Note 242 — Book VII.

Bracton and Fleta perfectly concur with our author, except that they use the word children instead of Heir, adding, that if the deceased had no children, then, the one half was at his own disposal, the other belongs to the wife; and, if he had neither wife nor child, the whole was at his own disposal. (Bracton 60. b. Fleta L. 2. c. 57. s. 10.) Before we quit the present chapter, it may not be amiss to observe, that Glanville has been thought grossly to contradict himself in the course of it. But this has been inconsiderately imputed to him by those, who have not attended to the context. He states, that according to certain customs, which prevailed in particular places, a man was bound to remember his Lord, and the Church, previously to his making his will. But, says he, whatever those customs inculcate, yet, according to the Law of the realm, no man is bound to leave any thing to any particular person, unless it be his inclination, for every man’s will is free, over that part of his property which the Law permits him to dispose of, namely, a third, or, eventually, a half—When our author laid it down, that a man’s will was to be free, he did not mean to assert, that he was at liberty to dispose of all his property. Should it in the present day be laid down, that a Testator’s will was free, and that he was not bound to give any thing to any particular individual, would it be a fair inference, that a man could devise his entailed Lands? It we apply this to Glanville, he is consistent, and will be understood to speak, with reference to persons, what he has been considered to speak, with respect to things. That the division of the property, mentioned in the text, did not long survive the time of Glanville, is most probable. (See Somner on Gavelk. p. 98.) Swinburne seems strangely to have blundered in thinking, that our author took part of his text from Magna Carta, (Swinburne on Wills, part 3. section 16.) The passing of which was an event clearly posterior in time to Glanville.