Tracts written by John Selden of the Inner-Temple, Esquire ; the first entituled, Jani Anglorvm facies altera, rendred into English, with large notes thereupon, by Redman Westcot, Gent. ; the second, England's epinomis ; the third, Of the original of ecclesiastical jurisdictions of testaments ; the fourth, Of the disposition or administration of intestates goods ; the three last never before extant.

CHAP. V.

Of that of bona Intestatorum in manus Domini Regis capi solebant.

FOr that of bona Intestatorum in manus Domini Regis capi solebant, for which is cited (a) 1.1 the Close Roll of 7 H. 3. Rot. 16. it is also most true, if rightly apprehended. All that appears in the Record is, that the King wrote to the Sheriff of Lincoln, that constat nobis per in∣quisitionem nobis missam sub sigillo Stephani de Segrave, & aliorum probo∣rum & legalium hominum, quod Richardus filius Dunae non obiit intesta∣tus, and therefore he commands, that the Sheriff should deliver all the Goods of the said Fitz-dune in manus nostras capta, to the Prior of Loketon, and others his Executors, ad faciendum Testamentum: neither are there any words that tell us of any capi solebant, or that these were taken in regard of dying intestate only. Indeed it appears not suffi∣ciently in the Writ, why they were taken; but it is most probable, that the seisure was for some debt due to the Crown from the Inte∣state, which afterward not appearing, or being satisfied, or it appear∣ing that the Executors by the taking upon them the execution of the Testament, would subject themselves to the payment of it, it was fit enough to amove the Kings hands, and deliver all over to the Execu∣tors: He that well considers the Statute of Magna Charta cap. 18. Si quis tenens, and compares it with that of Bracton, where he tells us, that the Law was clear, that if any man dyed indebted to the King, the Sheriff might (b) 1.2 imbreviare, & attachiare cattalla defuncti, will soon see the probability of this, howsoever the words of the Statute are only of the Kings Tenants: And it concludes also, as if it were only in case of the death of a Testator in regard of relinquatur executoribus ad fa∣ciendum testamentum defuncti; but plainly, that ad faciendum, &c. hath equal reference to the Intestates as to Testators: for no name of an Ad∣ministrator being then usually known, all were called Executors that medled with the Intestates Goods; and those Executors were executores qui faciebant Testamentum, that is, which instead of the Intestate (c) 1.3 did take such order after his death with his Goods, as they thought he would have done if he had made a Testament; which may be con∣ceived also out of the use remembred in that time, wherein sick men being unable, neither having time to express their meaning, chose out some friends that might be super (d) 1.4 hoc expressores & exe∣cutores; which friends appointing of Legacies (as if the Intestate had given them) and making disposition of Intestates Goods, were as Te∣staments of those Intestates; and they did truly as Executors facere Testamentum defuncti, in which sense it might be spoken of any Execu∣tors or Administrators that intermedled in those times. And many Writs occurr in the Close Roll of King John and H. 3. that have ex∣presly in them the amoving of the Kings hands from the Goods of the dead, when the seisure had been only for the debts to the Crown, ac∣cording to the Statute of Magna Charta (which in substance is the Law at this day) and Bracton, by reason whereof, I see not cause enough,

why we should understand that of 7 H. 3. to prove any such thing, as a Custom of the Kings disposing or seising of the Intestates Goods, especially in regard that in the passages of the Law, Lawyers and Records of that time, no mention is of any thing that affirms it to be a Custom, or touches it as a common use.

But admit that in Fitz-dunes Case it had been so, that the taking of the Goods into the Kings hand, had been because of his dying Intestate only. It may therefore be accounted rather as a particular of the irre∣gular practice of that time, than any example to prove a Custom; and whosoever is but acquainted with the course of the Records of King John and Henry the Third his time, must soon see Writs enough that agree not so much as with any setled course of Law, but taste ra∣ther of some sudden or arbitrary course of granting them. Indeed some two years before that of Fitz-dune, there is an example in Bedford∣shire, that might seem more fully to prove what is collected out of the other: the Writ is thus, Rex (e) 1.5 Vicecom. Bedford salutem. Prae∣cipimus tibi quod blada & catalla quae fuerunt Roberti de Insula & Rossiae uxoris ejus defunct. in Wahall & Brokeberge arestari facias & salvo cu∣stodiri, donec discussum fuerit in curia nostra ad quem catalla illa pertinent, & aliud inde praecipimus; but this is often enough seconded with other examples that have for the most part a mention of the Defuncts debts to the Crown, that it cannot otherwise be understood, but either as founded upon that Law of seising upon the Goods for debt to the Crown by Prerogative, or as an example (amongst many of other kinds) that discovers a more arbitrary course sometimes in proceed∣ing, than later time hath permitted. And according to one of those wayes (but the first that is upon the Statute of the Grand Charter is the fittest and most probable) must that also be interpreted, where (f) 1.6 H. 3. sends a Writ to the Sheriff of Rutland to command him, that notwithstanding that Robert de Weston a Parishioner of Weston were drowned, and dyed intestate, he should yet facere Willielmo de S. Lando (that is, to the Parson of the Parish) habere nomine Ecclesiae suae id quod ad eum pertinet, habendum de catallis quae fuerunt praedicti Roberti, secundum consuetudines partium illarum: that was for the mortuarie, which pro∣perly and under that name then was determinable in the Spiritual Court.

But surely we must conclude, that if there were any such practice by the Officers of the Crown in the time of Hen. 3. to seise Intestates goods generally, it was not so much the Law of the time; for if so, the Records could not be but as full of examples of it, as the time was of the death of Intestates, which questionless were very ma∣ny; but some such temporary usurpation, as in 31 H. 3. Pope Inno∣cent the Fourth here had for a while executed by his Ministers the Fran∣ciscans and Dominicans, in not only getting into his own hands, but also to his own use, all the Goods of the Clergy-men that dyed Intestate through England, which as Matthew Paris that then lived, relates it,(g) 1.7 cum audisset dominus Rex, detestans Romanae Curiae augmentosam & mul∣tiplicem avaritiam, hoc fieri prohibuit, comperiens illud ad damnum Regni & suum redundare praejudicium. Afterward in the time of Edw. 1. it appears by the Statute of Westm. 2. cap. 21. cum post mortem, &c. that

the Goods of Intestates did come ad Ordinarios disponend••; which agrees with that of Bracton before cited, and iterated in the same syllables in Fleta (h) 1.8 which was written under E. 1. And the disposi••ion of Intestates Goods was enquired after in those dayes (i) 1.9 an ongst Ar∣ticles of Ecclesiastical Jurisdiction. And afterwards by the Statute of 31 E. 3. the Ordinary was compelled to commit the administration of Intestates Goods to the next of kin: after which Statute the name of Administrator was common as their Office; and by that name such to whom the Ordinary committed were sued, although before that time they were suable by the name of Executors,* 1.10 and perhaps also by the name of Administrators: (k) 1.11 but that name is scarce found (as I think not at all) given a Defendant to an Action brought before se∣ven years after the Statute of 31 E. 3. And in the Parliament Rolls of 17 Ed. 3. the Administrators are designed only by the Ceux que∣sont per l' Evesque ordines en lieu des Executors, where a Petition is of∣fered (l) 1.12 by the Commons, that such might have the like Actions as their Intestates: but the King answers, Quant à ceux qui devient inte∣state le Roy voet que l' Evesque eit action en tien case depuis que il doit re∣sponder as autres. But from that of 31 E. 3. saving only the alteration by 21 H. 8. the Law hath continued uniformly to this day.

FINIS.

Notes

• (a) 1.1

  Hensloes Case apud v. cl. Ed. Coke part 9. sect. 39, 40.
• (b) 1.2

  ••racton. lib. 2. de acq. rerum dom. cap. 26. sect. 2.
• (c) 1.3

  Ita facere te∣stamentum nomine defuncti sumitur a∣pud Canonici juris peritos. videsis Zebu∣lam prax. Episcop. verb. legatum, sect. 8.
• (d) 1.4

  Mos iste repe∣ritur apud Matth. Paris, histor. major, pag. 982. Ubi de Pontificia constituti∣one de intestatis edit. Londinens.
• (e) 1.5

  Clauf. 5 H. 3. par. 2. memb. 3.
• (f) 1.6

  Claus. 17 H. 3. memb. 8.
• (g) 1.7

  Matth. Paris, fo. 959. Edit. Lon∣dinens.
• (h) 1.8

  Fleta l. 2. c. 57.
• (i) 1.9

  Quod videre est in Cro. Wigorn. Ecclesiae in Biblioth. Cott. sub initio E. 1.
• * 1.10

  28 E. 3. fo. 21. a.
• (k) 1.11

  Videsis 25 E. 3. fo. 54. a. sed & plura in l. 9. Vir. cl. E. Cook par. 5. fo. 82. & par. 9. f. 39. & 40. & 19 Ed. 3. tit. Cove∣nant. 24.
• (l) 1.12

  Quindena Pasch. 17 E. 3. Artic. 49.