OLD-ENGLISH-L Archives

Archiver > OLD-ENGLISH > 2007-04 > 1176198923


From: "Tompkins, M.L.L." <>
Subject: Re: [OEL] Heir not mentioned in will
Date: Tue, 10 Apr 2007 10:55:23 +0100
In-Reply-To: <006001c77afe$0b0642b0$18d0fc3e@YOUR8F70B4083A>


<<Does the difference between a will and a testament have anything to do
with this? I seem to remember that a will demised land and a testament
disposed all the rest of the property. The fact that most wills also
included the testament (generally says "last will and testament of X")
tends to muddy the waters.>>


That's a good question, Audrey - I wondered about that myself. My
thesis said:

"It is unlikely that these testators [the ones who didn't devise their
land in their wills] were following the medieval custom of creating two
documents, a testament dealing with their personalty, which required to
be proved in the ecclesiastical probate courts, and a will dealing with
their real property, which was no business of the probate courts and
seldom survives. By the middle of the sixteenth century it had become
normal to combine the two documents into a single last will and
testament, and the fact that a third of the Great Horwood wills (which
were mostly proved in the Archdeacon of Buckingham's probate court) did
include devises of land suggests that this was the normal practice
there.

Nevertheless it is clear that the old attitude that testaments should
not normally deal with land still influenced testators' habits. Not
only did almost none of the testators mention in their will land which
they wished to pass to their heir at law - because it was legally
unnecessary - but even those who wished to devise land to someone other
than the heir at law seldom used their will to achieve this end. They
used a deathbed surrender instead (or made provision in advance of death
by a grant of joint tenancy or reversion, or even an outright
transfer)."

Matt

This thread: