Page:Archaeological Journal, Volume 8.djvu/406

 310 ORIGINAL DOCUMENTS. and for many years previously, all property that comes under the deno- mination of personalty might have been disposed of by a will which was neither signed nor sealed by any one, nor indeed even reduced to writing in the lifetime of the testator. The more formal wills were in writing, and sealed with the testator's seal ; hut it was no uncommon practice for some one to write down the testator's wishes from his dictation or instructions : and the writing was then read over to, and approved by, him before witnesses ; and thereupon it became his will. Witnesses were not necessary, if the writing could be otherwise proved, to the satisfaction of the proper ecclesiastical court, to have been the testator's will ; and when there were witnesses, their names were often not mentioned either in the document or upon it. Neither such wills, nor any others however made, were in general effectual for the disposal of land or other property of that kind; but in some ancient boroughs, where Anglo-Saxon customs lingered (and it is not improbable that Totnes may have been one), houses and land might have been so disposed of ; and by means of the intervention of trustees, com- mouly designated " feoffees to uses," the beneficial interest in land and in whatever is termed real estate was capable of being devised by any will that sufficed for the disposition of personalty. After the death of the testator the will was proved in some ecclesiastical court ; and a copy of it was made out with a certificate thereon of the fact of probate ; and this was authenticated by the seal of the court or its officer, and delivered to the executors as evidence of their authority. The original will was not then retained by the com-t as it is at the present day. Occasionally, perhaps, the certificate of probate may have been written on it, and authenticated as before mentioned; in which case it would have been delivered to the executors in the place of a copy. Where this was not done, and the will comprised real as well as personal estate, in all pro- bability it was delivered to some of those to whom the real estate was given, and accompanied the title-deeds : for original wills of early date are not unfrequently found among ancient muniments of title ; and in all cases, after the duties of the executorship were fulfilled, there was no other use for them. The ecclesiastical courts began to preserve and register copies of wills long before they took into their custody the originals. According to returns made about twenty years ago, the practice of preserving copies might be traced back, in some few courts, to the time of Edward II. ; but no original wills were found in any of them earlier than J 500, except, perhaps, a few in the Prerogative Court of Canterbury. It was considered the duty of the parochial clergy to see that people made proper wills ; nor was this confined to those made in sickness.* One of the constitutions of Edmund, Archbishop of Canterbury, in 1236, forbade laymen to make their wills without the presence of the parish priest. The general canon law is even said to have required that the minister of the parish should be present as one of the witnesses. His presence, however, was not, in this country, essential to the validity of a will, nor do these directions appear to have been very generally observed, except, as Lynd- wode» states, in certain places where such had become the custom ; yet traces of their influence may be found after the reformation, as, for ' Gibson's Codex, p. 4G2, edit. 1761. ■' Lyndwodc, p. 127, edit. 1525.