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The Blaker Society © Until the introduction of the modern civil system in January 1858,
BLAKER WILLS

Introduction

all probate matters fell under the jurisdiction of the Church of England.
There were three levels of probate courts: archdeaconry, diocese
1
(consistory) and province (prerogative). The system was in some areas
disrupted by the Henrician Reformation, when new dioceses were
created: but that did not affect Sussex. Most early wills were in English,
occasionally in Latin: a few were transcribed into the bishop’s register.
Until the 18th century wills were what is properly referred to as
‘testaments’ (and were referred to as such in the court records), because
they were dispositions of personal goods and money, but real estate could
not be bequeathed, since that would disrupt the normal process of
inheritance. Increasingly, in later years, that limitation was ignored: but
tenure based on a probate bequest could always be overturned by the
actual heir.
To modern eyes, therefore, an early will can seem a little strange,
as the house(s) and land(s) of the testator do not appear among the
bequests, and the will seems obsessed with the distribution of livestock,
small amounts of cash, clothes and trinkets. The more so before the
Reformation, when most wills contain mainly gifts to churches, chapels,
friars and chantries. It is not at all uncommon for an early will to make no
mention of the testator’s heir.
Which leads us to the question of inheritance. When a man, a
freeholder, died, his estate passed to his eldest son, &c., failing which it
was divided between his daughters. His widow did not inherit his

freehold: instead she had a right of dower in a third of the property. She
had no right to have her third part separated from the rest, nor to grant
any of it away: and if she remarried, the property did not pass to her and
her husband. In this way the rights to the real estate (the true source of
wealth) could not be alienated from the man’s heirs.
Often the man so dying left an eldest son under age (less than 21
years old): nevertheless, the freehold passed to that boy, but who, being a
minor, could not sell, lease or otherwise dispose of it till he came of full
age, it all being held in trust by his guardian (as often as not his mother,
but perhaps some friend or relative, who might be named in the will).
Suppose some person wished to claim a right in the estate (not a debt) at
law during such minority, the court would refuse to act, instructing the
plaintiff to attend the inheritance.

1 However, by ancient custom, a few manors claimed and exercised the right of probate within their
jurisdiction.
1