History of Gavelkind, 281; 2 Black. Comm. 84.

27 Copyholds could be surrendered to trustees to hold to the uses devised by will and this was common practice before the statute, 55 Geo. III, chap. 192, dispensed with this circuity.

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Compleat Copyholder," as although perhaps the truest statement in that very dull book, so unworthy of such a distinguished lawyer, is, "I perceive myself rashly running into an inextricable labyrinth. I will therefore sail no longer in these unknown coasts." 29 As a book of existing law for copyholders Coke's book is doubtless adequate, for Coke was eminently a practical lawyer; but his attempt at historical explanations is admitted to be sometimes very inadequate. There are evidences that to some extent lands were devisable in England before the Conquest, and they continued devisable to some extent after the Conquest. The facts are conceded by historical jurists from Spelman3o on to the present day.31

Lands Generally Devisable in England Before the Statute of Wills. It is commonly stated by legal historians that after the Conquest and prior to the Statute of Wills (32 Hen. VIII) lands ceased to be devisable in England. This, the Statute de Donis (13 Edw. 1) confirms. Yet there is some reason to doubt the complete accuracy of this statement. That it contains an element

28 Compleat Copyholder, 6.

29 Until Holdsworth wrote much of the Anglo-Saxon Law remained to be summed up by a competent scholar. This is also true of the history of status and jurisdiction. Professor Vinogradoff has lately explored a part of this subject. The condition of the history of the Roman settlements in England still leaves much to be desired. Had Savigny, for example, included this last topic in his theme, Geschichte des Römischen Rechts im Mittelalter, how different the result would now be. The distinguished historian of Equity, Spence, in an early work on the origin of the laws of modern Europe, evidently had it in mind, but in his survey he confined himself too largely to the Continent. This study

however prepared him to write his valuable work on the jurisdiction of the Court of Chancery. That the mediæval law of England has gained much of late years from more scientific treatment is fortunately more and more evident, but that much remains to be done is only too apparent. When a jurist who has a sufficiently wide erudition to write the history of the laws of England down to the end of the Middle Ages at last appears, his place among legal historians will not be second to Savigny or any other great

writer.

30 Reliquiae Spelmannianae (ed. 1698), 128.

31 Holdsworth, Hist. English Law; Bigelow, Rise of the English Will, ibid. supra.

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