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her censures were as authoritative as the laws of the world. She could suspend or excommunicate all who offended against the immutable principles of justice, which she understood and interpreted on the broad basis of a common morality and at such a tribunal the conventional legality of an act could not be pleaded and accepted as a legitimate defence. Accordingly, we find the Church in Council resorting to excommunication against such next of kin of bishops, priests, and clerks as availed themselves of an informality in law to escape from the execution of legacies for pious or other purposes. We find a record of such a proceeding at the second Council of Lyons, A. D. 567, and the fifth Council of Paris, A. D. 614:1

"Quia multæ tergiversationes infidelium Ecclesiam Dei quærunt collatis privare denariis, secundum constitutionem præcedentium Pontificum, id convenit inviolabiliter observari, ut testamenta quæ episcopi, presbyteri, seu inferioris ordinis clerici, vel donationes aut quæcunque instrumenta propriâ voluntate confecerint, quibus aliquid Ecclesiæ aut quibuscumque personis conferre videantur, omni stabilitate subsistant. Specialiter statuentes, ut etiam si quorumcunque religiosorum voluntas, aut necessitate aut simplicitate faciente, aliquid a legum sæcularium ordine visa fuerit discrepare, voluntas tamen defunctorum debeat inconvulsa manere, et in omnibus Deo auspice custodiri. De quibus rebus, si quis animæ suæ contemptor aliquid alienare præsumpserit, usque ad emendationis suæ vel restitutionis rei ablatæ tempus, a consortio ecclesiastico, vel a Christianorum convivio, habeatur alienus.”

The defect pointed out by this canon must have been a latent one. It could, therefore, only have been the omission of naming an heir: a deficiency of witnesses would have been obvious, and the question would have been raised during the lifetime of the testator by the authority to which the custody of the wills of living persons was ascribed the same to which the reseratio and insinuatio also belonged. This purely ecclesiastical measure must have had the same indirect compulsion towards bringing about an amended state of things, as the secular

André's Droit Canon. vol. v. p. 233, quoting Labbe's Sacrosancta Concilia, tom. v. p. 848.

punishments of the rack or the prison-house. Though we thus find the Church taking the step which we have mentioned in the case of wills of her own members, she does so for the benefit of all persons. Her habitual wisdom told her that the beginning should be made within her own limited pale; for the separation of the clerk would justify a distinction in the secular laws which affected him. But the distinction was only demanded by her for the purposes of general justice. And in that lies the secret of the enormous growth of the wonderful Church of the first twelve centuries.

By these means the Church eventually wrung from the Law that a will should be operative for the legacies given by it, notwithstanding this specific defect of legal solemnity. But in order that such a will should be executed pro tanto, the Bishop stepped in as tutor testamenti, and executed it in that character, for there was no instituted heir whom he could compel to do so; and if he did not act himself, the existing law must have taken its course. Further, if he intermeddled hoc intuitu, he must do more, he must administer the whole estate, in order to be assured that there were assets sufficient for the legacies which it was his aim to fulfil. Under these conditions, the tuitio testamenti became executio testamenti.

He was thus executor testamenti when the will was informal, as he had before been tutor testamenti when the will was solemnly made. The distinction between these offices was, that the former he executed himself, while in the other he was the curiosus, who compelled the heir to do it, and supervised him at the same time. But the two functions must inevitably have soon been confounded, and the tutor become executor, though the first name long after lingered in the East.1

The Bishop, therefore, was the first executor testamenti known to the law; and so the canons of the Western Church have always designated him. The Bishop took with him his new function into his own court-the Audientia, for he could not be convented before the municipal Curia, of which he was head and superior, as we shall have occasion hereafter to observe.

But can we believe that the Bishop always acted personally as

In Leo's Basilics (A.D. 905 to 911) he is still called tutor.

executor legitimus? In the early days he may have done so occasionally; but it is equally certain that he would more often nominate a trustworthy person to whom he delegated the administration. This deputy executor was of course amenable to the Bishop in his Audientia. He accounted to the latter, as he still does; he received from him the wages of his office and agency; and such he continued to receive until the Court of Chancery made him one of her trustees.1

The public, who had thus been relieved from the yoke of Roman rigorism, speedily imitated the new practice, and aspired to appoint their own executors. But at the same time they could do no more than the law allowed them; they could only appoint an executor, subject to the executor already existing by law-the Ordinary.

"Rien n'empêche (says the Abbé André) au surplus, que le testateur ne nomme d'autres exécuteurs des volontés que l'évêque; mais il ne saurait par aucune défense l'exclure entièrement, ni même décharger les exécuteurs qu'il lui plaît de choisir, de la reddition de compte, pour raison de ces legs pieux." 2

But it may be easily conceived that the Ordinary would respect the wish and the recommendation of a testator. He would legalize and hallmark the appointee of the latter, by delegating to him the powers which in law belonged to himself, in the same manner and in the same degree as he would grant them to his own appointee under other circumstances. He would burthen him with the moral obligation of an oath of administration, sometimes requiring security from him for the performance of his trust with honour and fidelity.

Sometimes the Ordinary would reject him altogether, appointing another in his stead; for the indefeasibility of the executor's title, and his independence of the Bishop, is merely an invention of the English Common Law. He would allow him to be cited before his Audientia at the instance of creditors and legatees; and he would also protect and assist the executor by the exercise of the same authority against the debtors of the testator.

The executor is in other respects redolent of his ecclesiastical

1 Edwards, p. 169, art. vii., in the Constitutions of Archbishop Stratford. 2 Vol. iii. p. 491.

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origin. In old English wills, before the Reformation, he is usually appointed "for the soul's health" of the testator; and in earlier days the traces are still more distinct. In a will (A.D. 819) of two monks of Tours, reference is made to the abbot, "in hujus tuitione nostra devotio defensata maneat inviolata." The will of the Viscount Matfredus and his wife (A.D. 966) appoints "eleemosynarios, ut omnia adimplessent." By the will of Adelais, Viscountess of Narbonne (A.D. 989), it is directed that the " eleemosynarii, sicut a me ordinatum viderint per hoc fidei-commissum, ita disponant omnibus rebus meis." 1

But this name eventually yielded the pas to the appellation EXECUTOR, and the later wills in Martene's collection, from which these extracts are taken, show it.

But it must be remarked that there was a part of France which never adopted the testator's executor. This was the pays du droit écrit.. It was adopted in the North of France, and was thence imported into England, after the Conquest, amongst the leges episcopales of the Norman hierarchy. But here it underwent a most important modification.

By the French law (re-enacted in the incomparable modern Code) the testamentary executor endured in office a year and a day only, after which the heir succeeded to the estate; for the one was meant only to protect creditors and legatees against the other. In England we can never find the executor in any such state of limitation. This year and a day of the French Law is a derivation from the annus deliberationis of the Roman Law, and must have been adopted by the Bishop, in order to make his executor answer the purpose also of the curator bonorum, whom the Prætor had occasionally appointed to protect and save an hæreditas jacens, or unadministered estate.

The benefits of the executio testamentorum did not rest even with themselves. They were the precedent upon which the episcopacy relied when they exerted themselves to wrest the estates of intestates from the clutches of feudality. The Ordinary, after the fiduciary succession in intestacies had been accorded to him, called himself executor legitimus in respect of this privilege

1 Martene's Collectio, vol. i.

2 Merlin's Répertoire de la Jurisprudence, sub voce 'Exécuteur.'

also as well as of the other. The deputy in this trust was also called executor-i.e. executor dativus.

We will now turn to the other part of our subject—the probative registration of wills,-and in this also we shall find the remote historical element as prominent as in the other.

The Roman Law required all wills to be registered in the public offices of certain judges, to whose voluntary jurisdiction this insinuation appertained, and without it they were wholly inoperative and void, as not having upon them the seal of public authority. And as registration in all cases logically involves legal approbation, the Roman Law, with its customary caution, required proof of the due execution of a will to precede the insinuation. Accordingly, the attesting witnesses, whose names and seals were superfixed upon the will, were summoned before the defensor civitatis, to whom this jurisdiction belonged (in the provinces at least); and all, or the greater part of them, acknowledged their signatures and seals, both upon the envelope of the will and the will itself. This ceremony was called the reseratio or apertura of the will; and after this proof by the witnesses, the will was insinuated in the public register. The original was retained, and a probate copy of it, so proved and approved, was delivered to the hæres; and if that should afterwards be lost by him, he could obtain a duplicate.

The words of the classic Paulus upon this subject are sufficiently interesting to deserve a recital. He says (de Vicesima, lib. 4, tit. 6, s. 81) :-"Tabulæ testamenti aperiuntur hoc modo, ut testes, vel maxima pars eorum, adhibeantur qui signaverint testamentum; ita ut agnitis signis, rupto lino, aperiatur et recitetur, atque ita describendi exempli fiat potestas, ac deinde, signo publico obsignatum, in archium redigatur; ut siquando exemplum ejus intercideret, sit unde peti possit."

Savigny (vol. ii. p. 191) quotes from Marini part of a Roman Probate Act, containing the affidavits of the attesting witnesses: -"Constantius, v. d. d. [vir devotus 1 dixit]:-In hoc testamento et me certum est interfuisse, in quo agnosco annuli mei signa


1 This word is used in the sense probably of what we call "respectable." It frequently occurs in the Codex Theodosianus: devotus possessor; devotissimi milites.

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