The Role of the Church and its Courts
During the Middle Ages the church gradually gained the right to prove wills and grant administrations of the estates of the dead in all but a few places in England and Wales. The church took responsibility for validating wills and making sure the wishes of the testator were respected through its courts. The church continued to hold authority in probate matters until 1858 except for the Civil War period.
The courts were closed down temporarily during the 1640s and 1650s without an adequate substitute to take over their responsibilities, although between 1653 and 1660 a civil commission existed to deal with probate matters and its records are now with those of the Prerogative Court of Canterbury.
After 1858, civil registries became responsible for probate matters and our Project therefore does not include any of these later wills.
There is a complication however. The church courts were responsible for overseeing the disposal of personal estates - moveable goods, credits and leasehold property - but not real estate, which was determined by manorial courts according to local custom. The church courts were responsible for establishing a testator's wishes about their entire estate but not for resolving real estate disputes. Even when testators included real estate in their wills it did not necessarily mention all their property, especially if some of it was entailed or subject to a strict settlement.
When someone died their will had to be taken to the appropriate church court. Court jurisdictions are quite complicated; in certain years a larger court might have the right to prove the wills of a smaller one, inhibiting its authority. The highest court in England and Wales was the Prerogative Court of Canterbury.
Within the Diocese of Salisbury alone there were 28 courts, including the bishop's, the two archdeacons' and many peculiars. If goods or land over a certain value were held in areas covered by the jurisdiction of more than one court, the will had to be proved in a higher court, therefore if it fell into two archdeaconries it would be proved at the bishop's court. If the deceased's land or property was in more than one diocese (e.g. Salisbury and Lincoln) it had to be proved in the appropriate Prerogative court. For this reason, wills of the very rich are not likely to be found at local level, especially as the Prerogative Court of Canterbury was considered a more prestigious arena of church law. It eventually proved more and more wills.
The Role of the Executor
Once the will found its way to the right court, the executor and witnesses swore on oath that the will was definitely the testator's last. If the judge was satisfied that it was genuine he would "grant probate" and give permission for the executor to administer. This decision was legally confirmed by an entry in the act book of the court.
If the executor declined, or no-one had been named in the will, administrators would be appointed by the court. An indication that the duties could be unwelcome is given in the will of William Collins of Salisbury. He says he is willing to pay for his brother's time in taking on the administration of the will if he insists. If administrators had to be appointed, an administration bond was issued. They begin to appear around 1600; before then, the appointment of the administrator was simply recorded on the inventory. The bond was normally for about double the estimated value of the estate.
The will of William Collins, 1740 (Ref: P4/1740/11)
Click here for the catalogue entry
From 1671 parliament prescribed how the bonds should be worded and they were often printed with blanks left for the details of the case. Being appointed administrator could also protect your interest in an intestate's estate as demonstrated in this letter about the estate of John Arnold.
Letter concerning the estate of John Arnold, 1711 (Ref: P1/A/210)
Click here for the catalogue entry
A copy of the will was issued to the executor with an official seal attached to it - often these are the copies of wills found in solicitors' and family papers within our Archives. The court kept the original will - especially after about 1600 - and it is the originals that form the Salisbury Diocesan Probate collection - the Wiltshire Wills. A second copy would also be entered into the court's register where it could be consulted by interested parties.
The executor - named in the will or appointed by the court - first had to bury the deceased decently. Initially the executor had to pay for all funeral and administrative costs, all outstanding debts, most legacies and sometimes even the bringing-up of children, from the proceeds of the deceased's estate.
There was a well-established practice whereby several relatives, creditors or reputable neighbours drew up an inventory of the deceased's goods as soon as possible after the death. The goods were costed according to their second hand price, and their total formed the assets available to the executor for distribution.
A good example of an inventory, showing the level of detail they can contain is that of Mathew Figgins, a gentleman of Devizes, dated 1708.
Probate inventory of Matthew Figgins, 1708
One which demonstrates the particular value of inventories for researching trades and crafts is that of John Cox, a Salisbury goldsmith.
Probate inventory of John Cox, 1695 (Ref: P4/1694/1)
Click here for the catalogue entry
It is worth noting that not all goods were listed. Those without the potential to be re-sold were often excluded - perishable foods, for instance, and sugar, tea, spices and potatoes. Some stored foods are listed - cheeses and bacon, for example. In tradesmens' inventories sugar, tea and spices are listed in large quantities but this is because they are counted as trade rather than household goods. Another important omission to be aware of is that only debts owing to the deceased, not those he or she owed, tend to be listed in inventories. So inventories may not provide a reliable representation of wealth but they do at least give an indication of the level of comfort the testator enjoyed.
Inventories changed over the centuries - sixteenth century ones are often just lists of possessions, seventeenth century ones tend to be listed room by room, while by 1750 they may just be summary inventories. This is in part a reflection of the increasing number of possessions found in a household.
The executor would also draw up an account of their administration in some cases, and these accounts can provide very useful information. They may detail the outlay made for the burial of the deceased, listing the cost of the sermon, the digging of the grave, and the refreshments provided after the funeral.
The account was intended to prevent subsequent quarrels or litigation. From 1685 onwards, the need for accounts was restricted to the occasions when estates were in dispute, which is why there is such a decline in the numbers of accounts in the collection during the eighteenth century. Nationwide, numbers usable for comparative purposes exist only between about 1570 and 1720. There are accounts for about 5% of the testators represented in the Wiltshire Wills collection.
Wills convey only a testator's wishes, not what actually happened. Accounts may be a more accurate reflection of someone's wealth as they reflect the value of estates after debts were paid, in contrast to the inventories, the accounts being the other side of the picture. The first entry on the account is usually the "Charge", and the charge should match the total value of the probate inventory. However, It should be noted that accounts are not universally fascinating. They can be formulaic and general rather than detailed.