Magna Cata and Testamentary Freedom


Magna Cata and Testamentary Freedom

(The Development of a Decedents’ Estate and its Free Testamentary Disposition)


Nicholas D. Ward

Talk delivered at the First BOMC Symposium on Thursday , 16 April 2015 at the Cosmos Club

We think of a decedent’s estate today as a distinct entity from the decedent, the decedent’s creditors, the creditors of the decedent’s estate, the heirs and the legatees. In fact a decedent’s estate has its own tax identification number or EIN and its spokesperson, the personal representative. But it was not always so. In the Middle Ages there were three potential results from the death of a freeman; inheritance of feudal real estate by the heir, a partial recognition of a testate decedent’s Will, and with an intestate decedent (no Will),  various diversions of assets among sovereign, mesne lords, creditors and family. Magna Carta contains arguably 16 chapters that bear on a decedent’s estate, namely 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 26, 27, 37, 43, and 60. Before these provisions King John rather regarded a decedent’s estate and the inheritance of an under age heir in a wardship as a form of piggy bank. Magna Carta set limits of how much of a decedent’s estate could be taken for Crown debts, how much of a relief an heir should have to pay to succeed to a military tenancy, that no relief would be due on the cessation of a wardship, that a guardian should preserve the estate of a wardship for the ward,  that widows should have limited indefeasible rights in their husband’s estates and should not be compelled to remarry, nor heirs be disparaged in their marriage, and that there was a limited right of testamentary freedom of disposition of personal property and a protocol for the distribution of an intestate’s  personal property under the suzerainty of the church. The liberties of the City of London were recognized, which arguably authorized the municipal boroughs to establish Orphans’ Courts that handled the estates of municipal freemen. Thus, what was recognized in this field in Magna Carta over the centuries evolved into our decedents’ estate law of today which recognizes an estate as a separate entity from the decedent, creditors of the decedent and the estate, heirs, and legatees and provides for the orderly disposition of assets, payment of taxes and debts, the protection for the inheritance of minors and surviving spouses and in general testamentary freedom. How did this all happen?

Since the time of Magna Carta, and a little before, English decedent succession law has distinguished between the descent of real property and the   distribution of tangible personal property upon the death of a decedent.

Most real estate owned by a decedent descended to the eldest male heir. The King’s Court condemned Wills of land, except in Kent and certain boroughs, not because it interfered with military tenure, but because, as stated by Glanvill on the eve of Magna Carta:

“Now, although the general rule is that any person is allowed to give freely in his lifetime a reasonable part of his land to whom he pleases, this liberty has      not hitherto been extended to those about to die, because there might be an extravagant distribution of the inheritance if it were permitted to one who loses    both memory and reason in the turmoil of his present suffering, a common enough happening. Therefore if anyone mortally sick began to distribute his land, which he had not in the least wished to do while he was well, this would be presumed to result rather from turmoil of the spirit than from deliberation of the mind. However, a gift of this kind made to another in a last will can hold good if made and confirmed with the heir’s consent.” [1]

Except in Kent, and various boroughs in England, a freeman was precluded from devising real estate by Will until 1540 with the passage of Statute of Wills,[2] Heretofore real estate upon death passed to the eldest son, the heir, under what we know as primogeniture. But it wasn’t as easy as that.

Under English feudalism land was held in tenure, ultimately from the King, in various forms. There were essentially four types of tenure: (1) military tenure or tenure in chivalry, consisting of knight’s service, grand serjeanty and petty serjeanty, (2) non-military, consisting of free socage and fee-farm, (3) borough land held in burgage, and (4) religious tenure, frankalmoin. Magna Carta is principally concerned with military tenures.

Military tenures carried with them certain feudal obligations such as Relief, a payment by the heir to succeed to his ancestor’s land, feudal Aids, such as payment to the lord upon the knighting of the lord’s first son, the marriage of his eldest daughter and payment of ransom for a captured lord. If the tenant had no heir the land would escheat back to the lord. The lord had a right of Marriage, that is to forbid an heir or heiress from marrying the lord’s personal enemy or the right to sell the right of the heir’s or heiress’s marriage to the highest bidder. If the heir was a minor, the lord had a right of wardship until the heir became an adult, 21 years old for a male and 14 for a female, if she married.  McKechnie states:

“When the heir of the deceased tenant was unfitted to bear arms by reason of his tender years, the lands were, during his minority, without an effective owner: the lord treated them as temporarily escheated, entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining the heir in a manner suited to his station in life.”[3]

And lastly the tenant owed the lord the tenant’s personal military service for a specified number of nights and days in the field. In lieu of such service, scutage might be paid at the lord’s election and sometimes at the tenant’s. Tenants in grand serjeanty provided specific services such as carrying a lance or banner or serving as the King’s champion at the king’s coronation. Sir John Dymoke and family performed such service from Richard II to William IV. Grand Serjeanty was subject to Reliefs, Wardship and Marriage but not scutage. Petty Serjeanty was subject to Relief but by the 15th century not Wardship and Marriage. Pollock & Maitland explain the pecuniary nature of these incidents:

“The guardian’s rights in the person, in the marriage, in the lands of the heir are regarded as property; they are salable. Assignable rights; large sums are paid for the wardships and marriages of wealthy heirs; indeed so thoroughly proprietary and pecuniary are these rights that they can be disposed of by will; they pass like chattels to the guardian’s executors.”[4]

Magna Carta addresses abuses in the feudal obligation involving military tenures. Chapter 2 addresses the Relief due by the heir who is an adult at the time of his ancestor’s demise in order to succeed to his ancestor’s tenure. The amount of the Relief was specified depending on the honor held by the heir, much like the schedule for loss of limbs under workmen’s compensation. Chapter 3 states that if the heir at the time is a minor Wardship shall be had, but thereafter no Relief shall be due. Chapters 4 and 5 proscibe waste by the lord in a Wardship and the converse duty to make the land in the Wardship productive.

By Tudor times when the King became entitled to a wardship, the matter was made subject to the jurisdiction of The Court of Wards and Liveries.[5] Carlton comments:

“Long after the old feudal obligation of so many days’ knight service had fallen into disuse, the king resurrected the court of wards to extort money from his tenants-in-chief, who would include virtually every important man in the kingdom. Royal wardships could be bought and sold. The court of wards hawked the right to marry heiresses or despoil heir’s estates to the highest bidder. Some of the profits from this inhuman trade went to the king; most flowed into the pockets of courtiers.”[6]

Chapters 6, 7 and 8 protect the heir by providing that the heir shall be married without disparagement, the widow may not be compelled to remarry and that the widow may receive her dower without payment and may remain in the residence for 40 days until dower is assigned. In later issues an adequate house was to be provided if her husband had occupied a castle, not a hospitable residence for the widow. In addition, a custom developed that the widow was also allowed her paraphernalia.[7] The forty day provision remained in the law of the District of Columbia until 2001.

Chapter 37 confirms that wardship does not apply to land held in fee-farm, socage or burgage, unless previously granted upon military service. Some effort was made to limit the Crown’s obtaining wardship over a deceased’s holding an estate from a mesne lord when the deceased also held from the Crown.

Chapter 43 essentially provides that “neither reliefs nor service of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.”[8]

But notwithstanding these assertions on the limits of the lord’s rights, for a number of years after 1215 it was enough that the heir’s land should not be wasted and that wards should not be married below their station.

Chapters 10 and 11 sought to freeze any debt owed to the Jews while the heir was under age and dower would not be subject to the debt to the Jews. These provisions, being hardly likely to result in a good economy, were deleted in the 1216 edition of Magna Carta.

Free socage and fee farm were not subject to the feudal duties and required only a periodic payment of money or agricultural supply. Burgage tenancy also was not subject to these feudal obligations. When the freeman holding in socage or burgage died there would be a guardianship of both the land and the child to last until age 15. The guardian chosen would be one who could have no hope of inheriting the land. Fortescue’s description is really rather good:

“The civil laws commit the guardianship of minors to the next in blood, whether agnates or cognates; that is, to each according to his degree and order in the succession to the ward’s heritage; and the reason for this law is that no one will trouble to rear the minor more carefully and favourably than the next of blood. But the laws of England determine the guardianship of minors quite differently. For there, if an inheritance held in socage descends to a minor from any of his agnates, the minor shall not be in the guardianship of any agnate, but shall be in the ward of his cognates, that is, of his relations on his mother’s side. And if an inheritance shall descend to him from the side of his cognates, then the minor together with his inheritance shall be in the guardianship of the nearest agnate, and not his cognate, until he shall become an adult. For those laws say, to commit the care of a minor to him who is the next in succession to him is like committing the lamb to be devoured by the wolf.”[9]

Magna Carta has two references to the distribution of personal property upon death, namely Chapters 26 and 27. Chapter 26 has rightly given recognition to a customary right to make a Will of personal property of at least one third after payment of debts. While such a will had been recognized before 1215, the church assumed the authority to handle wills, most likely as a result of the notion of the will as a form of last confession and an opportunity to make bequests for pious causes. The wife’s one third and the children’s one third, the legitim, gradually faded from the scene in England, until abolished in 1692.[10]  Coke, however, stated that legitim “…was never the common-law….”[11] Bracton finds legitim more widespread but of dubious value. He states:

“Hence, except as a matter of grace, children have no more rightful claim than wives, for a citizen would scarcely be found who would undertake a great enterprise in his lifetime if, at his death, he was cmpelled against his will to leave his estate to ignorant and extravagant children and undeserving wives. Thus it is very necessary that freedom of action be given him in this respect, for thereby he will curb misconduct, encourage virtue, and put in the way of both wives and children an occasion for good behaviour, which indeed might not come about if they knew without doubt that they would obtain a certain share irrespective of the testator’s wishes.”[12]

Recognition of the King’s debts contained a limit, i.e., only so much could be taken as to cover the debt and not a wholesale appropriation. Glanvill states the proper execution of a will and the early handling of debts.

“A testament ought to be made in the presence of two or more lawful men, clerks or laymen, such as may afterwards be proper witnesses of it. The executors of the testament should be those whom the testator chose for this purpose and charges with the business; but if the testator named no-one for the purpose, then the near blood relative of the dead man may undertake it.

“If the would-be testator is burdened with debts, he may not dispose of any of his chattels without his heir’s consent, save in payment of his debts; but if any residue is left after payment of debts, then this will be divided into three parts in the manner described above, and he may make his testament from the third part, as was   said. If however the chattels of the deceased are not sufficient to pay his debts, then the heir is bound to make good the deficiency from his own property, at least if he is of full age.”[13]

The so-called reasonable parts given the widow and children could be recovered through the use of the writ de rationabili parte bonorum. The Church asserted a right to protect and execute the Will of chattels, and the executor becomes the Personal Representative, originally to protect the gifts to the Church and later jurisdiction was ceded to the Church to supervise the decedent’s distribution of chattels.

The whole of a testator’s fortune, save real estate, passed to the executor. Having the heir responsible for the debts did not make a whole lot of sense since the heir could not have any of the chattels. Of course, later the heir was allowed a few items from the chattels, hence the word ‘heirlooms.’ The heir was also entitled to the villeins (non freemen) who were annexed to the soil and could not be severed from it by testament. But in 1215 it was the heir and not the executor who could sue to collect a debt due the decedent in the King’s court. If the testator enjoined his executor to pay a debt, the executor could be sued by the creditor. For a while there appears to be a concurrent jurisdiction with lay, king’s courts, and ecclesiastical, church courts over debts. Chancery by the time of Edward I framed writs for executors to sue and be sued over debts. By 1330 the executor had an action for trespass against one who carried off the decedent’s chattels. By the 15th century the executor could sue in assumpsit, what we know as contract today. If the testator had advanced some of his children chattels during his lifetime, when distribution came, all the assets were put into what was called, and still is called, ‘hotchpot’ to determine an equitable distribution.

Thus, what started out in Chapter 26 permitted the growth of the law of decedents’ estates under the jurisdiction of the ordinary (bishop) of the local diocese. But the church court had a limited jurisdiction, and suits on debts were undertaken in the common law courts and legal issues were sent to chancery. If a freeman had chattels in more than one diocese, Coke notes, that the proper court was the Prerogative Court of the Archbishop of Canterbury:

“This is the court wherein all testaments be proved, and all administrations granted, where the party dying within his province hath bons notabilia,[14] in some other diocesse then where he dieth, which regularly is to be to the value of 5£ but in the diocesse of London it is 10£ by composition.”[15]

The executor had nothing to do with the real estate and no better evidence of this may be found than in The Orphans Legacy wherein is stated:

“Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will, yet this properly refers only as to Goods and Chattels; for a man may by his Last Will in writing devise his Lands, Tenements and Hereditaments, though he make no Executors, because an Executor hath nothing to do with the Freehold of Land.”[16]

Swinburne stated:

“But an assent is not necessary to a devise of lands, for the devisee may enter without the assent of the Executor; and if the Heir at Law should enter before   him, the Devisee may enter and eject him.”[17]

Wills made during this time tended not to have a residuary clause. Multiple executors were named. John of Gaunt had seventeen executors.[18]

Chapter 27 specifically gave the church the right to oversee the distribution of an intestate’ estate made by the nearest kinfolk and friends. The horror of intestacy increased at this time and the Church claimed the whole of the chattels of the intestate and the deceased’s family and friends tend to be excluded. Chapter 27 seeks to save a part of the estate for the kin to distribute. Bracton said of it:

“If a free man dies intestate and suddenly his lord shall in no wise meddle with his goods, save only to see after what belongs to him, that is, that he have his heriot[19]; their administration will belong to the church and to his friends, for a man who dies intestate merits no punishment.”[20]

Chapter 27 was deleted in the 1216 document and never again included. Why this was so has remained a mystery.  Pollock and Maitland[21] note that intestacy was a cause for forfeiture and may have been withdrawn in the interests of the infant King (Henry III). In any event Chapter 27 “seems to have settled the law.”  But King John had a Will so this does not quite fly. Holt does not address the matter directly, but contrasts the 1215 document as the embodiment of a revolutionary program and the 1217 and 1225 documents as a statement of law.[22]  McKechnie  notes:

“The placing of this powerful weapon in the hands of the church was only incidental to the main purpose of this chapter. This was (while safeguarding the interests of creditors) to secure to the deceased’s kinsmen and friends the right to make an equitable division of his chattels. By implication the Chapter says ‘hands off’ to John, and indeed to any lord superior, whether King or another.”[23]

McKechnie further speculates:

“Had a suspicion crossed the mind of William Marshall that it conferred a dangerously elastic privilege upon the Church? Did the legate Gualo refuse to trust the English prelates with authority? Did the     young King’s advisers, conscious of their urgent need of money, determine to reserve what rights the indefinite earlier law allowed them of taking part in the scramble for the coin and chattels of intestates?”[24]

Since the original 1215 Magna Carta had been voided by the Pope as King John’s overlord, the infant king’s advisors sought papal recognition of the 1216 Magna Carta to persuade the dissonant barons to abandon their French allies and return their allegiance to the infant King Henry, III. Hence, obtaining the legate’s name on the 1216 document was an important goal.

Swindler says:

“So far as the Church was concerned, there were worldly interests of its own to be satisfied, and an extra amount of the chattels might be diverted to the spiritual administrators in partial atonement for the sin           of dying without a will. This may have accounted for the deletion of the chapter in the reissue.” [25]

This intestate administration was conducted for the future under the auspices of the church. By 1285 the ordinary was directed to pay the debts of the intestate in the manner that executors paid debts.[26] By 1357 the ordinary was to commit the work of administration to the next and most lawful friends.[27]

One of the side lights of feudalism concerns the boroughs. It would appear that the King and his barons really did not much care what went on in the boroughs so long as the boroughs produced money when it was needed. Thus, Chapter 13 provides that the city of London shall have its liberties and free customs. One of those customs involved a decedent’s estate. The will of burgage land in a borough was proved not in a ecclesiastical court but in hustings[28] or Orphans Court. And here, sanctioned by Magna Carta, developed a third source for decedents estates law, the Orphans Court.

An Orphans Court was started in London in 1276 when a guardianship was granted to a widow to hold the houses, buildings, possessions, rents, chattels, and all goods belonging to the orphans till they come of age. She was then to ensure that during the minority of the children they were properly fed, housed, clothed, and educated. One of the innovations made by the Orphans Court was the recognizance, a promise to pay the inheritance that was backed up by three or four men acting as guarantors or sureties. The recognizance was recorded in the borough’s records. In time, the funds were deposited with the city’s funds and lent out by the city to obtain a return on the investment. Sureties were then not needed.   London regulated appointment of guardians in similar fashion to guardians in socage, i.e., the grant of a guardianship only to one who could not profit from the death of the ward. In  1377[29] Parliament confirmed London’s right to the guardianship of all deceased freemen’s children, save those who were wards of the Crown.

The London Orphans Court in an effort to curtail lavish funerals, put limits on how much could be spent. Carlton notes:

“Not only to avoid such excesses, which many Protestants associated with the blasphemies of Rome, but to protect the orphan’s share of the estate, London, Exeter and Worcester curbed the cost of a funeral according to the decedent’s social and financial standing.”[30]

Beginning slowly with the Tudors, resort was had to chancery to enforce orders of the Orphans Court till at the end of the 17th century chancery had largely taken over the administration of the estates formerly handled by the orphans court.

Thus, by 1600 on the eve of the colonization of America there was in place in England primogeniture for military tenures, with all the feudal incidents, wills for a portion of military tenures and all for socage land, testaments for chattels administered under the church and orphans courts for the administration of the estates of borough freemen and guardians in socage and in orphans court for the preservation of a ward’s estate.

When the American colonies were first settled two rather significant clauses were inserted in the charters, one granting the colonists the rights of Englishmen and the second granting land tenure in free and common socage. The first charter for Virginia in 1606 had the first, grant to the inhabitants of the rights of Englishmen,[31] of which much was made at the time of the Revolution, and the provision for socage tenure:[32]

“Also we do…DECLARE…that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which happen to be born within any of the Limits and Precincts of the said several Colonies and   Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.

“…We…,upon Petition in that Behalf to be made, shall,…GIVE and GRANT unto such Persons, their     Heirs, and Assigns, as the Council of that Colony, or     the most Part of them, shall, for that Purpose     nominate and assign, all the Lands, Tenements, and Hereditaments, which shall be within the Precincts    limited for that Colony, as is aforesaid, TO BE HOLDEN of US, our Heirs, and Successors, as of our Manor at East Greenwich in the County of Kent, in free and common Soccage only, and not in Capitie”[3

The effect of free and common socage was to preclude any tenancy in chivalry with its Relief, Wardship, and Marriage.[34] Land was accordingly freely alienable and devisable. Some of the settlers were familiar with the various orphans courts in the boroughs and so orphans courts appeared in Maryland, Delaware, New Jersey, and North Carolina and later in Pennsylvania.[35] While primogeniture continued in many colonies until after the revolution and real estate was not treated as an asset subject to administration by the executor, chancery courts were not present in the colonial period, so county courts and orphans courts supervised administration of estates. The rules on guardianship were relaxed, so that a parent who could inherit could be a guardian. Gone was the feudal right of wardship wherein the lord treated the ward’s assets as his own; now the guardian must be accountable to the ward. The legitim never became a custom and testamentary freedom was pretty much the practice.

In the proprietary colonies the statute Quia Emptores[36] was not applied in the interests of permitting the proprietors to retain all rights in land that they granted out to tenants.[37] This statute provided that when A transfers property to B and then B transfers to C, C holds of A and not B. Thus, the proprietors could make grants creating mesne lords who could retain rights as lords of manors when granting of land to their tenants. There were Lords of the Manor in New York and Maryland who were granted the manorial rights of holding Court Baron[38] and Court Leet.[39] They held these rights as purchasers, [40] and could pass their rights on by will.

Curiously in light of the foregoing history of a growing testamentary freedom, our Supreme Court got it wrong again. In Magoun v. Illinois Trust and Savings Bank, 170 U.S. 283, 191 (1898) the Court, citing 2 Bl. Com 492, stated, erroneously,

“Prior to the statute of wills enacted in the reign of Henry VIII, the right to a testamentary disposition of the property did not extend to real estate at all, and as to the personal estate was limited as above  stated.”

It was left to the Supreme Court of Wisconsin to set the record straight, although, it is in the distinct minority. In Nunnemacher v The State, 129 Wisc. 190, 202; 108 N.W. 627 (1906) the Court said:

“…the right of testamentary disposition of personal and real property, or at least a part of it, was recognized from the very earliest times….”

In commenting on the contrary cases the Court said, at page 198:

“The unanimity with which it is stated is perhaps only equaled by the paucity of reasoning by which it is supported.”[41]

The Supreme Court of the United States persisted in its poor history again in 1942 in Irving Trust v. Day, 314 U.S. 556 (1942) wherein at page 562 it opined:

“Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition   over property within its jurisdiction.”

One may quite properly ask, “What happened to the Ninth Amendment?

“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”

In reviewing the foregoing, one can see not only the effort to reign in King John’s avarice, but also an effort to preserve the estate of the decedent for those ultimately entitled to it, namely creditors, the widow, the heir and other children. The death of a military tenant was no longer to be an opportunity to loot the tenant’s estate in the name of feudal right; intestacy was no longer an open season on a decedent’s estate; and testamentary freedom was largely established. Thus, to Magna Carta do we look to the origin of an increasing stable decedents’ estate law and freedom of testation.

Chapters and Excerpts therefrom of the Great Charter of 1215 pertinent to the Subject

[indicates 1225 document chapter and text, *** indicates omitted sentences]

(From William Sharp McKechnie, Magna Carta, A Commentary on the Great Charter of King John, (2nd ed. 1914) and William F. Swindler, Magna Carta Legend and Legacy, [1965])

Chapter One [1] “ *** We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs, forever.”

Chapter Two [2] “If any of our earls or barons, or others holding of us in chief by knight’s service shall have died, and when he has died his heir shall be of full age and owe relief, he shall have his inheritance by the ancient relief….****”

Chapter Three [3] “If, however, the heir of any such shall be under age [his lord shall not have the ward of him until he has received his homage; and after such heir] shall be in ward, when he is come of age [that is to say, twenty and one years] he shall have his inheritance without relief and without fine.[so that if such heir, being under age, be made knight, nevertheless his land shall remain in the custody of his lord unto the term aforesaid.]

Chapter Four [4] “The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or any other who is responsible to us for its issues,[of the land] and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid.”

Chapter  Five  [5]“The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, fishponds, stanks,[42] mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs [and ‘waynage,’ according as the season of husbandry shall require, and the issues of the land can reasonably bear.]” and all other things, at least as he received it. And all those things shall be observed in the custodies of archbishoprics, bishoprics, abbeys, priories, churches and dignities vacant, which pertain to us; except that such custodies shall not be sold.”

Chapter Six “Heirs shall be married without disparagement, [yet so that before the marriage takes place the nearest in blood to that heir shall have notice.]”

Chapter Seven [7,8]  “A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her.[if it were not assigned to her before, or unless the house be a castle; and if she depart from the castle, an adequate house shall be forthwith provided for her, in which she may validly dwell, until her dower be assigned to her, as aforesaid; and she shall have in the meantime her reasonable estovers of the common. And for her dower shall be assigned to her the third part of all the lands of her husband which were his during coverture, unless she had been endowed of less at the church door]

Chapter Eight  “No widow shall be compelled to marry, [so long as she prefers top live without a husband;] provided always that she gives security not to marry without our consent; if she holds of us, or without the consent of the lord of whom she holds, is she holds of another.”

Chapter Ten [“ If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond.”]

Chapter Eleven  [“And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.”]

Chapter Thirteen [9] “And the city of London shall have all its liberties and free customs, [as well by land as by water]; furthermore, we decree and grant that all other cities, boroughs, towns, [ the barons of the Five Ports] and [all other] ports shall have all their liberties and free customs.”

Chapter Twenty Six [18]` “If any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of lawworthy men, provided always that nothing whatever be thence removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfill the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares.”

Chapter Twenty Seven  [“If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinfolk and friends, under the supervision of the church, saving to every one the debts which the deceased owed to him.”]

Chapter Thirty Seven  [27] “If anyone holds of us by fee-farm, by socage, or by burgage, and holds also land of another by knight’s service, we will not (by reason of that fee-farm, socage, or burgage,) have  the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight’s service. We not by reason of any small serjeanty which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or the land he holds of another lord by knight’s service.”

Chapter Forty Three [31] “If anyone holding of some escheat (such as the honor of Wallingford, Notttingham, Boulogne, Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron’s hand; and we shall hold it in the same manner in which the baron held it.”[Nor shall we have, buy occasion of such barony or escheat, any escheat or holding of any of our men, unless he who holds the barony or escheat otherwise held of us in chief.]

Chapter Sixty [37] [Escuage from henceforth shall be taken like as it was wont to be in the time of King Henry our Grandfather, reserving to all archbishops, bishops, abbots, priors, templars, hospitalars, earls, barons, and all persons as well spiritual as temporal, all their free liberties and free customs, which they had in time passed] [“Moreover,] AND all these aforesaid customs and liberties, the observance of which we have granted to be held in this our realm, as much as appertaineth and our heirs, we shall observe; and all men of this our realm, as well spiritual, as much as in them is, shall observe the same against all persons, in like wise.”


Chapter 1 Freeman included no more than 10% of the population in 1215.

Chapters 2 through 6 just about repealed with the abolition of feudal tenures in 1660 and repealed by 1863 Statute Law Revision Act. 12 Car. II. C.24. Coke stated “…this chapter of Magna Carta is but a restitution and declaration of the ancient common law….”

Chapters 7 & 8 began to be changed by the Statute of Uses, 1536 and rendered obsolete by the Dower Act of 1833. Dower, including the forty day period, was retained in the District of Columbia, D.C. Code §19-102 until repealed on April 27, 2001.

Chapters 9 & 10 were repealed by the 1216 Charter as detrimental to the economy and possibly productive of financial anarchy.

Chapter 13 permitted the cities to maintain their own general courts, which later in the 13th century included an Orphans Court. “As its warrant to look after orphans London might have cited Magna Carta, chapter 13 of which confirmed to the city ‘all its ancient liberties and free customs.’” Charles Carlton, The Court of Orphans (1974), p. 15.

Chapter 26 recognized the practice at the time of wills of chattels and the legitim custom of dividing the estate after the debts into three parts. Coke said that legitim was never the common law Coke, The Second Part of the Institutes of the Laws of England, Magna Carta Cap. 18., citing Bracton who treats it as the common law, Bracton on the Laws and Customs of England, (George E. Woodbine, ed. 1922 and Samuel E. Thorne ed. 1968)  vol. 2, p. 180, which prompted Blackstone to state that his citation ‘makes directly against his opinion. 2 Bl. Com. 493. Real estate was devisable by the Statute of Wills, 1540, and Wills of real estate required to be in writing and witnessed by the Statute of Frauds 1677 and wills of chattels witnesses by statute in 1837. England repealed the chapter in 1949.

Chapter 27 was deleted in the 1216 Charter, possibly because it gave the church too much power and tended to prevent the general looting of intestate’s estates by king and lords. The church nevertheless gained jurisdiction of administration of testate and intestate succession to chattels out side of the cities.

Chapter 37 limited the king’s right to obtain wardship over non knight service fiefs and passed out of use with the abolition of feudal tenures in 1663.Coke states “This Act, as well concerning tenures in fee farm, socage, and burgage, as by little serjanty, is declaratory of the common law, and constantly in use to this day, and needeth no further explanation.”

Chapter 43 was also abolished in 1663. A subtenant of an escheated barony was not to be obliged to succeed to the feudal obligations of the fiefdom that had escheated. Coke states “All this is merely declaratory of the common law….”

Chapter 60, another chapter rendered obsolete in 1660 and repealed in 1663, sought both to preserve the franchises of the religious while exhorting the barons to grant their subtenants similar rights as granted them by the king.


[1] Glanvill, VII, 1, ed G.D.G. Hall, (1965), p. 70.

[2] 32 Hen. VIII., ch.,1 and 34 Hen. VIII., ch.1The statute permitted the devise of two thirds of land held in chivalry and all land held in socage if made in writing and not given to a body corporate. This exception was to avoid a gift to religious use which resulted in mortmain with a suspension of feudal incidents. A later statute, 43 Eliz., ch. 4 permitted such devises for charitable uses. Indeed this statute eventually tended define what charity is. Gareth Jones, History of the Law of Charity 1532-1827, (1969), p. 120.

[3] William Sharp McKechnie, Magna Carta, A Commentary on the Great Charter of King John, (2nd ed. 1914), p. 61.

[4] Sir Frederick Pollock and Frederick William Maitland, The History of English Law, (2nd ed. 1898) Vol. I, p. 322.

[5] 32 Hen. VIII cap. 46 and 33 Hen. VIII. Cap. 22. The Court was abolished 12 Charles II. C. 24.

[6] Charles Carlton, The Court of Orphans, (1974), p. 105.

[7] Carlton, p. 57. Paraphernalia: “Apparel and ornaments of a wife, suitable to her rank and degree”. 2 Bl. Com. 435; “Those goods which a wife could bequeath by her testament.” Pollock and Maitland, vol. 2, p. 427.

[8] McKechnie, p. 413.

[9] Sir John Fortescue, De Laudibus Legum Anglie, (ed. S. B Chrimes) 1942 Chapter XLIV, p. 107.

[10] 4 Will. and Mar. c.2. And finally in London in 1724, 11 Geo. I, c.18. sec.17, so as to allow the testator to take care of his younger minor children.

[11]  Edward Coke, The Second Part of the Institutes of the Laws of England, (London, Printed for W. Clarke and Sons, 1817)Magna Carta Cap.18. He relies on Bracton, but Blackstone notes that Bracton’s passage “makes directly against his opinion.”  2 Bl. Com 493.

[12] Bracton on the Law and Customs of England, (ed. George E. Woodbine, 1922, ed, Samuel E. Thorne, 1968) f. 61, p. 181.

[13] Glanvill, VII, 6, pp 80-81.

[14] “Chattels or goods of sufficient value to be accounted for.” John Bouvier, Bouvier’s Law Dictionary, (3rd ed. Francis Rawle) 1914, Vol 1. p.374.

[15] Edward Coke, The Fourth Part of the Institutes of the Laws of England concerning the Jurisdiction of Courts, (London. Printed for W, Clarke and Sons, 1817) C. 74(4.)

[16] John Godolphin, The Orphans Legacy, (1674, 3rd ed.1685), p. 12. By this time the Will of real estate was required to be in writing by the Statute of Frauds. 29 Car. II., ch.3 (1677)

[17] Henry Swinburne, A Brief Treatise of Testaments and Last Wills, (1590, 7th ed. 1793) vol. 1, p. 25

[18] Pollock and Maitland, vol. 2, p. 340.

[19] “A customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land.” Bouvier, vol  2, p. 1436.

[20] Bracton, f.61b, p. 179.

[21] Pollock and Maitland, vol. 2, p. 357.

[22] J.C. Holt, Magna Carta, (2nd ed, 1992)  p. 397.

[23] McKechnie, p. 327.

[24] McKechnie, pp 328-9.

[25] William F. Swindler, Magna Carta, Legend and Legacy, (1965), p. 303

[26] West. II. C.19.

[27] 31 Edw. III. Stat. 1. c. 11.

[28] “The name of a court held before the lord mayor and aldermen of London: It was the principal and supreme court of that city.” Bouvier, vol. 2, p. 1476. “This is the highest court and of greatest celebrity within London.” Coke, Fourth Institute, Cap. L.

[29] Carlton, p. 21.

[30] Carlton, p. 37.

[31] John E. Pomfret, Founding the American Colonies 1583-1660, (1970), p. 26.

[32]  Pomfret, p. 35, 141, “The Manor East Greenwich served as a model in many colonial charters of a form of tenure unburdened by military service or other bothersome requirements stemming from feudal practices. In essence, the tenant simply paid a money rent for the use of the land.” P.  254.

[33] “In chief. “A tenant in capite was one who held directly of the crown, 2 Bl. Com. 60, whether by knight’s service or socage.” Bouvier, Vol. 2, p. 1513.

[34] Tenure in Chivalry was not eliminated in England until the reign of the Charles II..  I Char. c.24.

[35] Carlton, pp 63-4.

[36] Westminster III, 18 Edw. I. c.1.

[37] Pomfret, p. 79

[38] “ A domestic court, incident to every manor, held by the steward within the manor, for redressing misdemeanors and nuisances therein, and for settling disputes among the tenants relating to property. It is not a court of record.” Bouvier, vol. 1, p. 698.

[39] “A court of record for a particular hundred, lordship, or manor, holden therein before the steward of the leet, for the punishment of petty offenses and the preservation of the peace.” Bouvier, vil. 1, p. 707.

[40] Title acquired by inheritance is a title by descent; title acquired by a devise or bequest is a title by purchase. Descent was deemed a worthier title than purchase. The doctrine of worthier title was a rule of construction and not abolished in the District of Columbia until 196l, Hatch v. Riggs National Bank, 124 U.S. App. D.C. 105; 361 F.2d 559 (1966).

[41] “It is fitting that weak minds should turn to badly understood precedents to defend bad policies.”

[42] Warren or millpond. McKechnie.