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showing the origin of a legal institute, this method leads us also to its primitive rationale, and supplies us with a test for appreciating any new projet which modern fertility may produce. A consideration of the reasons which have given vitality to the old custom, may show how a sufficient reform may be conceived and effected without disturbing the former social securities. For if the analysis demonstrate the original grounds to be partially unsuitable, or wholly inapplicable, to the present circumstances of society, a new principle may then, without hesitation, be introduced, either to take its place by the side, or to supersede the old one altogether. By applying such a method as this, we are enabled to go our way over difficult ground, without taking any of those blind jumps into a tentative futurity to which mere innovation would otherwise impel us. By this method, and this alone, we can leisurely compare the modern with the ancient idea, before we proceed with the work of alteration and destruction; and as we may in some cases innovate for the better by progressive movement, so in other cases we may benefit society in an equal or a greater degree, either by pulling up when we find, on examination, that we may safely stand by an old usage whose principles we have learned to comprehend, or by retracing, in a spirit of conservative retrogression, more distinctly and truly its original idea and object. This method we now propose to apply to the subject of Probate of Wills.

In the first place, we will ask what is a probate? This question, simple, and of every day, as it seems, has more difficulty in finding an accurate solution than the reader might at first imagine. Many persons (and those not of the smallest pretensions) will answer that it is a legal copy of a registered will, and there they will stop; and so far the answer is a true one; but a probate is also something more, and so in fact it proclaims itself, in its old traditional and long-descended language. For every probate declares that a will has been proved, approved, and registered; and also purports to grant to the executor administration of all the testator's personal estate. It therefore combines a certificate that the will has been duly insinuated, with an express authorization to the executor to exercise the functions of an administrator under it.

For a will does not confer, either per se or through its authentication, any power upon the executor, or upon any one else named in it, to administer a testator's chattels. Thus the authentication of the will is insufficient without the delegation of the administrative function; and neither implies the other. But though they are two distinct operations of law, they are nevertheless always accumulated by the same legal authority upon one individual, who, therefore, if he proves a will, must at the same time be prepared to ask for administration also.

In fact, an executor and a next of kin stand in precisely the same relation to the Court of Probate, the one as the other. Each is unable legally to act without or before administration granted; but the Court is bound by law to grant such administration to each, if he requires it; to the former in obedience to the decisions of the common-law judges, overruling the discretion which the Canon Law once allowed; and to the other in obedience to the statute of Henry VIII.


In history both these operations of law (which form what the Master of the Rolls, in Watson v. Swift, called "the twofold office of probate ") 1 have had separate origins, though they now meet on common ground. The one shadows forth the insinuatio testamenti of the Roman Law, while the other is a development of a peculiar principle first evoked under Christian influences, and afterwards recognized and confirmed by the emperors, but which has completely managed to escape the searching gaze of English juridical eyes. To the Roman insinuation, united with this lastmentioned principle, which was in its first stage denominated tuitio testamentorum, we owe the modern probate.

This tuition was purely Christian in its object as in its origin: the support of the poor, the relief of widows and orphans, the redemption of captives, and the alleviation of misery in every shape amongst the faithful, was the native office of the Church. To fulfil and effectuate this aim, large funds were necessary. These were supplied by the voluntary contributions of the Christian congregations at the offertory during their lives, and by their testamentary donations on their death. As a logical

1 14 L. J. Rep. (N.S.) Chanc. 354; 8 Beav. 368.

consequence of the care of the poor and the miserable, which the Church had undertaken, it became a self-imposed but necessary function for her to see that those funds, whether a legacy or an inheritance, were not diverted by greedy heirs and relatives from the purposes of testators. The means of effecting this object were those only which the Church by her constitution possessed, and they were simply episcopal remonstrance or monition, followed by excommunication or suspension ab ingressu ecclesiæ, in the event of contumacy. And for these reasons the institute under consideration assumed only the modest name of tuitio. But as such it was a power and an influence, long before it was a law.

Its existence in the West is distinctly referred to the year 398.1 In that year, at the fourth council of Carthage, the African bishops, whose ascetism was notable, forbade their brethren to exercise this tuition, by enacting "ut episcopus tuitionem testamentorum non suscipiat." This shows that the tuition was a regular business at that time, because, if it had not been so, and had been merely a theory of natural or religious equity, it would have been purely a matter to be preached from the pulpit and urged in the confessional, and would never have interfered with the episcopal functions, nor consequently have attracted the reprobation of the Council.

We can find no recognition of this practice and system in the legislation of the emperors until much later, and then it is in the East. This, however, is not surprising; for the ideas of the Church have in other matters also preceded law. The application or invention of trust uses in England is a noticeable example of this.

While the zeal of the emperors favoured the endowment and foundation of churches, it was their policy to promote and even to facilitate charitable bequests and gifts to the poor. It obviously tended to allay the discontents of the starving coloni, rigidly kept within the bounds of their native districts, and denied free egress and circulation. Thus entire inheritances given to the poor were, in the East, relieved from the burthen of the Falcidia,

1 Caranza's Councils, and Edwards's Ecclesiastical Jurisdiction, p. 42. It is recited by Gratian de Secular. Negot. c. 5, pars 1, distinctio 38.

and specific gifts for pious causes were rendered operative in all


Under these circumstances, the tuitio must at an early period have been allowed and perhaps encouraged by all the Christian emperors in the West as in the East. In the latter empire, Justinian has some most explicit regulations upon this subject. In the first book of the Code (tit. 3, p. 49) he enacts that if any person, with a view of evading the Falcidian portion (ad declinandam legem Falcidiam), has named captives or pauperes as his heirs, the bishop of his city, and the economus of the latter, "hæreditatem suscipiant:" and they shall be heirs without the Falcidian (sine Falcidiæ legis emolumento); i.e., in other words, they shall be the nude executors of such a will. And that such is strictly and precisely their office, he further demonstrates by declaring that they shall be empowered (licentia danda) to bring actions, to sue for and call in debts, and also to answer to creditors; and finally, he denominates them administratores. And in the Novels he enacts that, in the case of single legacies for the redemption of captives, the support of the poor, or other religious purposes, the Bishop, whether named or not as the minister for that purpose, or even if expressly prohibited by the testator, shall receive and apply the property so bequeathed.— (Nov. 131, tit. 11.) In the same Novels he also enacts that all legacies left by testators ad pias causas, be carried out by the provision (provisione) of the bishops. In the Code (lib. i. tit. 3, p. 46) he directs, if a testator has made a pious disposition of the whole or a part of his property, and the heirs neglect to carry it out, "confestim loci Deo amabiles episcopos curiosos ? esse circa hæc, et postulare ut illi omnia impleant secundum voluntatem defuncti." And this right of action against the heirs is in the same law given to the bishops, whether they be named or left unnamed by the testator, or even if he has prohibited their interference.


It was a great step towards the organization of charity, that a perpetual corporation, of the nature of the episcopacy, should

1 See Law Magazine, vol. xxiii. (N.S.) p. 115.

2 The reader is referred to the Codex Theodosianus for an illustration of the word 'curiosus' (lib. vi. tit. 29). Curagendarii sive curiosi are expressive of inquisitorial agency.

be charged with the office of collecting and applying, or enforcing the application of charitable trusts; and it is impossible to overestimate the good which the Church must have effected in the willing discharge of this obligation; for by the time of Constantine, almost all wills and codicils contained pious dispositions. As under the pagan emperors it had been the fashion for their co-religionists to leave them bequests, more or less extensive, so, under the empire of Christianity, the faithful considered it a duty, and made it a rule, to bequeath portions of their property to the Church,' as the best guardian of the poor and the struggling. But as it was a peculiarity of the Roman law, that all legacies depended for their validity upon the institution of a hæres, many pious and charitable intentions must have fallen to the ground, as being contained in a will rendered informal by such a grave omission of the rigorism of the Civil Law, and yet those legacies would be in their own nature such as, under other circumstances, the Church would have become tutrix or guardian of, if there had not lacked an heir to wring them from.

The Church must have deplored these consequences, as she had regretted her losses under the analogous circumstances of religious and charitable ministeria, rendered inoperative through the want of a persona designata.

There was, therefore, a necessity that more equity should be infused into the law regarding these subjects, by modifying the great Roman principle of the institution of a hæres. So the Church thought; and action seems to have followed upon thought with rapid strides, in the old and energetic days of the Church. To see a secular injustice was to resist, to neutralize, and destroy it. But the Church was no mere agitator for a repeal of obnoxious forms which pertained to the secular system, or of iniquitous practices which had grown up into it. She was more; and though she could not repeal an unjust law, she had an admitted authority to punish all men who did unjust acts themselves, or upheld others in doing them, founding her judgments upon her and not the secular code. own, On this subject

1 Troplong's De l'Influence du Christianisme sur le Droit Civil des Romains, p. 122.

2 Vol. xxiii. (N.S.) p. 113.


2 L

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