Wills and laws of Inheritance Wills and laws of InheritanceSome of the background is given in the page on Ecclesiastical Courts - in some respects it can be argued that the form and function of the modern will is an invention of the Mediaeval Church in order to allow for transfer of property into the hands of the church!. Two such courts shared the task, and the fees, the Episcopal (or Bishop's) court and the Archdiaconal (ie that run by the Archdeacon who was the immediate subordinate to the Bishop). The Bishop seldom sat in the court but delegated his power to the Vicar (from Latin for delegate/substitute) General. The two courts kept separate records thus until a unified index was created it was necessary to search the two indices.
Much of this page is based on the lengthy article by Ashley - she makes the following point re the process of making and recording wills:
Moreover, the equal rights of husbands and wives to make wills, and practice of doing so, usually on the death-bed, in the setting of the comprehensive and continuing function of the Church Courts, and their intimate contact with the lives of the people, make the records illuminating of social conditions and family life in the seventeenth and eighteenth centuries. Court records sometimes report deathbed conversations, presumably on the witness of the clergyman of the parish. Further, to accounts of distributions on death are sometimes appended notes of happenings years later, e.g., the spending on a child's needs and planting out in life of "his mother's (or father's) child's part. "Altogether we are presented with - not merely an account of formal proceedings but - a succession of peep-holes into the procession of life and death and the relationships of man and wife, and of parent and child, so far as this can be expressed in the due sharing and passing on of this world's goods.
Note that all court records are in English, the language used for all court records (except for early Manorial /Monastic courts) on the Island from it seems the early 15th century, though a few Latin legal phrases are used. The following notice from Registrar Edward Moore to Sumner of German, found among the Archideaconal Wills, dated 16th Jan 1732 states
Sumner
Give publick notice the next Lords day that a Court of Correction is to be holden in St Peters Church of Peeltown on Friday 26th Instant; whither you are to summon all the Wills and Decrees within your parish since the last Circuit with Inventorys & pledges, the Church Wardens & Chapter Quest with their Presentments & all Offenders to cross their names under the penalty of 2s 6d each
Give Notice also that Wills & Inventorys be written in folio by able clerk who can spell truly, write good English & a legible hand. ...
Although it is likely that a significant part of the town residents would be bi-lingual (in Manx and English) it is thought that until the late 18th century or possibly slightly later, the majority of the reported wills would have been utttered, or agreed to, in Manx (sometimes this is apparent from the words used). Also until the early part of the 19th century the majority of the Manx were illiterate thus the recorded wills are a record of a spoken agreement witnessed by competent witnesses (often the Parish clerk and in 17th century the local clergyman) who later swore as to the truth. Only those with considerable wordly goods would have written and signed a will in anticipation of their death. For those dying intestate (from Latin un-witnessed) - ie without a will - the courts assumed the task of providing an equitable division of the goods between the various parties. Note also that Manx law generally specified who was to inherit the land (often called heir-at-law) as well as certain household/personal goods (the 'corbes') and thus these would not be mentioned in the will as there could be no dispute over them.
A key point to remember is that the Manx law differered considerably from that of England (whose law formed the basis of that in the USA as well as Commonwealth countries). Manx law regarding inheritance rights of the married partners and the children of the marriage was modified along English lines in 1777 and again in 1852 with more major changes in 1921, each time to the disadvantage of the woman. English law followed Roman law in treating the women very much as a chattel of her husband - the man could dispose of the whole of the property (including any brought into the marriage by the wife) to the detriment of the widow and/or children. A married woman could not will her own property during the lifetime of her husband. Manx law embodied rights of inheritance of the widow (and children) and also allowed wives to will property during the lifetime of the husband. As Ashley says of Manx Law : "In any case it clearly implies, in its origins and in the attitude it embodies, a status of the wife as a member of a union with rights enduring even after the death of her spouse, and not as the chattel she is sometimes said to be under English common law" . Both English law and Manx law have moved away from this patriarchal dominance in the late 20th century.
To quote Ashley:
The greater part of the Isle of Man presents a clear example of the two-fold pattern of the division of moveable property between man and wife, as contrasted with the three-fold pattern of division between father, mother, and children, characteristic of mediaeval England and followed in Scotland and in the Channel Islands to the present day[1950's]. Its conditions before 1777 display how equalitarian between the sexes such a division can be. Moreover, Manx customary law presents a parallel equality of claims of husbands and wives on each other's inherited land, and a similar division of this into halves on death, though giving in this case only an interest for life or rather widowhood, as compared with an absolute interest in moveables....
The passages dealing directly with widowright in these two documents are the following : -
A. From the Book of the Customary Statutes, 1577.(1) Also, we give for Law, that if any Man die, the Wife to have the one Half of all his Goods, moveable and immoveable, and the Debts to be paid out of the Whole ; and also the Wife to have the one Half of the Tenement wherein she dwelleth during her Widowhood.
(25) Also, we give for Law, that if any Man die, his Wife to have the one Half of his immoveable Goods, and the third Part moveable Goods, having Children ; and if he have none , she ought to have the one Half of all the Goods, whatsoever it be, provided that the Church Duties be paid of the Dead's Part ; and all the temporal Debts to be paid out of the whole Goods.
B. From the Book of the Spiritual Laws and Customs compiled before 1589 , confirmed by representatives of the Head of the Temporal Power, 1610.
(5) Also that every Man and Wife which depart this Life upon the South Side of this Isle, do stand in one effect ; that is to say, the Man to have one Half, and the Wife the other Half ; provided always, that the debts temporal be paid out of the Whole, and the debts spiritual out of the Dead his Part.
(6) Also, upon the North side of this Isle, in case a Man or Wife depart this Life, having no Children or Issue, the Wife hath the one Half and may bequeath it; to whom she will ; and in like manner it is upon the South Side of this Isle ; but in case there be any Issue or Children lawfully begotten, then if the Man depart, the Goods moveable are divided into three parts, viz. , one part to the Executors, another Part to the Dead, and the Third Part to the Wife ; and of all Goods immoveable, not having any Life, the wife hath the Half on the North Side.
The difference between North and Southside is often explained by the Battle of Santwat but may well reflect the different customs of native and incomer.
Note that illegitimate children are not covered.
There was no merging of property unless a marriage lasted a year and a day. This is set forth in the Spiritual Laws as follows : (10) " Also if any Man marry a Wife and the Wife depart before a Twelvemonth and a Day, the Man can have none of the Marriage goods ; in like Manner, if the Man depart before a Twelvemonth and a Day, the Wife can have no Part or Portion of his Goods, except it be given by Gift, or bequeathed by Will of either Party. If there be no Child or Testament made, then the Goods are to return to the next of Kindred."
This requirement for a marriage to last a year and a day (unless a child was born) can be seen in most marriage contracts where any given property is to return to the family giving it.
The wife on her death could leave her property (including a share of any joint property) to her children - if the man then remarried he could not use this bequeathed property for the benefit of any future family . As Ashley quotes from a docoment of the 15th Century "the claim of a child to the goods of his dead mother in his father's lifetime is in like manner assumed in advance. The question is asked whether a man who has married for the second time can use towards the upbringing of his first family "anything . . . of their mother's child's part of goods. "The reply is that he cannot. He can send them away with their goods when they are fourteen (regarded as years of discretion in Man) or let them stay on with him "if they do not demand their goods till they be twenty years old or upwards, but if he thinks to stop a part of their mother's goods for their maintenance, he cannot do so."
This also explains the appointment of guardians for the children on the death of the mother (or father) - such guardians generally being from the family of the deceased who it would be thought would be more likely to better safeguard the rights of the child.
The dying parent, father or mother equally, could not only apportion his or her share of the property among the children (between whom the court otherwise made such distribution as it regarded as equitable) but also nominate "overseers" of the children, as has been already seen, frequently selecting relatives on his or her side. The income from the children's property might be spent on their maintenance, but not the capital, except in urgent need when permission might be given by the court for its sale. For instance, in 1607, the court consented that a widow "shall sell one parcel of Intacks being her Children's Right for the relief of herself and poor children having nothing else to maintain them withall. "...
The case is recorded for instance of a family of children with no paternal relatives to take an interest : "the father being an illegitimate child, therefore the wife hath taken the tuition of the children, and their goods . . . the wife sworn in form of law. "A widow who preferred to bring up her children without the supervision of in-laws might, it would seem, regard her late husband's illegitimacy as a positive advantage ! On the whole however the appointment of "overseers "from the other side of the family, which was for the safeguarding rather of the children's goods than of the children themselves, was no aspersion on the surviving spouse , was a customary provision in wills couched in terms otherwise suggesting affectionate and harmonious marital relationships, and might be a great help to a parent in preserving the rights of a first family in the face of a step-parent and a second family.
Customary Statutes, 1577.(2) Also we give for Law, that if there be any Man or Woman that mislike their Children's behaviour the Parties making their Will before the Priest and Clerk, or sufficient Witnesses, that then if the Parties do bequeath to their said Children but 6d. they can claim no more for their Child's Part of Goods, except they die without any Will making, and then all the Children are Executors by the Law; and if they make their Wills, they may give their Goods and make Executors whom they please.
Spiritual Laws, circa 1589.
(2) Also, everyone that dieth intestate, the Bishop or his Vicar General shall constitute and ordain his Children (legitimately begotten) to be joint Executors, provided always those being unmarried, and those that are married their Dowry cutteth them off from having any further Portion of Goods.
(3) Also, if any make their Testament and leave not 6d. Legacy unto their Children unmarried, (legitimately begotten) or the value thereof, that then the Ordinary may lawfully make him or her Executors with the rest.
(7) Also, if either Father or Mother depart having Children, if the said Children be of Years of Discretion, that is to say 14 years of Age, they may divide Goods either with Father or Mother, and may repair to whom they will.
(9) Also, if either Father or Mother depart, having Children not come to Years of Discretion, being left Executors, and if any of them depart, the Ordinary [ie court] shall make the rest, being alive, Executors ; and in case all die under Age, then the Goods shall return to the Kindred next from whence it came.
Note here the reason for the 6d legacy that so often occurs in the Manx wills - in some cases it is punishment but in the majority of cases it is an insurance policy that no-one who could later dispute the will has been forgotten. However Ashley glosses:
Manx children could thus be cut off with sixpence. They could not, however, be disinherited merely by being omitted from a parent's will ; they must have something, and they received their proportionate share unless 6d. or more, or goods to at least that value, were allotted to them. It has to be remembered that 6d. was a more substantial sum then than now. Even in 1702 it would buy two hens or ducks, six large lobsters, or six dozen eggs, and it went further still in the sixteenth century.
Widowright in inherited land, as in chattels, was the same for widow and widower, or nearly so. It was noted in 1648 that a son had recovered from his father, who had married again, both "all that was his mother's heirship" and "her half of intacks purchased during her intermarriage with the defendant. "The father had a widowright in half his first wife 's heirship which terminated on his second marriage, while the purchased intacks, being reckoned as chattels and not as land of inheritance, belonged jointly to him and his first wife, and her half belonged to her issue after her death.The position is stated by the Manx jurist, John Parr, as follows : "And it is the same with any man that marrieth an Inheritrix . . . the man retains a like benefit of a widow-hood in the estate . . . such Inheritrix after she is married hath no power herself to set or sell any part of her Estate, without the free consent of her husband. . . . Neither can any man that is an Inheritor himself make any such disposal of his Estate, without his wife's consent, by the custom of the Island."
The difference between the rights of a spouse in lands of inheritance and in chattels is made clearer by the accounts we have of what happened to each in case of felony. As already seen, chattels were divided, the innocent partner keeping his or her half and the felon's half being confiscated. There was however no division of inherited land, if husband or wife committed a felony, but instead the whole was treated as the sole property of the one of the married partners from whose family it came. The procedure is set forth by Parr as follows : "And if a man marry an heiress or a woman that is born to a farm and beget by her a son or a daughter, although the aforesaid man should after be convicted of felony or any other capital crime and be condemned for the same, yet shall his said son or daughter continue to hold the said farm and the Corbes belonging thereto, because the same descended from the mother who was free and not guilty of the said capital crime and the Lord is only interested in those and so much goods as are belonging into him that is convicted ; . . . the children . .only have property in the party that is free and not guilty."
It was to the land which came from them that the respective families were most concerned to hold on, receiving it back ultimately if the marriage was without issue, since, ( as the principle paterna paternis, materna maternis has been expressed in Man) "The blood from that line of ancestors from whom the estate did not descend can never inherit
An anonymous writer argued with justification in 1650 that the heritable character of Manx farm lands is demonstrated by the existence of widowright therein. When in the sixteenth and seventeenth centuries the practice of granting land on terminable leasehold was introduced against the background of customary hereditary tenure and of. customs appropriate thereto, such land too was subject to widowright at least for the term of the lease. Whether it outlasted the lease when this had been accepted by an old hereditary tenant is harder to ascertain certainly. If Manx custom was duly observed, every transaction, even between a tenant and the Lord or the Lord's representative, must have been qualified by "the wife's Right Reserved,' ' and so the following pronouncement by a. court in 1643 seems to imply : -"It is the custom that if any lease or composition happened to he taken in the viduity or widowhood of any widow, she is to be made liable to pay the moiety or half of the fine or composition money because she is to have the same benefit of widowright in the estate while she liveth or occupyeth the same, yet nevertheless, if the said widow happen to die before the expiration of the said lease, then her executors or administrators are to have a proportionate part of the fine compounded and returned again, computable to the term unexpired ; and the same course is to be held in case that any composition be taken or made in the time of the widowhood of a widower or husband of an inheritrix. if he happen to die before the expiration of the term compounded for as aforesaid."
A case of 1824 given by Bluett, illustrated by pedigree (pp. 398-401), shows how this principle was interpreted in the Isle of Man when the inheritor of bought land died childless and without brothers or sisters. Having been purchased by man and wife, it had come to their child from both lines, and accordingly half returned to each.
Land which is sold is on the other hand no heirship to the purchaser, not having come from his ancestors. Accordingly, like chattels, it became in Man the joint property of man and wife, to be divided and disposed of with the rest of the personal property, until this was modified by Statute in 1662. When it had once passed by succession it became land of inheritance. Land enclosed from the waste or common land, known as intacks, and cottages or mills built thereon, did not become lands of inheritance so quickly, unless they were " intacks of ease " adjacent to and incorporated in quarterlands whose tenants had enclosed them. An entry in the court book, dated 1666, runs as follows
"The 24 Keys upon the trial of an action . . . for a parcel of Intack Land, declare it their opinion that the same is chattels and might be disposed of . . . having not passed three descents according as the Customs of the Country require. " Quayle, who gives us this decision, says it is typical of a number round about that time. They are summarised as follows : -"farm lands or quarterlands which have so fallen one descent are to pass and go in the nature of lands of inheritance afterwards, but . . . such (i.e. , other than intacks of ease) mills, cottages, and intacks are to descend and pass three descents not reckoning the purchase or enclosure of them . . . but are to be reputed as chattels and bequeathable and dividable as other goods till then."
A succinct synopsis is found in Jeffcott's Statutes - note that the law was changed mid 19th century.
To the eldest son of A, last seised, or his issue.If his line be extinct, to the other sons of A respectively, in order of birth, or their issue.
In default of these, to the eldest daughter of A, or her issue.
If her line be extinct, to the other daughters of A respectively, in order of birth, or their issue.
In default of these, to the eldest brother of A, by the same parent, from whom the estate descended, whether of the whole or half blood, or his issue.
If his line be extinct, to the other brothers by the same parent, respectively, in order of birth, or their issue.
In default of these, to the eldest sister by the same parent, or her issue.
If her line be extinct, to the other sisters by the same parent respectively, or their issue.
In default of these, to the eldest brother of the parent through whom the estate descended.
The blood of that line of ancestors, from whom the estate did not descend, can never inherit it. If it descend from the father, the blood of the mother will be perpetually excluded, and so vice versa.
If the person last seised were a purchaser — (that is, took otherwise than by descent,) and to die without issue, the estate would descend as follows, vii. : —To his eldest and other brothers, of the whole blood, respectively, in order of birth, or their issue.
In default of these, to the father's eldest brother, and other brothers, and eldest and other sisters of the whole blood, — the paternal grandfather's eldest brother of the whole blood, &c., in infinitum, in the paternal line: the paternal grandfather's mother's eldest brother of the whole blood, or his issue, &c.
— Jeffcott's Statute Laws of the Isle of Man, Douglas, 1837, Appendix.
The 1673 will of Will Sayle [headed both Andreas and Jurby] records that he died "about the 4th Feb 1673" and ordained his "Ant Issabb Cleator als Clark" exec. until his two sisters Ales and Bahee Sayle became of lawful years.
This document followed: "Feb 13th 1674 ---finds that the testator was at lawfull years, for by certified out of the Church Register, it appears he was born Apll the 6th 1659. And being buryd the sixth of Feb 1673 by computate his age at his death was 14 years & 8 months, see that the Court proceedings were Legall in this particular...
Thus 14 was also the lawful age to leave a will as also to get married
A. Ashley "Property in Relation to Marriage and the Family" Juridicial Review VXV #2 pp150/181 Aug 1953
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