Sivut kuvina

put on a level with debts by mere simple contract, and all paid pari passu. Nay, so far is this matter carried, that, by the express provision of the statutes, debts not due at the time of the dividend made, as bonds or notes of hand payable at a future day certain, shall be proved and paid equally with the rest, allowing a discount or drawback in proportion. And insurances, and obligations upon bottomry or respondentia, bona fide made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcy.9

Within eighteen months after the commission issued, a second and final dividend shall be made, unless all the effects were exhausted by the first." And if any surplus remains, after paying every creditor his full debt, it shall be restored to the bankrupt. This is a case which sometimes happens to men in trade, who involuntarily, or at least unwarily commit acts of bankruptcy, by absconding and the like, while their effects are more than sufficient to pay their creditors. And, if any suspicious or malevolent creditor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence; except that, upon satisfaction made to all the creditors, the commission may be superseded. This case may also happen, when a knave is desirous of defrauding his creditors, and is compelled by a commission to do them that justice, which otherwise he wanted to evade. And therefore, b Lord Raym. 1549. Stra. 1211.

c 2 Ch. Cas. 144.

9 Ninth edition inserts note, "o
9 Ninth edition inserts note, "p
Previously, "shall be."

Stat. 21 Jac. c. 19."
Stat. 7 Geo. I. c. 31."

Stat. 19 Geo. II. c. 32."
Stat. 5 Geo. II. c. 30."

9 Ninth edition inserts note, "r
9 Ninth editoin inserts note, "s
9 Ninth edition inserts, "selling his estates and."
9 Ninth edition inserts note, "t Stat. 13 Eliz. c. 7."

though the usual rule is, that all interest on debts carrying interest shall cease from the time of issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt,a or his representativcs. d 1 Atk. 244.


OF TITLE BY TESTAMENT, AND ADMINISTRATION. There yet remain to be examined, in the present chapter, two other methods of acquiring personal estates, viz. by testament and administration. And these I propose to consider in one and the same view; they being in their nature so connected and blended together, as makes it impossible to treat of them distinctly, without manifest tautology and repetition.*

X1, XII. In the pursuit then of this joint subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, shew who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and it's incidents: shall, fourthly, shew what an executor and administrator are, and how they are to be appointed; and lastly, shall select some few of the general heads of the office and duty of executors and administrators.

First, as to the original of testaments and administrations. We have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, [490] gifts, and contracts. But these precautions would be very short 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 strife and confusion. The law of very many societies has therefore given to the pro*Cited, 2 Or. 338.

prietor a right of continuing his property after his death, in such persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other persons. The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law, we call in England an administration; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

Testaments are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually given, of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir, is quite conclusive to shew that he had made him so by will. And indeed a learned writere has adduced this very passage to prove, that in the patriarchal age, on failure of children or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at law. But (to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world), I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings, wherein Jacob bequeaths to a Puff. L. of N. b. 4. c. 10.

b Ibid. b. 4. c. 11.


c Barbeyr. Puff. 4. 10. 4. Godolph. Orph. Lag. 1. 1.

d Gen. c. 15.

e Taylor's elem. civ. law. 517.

f See pag. 12.

g Selden. de succ. Ebr. c. 24.

h Gen. c. 48.

his son Joseph a portion of his inheritance [491] double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens;1 but in many other parts of Greece they were totally discountenanced. In Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathing:1 and, among the northern nations, particularly among the Germans, testaments were not received into use. And this variety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state; which has permitted it in some countries, and denied it in others: and, even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven..


*With us in England this power of bequeathing is coeval with the first rudiments of the law for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. "Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, dominus tamen nuli Plutarch. in vita Solon.

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o Sp. L. b. 27. c. 1. Vinnius in Inst. l. 2. tit. 10.

**Quoted, 5 Munf. 64. Cited, 5 Munf. 47, 48; 2 Doug. (Mich.) 527.

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