Sept. 15. 1855.] 



NOTES AND QUERIES. 



•2»9 



This is supported by tlie Definition of Modestinus ; 

 and it appears that the Hares Testamenti was 

 the full representative of the testator by the civil 

 law, and succeeded to the whole estate, real as 

 well as personal. See also Hallifax On the Civil 

 Law, 37. ; and as to the form and mode of his in- 

 stitution, the sixth book of Justin, Cod., tit. xxiii., 

 De Tentamentis, et quemadmoduvi Testamenta ordi- 

 neiur, in Corpus Juris Civilis, 194. sqq. "An 

 executor," says Ayliffe in his Parergon Juris Cano- 

 nici AngUcani, 264., " so called ab exequendo, is in 

 the civil and canon law sometimes called Hceres 

 'Testamentarius, and often HcBres simply. He had 

 his beginning in the civil law by the Imperial Con- 

 stitutions." So, too, Cowel attributes the begin- 

 ning of the executor to " the Constitutions of the 

 Emperors, who first permitted those that thought 

 good by their wills to bestow anything upon godly 

 and charitable uses, to appoint whom they pleased 

 to see the same performed." 



It seems to me impossible to peruse the chapters 

 of the civil law quoted by these authorities with- 

 out seeing that the office of executor was known 

 to the Romans, although not by the modern name 

 of executor, which, as Lord Hardwicke, in a case 

 reported in the third volume of Atkins's Reports, 

 said, " is a barbarous term unknown to that law." 

 Godolphin also treats the executor as known to 

 the civil law, in the Hceres Testamentarius (part 2. 

 c. l.s. 1.); and so, too, Swinburn, in his Treatise 

 on Wills. The custom of making wills among the 

 Teutonic nations Is ascribed by Selden to the 

 Romans, and to the reception by Germanic na- 

 tions of the Roman law. Executors are often 

 named in Anglo-Saxon wills; and there is every 

 reason for believing that the custom of making 

 devises of lands as well as chattels was introduced 

 into England from Rome by Augustine. Wills 

 were not considered In the same ceremonious 

 point of view as the Roman Testamenti. They 

 were partly a settlement or grant, and a testa- 

 ment, and corroborated by being witnessed by 

 prelates, who are made to some extent exe- 

 cutors ; a portion of the testator's property being 

 usually bequeathed to pious purposes, In which 

 case even the Roman law allowed the Intervention 

 of clergy. (Kemble's Introd. to Cod. Dipl. ^vi 

 Saxon., p. cviil.) The Anglo-Saxon prelates seem 

 to have answered to the functionaries of the 

 Pontifical College in this respect, who had the 

 care and superintendence of wills and executory 

 trusts. Mr. Kemble doubts whether probate was 

 required among the Anglo-Saxons. There are 

 Saxon wills in which a legatus is not designated 

 or appointed for the execution of the testator s 

 wishes. In some cases (as In the will of Elf helm, 

 In Lye's Saxon Dictionary, vol. li., appendix) 

 there is a request to the superior lord, which runs 

 in that Instance — "Jam oro te, dilecte domine, ut 

 meum testamentum stare possit, et tu ne sinas ut 



No. 307.] 



ipsum quis pervertat." The earliest will printed in 

 Mr. Kemble's valuable collection of Anglo-Saxon 

 documents is of the ninth century. The Legatum 

 testamenhim is rendered in the Anglo-Saxon 

 Serieran seTetnyfte (gerefan gesetnysse) — words 

 which seem aptly to designate a representative 

 functionary. Glanvllle (writing, I need hardly 

 say, In the reign of Henry II.) says the executors 

 of a testament should be such persons as the tes- 

 tator has chosen for that purpose ; but if he doth 

 not nominate any person, the nearest of kin and 

 relations may take upon them the charge (Lib. vii. 

 ch. 6.). This latter is the executor ah Episcopo 

 Constitutus mentioned by the Canonists and old 

 writers on wills.; the former is the executor a 

 testatare Constitutus, or Executor Testamentarius, 

 who is usually meant by the term executor. The 

 older authorities of ecclesiastical law treat the ap- 

 pointment of an executor as essential to a testa- 

 ment ; but this strictness, -as Is remarked by the 

 learned author of Williams on Executors, has long 

 ceased to exist. I have not any reference to the 

 first known appearance of the term executor in 

 our records. In the Rotuli Pari., mention is made 

 af the executors of the will of Bishop John de 

 Kyrkeby In a.d. 1290. Nicolas, In his Ancient 

 Wills,*does not give an older example, but there 

 Is no doubt the term has been known to our law 

 from a much earlier period. 



Wm. Sidney Gibson. 

 Tynemouth. 



Your correspondent LEGUiiEius inquires re- 

 specting the origin of executors. He will find 

 an answer to his query in an article In the Law 

 Magazine o{ this month ("The Transmission of the 

 Executorship"), where the subject is handled with 

 considerable talent and learning. The article 

 (which I understand is by Mr. H. C. Coote of 

 Doctors' Commons, the author of The Practice of 

 the Ecclesiastical Courts) will amply repay the 

 perusal. Beta. 



OGHAM CHARACTERS. 



(Vol. xi., p. 285.) 



In " N. & Q." there are some remarks by D». 

 Charlton on the art of writing In Ogham charac- 

 ters. Dr. C. seems to think that those characters 

 originated in the Runic. However, in the British 

 Cyclopaedia of Literature, &c., art. Ogham, it Is 

 suggested that they were brought over to Ireland 

 by the Iberian colonists of that country ; and the 

 circumstance is mentioned that in Kerry county, 

 the county in which the Iberian colonists are 

 said to have landed, the greatest number of stones 

 inscribed with Ogham characters have been dis- 

 covered. This subject deserves farther inquiry; 

 and witli your permission I will mention a fact 



