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Testamentary Practice, Family Strategies, and the Last Phases of the Custom of London, 1660–1725

Published online by Cambridge University Press:  28 October 2011

Henry Horwitz
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Extract

Restrictions in law upon the power of testators to devise chattels were the norm in the days both of Glanvill and of Bracton. As Holdsworth put it:

If he [the testator] left a wife alone she took a half; if a wife and children they took, the wife a third, and the children who had not received an advancement from their father in his lifetime a third; … it was only the half or the third which remained over that a man was free to dispose of as he pleased.

Type
Articles
Information
Law and History Review , Volume 2 , Issue 2 , Fall 1984 , pp. 223 - 239
Copyright
Copyright © the American Society for Legal History, Inc. 1984

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References

1. Holdsworth, W., A History of English Law, 3rd ed. (London, 1966), iii, 550Google Scholar.

2. For the operation of the custom, see Bohun, W., Privilegia Londini (3rd ed. 208–26, 313–26 (Court of Orphans)Google Scholar; B[ritish] L[ibrary], Stowe Ms. 597, ff 36b–37, copy of Attorney General Sir Edward Northey's opinion regarding the custom of London in the case of Mr. Longland, July 20, 1706.

3. Doolittle, I.G., ‘Walpole's City Election Act (1725),’ English Historical Review xcvii (1982) 503CrossRefGoogle Scholar.

4. Statutes at Large (1735), IV 615. An earlier draft of the statute also grounded repeal on the ‘great’ trouble and expense occasioned by disputes between claimants to freeman's estates; P[ublic] R[ecord] O[ffice], SP 35/54, No. 64.

5. Doolittle, ‘Election Act,’ supra note 3, 522 and n. 8.

6. Carlton, Charles, The Court of Orphans (Leicester 1974) 99–100Google Scholar.

7. Journals of the House of Lords, xxii 499.

8. Wood, A.C., A History of the Levant Company (London, 1935) 95 n. 2Google Scholar.

9. An abortive attempt was made by the Corporation in 1702 to compel all directors of the two East India Companies to take up the freedom; C[orporation of] L[ondon] R.O., Common Council Journal liii, ff. 263b, 268, 282, 285, 303.

10. In 1673 the Common Council considered a proposal that wealthy Londoners taking up the freedom in the coming year be exempted from the burdens of the shrievalty for the succeeding seven years; C.L.R.O., Common Council Journal xlvii, f. 262Google Scholar.

11. For the latter course, see Northey's opinion at B.L. Stowe Ms. 597, f. 366: Lord Nottingham's Chancery Cases, ed. Yale, D.E.C., vol. II (Selden Society, 79) 598Google Scholar. Such provisions were, to be sure, only likely to be acquiesced in by the interested parties if the respective bequests came to as much or more than each could have claimed under the custom.

12. None of the non-citizen testators followed the custom. For the special case of Sir Joseph Herne, see, below, section III.

13. P.R.O., Probate 11/363, 11.

14. Records of the Court of Chancery, which was prepared to uphold the rights under the custom of widows and children of freeman, yield only a handful of such cases. For Chancery holdings with respect to the custom, see The English Reports, xxii (1902) 221–335Google Scholar. For one well-documented instance of the Chancery recognizing the claims under the custom of one of the children of our 290 subjects, see P.R.O., C5/578/89 and C78/1000(2); The English Reports, xxiii, (1902) 331–34Google Scholar.

15. P.R.O., Probate 11/362, 6.

16. See, for example, the Court's handling of the personalty of William Walker (d. 1708); C.L.R.O., Common Serjeant's Book v, f. 184.

17. Carlton, Court of Orphans, supra note 6, 99–100.

18. For comments on ‘family strategies’ in early modern Europe, see Davis, N., ‘Ghosts, Kin, and Progeny: Some Features of Family Life in Early Modern France,’ in Rossi, A., The Family (Philadelphia, 1978) 87–114Google Scholar; Giesey, R., ‘Rules of Inheritance and Strategies of Mobility in pre-Revolutionary France,’ American Historical Review lxxxii (1977) 271–89CrossRefGoogle Scholar; Rebel, H., ‘Peasant Stem Families in Early Modern Austria: Life Plans, Status Tactics, and the Grid of Inheritance,’ Social Science History ii (1978) 255–91CrossRefGoogle Scholar.

19. The other fourteen of those ninety-four testators circumvented the custom and so are not included in Table XIV. All fourteen left estates of £20,000 or more.

20. P.R.O., Probate 11/449, 42, and Probate 11/464, 77.

21. 12–13 William III, No. 27 ol the private acts of this session.

22. No copy of the articles has been found; the key provisions are recited in P.R.O., C5/325/13, Dame Elizabeth's bill of complaint, June 1, 1702. 23. Herne's freedom is recorded in C.L.R.O., Repertory of the Court of Alderman xcii, 284 (June 21, 1687).

23. Herne's freedom is recorded in C.L.R.O., Repertory of the Court of Alderman 92, 284 (June 21, 1687).

24. P.R.O., C5/325/13.

25. For the final outcome of the case, the report in The English Reports xxiii, 959–60 must be supplemented by P.R.O., C33/305, ff. 412v–413 (entry of June 19, 1706).

26. For Sir John's son Thomas Fredrick's failure to abide by the custom in his will, despite his promise to take up the freedom—a condition imposed by the Court of Aldermen upon his marriage to the ‘orphan’ heiress Leonora Maresco in 1675—see P.R.O., Probate 11/643. 63; The English Reports, xxiv (1903) 582–86Google Scholar.