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CHAPTER THE THIRTY SECOND.
OF TITLE BY TESTAMENT, AND ADMINISTRATION.

THERE yet remain to be examined, in the prefent chapter, two other methods of acquiring perfonal eftates, viz. by teftament and adminiftration. And there I propofe to confider in one and the fame view; they being in their nature fo connected and blended together, as makes it impoffible to treat of them diftinctly, without manifeft tautology and repetition.

XI. XII. IN the purfuit then of this joint fubject, I fhall, firft, enquire into the original and antiquity of teftaments and adminiftrations; fhall, fecondly, fhew who is capable of making a laft will and teftament; fhall, thirdly, confider the nature of a teftament and it's incidents; fhall, fourthly, fhew what an executor and adminiftrator are, and how they are to be appointed; and, laftly, fhall felect fome few of the general heads of the office and duty of executors and adminiftrators.

FIRST, as to the original of teftaments and adminiftrations. We have more than once obferved, that, when property came to be vefted in individuals by the right of occupancy, it became neceffary for the peace of fociety, that this occupancy fhould be continued, not only in the prefent poffeffor, but in thofe perfons to whom he fhould think proper to transfer it; which introduced

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the doctrine and practice of alienations, gifts, and contracts. But thefe precautions would be very fhort and imperfect, if they were confined to the life only of the occupier; for then upon his death all his goods would again become common, and create an infinite variety of ftrife and confufion. The law of very many focieties has therefore given to the proprietor a right of continuing his property after his death, in fuch perfons as he fhall name; and, in defect of fuch appointment or nomination, the law of every fociety has directed the goods to be vefted in certain particular individuals, exclufive of all other perfons ^a. The former method of acquiring perfonal property, according to the exprefs directions of the deceafed, we call a teftament: the latter, which is alfo according to the will of the deceafed, not expreffed indeed but prefumed by the law ^b, we call in England an adminiftration; being the fame which the civil lawyers term a fucceffion ab inteflato, and which anfwers to the defcent or inheritance of real eftates.

TESTAMENTS are of very high antiquity. We find them in ufe among the antient Hebrews; though I hardly think the example ufually given ^c, of Abraham's complaining ^d that, unlefs he had fome children of his body, his fteward Eliezer of Damafcus would be his heir, is quite conclufive to fhew that he had made him fo by will. And indeed a learned writer ^e has adduced this very paffage to prove, that in the patriarchal age, on failure of children or kindred, the fervants born under their mafter's roof fucceeded to the inheritance as heirs at law ^f. But, (to omit what Eufebins and others have related of Noah's teftament, made in writing and witneffed under his feal, whereby he difpofed of the whole world ^g) I apprehend that a much more authentic inftance of the early ufe of teftaments may be found in the facred writings ^h, wherein Jacob bequeaths to his fon Jo-

.(FS)
^a Puff. L. of N. b. 4. c. 10.
^b Ibid. b 4. c. 11.
^c Barbeyr. Puff. 4. 10. 4. Godolph. Orph. Leg. 1. 1.
^d Gen. c. 15.
^e Taylor's elem, civ. law. 517.
^f See pag. 12.
^g Selden. De fuce. Ebr. c. 24.
^h Gen. c. 48.
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feph
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feph a portion of his inheritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the pofterity of Jofeph were divided into two diftinct tribes, thofe of Ephraim and Manaffeh, and had two feveral inheritances affigned them; whereas the defcendents of each of the other patriarchs formed only one fingle tribe, and had only one lot of inheritance. Solon was the firft legiflator that introduced wills into Athens ⁱ; but in many other parts of Greece they were totally difcountenanced ^k. In Rome they were unknown, till the laws of the twelve tables were compiled, which firft gave the right of bequeathing ^l: and, among the northern nations, particularly among the Germans ^m, teftaments were not received into ufe. And this variety may ferve to evince, that the right of making wills, and difpofing of property after death, is merely a creature of the civil ftate ⁿ; which has permitted it in fome countries, and denied it in others: and, even where it is permitted by law, it is fubjected to different formalities and reftrictions in almoft every nation under heaven ^o.

WITH us in England this power of bequeathing is co-eval with the firft rudiments of the law: for we have no traces or memorials of any time when it did not exift. Mention is made of inteftacy, in the old law before the conqueft, as being merely accidental; and the diftribution of the inteftate's eftate, after payment of the lord's heriot, is then directed to go according to the eftablifhed law. “Sive quis incuria, five morte repentina, fuerit inteftatus mortuus, dominus amen nullam rerum fuarum partem (praeter eam quae jure debetur hereoti nominee) fibi affumito. Verum poffeffiones uxori, liberis, et cognatione proximis, pro fuo cuique jure, diftribuantur.” But we are not to imagine, that the power of bequeathing extended originally to all a man's perfonal eftate. On the contrary, Glanvil will inform us ^q, that by the

.(FS)
ⁱ Plutarch. In vita Solon.
^k Pott. Antiq. 1. 4. c. 15.
^l Inft. 2. 22. 1.
^m Tacit, de mor. Germ. 21.
ⁿ See pag. 13.
^o Sp. L. b. 27. c. 1. Vinnius in Inft. l. 2. tit. 10.
^p LL. Canut. C. 68.
^q l. 2. c. 5.
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common law, as it flood in the reign of Henry the fecond, a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal defcendants, another to his wife, and the third was at his own difpofal: or if he died without a wife, he might then difpofe of one moiety, and the other went to his children; and fo e converfo, if he had no children, the wife was entitled to one moiety, and he might bequeath the other: but, if he died without either wife or iffue, the whole was at his own difpofal ^r. The fhares of the wife and children was called their reafonable part; and the writ de rationabili parte bonorum was given to recover it ^s.

THIS continued to be the law of the land at the time of magna carta, which provides, that the king's debts fhall firft of all be levied, and then the refidue of the goods fhall go to the executor to perform the will of the deceafed: and, if nothing be owing to the crown, “omnia catalla cedant defuncto; falvis uxori ipfius et pueris fuis rationabilibus partibus fuis ^t.” In the reign of king Edward the third this right of the wife and children was ftill held to be the univerfal or common law ^u; though frequently pleaded as the local cuftom of Berks, Devon, and other counties ^w: and fir Henry Finch lays it down expreffly ^x, in the reign of Charles the firft, to be the general law of the land. But this law is at prefent altered by imperceptible degrees, and the deceafed may now by will bequeath the whole of his goods and chattels; though we cannot trace out when firft this alteration

.(FS)
^r Bracton. l. 2. c. 26. Flet. L. 2. c. 57.
^s. F. N. B. 122.
^t 9 Hen. III. c. 18.
^u A widow brought an action of detinue againft her hufband's executors, quod cum per confuetudinem totius regni Angliae bactenus ufitatam et approbatam, uxores debent et folent a temport & c, habere fuam rationabilem partem bonorum maritorum fuorum: ita videlicet, suod fi nullos babuerint liberos, tunc medietatem; et, fi babuerint, tunc tertiam partem, & c; and that her hufband died worth 200,000 marks, without iffue had between them; and thereupon fhe claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the hufband's dying without iffue was denied; but the rule of law, as ftated in the writ, feems to have been univerfally allowed. (M. 30 Edw. III. 25.) And a fimilar cafe occurs in H. 17 Edw. III. 9.
^w Reg. Brev. 142. Co. Litt. 176.
^x Law. 175.
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began.
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Ch. 32.
began. Indeed fir Edward Coke ^y is of opinion, that this never was the general law, but only obtained in particular places by fpecial cuftom: and to eftablifh that doctrine he relies on a paffage in Bracton, which in truth, when compared with the context, makes directly againft his opinion. For Bracton ^z lays down the doctrine of the reafonable part to be the common law; but mentions that as a particular exception, which fir Edward Coke has haftily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which alfo continues to this day to be the general law of our fifter kingdom of Scotland ^a. To which we may add, that, whatever may have been the cuftom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the antient method continued in ufe in the province of York, the principality of Wales, and the city of London, till very modern times: when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the fame ftandard, three ftatutes have been provided; the one 4 & 5 W. & M. c. 2. explained by 2 & 3 Ann. c. 5. for the province of York; another 7 & 8 W. III. c. 38. for Wales; and a third, 11 Geo. I. c. 18. for London : whereby it is enacted, that perfons within thofe diftricts, and liable to thofe cuftoms, may (if they think proper) difpofe of all their perfonal eftates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolifhed throughout all the kingdom of England, and a man may devife the whole of his chattels as freely, as he formerly could his third part or moiety. In difpofing of which, he was bound by the cuftom of many places (as was ftated in a former chapter ^b) to remember his lord and the church, by leaving them his two beft chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty, to bequeath the remainder as he pleafed.

.(FS)
^y 2 Inft. 33.
^z l. 2. c. 26. §. 2.
^a Dahymp. Of fead. property. 145.
^b pag. 426.
.(FE)
IN
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Ch. 32.
IN cafe a perfon made no difpofition of fuch of his goods as were teftable, whether that were only part or the whole of them, he was, and is, faid to die inteftate; and in fuch cafes it is faid, that by the old law the king was entitled to feife upon his goods, as the parens patriae, and general truftee of the kingdom ^c. This prerogative the king continued to exercife for fome time by his own minifters of juftice; and probably in the county court, where matters of all kinds were determined: and it was granted as a franchife to many lords of manors, and others, who have to this day a prefcriptive right to grant adminiftration to their inteftate tenants and fuitors, in their own courts baron and other courts, or to have their wills there proved, in cafe they made any difpofition ^d. Afterwards the crown, in favour of the church, invefted the prelates with this branch of the prerogative; which was done, faith Perkins ^e, becaufe it was intended by the law, that fpiritual men are of better confcience than laymen, and that they had more knowlege what things would conduce to the benefit of the foul of the deceafed. The goods therefore of inteftates were given to the ordinary by the crown; and he might feife them, and keep them without wafting, and alfo might give, alien, or fell them at his will, and difpofe of the money in pios ufus: and, if he did otherwife, he broke the confidence which the law repofed in him ^f. So that properly the whole intereft and power, which were granted to the ordinary, were only thofe of being the king's almoner within his diocefe; in truft to diftribute the inteftate's goods in charity to the poor, or in fuch fuperftitious ufes as the miftaken zeal of the times had denominated pious ^g. And, as he had thus the difpofition of inteftates effects, the probate of wills of courfe followed: for it was thought juft and natural, that the will of the deceafed fhould be proved to the fatisfaction of the prelate, whofe right of diftributing his chattels for the good of his foul was effectually fuperfeded thereby.

.(FS)
^c 9 Rep. 38.
^d Ibid. 37.
^e §. 486.
^f Finch, Law. 173, 174.
^g Plowd. 277.
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THE
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Ch. 32.
THE goods of the inteftate being thus vefted in the ordinary upon the moft folemn and confcientious truft, the reverend prelates were therefore not accountable to any, but to God and themfelves, for their conduct ^h. But even in Fleta's time it was complained ⁱ, “quod ordinarii, bujufmodi bona nominee ecclefiae occupantes, nullam vel faltem indebitam faciunt diftributionem.” And to what a length of iniquity this abufe was carried, moft evidently appears from a glofs of pope Innocent IV ^k, written about the year 1250; wherein he lays it down for eftablifhed canon law, that “in Britannia tertia pars bonorum decedentium ab inteftato in opus ecclefiae et pauperum difpenfanda eft.” Thus the popifh clergy took to themfelves ^l (under the name of the church and poor) the whole refidue of the deceafed's eftate, after the partes rationabiles, or two thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reafon it was enacted by the ftatute of Weftm. 2. ^m that the ordinary fhall be bound to pay the debts of the inteftate fo far as his goods will extend, in the fame manner that executors were bound in cafe the deceafed had left a will: a ufe more truly pious, than any requiem, or mafs for his foul. This was the firft check given to that exorbitant power, which the law had entrufted with ordinaries. But, though they were now made liable to the creditors of the inteftate for their juft and lawful demands, yet the refiduum, after payment of debts, remained ftill in their hands, to be applied to whatever purpofes the confcience of the ordinary fhould approve. The flagrant abufes of which power occafioned the legiflature again to interpofe, in order to prevent the ordinaries from keeping any longer the adminaftration in their own hands, or thofe of their immediate de-

.(FS)
^h Plowd. 277.
ⁱ l. 2. c. 57. §. 10.
^k in Decretal. l. 5. t. 3. c. 42.
^l The proportion given to the prieft, and to other pious ufes, was different in different counties. In the archdeaconry of Richmond in Yorkfhire, this proportion was fettled by a papal bulle A. D. 1254. (Regift. Bonoris de Richm. 101.) and was obferved till abolifhed by the ftatute 26 Hen. VIII. c. 15.
^m 13 Edw. I. c. 19.
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pendents:
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Ch. 32.
pendents: and therefore the ftatute 31 Edw. III. c. 11. provides, that, in cafe of inteftacy, the ordinary fhall depute the neareft and moft lawful friends of the deceafed to adminifter his goods; which adminiftrators are put upon the fame footing, with regard to fuits and to accounting, as executors appointed by will. This is the original of adminiftrators, as they at prefent ftand; who are only the officers of the ordinary, appointed by him in purfuance of this ftatute, which fingles out the next and moft lawful friend of the inteftate; who is interpreted ⁿ to be the next of blood that is under no legal difabilities. The ftatute 21 Hen. VIII. c. 5. enlarges a little more the power of the ecclefiaftical judge; and permits him to grant adminiftration either to the widow, or the next of kin, or to both of them, at his own difcretion; and, where two or more perfons are in the fame degree of kindred, gives the ordinary his election to accept whichever he pleafes.

UPON this footing ftands the general law of adminiftrations at this day. I fhall, in the farther progrefs of this chapter, mention a few more particulars, with regard to who may, and who may not, be adminiftrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only ferving to fhew the original and gradual progrefs of teftaments and adminiftrations; in what manner the latter was firft of all vefted in the bifhops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular perfons nominated expreffly by the law.

I PROCEED now, fecondly, to enquire who may, or may not make a teftament; or what perfons are abfolutely obliged by law to die inteftate. And this law ^o is entirely prohibitory; for, regularly, every perfon hath full power and liberty to make a will, that is not under fome fpecial prohibition by law or cuftom: which prohibitions are principally upon three accounts; for want

.(FS)
ⁿ 9 Rep. 39.
^o Godolph. Orph. Leg. P. 1. c. 7.
.(FE)
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Ch. 32.
of fufficient difcretion; for want of fufficient liberty and free will; and on account of their criminal conduct.

1. IN the firft species are to be reckoned infants under the age of fourteen if males, and twelve if females; which is the rule of the civil law ^p. For, though fome of our common lawyers have held that an infant of any age (even four years old) might make a teftament ^q, and others have denied that under eighteen he is capable ^r, yet as the ecclefiaftical court is the judge of every teftator's capacity, this cafe muft be governed by the rules of the ecclefiaftical law. So that no objection can be admitted to the will of an infant of fourteen, merely for want of age: but, if the teftator was not of fufficient difcretion, whether at the age of fourteen or four and twenty, that will overthrow his teftament. Madmen, or otherwife non compotes, idiots or natural fools, perfons grown childifh by reafon of old age or diftemper, fuch as have their fenfes befotted with drunkennefs, --- all thefe are incapable, by reafon of mental difability, to make any will fo long as fuch difability lafts. To this clafs alfo may be referred fuch perfons as are born deaf, blind, and dumb; who, as they want the common inlets of underftanding, are incapable of having animum teftandi, and their teftaments are therefore void.

2. SUCH perfons, as are inteftable for want of liberty or freedom of will, are by the civil law of various kinds; as prifoners, captives, and the like ^s. But the law of England does not make fuch perfons abfolutely inteftable; but only leaves it to the difcretion of the court of judge, upon the confideration of the particular circumftances of durefs, whether or no fuch perfons could be fuppofed to have liberum animum teftandi. And, with regard to feme-coverts, our laws differ ftill more materially from the civil. Among the Romans there was no diftinction; a married woman was as capable of bequeathing as a feme-fole^t. But with us

.(FS)
^p Godolph. p. 1. c. 8. Wentw. 212. 2 Vern. 104. 469. Gilb. Rep. 74.
^q Perkins. §. 503.
^r Co. Litt. 89.
^s Godolph. p. 1. c. 9.
^t Fs. 31. 1. 77.
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a married woman is not only utterly incapable of devifing lands, being excepted out of the ftatute of wills, 34 & 35 Hen. VIII. c. 5. but alfo fhe is incapable of making a teftament of chattels, without the licence of her hufband. For all her perfonal chattels are abfolutely his own; and he may difpofe of her chattels real, or fhall have them of himfelf if he furvives her: it would be therefore extremely inconfiftent, to give her a power of defeating that provifion of the law, by bequeathing thofe chattels to another ^v. Yet by her hufband's licence fhe may make a teftament ^u; and the hufband, upon marriage, frequently covenants with her friends to allow her that licence: but fuch licence is more properly his affent; for, unlefs it be given to the particular will in queftion, it will not be a complete teftament, even though the hufband beforehand hath given her permiffion to make a will ^w. Yet it fhall be fufficient to repel the hufband from his general right of adminiftring his wife's effects; and adminiftration fhall be granted to her appointee, with fuch teftamentary paper annexed ^x. So that in reality the woman makes no will at all, but only fomething like a will ^y; operating in the nature of an appointment, the execution of which the hufband by his bond, agreement, or covenant, is bound to allow. A diftinction fimilar to which, we meet with in the civil law. For, though a fon who was in poteftate parentis could not by any means make a formal and legal teftament, even though his father permitted it ^z, yet he might, with the like permiffion of his father, make what was called a donatio mortis caufa ^a. The queen confort is an exception to this general rule, for fhe may difpofe of her chattels by will, without the confent of her lord ^b: and any feme-covert may make her will of goods, which are in her poffeffion in auter droit, as executrix or adminiftratix; for thefe can never be the property of the hufband ^c: and, if fhe has any pinmoney or feparate maintenance, it is faid the may difpofe of her favings thereout by teftament, without the control of

.(FS)
^v 4 Rep. 51.
^u Dr & St. d. 1. c. 7.
^w Bro. Abr. tit devife. 34. Stra. 891.
^x The king v. di Bettefworth. T. 13 Geo. II. B. R.
^y Cro. Car. 376. 1 Mod. 211.
^z Ff. 28. 1. 6.
^a Ff. 39. 6. 25.
^b Co. Litt. 133.
^c Godolph. 1. 10.
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her
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Ch. 32.
her hufband ^d. But, ifa feme-fole makes her will, and afterwards marries, fuch fubfequent marriage is efteemed a revocation if law, and intirely vacates the will ^e.

3. PERSONS incapable of making teftaments, on account of their criminal conduct, are in the firft place all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own difpofal, but forfeited to the king. Neither can a felo de fe make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devife of his lands, for they are not fubjected to any forfeiture ^f. Outlaws alfo, though it be but for debt, are incapable of making a will, fo long as the outlawry fubfifts, for their goods and chattels are forfeited during that fime ^g. As for perfons guilty of other crimes, fhort of felony, who are by the civil law precluded from making teftaments, (as ufurers, libellers, and others of a worfe ftamp) at the common law their teftaments may be good ^h. And in general the rule is, and has been fo at leaft ever fince Glanvil's time ^j, quod libera fit cujufcunque ultima voluntas.

LET us next, thirdly, confider what this laft will and teftament is, which almoft every one is thus at liberty to make; or the nature and incidents of a teftament. Teftaments both Juftinian ⁱ and fir Edward Coke ^k agree to be fo called, becaufe they are teftatio mentis; an etymon, which feems to favour too much of the conceit; it being plainly a fubftantive derived from the verb teftari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology; “voluntatis noftrae jufta fententia de eo, quod quis poft mortem fuam furi velit ^l:” which may be thus rendered into Englifh, “the legal declaration of a man's intentions, which he wills to be performed af-

.(FS)
^d Prec. Chan. 44.
^e 4 Rep. 60. 2 p. W^ms. 624.
^f Plowd. 261.
^g Fitzh. Abr. t. defcent. 16.
^h Godolph. p. 1. c. 12.
^j l. 7. c. 5.
ⁱ Inft. 2. 10.
^k 1 laft. 111. 322.
^l Ff. 28. 1. 1.
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“ter his death.” It is called fententia to denote the circumfpection and prudence with which it is fuppofed to be made: it is voluntatis noftrae fententia, becaufe it's efficacy depends on it's declaring the teftator's intention, whence in England it is emphatically ftiled his will: it is jufta fententia; that is, drawn, attefted, and publifhed with all due folemnities and forms of law: It is de eo, quod quis poft mortem fuam fieri valit, becaufe a teftament is of no force till after the death of the teftator.

THESE teftaments are divided into two forts; written, and verbal or nuncupative; of which the former is committed to writing, the latter depends merely upon oral evidence, being declared by the teftator in extremis before a fufficient number of witneffes, and afterwards reduced to writing. A codicil, codicillus, a little book or writing, is a fupplement to a will; or an addition made by the teftator, and annexed to, and to be taken as part of, a teftament: being for it's explanation from, the former difpofitions of the teftator ^m. This may alfo be either written or nuncupative.

BUT, as nuncupative wills and codicils, (which were formerly more in ufe that at prefent, when the art of writing is become more univerfal) are liable to great impofitions, and may occafion many perjuries, the ftatute of frauds, 29 Car. II. c. 3. enacts; 1. That no written will fhall be revoked or altered by a fubfequent nuncupative one, except the fame be in the lifetime of the teftator reduced to writing, and read over to him, and approved; and unlefs the fame be proved to have been fo done by the oaths of three witneffes at the leaft; who, by ftatute 4 & 5 Ann. c. 16. muft be fuch as are admiffible upon trials at common law. 2. That no nuncupative will fhall in any wife be good, where the eftato bequeathed exceeds 30 l, unlefs proved by three fuch witneffes, prefent at the making thereof (the Roman law requiring feven ⁿ) and unlefs they or fome of them were fpecially required to bear

.(FS)
^m Godolph. p. 1. c. 1. §. 3.
ⁿ Inft. 2. 10. 14.
.(FE)
witnefs
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Book II.
Ch. 32.
witnefs thereto by the teftator himfelf, and unlefs it was made in his laft ficknefs, in his own habitation or dwelling-houfe, or where he had been previoufly refident ten days at the leaft, except he be furprized with ficknefs on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will fhall be proved by the witneffes after fix months from the making, unlefs it were put in writing within fix days. Nor fhall it be proved till fourteen days after the death of the teftator, nor till procefs hat firft iffued to call in the widow, or next of kin, to conteft it if they think proper. Thus has the legiflature provided againft any frauds in fetting up nuncupative wills, by fo numerous a train of requifites, that the thing itfelf is fallen into difufe; and hardly ever heard of, but in the only inftance where favour ought to be fhewn to it, when the teftator is furprized by fudden and violent ficknefs. The teftamentary words muft be fpoken with an intent to bequeath, not any loofe idle difcourfe in his illnefs; for he muft require the by-ftanders to bear witnefs of fuch his intention: the will muft be made at home, or among his family or friends, unlefs by unavoidable accident; to prevent impofitions from ftangers: it muft be in his laft ficknefs; for, if he recovers, he may alter his dispofitions, and has time to make a written will: it muft not be proved at too long a diftance from the teftator's death, left the words fhould efcape the memory of the witneffes; nor yet too haftily and without notice, left the family of the teftator fhould be put to inconvenience, or furprized.

AS to written wills, they need not any witnefs of their publication. I fpeak not here of devifes of lands, which are entirely another thing, a conveyance by ftatute, unknown to the feudal or common law, and not under the fame jurifdiction as perfonal teftaments. But a teftament of chattels, written in the teftator's own hand, though it has neither his name nor feal to it, nor witneffes prefent at it's publication, is good; provided fufficient proof can be had that it is his hand-writing ^o. And though written in another man's hand, and never figned by the teftator, yet

.(FS)
^o Godolph. p. 1. c. 21. Gilb. Rep. 260.
.(FE)
if
.P 502
The RIGHTS of THINGS.
Book II.
Ch. 32.
if proved to be according to his inftructions and approved by him, it hath been held a good teftament of the perfonal eftate ^p. Yet it is the fafer, and more prudent way, and leaves lefs in the breaft of the ecclefiaftical judge, if it be figned or fealed by the teftator, and publifhed in the prefence of witneffes; which laft was always required in the time of Bracton ^q; or, rather, he in this refpect has implicitly copied the rule of the civil law.

NO teftament is of any effect till after the death of the teftator. “Nam omne teftamentum morte confummatum eft; et voluntas teftatoris eft ambulatoria ufque ad mortem ^r.” And therefore, if there be many teftaments, the laft overthrows all the former ^s: but the republication of a former will revokes one of a later date, and eftablifhes the firft again ^t.

HENCE it follows, that teftaments may be avoided three ways: 1. If made by a perfon labouring under any of the incapacities before-mentioned: 2. By making another teftament of a later date: and, 3. By cancelling or revoking it. For, though I make a laft will and teftament irrevocable in the ftrongeft words, yet I am at liberty to revoke it: becaufe my own act or words cannot alter the difpofition of law, fo as to make that irrevocable, which is in it's own nature revocable ^u. For this, faith lord Bacon ^w, would be for a man to deprive himfelf of that, which of all other things is moft incident to human condition; and that is, alteration or repentance. It hath alfo been held, that, without an exprefs revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a prefumptive or implied revocation of his former will, which he made in his ftate of celibacy ^x. The Romans were alfo wont to fet afide teftaments as being inofficiofa, deficient in natural duty, if they difinherited or totally paffed by (without affigning a true and

.(FS)
^p Comyns. 452, 3, 4.
^q l. 2. c. 26.
^r Co. Litt. 112.
^s Litt. §. 168. Perk. 478.
^t Perk. 479.
^u 8 Rep. 82.
^w Flem. c. 19.
^x Lord Raym. 441. 1 p. W^ms. 304.
.(FE)
fufficient
.P 503
The RIGHTS of THINGS.
Book II.
Ch. 32.
fufficient reafon ^y) any of the children of the teftator ^z. But if the child had any legacy, though ever fo fmall, it was a proof that the teftator had not loft his memory or his reafon, which otherwife the law perfumed; but was then fuppofed to have acted thus for fome fubftantial caufe: and in fuch cafe no querela inofficioft teftamenti was allowed. Hence probably has arifen that groundlefs vulgar error, of the neceffity of leaving the heir a fhilling or fome other exprefs legacy, in order to difinherit him effectually : whereas the law of England makes no fuch wild fuppofitions of forgetfulnefs or infanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficioft, to fet afide fuch a teftament.

WE are next to confider, fourthly, what is an executor, and what is an adminiftrator; and how they are both to be appointed.

AN executor is he to whom another man commits by will the execution of that his laft will and teftament. And all perfons are capable of being executors, that are capable of making wills, and many others befides; as feme-coverts, and infants: nay, even infants unborn, or in ventre fa mere, may be made executors ^a. But no infant can act as fuch till the age of feventeen years; till which time adminiftration muft be granted to fome other, durante minore aetate ^b. In like manner as it may be granted durante abfentia, or pendente lite; when the executor is out of the realm ^c, or when a fuit is commenced in the ecclefiaftical court touching the validity of the will ^d. This appointment of an executor is effential to the making of a will ^e: and it may be performed either by exprefs words, or fuch as ftrongly imply the fame. But if the teftator makes his will, without naming any executors, or if he names incapable perfons, or if the executors names refufe to act; in any of thefe cafes, the ordinary muft

.(FS)
^y See Book I. ch. 16.
^z Inft. 2. 18. 1.
^a Weft. Symb. p. 1. §. 635.
^b Went. Off. Ex. c. 18.
^c 1 Lutw. 342.
^d 2 P. W^ms. 589, 590.
^e Wentw. c. 1. Plowd. 281.
.(FE)
grant
.P 504
The RIGHTS of THINGS.
Book II.
Ch. 32.
grant adminiftration cum teftamento annexo ^f to fome other perfon; and then the duty of of the adminiftrator, as alfo when he is conftituted only durante minore aetate, a c, of another, is very little different from that of an executor. And this was law fo early as the reign of Henry II, when Glanvil ^g informs us, that “teftamenti executores effe debent ii, quos teftator ad hoc elegerit, et curam ipfe commiferit: fi vero teftator nullos ad hoc nominaverit, poffunt propinqui et confanguinei ipfius defuncti ad id faciendum fe ingerere.”

BUT if the deceafed died totally inteftate, without making either will or executors, then general letters of adminiftration muft be granted by the ordinary to fuch adminiftrator as the ftatutes of Edward the third, and Henry the eighth, before-mentioned, direct. In confequence of which we may obferve; 1. That the ordinary is compellable to grant adminiftration of the goods and chattels of the wife, to the hufband, or his reprefentatives ^h: and, of the hufband's effects, to the widow, or next of kin; but he may grant it to either, or both, at his difcretion ⁱ. 2. That, among the kindred, thofe are to be preferred that are the neareft in degree to the inteftate; but, of perfons in equal degree, the ordinary may take which he pleafes ^k 3. That this nearnefs or propinquity of degree fhall be reckoned according to the computation of the civilians ^l; and not of the canonifts, which the law of England adopts in the defcent of real eftates ^m: becaufe in the civil computation the inteftate himfelf is the terminus, a quo the feveral degrees are numbered; and not the common anceftor, according to the rule of the canonifts. And therefore in the firft place the children, or (on failure of children) the parents of the deceafed, are intitled to the adminiftration: both which are indeed in the firft degree; but with us ⁿ the children

.(FS)
^f 1 Roll. Abr. 907. Comb. 20.
^g l. 7. c. 6.
^h Cro. Car. 106. Stat. 29 Car. II. c. 3. 1 P. W^ms. 381.
ⁱ Salk. 36. Stra. 532.
^k Stat. 28 Hen. VIII. c. 5. See pag. 496.
^l Prec. Chanc. 593.
^m See pag. 203. 207. 224.
ⁿ Godolph. p. 2. c. 24. §. 1. 2 Vern. 125.
.(FE)
are
.P 505
The RIGHTS of THINGS.
Book II.
Ch. 32.
are allowed the preference ^o. Then follow brothers ^p, grandfathers ^q, uncles of nephews ^r, (and the females of each clafs refpectively) and laftly coufins. 4. The half blood is admitted to the adminiftration as well as the whole: for they are of the kindred of the inteftate, and only excluded from inheritances of land upon feodal reafons. Therefore the brother of the half blood fhall exclude the uncle of the whole blood ^s: and the ordinary may grant adminiftration to the fifter of the half, or the brother of the whold blood, at his own difcretion ^t. 5. If none of the kindred will take out adminiftration, a creditor may, by cuftom, do it ^u. 6. If the executor refufes, or dies inteftate, the adminiftration may be granted to the refiduary legatee, in exclufion of the next of kin ^w. And, laftly, the ordinary may, in defect of all thefe, commit adminiftration (as he might have done ^x before the ftatute Edw. III.) to fuch difcreet perfon as he approves of: or may grant him letters ad colligendum bona defuncti, which neither make him executor nor adminiftrator; his only bufinefs being to keep the goods in his fafe coftody ^y, and to do other acts for the benefit of fuch as are entitled to the property of the deceafed ^z. If a baftard, who has no kindred, being nullius filius, or any one elfe that has no kindred, dies inteftate and without wife or child, it hath formerly been held ^a that the ordinary might feife his goods, and difpofe of them in pois ufus. But the

.(FS)
^o In Germany there was long a difpute, whether a man's children fhould inherit his effects during the life of their grandfather; which depends (as we fhall fee hereafter) on the fame principles as the granting of adminiftrations. At laft it was agreed at the diet of Arenfberg, about the middle of the tenth century, that the point fhould be decided by combat. Accordingly, an equal number of champions being chofen on both fides, thofe of the children obtained the victory; and fo the law was eftablifhed in their favour, that the iffue of a perfon deceafed fhall be intitled to his goods and chattels in preference to his parents. (Mod. Un. Hift. xxix. 28.)
^p Harris in Nov. 118. c. 2.
^q Prec. Chanc. 527. 1 P. W^ms. 41.
^r Atk. 455.
^s 1 Ventr. 425.
^t Aleyn. 36. Styl. 74.
^u Salk. 38.
^w 1 Sid. 281. 1 Ventr. 219.
^x Plowd. 278.
^y Went. ch. 14.
^z 2 Inft. 398.
^a Salk. 37.
.(FE)

VOL. 11.

Q q q

ufual

.P 506
The RIGHTS of THINGS.
Book II.
Ch. 32.
ufual courfe now is for fome one to procure letters patent, or other authority, from the king; and then the ordinary of courfe grants adminiftration of fuch appointee of the crown^b.

THE intereft, vefted in a executor by the will of the deceafed, may be continued and kept alive by the will of the fame executor: fo that the executor as A's executor is to all intents and purpofes the executor and reprefentative a A himfelf ^c: but the executor of A's adminiftrator, or the adminiftrator of A's executor, is not the reprefentative A^d. For the power of an executor is founded upon the Special confidence and actual appointment of the deceafed; and fuch executor is therefore allowed to tranfmit that power to another, in whom he has equal confidence: but the adminiftrator of A is merely the officer of the ordinary, prefcribed to him by act of parliament, in whom the deceafed has repofed no truft at all; and therefore, on the death of that officer, it refults back to the ordinary to appoint another. And, with regard to the adminiftrator of A's executor, he has clearly no provity or relation to A; being only commiffioned to adminifter the effects of the inteftate executor, and not of the original teftator. Wherefore, in both thefe cafes, and whenever the courfe of reprefentation from executor to executor is interrupted by any one adminiftration, it is neceffary for the ordinary to commit adminiftration afreth, of the goods of the deceafed not adminiftred by the former executor or adminiftrator. And this adminiftrator, de boins non, is the only legal reprefentative of the deceafed in matters of perfonal property ^e. But he may, as well as an original adminiftrator, have only a limited or fpecial adminiftration committed to his care, viz. of certain fpecific effects, fuch as a term of years and the like; the feft being committed of others ^f.

.(FS)
^b 3 P. W^ms. 33.
^c Stat. 25 Edw. III. ft. 5. c. 5. 1 Leon. 275.
^d Bro. Abr. tit. adminiftrator. 7.
^e Styl. 225.
^f 1 Roll. Abr. 908. Godolph. p. 2. c. 30. Salk. 36.
.(FE)
HAVING
.P 507
The RIGHTS of THINGS.
Book II.
Ch. 32.
HAVING thus fhewn what is, and who may be, an executor or adminiftrator, I proceed now, fifthly and laftly, to enquire into fome few of the principal points of their office and duty. Thefe in general are very much the fame in both executors and adminiftrators; excepting, firft, that the executor is bound to perform a will, which an adminiftrator is not, unlefs where a teftament is annexed to his adminiftration, and then he differs ftill lefs from an executor: and, fecondly, that an executor may do many acts before he proves the will^g, but an adminiftrator may do nothing till letters of adminiftration are iffued; for the former derives his power from the will and not from the probate ^h, the latter owes his entirely to the appointment of the ordinary. If a ftranger takes upon him to act as executor, without any juft authority (as by intermeddling with the goods of the deceafed ⁱ, and many other tranfactions ^k) he is called in law an executor of his own wrong, de fon tort, and is liable to all the trouble of an executorfhip, without any of the profits or advantages: but merely doing acts of neceffity or humanity, as locking up the goods, or burying the corpfe of the deceafed, will not amount to fuch an intermeddling, as will charge a man as executor of his own wrong ^l. Such a one cannot bring an action himfelf in right of the deceafed ^m, but actions may be bought againft him. And, in all actions by creditors against fuch an officious intruder, he fhall be named an executor, generally ⁿ; for the moft obvious conclufion, which ftrangers can form from his conduct, is that he hath a will of the deceafed, wherein he is named executor, but hath not yet taken probate thereof^o. He is chargeable with the debts of the deceafed, fo far as affets come to his hands ^p: and, as againft creditors in general, fhall be allowed all payments made to any other creditor in the fame or a fuperior degree ^q, himfelf

.(FS)
^g Wentw. ch. 3.
^h Comyns. 151.
^I 5 Rep. 33, 34.
^k Wentw. ch. 14. Stat. 43 Eliz. c. 8.
^l Dyer. 166.
^m Bro. Abr. t. adminiftrator. 8.
ⁿ 5 Rep. 31.
^o 12 Mod. 471.
^p Dyer. 166.
^q 1 Chan Caf. 33.
.(FE)

Q q q 2

only

.P 508
The RIGHTS of THINGS.
Book II.
Ch. 32.
only excepted ^r. And though, as againft the rightful executor or adminiftrator, he cannot plead fuch payment, yet it fhall be allowed him in mitigation of damages ^s; unlefs perhaps upon a deficiency of affest, whereby the rightful executor may be preventre from fatisfying his own debt ^t. But let us now fee what are the power and duty of a rightful executor or adminiftrator.

1. HE muft bury the deceafed in a manner fuitable to the eftate which he leaves behind him. Neceffary funeral expences are allowed, previous to all other debts and charges; but if the executor or adminiftrator be extravagant, it is a species of devaftation or wafte of the fubftance of the deceafed, and fhall only be prejudicial to himfelf, and not to the creditors or legatees of the deceafed ^u.

2. THE executor, or the adminiftrator durante minore aetate or durante abfentia, or cum teftamento annexo, muft prove the will of the deceafed : which is done either in common form, which is only upon his own oath before the ordinary, or his furrogate; or per teftes, in more folemn form of law, in cafe the validity of the will be difputed ^w. When the will is fo proved, the original muft be depofited in the regiftry of the oridinary; and a copy thereof in parchment is made out under the feal of the ordinary, and delivered to the executor or adminiftrator, together with a certificate of it's having been proved before him: all which together is ufually ftiled the probate. In defect of any will, the perfon entitled to be adminiftrator muft alfo at this period take out letters of adminiftration under the feal of the ordinary; whereby an executorial power to collect and adminifter, that is, difpofe of the goods of the deceafed, is vefted in him: and he muft, by ftatute 22 & 23 Car. II. c. 10. enter into a bond with fureties, faithfully to execute his truft. If all the goods of the deceafed lie within the fame jurifdiction, a probate before the

.(FS)
^r 5 Rep. 30. Moor. 527.
^s 12 Mod. 441, 471.
^t Wentw. ch. 14.
^u Salk. 196. Godolph. p. 2. c. 26. §. 2.
W Godolph. p. 1. c. 20. §. 4.
.(FE)
oridinary
.P 509
The RIGHTS of THINGS.
Book II.
Ch. 32.
ordinary, or an adminiftration granted by him, are the only proper ones: but if the deceafed had bona notabilia, or chattels to the value of a bundred fhillings, in two diftinct diocefes or jurifdictions, then the will muft be proved, or adminiftration taken out, before the metropolitan of the province, by way of fpecial prerogative ^x; whence the court where the validity of fuch wills is tried, and the office where they are regiftered, are called the prerogative court, and the prerogative office, of the provinces of Canterbury and York. Lyndewode, who flourifhed in the beginning of the fifteenth century, and was official to arch-bifhop Chichele, interprets thefe hundred fhillings to fignity folidos legales; of which he tells us feventy two amounted to a pound of gold, which in his time was valued at fifty nobles or 16 l. 13 s. 4 d. He therefore computes ^y that the hundred fhillings, which conftituted bona notabilia, were then equal in current money to 23 l. 3 s. 0¼ d. This will account for what is faid in our antient books, that bona notabilia in the diocefe of London ^z, and indeed every where elfe ^a, were of the value of ten pounds by compofition: for, if we purfue the calculations of Lyndewode to their full extent, and confider that a pound of gold is now almoft equal in value to an hundred and fifty nobles, we fhall extend the prefent amount of bona notabilia to nearly 70 l. But the makers of the canons of 1603 underftood this antient rule to be meant of the fhillings current in the reign of James I, and have therefore directed ^b that five pounds fhall for the future be the ftandard of bona notabilia, fo as to make the probate fall within the archiepifcopal prerogative. Which prerogative (properly underftood) is grounded upon this reafonable foundation: that, as the bifhops were themfelves originally the adminiftrators to all inteftates in their own diocefe, and as the prefent adminiftrators are in effect no other than their officers or fubftitutes, it was impoffible for the bifhops, or thofe who acted under them, to collect any goods of the deceafed, other than fuch as lay within their own

.(FS)
^x 4 Inft. 335.
^y Provine. l. 3. t. 13. c. item. V. centum. &c. ftatutum. V. laicis.
^z 4 Inft. 335. Godolph. p. 2. c. 22.
^a Plowd. 281.
^b can. 92.
.(FE)
diocefes,
.P 510
The RIGHTS of THINGS.
Book II.
Ch. 32.
diocefes, beyond which their epifcopal authority extends not. But it would be extremely troublefome, if as many adminiftrations were to be granted, as there are diocefes within which the deceafed had bona notabilia; befides the uncertainty which creditors and legatees would be at, in cafe different adminiftrators were appointed, to afcertain the fund out of which their demands are to be paid. A prerogative is therefore very prudently vefted in the metropolitan of each province, to make in fuch cafes one adminiftration ferve for all. This accounts very fatisfactorily for the reafon of taking out adminiftration to inteftates, that have large and diffufive property, in the prerogative court: and the probate of wills naturally follows, as was before obferved, the power of granting adminiftrations; in order to fatisfy the ordinary that the deceafed has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of adminiftring the effects.

3. THE executor or adminiftrator is to make an inventory ^c of all the goods and chattels, whether in poffeffion or action, of the deceafed; which he is to deliver in the ordinary upon oath, if thereunto lawfully required.

4. HE is to collect all the goods and chattels fo inventoried; and to that end he has very large powers and interefts conferred on him by law; being the reprefentative of the deceafed ^d, and having the fame property in his goods as the principal had when living, and the fame remedies to recover them. And, if there be two or more executors, a fale or releafe by one of them fhall be good againft all the reft ^e; but in cafe of adminiftrators it is otherwife ^f. Whatever is fo recovered, that is of a faleable nature and may be converted into ready money, is called affets in the hands of the executor or adminiftrator ^g; that is, fufficient or enough (from the French affez) to make him chargeable to a creditor or legatee, fo far as fuch goods and chattels extend.

.(FS)
^c Stat. 21. Hen. VIII. c. 5.
^d Co. Litt. 209.
^e Dyer. 23.
^f Atk. 460.
^g See pag. 244.
.(FE)
What-
.P 511
The RIGHTS of THINGS.
Book II.
Ch. 32.
Whatever affets fo come to his hands he may convert into ready money, to anfwer the demands that may be made upon him: which are the next thing to be confidered ; for,

5. THE executor of adminiftrator muft pay the debts of the deceafed. In payment of debts he muft obferve the rules of priority; otherwife, on deficiency of affets, if he pays thofe of a lower degree firft, he muft anfwer thofe of a higher out of his own eftate. And, firft, he may pay all funeral charges, and the expenfe of proving the will, and the like. Secondly, debts due to the king on record or fpecialty ^h. Thirdly, fuch debts as are by particular ftatutes to be preferred to all others; as the forfeitures for not burying in woollen ⁱ, money due on poors rates ^k, for letters to the poft-office ^l, and fome others. Fourthly, debts of record; as judgments (docketted according to the ftatute 4 & 5 W. & M. c. 20.) ftatutes, and recognizances ^m. Fifthly, debts due on fpecial contracts; as for rent, (for which the leffor has often a better remedy in his own hands, by diftraining) or upon bonds, covenants, and the like, under feal ⁿ. Laftly, debts on fimple contracts, viz. upon notes unfealed, and verbal promifes. Among thefe fimple contracts, fervants wages are by fome ^o with reafon preferred to any other: and fo ftood the antient law, according to Bracton ^p and Flcta ^q, who reckon, among the firft debts to be paid, fervitia fervientium ct ftipendia famulorum. Among debts of equal degree, the executor or adminiftrator is allowed to pay himfelf firft; by retaining in his hands fo much as his debt amounts to ^r. But an executor of his own wrong is not allowed to retain: for that would tend to encourage credtiros to ftrive who fhould firft take poffeffion of the goods of the deceafed; and would befides be taking advantage of their own wrong, which is contrary to the rule of law ^s. If a

.(FS)
^h 1 And. 129.
ⁱ Stat. 30. Car. II. c. 3.
^k Stat. 17 Geo. II. c. 38.
^l Stat. 9 Ann. c. 10.
^m 4 Rep. 60. Cro. Car. 363.
ⁿ Wentw. ch. 12.
^o 1 Roll. Abr 927.
^p l. 2. c. 26.
^q l. 2. c. 57. §. 10.
^r 10 Mod. 496.
^s 5 Rep. 30.
.(FE)
creditor
.P 512
The RIGHTS of THINGS.
Book II.
Ch. 32.
creditor conftitutes his debtor his executor, this is a releafe or difcharge of the debt, whether the executor acts or no ^r; provided there be affets fufficient to pay the teftator's debts: for, though this difcharge of the debt fhall take palce of all legacies, yet it were unfair to defraud the teftator's creditors of their juft debts by a releafe which is abfolutely voluntary ^u. Alfo, if no fuit is commenced againft him, the executor may pay any one creditor in equal degree his whole, debt, though he has nothing left for the reft: for, without a fuit commenced, the executor has no legal notice of the debt ^w.

6. WHEN the debts are all difcharged, the legacies claim the next regard; which are to be paid by the executor fo far as his affets will extend: but he may not give himfelf the preference herein, as in the cafe of debts ^x.

A LEGACY is a bequeft, or gift, of goods and chattels by teftament; and the perfon to whom it is given is ftiled the legatee: which every perfon is capable of being, unlefs particularly difabled by the common law or ftatutes, as traitors, papifts, and fome others. This bequeft transfers an inchoate property to the legatee; but the legacy is not perfect without the affent of the executor: for if I have a general or pecuniary legacy of 100 l, or a fpecific one of a piece of plate, I cannot in either cafe take it without the confent of the executor ^y. For in him all the chattels are vefted; and it is his bufinefs firft of all to fee whether there is a fufficient fund left to pay the debts of the teftator: the rule of equity being, that a man muft be juft, before he is permitted to be generous; or, as Bracton expreffes the fenfe of our antient law ^z, “de bonis defuncti primo deducenda funt ea quae funt neceffitatis, et poftea quae funt utilitatis, et ultimo quae funt voluntatis.” And in cafe of a deficiency of affets, all the general legacies muft abate proportionably, in order to pay the debts;

.(FS)
^t Plowd. 184. Salk. 299.
^u Salk. 303. 1 Roll. Abr. 921.
^w Dyer. 32. 2 Leon. 60.
^x 2 Vern 434. 2 P. W^ms. 25.
^y Co. Litt. 111. Aleyn. 39.
^z l. 2. c. 26.
.(FE)
but
.P 513
The RIGHTS of THINGS.
Book II.
Ch. 32.
but a fpecific legacy (of a piece of plate, a horfe, or the like) is not to abate at all, or allow any thing by way of abatement, unlefs there be not fufficient without it ^a. Upon the fame principle, if the legatees have been paid their legacies, they are afterwards bound to refund a ratable part, in cafe debts come in, more than fufficient to exhauft the refiduum after the legacies paid ^b. And this law is as old as Bracton and Fleta, who tell us ^c, “fi plura fint debita, vel plus legatum fuerit, ad quae catalla defuncti non fufficiant, fiat ubique defalcatio, excepto regis privilegio.”

IF the legatee dies befoe the teftator, the legacy is a loft or lapfed legacy, and fhall fink into the refiduum. And if a contingent legacy be left to any one; as, when he attains, or if he attains, the age of twenty one; and he dies before that time; it is a lapfed legacy ^d. But a legacy to one, to be paid when he attains the age of twenty one years, is a vefted legacy: an intereft which commences in praefenti, although it be folvendum in futuro: and, if the legatee dies before that age, his reprefentatives fhall receive it out of the teftator's perfonal eftate, at the fame time that it would have become payable, in cafe the legatee had lived. This diftinction is borrowed from the civil law^e; and it's adoption in our courts is not fo much owing to it's intrinfic equity, as to it's having been before adopted by the ecclefiaftical courts. For, fince the chancery has a concurrent jurifdiction with them, in regard to the recovery of legacies, it was reafonable that there fhould be a conformity in their determinations; and that the fubject fhould have the fame meafure of juftice in whatever court he fued ^f. but if fuch legacies be charged upon a real eftate, in both cafes they fhall lapfe for the benefit of the heir ^g; for, with regard to devifes affecting lands, the ecclefiaftical court hath no concurrent jurifdiction. And, in cafe of a vefted legacy, due immediately, and charged on land or money in the funds, which yield an im-

.(FS)
^a 2 Vern. 11.
^b Ibid. 205.
^c Bract. l. 2. c. 26. Flet. l. 2. c. 57. §. 11.
^d Dyer. 59. 1 Equ. Caf. abr. 295.
^e Ff. 35. 1 1& 2.
^f 1 Equ. Caf. abr. 295.
^g 2 P. W^ms. 601.
.(FE)

VOL. II.

Rr r

mediate

.P 514
The RIGHTS of THINGS.
Book II.
Ch. 32.
mediate profit, intereft fhall be payable thereon from the teftator's death; but if charged only on the perfonal eftate, which cannon be immediately got in, it fhall carry intereft only from the end of the year after the death of the teftator ^h.

BESIDES thefe formal legacies, contained in a man's will and teftament, there if alfo permitted another death-bed difpofition of property; which is called a donation caufa mortis. And that is, when a perfon in his laft ficknefs, apprehending his diffolution near, delivers or caufes to be delivered to another the poffeffion of any perfonal goods, (under which have been included bonds, and bills drawn by the deceafed upon his banker) to keep in cafe of his deceafe. This gift, if the donor dies, needs not the affent of his executor: yet it fhall not prevail againft creditors; and is accompanied with this implied truft, that, if the donor lives, the property thereof fhall revert to himfelf, being only given in contemplation of death, or mortis caufa ⁱ. This method of donation might have fubfifted in a ftate of nature, being always accompanied with delivery of actual poffeffion ^k; and fo far differs from a teftamentary difpofition: but feems to have been handed to us from the civil lawyers ^l, who themfelves borrowed it from the Greeks ^m.

7. WHEN all the debts and particular legacies are difcharged, the furplus or refiduum muft be paid to the refiduary legatee, if any be appointed by the will, and, if there be none, it was long a fettled notion that it devolved to the executor's own ufe, by virtue of his executorfhip ⁿ. But, whatever ground there might have been formerly for this opinion, it feems now to be underftood ^o with this reftriction; that, although where the executor has no legacy at all the refiduum fhall in general be his own, yet where-

.(FS)
^h 2 P. W^ms. 26, 27.
ⁱ Prec. Chan. 269. 1 P. W^ms. 406. 441. 3 P. W^ms. 357.
^k Law of forfeit. 16.
^l Inft. 2. 7. 1. Ff. l. 39. t. 6.
^m There is a very complete donatio mortis caufa, in the Odyffey b. 17. v. 78, made by Telemachus to his friend Piracus; and another by Hercules, in the Alceftes of Euripides, v. 1020.
ⁿ Perkins. 525.
^o Prec. Chanc. 323. 1 P. W^ms. 7. 544. 2 P. W^ms. 338. 3 P. W^ms. 43. 194. Stra. 559.
.(FE)
ever
.P 515
The RIGHTS of THINGS.
Book II.
Ch. 32.
ever there is fufficient on the face of a will, (by means of a competent legacy or otherwife) to imply that the teftator intended his executor fhould not have the refidue, the undevifed furplus of the eftate fhall go to the next of kin, the executor then ftanding upon exactly the fame footing as an adminiftrator: concerning whom indeed there formerly was much debate ^p, whether or no he could be compelled to make any diftribution of the inteftate's eftate. For though (after the adminiftration was taken in effect from the ordinary, and transferred to the relations of the deceafed) the fpiritual court endeavoured to compel a diftribution, and took bonds of the adminiftrator for that purpofe, they were prohibited by the temporal courts, and the bonds declared void at law ^q. And the right of the hufband not only to adminifter, but alfo to enjoy exclufively, the effect of his deceafed wife, depends ftill on this doctrine of the common law: the ftatute 29 Car. II. declaring only that the ftatute of diftributions does not extend to this cafe. But now thefe controverfies are quite at an end; for by the ftatute 22 & 23 Car. II. c. 10. it is enacted, that the furplufage of intefftates' eftates, except of femes covert ^r, fhall (after the expiration of one full year from the death of the inteftate) be diftributed in the following manner. One third fhall go to the widow of the inteftate, and the refidue in equal proportions to his children, or, if dead, to their reprefentatives; that is, their lineal defcendants: if there are no children or legal reprefentatives fubfifting, then a moiety fhall go to the widow, and a moiety to the next of kindred in equal degree and their reprefentatives: if no widow, the whole fhall go to the children: if neither widow nor children, the whole fhall be diftributed among the next of kin in equal degree, and their reprefentatives: but no reprefentatives are admitted, among collaterals, farther than the children of the inteftate's brothers and fifters ^s. The next of kindred, here referred to, are to be inveftigated by the fame rules of confanguinity, as thofe who are intitled to letters of adminiftration; of whom we have fufficiently fpoken ^t. And therefore by this ftatute

.(FS)
^p Godolph. p. 2. c. 32.
^q 1 Lev. 233. Cart. 125. 2 P. W^ms. 447.
^r Stat. 29 Car. II. c. 3. §. 25.
^s Raym. 496. Lord Raym. 571.
^t pag. 504.
.(FE)
R r r 2
the
.P 516
The RIGHTS of THINGS.
Book II.
Ch. 32.
the mother, as well as the father, fucceeded to all the perfonal effects of their children, who died inteftate and without wife or iffue: in exclufion of the other fons and daughters, the brothers and fifters of the deceafed. And fo the law ftill remains with refpect to the father; but by ftatute 1 Jac. II. c. 17. if the father be dead, and any of the children die inteftate without wife or iffue, in the lifetime of the mother, fhe and each of the remaining children, or their reprefentatives, fhall divide his effects in equal portions.

IT is obvious to obferve, how near a refemblance this ftqtute or diftributions bears to our antient Englifh law, de rationabili parte bonorum, fpoken of at the beginning of this chapter ^u; and which fir Edward Coke ^w himfelf, though he doubted the generality of it's reftraint on the power of devifing by will, held to be univerfally binding upon the adminiftrator or executor, in the cafe of either a total or partial inteftacy. It alfo bears fome refemblance to the Roman law of fucceffions ab inteftato ^x: which, and becaufe the the act was alfo penned by an eminent civilian ^y, has occafioned a notion that the parliament of England copie it from the Roman praetor : though indeed it is little more than a reftoration, with fome refinements and regulations, of out old conftitutional law; which prevailed as an eftablifhed right and cuftom from the time of king Canute downwards, many centuries before Juftinian's laws were known or hears of in the weftern parts of Europe. So likewife there is another part of the ftatute of diftributions, where directions are given, that no child of the inteftate, (except his heir at law) on whom he fettled in his lifetime any eftate in lands, or pecuniary portion, equal to the diftributive fhares of the other children, fhall have any part of the furplufage with their brothers and fifters; but if the eftates fo

.(FS)
^u pag. 492.
^w 2 Inft. 33.
^x The general rule of fuch fucceffions was this: 1. The children or lineal defcendants in equal portions. 2. On failure of thefe, the parents or lineal afcendants, and with them the brethren or fifters of the whole blood; or, if the parents were dead, all the brethren and fifters, together with the reprefentatives of a brother or fifter deceafed. 3. The next collateral relations in equal degree. 4. The hufband or wife of the deceafed. (Ff. 38. 15. 1. Nov. 118. c. 1, 2, 3, 127. c. 1.)
^y Sir Walter Walker. Lord Raym. 574.
.(FE)
given
.P 517
The RIGHTS of THINGS.
Book II.
Ch. 32.
given them, by way of advancement, are not quite equivalent to the other fhares, the children fo advanced fhall now have fo much as will make them equal. This juft and equitable provifion hath been alfo faid to be derived from the collation bonorum of the imperial law ^z: which is certainly refembles in fome points, though it differs widely in others. But it may not be amifs to obferve, that, with regard to goods and chattels, this is part of the antient cuftom of London, of the province of York, and of our fifter kingdom of Scotland: and, with regard to lands defcending in coparcenary, that it hath always been, and ftill is, the common law of England, under the name of hotchpot ^a.

BEFORE I quit this fubject, I muft however acknowlege, that the doctrine and limits of reprefentation, laid down in the ftatute of diftributions, feem to have been principally borrowed from the civil law: whereby it will fometimes happened, that perfonal eftates are divided per capita, and fometimes per ftirpes; whereas the common law knows no other rule of fucceffion but that per ftirpes only ^b. They are divided per capita, to every man an equal fhare, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure repraefentationis, in the right of another perfon. As if the next of kin be the inteftate's three brothers, A, B, and C; here his eftate is divided into three equal portions, and diftributed per capita, one to each: but if one of thefe brothers, A, had been dead leaving three children, and another, B, leaving two; then the diftribution muft have been per ftirpes; viz. one third to A's three children, another third to B's two children, and the remaining third to C the furviving brother: yet if C had alfo been dead, without iffue, then A's and B's five children, being all in equal degree to the inteftate, would take in their own rights per capita, viz. each of them of fifth part ^c.

THE ftatute of diftributions expreffly excepts and referves the cuftoms of the city of London, of the province of York, and

.(FS)
^z Ff. 37. 6. 1.
^a See ch. 12. pag. 191.
^b See ch. 14. pag. 217.
^c Prec. Chanc. 54.
.(FE)
of
.P 518
The RIGHTS of THINGS.
Book II.
Ch. 32.
of all other places having peculiar cuftoms of diftributing inteftates effects. So that, though in thofe places the reftraint of devifing is removed by the ftatutes formerly mentioned ^d, their antient cuftoms remain in full force, with refpect to the eftates of inteftates. I fhall therefore conclude this chapter, and with it the prefent book, with a few remarks on thofe cuftoms.

IN the firft place we may obferve, that in the city of London ^c, and province of York ^f, as well as in the kingdom of Scotland ^g, and therefore probably alfo in Wales, (concerning which there is little to be gathered, but from the ftatute 7 & 8 W. III. c. 38.) the effects of the inteftate, after payment of his debts, are in general divided according to the antient univerfal doctrine of the pars rationabilis. If the deceafed leaves a widow and children, his fubftance (deducting the widow's apparel and furniture of her bed-chamber, which in London is called the widow's chamber) is divided into three parts; one of which belongs to the widow, another to the children, and the third to the adminiftrator: if only a widow, or only children, they fhall refpectively, in either cafe, take one moiety, and the adminiftrator the other ^h: if neither cafe, take one moiety, and the adminiftrator fhall have the whole ⁱ. And this portion, or dead man's part, the adminiftrator was wont to apply to his own ufe ^k, till the ftatute 1 Jac. II. c. 17. declared that the fame fhould be fubject to the ftatutes of diftribution. So that if a man dies worth 1800 l. leaving a widow and two children, the eftate fhall be divided into eighteen parts; whereof the widow fhall have eight, fix by the cufotm and two by the ftatute; and each of the children five, three by the cuftom and two by the ftatute: if he leaves a widow and one child, they fhall each have a moiety of the whole, or nine fuch eighteenth parts, fix by the cuftom and three by the ftatute: if he leaves a widow and no child, the widow fhall have three fourths of the whole, two by the cuftom and one by the ftatute; and the

.{FS}
^d pag. 493.
^e Lord Raym. 1329.
^f 2 Burn. eccl. law. 746.
^g Ibid. 782.
^h 1 P. W^ms. 341. Salk. 246.
ⁱ 2 Show. 175.
^k 2 Preem. 85. 1 Vern. 133.
.{FE}
remaining
.P 519
The RIGHTS of THINGS.
Book II.
Ch. 32.
remainig fourth fhall go by the ftatute to the next of kin. It is alfo to be obferved, that if the wife be provided for by a jointure before marriage, in bar of her cuftomary part, in puts her in a ftate of non-entity, with regard to the cuftom only ^l; but fhe fhall be intitled to her fhare of the dead man's part under the ftatute of diftributions, unlefs barred by fpecial agreement ^m. And if any of the children are advanced by the father in his lifetime with any fum of money (not amounting to their full proportionable part) they fhall bring that portion into hotchpot with the reft of the brothers and fifters, but not with the widow, before they are intitled to any benefit under the cuftomⁿ: but, if they are fully advanced, the cuftom intitles them to no farther dividend ^o.

THUS far in the main the cuftoms of London and of York agree: but, befides certain other lefs material variations, there are two principal points in which they confiderably differ. One is, that in London the fhare of the children (or orphanage part) is not fully vefted in them till the age of twenty one, before which they cannot difpofe of it by teftament ^p: and, if they die under that age, whether fole or married, their fhare fhall furvive to the orther children; but, after the age of twenty one, it is free from any orphanage cuftom, and, in cafe of inteftacy, fhall fall under the ftatute of diftributions ^q. The other, that in the province of York, the heir at common law, who inherits any lands either in fee or in tail, is excluded from any filial portion or reafonable part ^r. But, notwithftanding thefe provincial variations, the cuftoms appear to be fubftantially one and the fame. And, as a fimilar policy formerly prevailed in the every part of the ifland, we may fairly conclude the whole to be of Britifh original; or, if derived from the Roman law of fucceffions, to have been drawn from that fountain much earlier than the time of

.{FS}
^l 2 Vern. 665. 3 P. W^ms. 16.
^m 1 Vern. 15. 2 Chan. Rep. 252.
ⁿ 2 Freem. 279. 1 Equ. caf. abr. 155. 2 P. W^ms. 526.
^o 2 P. W^ms. 527.
^p 2 Vern. 558.
^q Prec. Chan. 537.
^r 2 Burn. 754.
.{FE}
Juftinian,
.P 520
The RIGHTS of THINGS.
Book II.
Ch. 32.
Juftinian, from whofe conftitutions in many points (particularly in the advantages given to the widow) it very confiderably differs: though it is not improbable that the refemblances which yet remain may be owing to the Roman ufages; introduced in the time of Claudius Caefar, (who eftablifhed a colony in Britain to inftruct the natives in legal knowlege^s) inculcated and diffufed by Papinian (who prefided at York as praefectus praetorio under the emperors Severus and Caracalla^t) and continued by his fucceffors till the final departure of the Romans in the beginning of the fifth century after Chrift.

.{FS}
^s Tacit. Annal. L. 12. c. 32.
^t Selden in Fletam. cap. 4. §. 3.
.{FE}

THE END OF THE SECOND BOOK.

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