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This is also the view taken by Professor Stubbs in his work on the Constitutional History of England. He says:
The whole jurisdiction in questions of marriage was, owing to the sacramental character ascribed to the ordinance of matrimony, throughout Christendom a spiritual jurisdiction. The ecclesiastical jurisdiction in testamentary matters and the administration of the goods of persons dying intestate was peculiar to England and the sister kingdoms, and had its origin, it would appear, in times soon after the Conquest. In Anglo-Saxon times there seems to have been no distinct recognition of the ecclesiastical character of these causes, and even if there had been they would have been tried in the county court. Probate of wills is also in many cases a privilege of manorial courts which have nothing ecclesiastical in their composition, and represent the more ancient moots in which no doubt the wills of the Anglo-Saxons were published. As however the testamentary jurisdiction was regarded by Glanvill as an undisputed right of the church courts, the date of its commencement cannot be put later than the reign of Henry I, and it may possibly be as old as the division of lay and spiritual courts. (Vol. III, p. 344.)
The trust thus vested in the prelates in the course of time, was grossly abused.
The common law did not make him (the ordinary), being a spiritual governor, subject to temporal suits for such things. And this was a great defect in the common law. (Graybrook v. Fox, 1 Plowd. 275, 277.)
The popish clergy, says Blackstone, took to themselves (under the name of the church and the poor) the whole residue of the estate of the deceased, after the partes rationabiles, or two-thirds, of the wife and children were divided, without paying even his debts or other charges thereon. This led to the enactment of the Statute of Westminster II., directing the ordinary to pay the intestate's debts so far as his goods would extend. But even after this check to the exorbitant power of the clergy, whereby the ordinary was made liable to creditors, yet the residuum after payment of debts still remained in their hands, to be applied to whatever purpose his conscience should approve. It was the flagrant abuse of this power that again called for legislative interposition; by the Statute of 31 Edward III, c. 11, the estates of deceased persons were directed to be administered by the next of kin of the deceased, if he left no will, and not by the ordinary or any of his immediate dependants. (Woerner, American Law of Administration, vol. 1, p. 316.)
This statute put the representatives of the estates of intestates upon the same footing with respect to suits and accounting as executors and made them officers of the ordinary. By the statute of 21 Henry VIII, c. 5, the discretion of the ordinary in the appointment of administrators to intestate estates was enlarged, so as to authorize the appointment of either the widow, or the next of kin, or both. The Statutes of Distribution, 22 and 23 Charles II, c. 10, and 29 Charles II, c. 30, made distributable among the widow and next of kin, leaving in the hands of the administrator for his own use the third formerly retained by the church, until finally by the first statute of I James II, c. 17, this third was made distributable, as well as the remainder of the intestate estate. (1 Bradford Surrogate Reports 26; Woerner, American Law of Administration, vol. 1, p. 316; Blackstone, Book II, p. 494, 495).
The powers of the spiritual courts were thus restricted to the judicial cognizance of the class of cases arising out of the probate of wills, the granting of administration and the payment of legacies, and thus remained until, by the statute creating the court of probate, their powers in this respect were wholly abrogated. (20 and 21 Victoria, c. 77).
We have thus traced in brief outline the history of the law of administration of estates in England, wherein it appears that it was a matter cognizable by the common law and in the common law courts until about the period of the Norman Conquest; that thereafter the jurisdiction over the estates of deceased persons was transferred to ecclesiastical courts, proceedings in which, says Blackstone, “were regulated according to the practice of the canon and civil law, or rather according to a mixture of both, corrected and new modelled by their own peculiar usages and interpositions of courts of common law.” (Book III, p. 100).
It now becomes necessary to consider how far the principles of the common law thus established and the statutes passed in aid thereof were introduced into the various states of the Union, and became incorporated into the American law of administration.
The English law of devise [says Chancellor Kent] was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient.
(4 Commentaries 504.)
In discussing the administration of the estates of intestates the same author makes the following comment:
To avoid repetition and confusion, I shall be obliged to confine myself essentially to the discussion of the leading principles of the English law, and assume them to be the law of the several states, in all those cases in which some material departure from them in essential points cannot be clearly ascertained.
(1) Of granting administration. When a person died intestate in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy; and, we are told, it was so flagrantly abused that Parlia
ment was obliged to interfere and take the power of administration entirely from the church and confer it upon those who were disposed to a faithful execution of the trust. This produced the statutes of 31 Edward III, c. 11, and 21 Henry VIII, c. 5, from which we have copied the law of granting administration in this country.
Before the Revolution, the power of granting letters testamentary and letters of administration resided in New York, in the colonial governor, as judge of the prerogative court, or court of probates of the colony. It was afterwards vested in the court of probates. (2 Commentaries 408-9.)
The learned chancellor then proceeds to give an account of the development of the probate courts, and the law of administration in New York, and indicates that the same were modelled after and based upon the principles of the common law.
Judge Woerner, in his chapter on the subject of the probate powers as they existed at common law and under the English statutes, uses the following language:
The common law of England, as affected by the statutes above named, (and others relating to probate,) which were enacted before the settlement of the American Colonies, is at the basis of the American statutes concerning administration, and the law in the American States in so far as it has not been supplanted by their own statutes. (Woerner, American Law of Administration, vol. 1, p. 316.)
He further states that the origin of our probate system, referable to the English spiritual courts, is still recognizable in the decisions of some states as to their mode of procedure, although the rules of the civil and common law which govern the ecclesiastical courts are necessarily greatly modified in the adaptation to widely different circumstances and to the spirit of the American people. In New Hampshire courts of probate “ have a very extensive jurisdiction not conferred by statute, but by general reference to the law of the land, that is to that branch of the common law known and acted upon for ages, probate or ecclesiastical law.” Morgan v. Dodge, 44 N. H. 255, 258. In California the superior court is by the constitution invested with jurisdiction over probate matters as a part of its general jurisdiction the same as its common-law and equity powers, and is not, therefore, a statutory tribunal, although controlled in the mode of its action by the code. Burris v. Kennedy, 108 Cal. 331, and Heydenfeldt v. Superior Court, 117 Cal. 348.
While American courts of probate may properly be said to be purely creatures of statute at the present time, yet, as Judge Woerner has pointed out, the law administered by them is unquestionably based upon
the common law as administered in the Acts of Parliament prior to the date of the transfer of sovereignty. We think there can be no question about the proposition that Congress meant to extend the law of the administration of estates to China under the term common law fully as it meant to extend the law of crimes, which must have been its first consideration in enacting the statutes for the purpose of carrying into force and effect the treaties of extraterritoriality with China.
We hold, therefore, that prior to the inauguration of this court, the consular courts of the United States in China had jurisdiction in the matter of the estates of Americans decedent in China, in all cases, and that now this court has jurisdiction in such matters when the value of the estate involved is above five hundred dollars United States currency, the consular courts retaining their jurisdiction over those estates which are valued at less than this amount.
The will is admitted to probate and letters testamentary will issue forthwith.
Signed: L. R. WILFLEY,
Judge of the United States Court for China. SHANGHAI, China, May 15, 1907.
International Law. Treatise by L. Oppenheim. Longmans, Green &
Co. London and New York. Two volumes: Vol. I, pp. xxxvi, 610; Vol. II, pp. xxxiv, 595.
The student wishing to acquaint himself with the principles of international law as they exist to-day will find his desires met most amply and satisfactorily in these volumes, which, as claimed by the author, are “ for students written by a teacher.” Himself schooled, as are few other men, in the theories of law, he has little indulged in them save to illustrate his subject. The author's leanings, however, against the positive theory as claimed to be supported by natural sanctions, he does not disguise. To many, his tendencies in this respect will seem to lead to conclusions weakening the compelling forces of the law of nations, regarding, as the author does, its rules, not as resting in the nature of things or in natural right, but as in usages developing into customs which finally for their efficiency rest upon express or implied compact between equals. Such compacts, he finds, for the most part, evidenced by treaties, international practices, and writings of eminent men.
Notwithstanding the author regards the subject from the view-point indicated and makes this manifest, his work is not in any large sense to be considered controversion or polemical. He would rest the foundation of his principles upon a thoroughly jurisprudential basis, which to him gives a veritable positive sanction. The student, however, is informed of the views of those authors who approach the subject differently, and their opinions are fairly analyzed. Summing up somewhat the remarks already made, the reader will readily conclude that his method of reasoning illustrates the inductive rather than the deductive system.
Those who peruse Professor Oppenheim's work will recognize with pleasure its freedom from the deficiencies of temper, when treating of the action of nations other than the English, which disfigure the otherwise admirable volume of Hall.
Professor Oppenheim's first volume is given over to a discussion of the law between nations in times of peace. Commencing with an examination into the foundation of the law of nations, its development and