degree to the intestate, would take in their own rights per capita; viz. each of them one-fifth part.* The statute of distributions expressly excepts and reserves the customs of the city of London, of the province of York, [518] and of all other places having peculiar customs of distributing intestates' effects. So . that, though in those places the restraint of devising is removed by the statutes formerly mentioned, their antient customs remain in full force, with respect to the estates of intestates. I shall therefore conclude; this chapter, and with it the present book, with a few remarks on those customs. In the first place we may observe, that in the city of London, and province of York,' as well as in the kingdom of Scotland, and therefore probably also in Wales, (éoncerning which there is little to be gathered, but from the statute 7 & 8 W. III. c. 38.), the effects of the intestate, after payment of his debts, are in general divided according to the antient universal doctrine of the pars rationabilis. If the deceased leaves a widow and children, his substance (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 administrator: if only a widow, or only children, they shall rospectively, in either case, take one moiety, and the administrator the other; if neither widow nor child, the administrator shall have the whole. And this portion, or dead man's · part, the administrator was wont to apply to his own use, till the statute 1 Jac. II. c. 17. declared that the c Prec. Chanc. 54. d Pag. 493, e Lord Raym. 1329. f 2 Burn. eccl. law. 746. g Ibid. 782. h 1P. Wms. 341. Salk. 246. Quoted, 44 Ind. 374; last sentence, 2 Jones Iq. 43. Citan 5 Ga 577; 40 Vt. 358. 8 same should be subject to the statute of distribution. So that if a man dies worth 18007. personal estate, leaving a widow and two children, this estate shall be divided into eighteen parts; whereof the widow shall have eight, six by the custom and two by the statute; and each of the children five, three by the custom and two by the statute: if he leaves a widow and one child, 'she shall still have eight parts, as before; and the child shall have ten, six by the custom, and four by the statute: if he leaves a widow and no child, the widow shall have three-fourths of the whole, two by the custom and one by [519] the statute; and the remaining fourth shall go by the statute to the next of kin. It is also to be observed, that if the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of nonentity, with regard to the custom only; but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreement. And if any of the children are advanced by the father in his lifetime with any sum of money (not amounting to their full proportionable part), they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to any benefit under the custom :" but if they are fully advanced, the custom entitles them to no farther dividend.. Thus far in the main the customs of London and of 1 2 Vern. 665. 3 P. Wms. 16. m 1 Vern. 15. 2 Chan. Rep. 252. n 2 Freem. 279. 1 Equ. cas. abr. 155. 2 P.. Wms. 526, o 2 P. Wms. 527 8 Previously, "the." 5 Previously. "they shall each have a moiety of the whole, or nine such eighteenth parts, six by the custom and three." 4 Previously spelt, "intitled." 4 Previously spelt, "intitled." 4 Previously spelt, "intitled." York agree: but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testament:P and, if they die under that age, whether sole or married, their share shall survive to the other children; but after the age of twenty-one, it is free from any orphanage custom, and in case of intestacy, shall fall under the statute of distributions. The other, that in the province of York, the heir at common law, who inherits any land either in fee or in tail, is excluded from any filial portion or reasonable part. But, notwithstanding these provincial variations, the customs appear to be substantially one and the same. And, as a similar policy formerly prevailed in every part of the island, we may fairly conclude the whole to be of British original; or, if derived from the Roman law of successions, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points [520] (particularly in the advantages given to the widow) it very considerably differs; though it is not improbable that the resemblances which yet remain may be owing to the Roman usages; introduced in the time of Claudius Cæsar (who established a colony in Britain to instruct the natives in legal knowlege"),9 inculcated and diffused by Papinian (who presided at York as præfectus prætorio under the emperors Severus and Caracalla ) and continued by his successors till the final departure of the Romans in the beginning of the fifth century after Christ. NOTES OF THE AMERICAN EDITOR TO CHAPTER XXXII. (89) Persons obliged by law to die intestate, page 496. These prohibitions, as Blackstone calls them, are in our American law almost entirely done away, or reduced to the single case of want of sufficient discretion, by infancy or want of reason. And in one respect at least the last prohibition has been removed in one of the cases mentioned by Blackstone, not so much by a change in the law as by the benefits of science. No court would now hold that "persons born deaf, dumb, and blind. . . . are incapable of having animum testandi, and their testaments therefore are void" (p. 497), though I am not aware that the point has actually been decided in any of the instances, beginning with that of Laura Bridgman, in which the existence of reason and the possibility of intelligent communication with others have been so signally shown. (90) Such subsequent marriage is esteemed a revocation in law, and entirely vacates the will, page 499. That the will of a woman should be revoked by her marriage, after which the common law left her no freedom to change it or make any disposition of her property whatever, is based on a solid reason: which reason ceases, when she is allowed to give, devise, or dispose of her property in any way during coverture, as she now is in nearly all the states, by the married women's acts. But whether the rule ceases with the reason of it is a question upon which American courts have formed contrary opinions. Some hold the common-law rule still in force, and the will revoked by her marriage. (Swan v. Hammond, 135 Mass. 45; 52 Am. Rep. 255; Blodgett v. Moore, 141 Mass. 75; Brown v. Clark, 77 N. Y. 369.) Yet even in such states that rule is held not applicable to a case where an ante-nuptial agreement preserved to her the ability to make a will during coverture (Osgood v. Bliss, 141 Mass. 474; 55 Am. Rep. 488), while In others the common-law rule is regarded as no (Will (91) Nuncupative wills and codicils, page 500. Oral or nuncupative wills are restricted by statutes (92) A good testament of the personal estate, page 502. |