to claim his legacy. So in 1395 a widow has appointed her son as "chief executor" and has bequeathed to him the residue of her goods; but she adds that if her son should refuse execution, the residue shall be distributed among the other executors.1 As these instruments prove, the English custom, at the end of the 14th century tended to regard the two capacities of testamentary executor and of residuary legatee as tied up with each other. At what moment did this usage become a rule of law? We cannot say. We can only state the point of departure of this development, and its final outcome. This final outcome is clear. If the deceased has not named in his will a residuary legatee, then according to the common law the executors must collect the residue of the personal property, and they may apply it to their own use. Their position is in this respect exactly like that of the Roman heir, whose right may be limited in fact by particular legacies, but who has a contingent claim to the entirety of the succession. In English law, all disposable goods not charged by the testator with a fixed application go to the executor and belong to him as his own. This rule is clearly formulated by Blackstone: "If there be none (residuary legatee)," he says, "it was a long settled notion that it developed to the executor's own use, by virtue of his executorship," 2 and in Blackstone's time this rule is set aside in equity only when it conflicts with the clear intention of the testator, as e. g. where the testator has given the executor a fixed legacy. It may even happen that the executor receives not merely the residue, but all the chattels. In England, as on the Continent, in the Middle Ages, a custom grew up for those who, surprised by death, had not the time to regulate in detail the disposition of their goods, to name simply a distributor, a commissarius, leaving it to him to distribute at his discretion the goods of the decedent. This practice, quite opposed to the principles of the Roman law, is found everywhere in the 13th century. In 1216 King John, attacked by a sudden illness, entrusts the ordinatio and dispositio of his property Furnivall, Fifty Earliest English Wills, p. 4, p. 9. to thirteen faithful friends, leaving to them the care of distribution. In vain did Innocent IV, about 1246, declare such testaments void, and wanted to treat those, who were content to name an expressor et executor, as intestate. The Fleta and Britton declare that one may leave "simplement sauntz aucune especialté . . . sa dreyne volunté en la distribucioun de touz ses biens moebles en la ordinounce de acun ami.” So the mere appointment of an executor is enough to constitute a will.1 These executors, appointed without any directions, were, in the 13th century, certainly required to distribute the chattels, at least the dead's part, for the profit of the soul of the deceased. But gradually they are allowed to retain the dead's part, then the entire personal property, and thus the mere appointment of an executor has become in the common law the equivalent of a bequest of all the personal property for the benefit of the executor. Not until 1830 is it provided by statute that the executors shall be regarded by the courts of equity as trustees for the benefit of the persons named in the statute of distributions as takers in case of intestate administration, namely, the next of kin. Only in our days therefore has the English law come back to the rule which never ceased to be observed on the Continent: the residue belongs to the executor only if expressly so provided by the testator. The Scotch law, as early as the 17th Century, had done away with the extraordinary common law power of disposal, by putting again into force the tripartite division of the chattels and by limiting to the "dead's part" the right of the executor to keep the residue. But it is not our task to trace through modern times the history of testamentary executorship. We have even omitted in this study many features of the institution in the Middle Ages. We have said nothing of the essential duties of the executor on entering upon his office (burial of the deceased, probate of the will, inventory); nor of the rules established by the English councils with regard to the supervision and control of the executors by the public authorities; nor of 1 Rymer, Foedera I p. 144; Matth. Paris; Chron. maj. IV p. 604 et s.; Fleta II, 62, 13; Britton c. 29, § 35. the creation of judicially appointed executors, the administrators cum testamento annexo. We merely wished to sketch the fundamental features which the institution presents on the common law, and to trace their development. We wished at the same time to indicate the importance of the executorship in the English law. It is there, what the institutio heredis is in Rome, caput atque fundamentum totius testamenti. In the 17th century, Swinburne and Godolphin declare that "the naming or appointment of an executor is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a will is no proper testament," but only a codicil. There are even some decrees that say that, without an executor, a will is " null and void." Certainly, the evolution of the institution is not closed. The Land Transfer Act of 1897 has given the executor a new function in committing to him not merely the personalty but the realty, in making of him a representative of the deceased for the entire succession. The future, which alone can tell what the consequences of such a reform will be, may perhaps yet give a new lease of life to the old mediæval institution, which, when it declined on the continent, retained such vitality in the English law. A 75. THE RISE OF THE ENGLISH WILL1 BY MELVILLE MADISON BIGELOW 2 S the first step to any stable theory of the post-mortem disposition of property, whether by testacy or by intestacy, it must be observed that the idea of absolute property forever in any particular owner, as in the case of an estate to a man and his heirs forever, is a fiction, a useful fiction probably, but still a fiction. A grant to a man and his heirs forever is a grant to each grantee forever; the "heirs" have nothing in the estate granted. The grant therefore is to the grantee as if he might live forever, which manifestly is impossible, so far as this present life is concerned; and it is certain that no man can take his property with him after death. There can be no such thing then as absolute property forever, in the true sense of the term. It is no answer to say that a man may be considered to live in his posterity, or even, to put the case still stronger, that a man holds posterity in his loins; for either form of statement is as much a fiction as the one first mentioned. The childless man is conclusive of the point. Nor is it an answer to say that the owner of property may sell or exchange it This Essay was first published in the Harvard Law Review, 1897, vol. XI, pp. 69-79, under the title "The Theory of Post-Mortem Disposition; The Rise of the English Will," and subsequently formed part of a treatise on Wills. 2 Professor of law and dean of the faculty of law in Boston University Law School. Harvard University, Ph. D. 1879; Northwestern University, LL. D., 1896. Other Publications: Placita Anglo-Normannica, 1879; History of Procedure in England (Norman Period), 1880; Leading Cases on Torts, 1st ed. 1875, 2d ed. 1895; Elements of Torts, 1st ed. 1878, 8th ed. 1907; Law of Estoppel, 1st ed. 1872, 5th ed. 1890; Law of Fraud, 1st ed. 1877, 2d ed. 1888; Overruled Cases, 1st ed. 1873, Supplement, 1887: Cases on the Law of Bills, Notes, and Cheques, 3d ed. 1894; Law of Wills, 1898. for things consumable (if it be not consumable itself), and then consume the substitute; for in the case in hand the property, whether consumable or not, has not been consumed. Though it or some substitute might have been used up, as a matter of fact it has been left, and it is now to be disposed of at death. The answer supposed confuses the notion of "absolute" property, or one's power over things, with the duration of such power. As a mere matter of power, a man may certainly own property "absolutely." Considered, however, as a theory, as it must be, how is the theory of ownership forever to be worked out? With cases of testacy there would be no difficulty; the testator is dealing with his own, and acting in person. In cases of intestacy the theory can only be worked out upon the idea of an implied agency in the State; the State acting for the owner in case of his failure to dispose of the property. But it is plain that such an agency can only stand upon a footing wholly unique and unlike any other. In the first place the supposed agency would be confined, as a matter of fact at least, to giving; it would not extend to selling or otherwise contracting. In the second place the supposed agency would go into operation where recognized agency ends, with the death of the principal. And in the third place the agency would be irrevocable. Agency cannot be stretched to such a point. And the same will be found true of any other term that may be used to do duty for the idea of acting for one I who is defunct. On what support then can a stable theory of post-mortem disposition be placed? Discordant answers have been suggested. One answer is, that the title to property, subject to life ownership in a grantee, is in the State, and, but for the fact that the State has thought best to allow such grantee to designate the course of the property after his death, it would always revert to the State upon the death of the grantee. This view of the case, it may be noticed, has nothing to do with original ownership in the State, except inferentially; it proceeds upon the notion that the State has some sort of reversionary right upon the death of its grantee in fee and |