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that, under a commission of bankrupt, which is in the nature of a statute-execution, the landlord shall be allowed his arrears of rent to the same amount, in preference to other creditors (45), even though he hath neglected to distraint, while the goods remained on the premises; which he is otherwise entitled to do for his entire rent, be the quantum what it may (n) (46). But, otherwise, judgments and recognizances (both which are debts of record, and therefore at other times have a priority), and also bonds and obligations by deed or special instrument (which are called [*488] debts by specialty, and are usually the next *in order), these are all put on a level with debts by mere simple contract, and all paid pari passu (o). Nay, so far is this matter carried, that, by the express provision of the statutes (p), 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 (q), allowing a discount or drawback in proportion. And insurances, and obligations upon bottomry or respondentia, boná fide made by the bankrupt, though forfeited after the commission is awarded, shall be

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looked upon in the same light as debts contracted before any act of bankruptcy (r) (47).

and final divi

Within eighteen months after the commission issued, a As to second second and final dividend shall be made, unless all the effects dend. were exhausted by the first (s) (48). And if any surplus remains, after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupt (t). 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

(r) Stat. 19 Geo. II. c. 32.

(s) Stat. 5 Geo. II. c. 30.

(t) Stat. 13 Eliz. c. 7.

(48) The 109th section of the statute of 6 Geo. IV. c. 16, enacts, that if a bankrupt's estate shall not have been wholly divided upon the first dividend, the commissioners shall, within eighteen calendar months after the issuing of the commission, appoint a public meeting to make a second dividend, when all creditors who have not proved their debts may prove the same; and such second dividend shall be final, unless any action or suit be depending, or any part of the estate be standing out not sold or disposed of, or unless some other estate or effects of the bankrupt shall afterwards come to the assignees, in which case they shall, as soon as may be, convert such estate and effects into money, and within two calendar months after the same shall be so converted, divide the same.

(47) See ante, note (39) to this stood to mean, as soon as it can pruchapter. dently be done; for, though Lord Thurlow, (in Ex parte Goring, 1 Ves. jun. 169), held, that under the old act, a consideration of the imprudence of a hasty sale, or its consequences, would not authorize the Court to suspend the sale, yet Lord Eldon over-ruled this opinion, and (in Ex parte Kendall, 17 Ves. 519) decided, that it was competent to the court to exercise a sound discretion as to the time when the assets are to be converted into money; and that a different rule would, in many concerns, impose the necessity of ruining the property. His Lordship held, therefore, that the court might suspend a sale of the bankrupt's estate, and consequently postpone a final dividend, when it was satisfied that such a measure would be just to all whom the order would affect; but, the court will require the assignees to make out a clear case, why the dividend should not be made within the time limited by the statute. (Ex parte Grosvenor, 14 Ves. 590).

When the act says, that, for the purpose of making a final dividend, the assignees shall convert the bankrupt's estate into money, as soon as may be," it seems that this must be underVOL. II.

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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 (u). 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, 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 (w), or his representatives (49).

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(49) The 132nd section of the statute of 6 Geo. IV. c. 16, enacts, that in case of a surplus after full payment of a bankrupt's debts, the assignees shall pay it to the bankrupt; but such surplus is not to be handed over, until interest upon all the debts proved under the commission has been paid, at the rate and in the order following; that is to say, all creditors whose debts are by law entitled to carry interest, in the event of a surplus, shall first receive interest on such debts, at the rate of interest reserved or payable thereon, to be calculated from the date of the commission; and after such interest shall

have been paid, all other creditors who have proved under the commission shall receive interest on their debts from the date of the commission, at the rate of 4l. per cent.

The 57th section of the same statute enacts, that although interest is not reserved upon a bill of exchange or promissory note overdue at the issuing of a commission of bankruptcy against a party liable upon such bill or note, the holder thereof shall be entitled to prove for interest upon the same, to be calculated to the date of the commission, at the rate of 51. per cent. per annum.

489

CHAPTER XXXII.

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.

testament, and

XI., XII. In the pursuit then of this joint-subject, I shall, XI. XII. By first, inquire into the original and antiquity of testaments administration. and administrations; shall, secondly, shew who is capable

of making a last will and testament; shall, thirdly, consider the nature of a testament and its 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.

testaments and

First, as to the original of testaments and administrations. Of the origin of We have more than once observed, that when property came administrations, to be vested in individuals by the right of occupancy (1), 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

(1) See ante, chapter 1, passim, with the notes thereto.

to transfer it; which introduced the doctrine and practice [490] of alienations, *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 proprietor 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 (a) (2). The former method of acquiring personal property, according to the express directions of the deceased, we call a testament (3): the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law (6), we call in England an administration (4); being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

Their antiquity.

Testaments are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually given (c), of Abraham's complain

(a) Puff. L. of N. b. 4, c. 10.

(b) Ibid. b. 4, с. 11.

(c) Barbeyr. Puff. 4. 10. 4. Godolph. Orph. Leg. 1. 1.

(2) See ante, p. 11, with the notes thereto: and also chapter 23, passim, as to devises of real estates.

(3) Provided an executor be named therein: this constitutes the distinction between a "testament" and a "last will." (Swinburne, pt. 1, sections 1 & 3). And this, it seems, is not a mere technical distinction in all cases; for instance, if a testator, being an inhabitant of the province of York (or other district where the personal estate of an intestate is distributable according to a local custom), should die, leaving a

will, but not having named an execu-
tor thereof, his personal estate, it has
been held, must be distributed, as un-
der an intestacy, according to the cus-
tom. (Wheeler v. Sheer, Mosely, 303;
and see Chedron v. Harris, Noy, 12.
Broke's Ab. tit. Testament, 20). But,
where no particular local custom comes
in question, there is no doubt that a
will is good in equity, though the tes-
tator has named no executor. (Wyrall
v. Hall, 2 Cha. Rep. 112. Swinb. pt.
1, sect. 6; and see post, p. 503).
(4) See post, p. 496.

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