Sivut kuvina

Resemblance of this statute to

our antient Eng

lish law.

It is obvious to observe, how near a resemblance this statute of distributions bears to our antient English law, de rationabili parte bonorum; spoken of at the beginning of this chapter (u); and which Sir Edward Coke (w) himself, though he doubted the generality of its restraint on the power of devising by will, held to be universally binding (in point of conscience at least) upon the administrator or executor, in the case of either a total or partial intestacy. It also bears some resemblance to the Roman law of succession ab intestato (x); which, and because the act was also penned by an eminent civilian (y), has occasioned a notion that the parliament of England copied it from the Roman prætor: though, indeed, it is little more than a restoration, with some refinements and regulations, of our old constitutional law; which prevailed as an established right and custom from the time of king Canute downwards, many centuries before Justinian's laws were known or heard of in the western parts of Europe. So, likewise, there is another part of the statute of distributions, where directions are given that no child of the intestate (except his heir-at-law) on whom he settled in his life-time any estate in lands, or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their *brothers and sisters; but, if the estates so given them, [517] by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. This just and equitable provision hath been also said to be derived from the collatio bonorum of the imperial law (z): which it certainly resembles in some

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The doctrine and limits of representation laid

down in the sta

tute of distribu

tions, borrowed

from the civil law.

points, though it differs widely in others. But it may not be amiss to observe, that with regard to goods and chattels, this is part of the antient custom of London, of the province of York, and of our sister kingdom of Scotland: and, with regard to lands descending in co-parcenary, that it hath always been, and still is, the common law of England, under the name of hotchpot (a) (57).

Before I quit this subject, I must, however, acknowledge, that the doctrine and limits of representation laid down in the statute of distributions, seem to have been principally borrowed from the civil law: whereby it will sometimes happen, that personal estates are divided per capita, and sometimes per stirpes; whereas the common law knows no other rule of succession but that per stirpes only (b). They are divided per capita, to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure repræsentationis, in the right of another person. As, if the next of kin be the intestate's three brothers, A., B., and C.; here his effects are divided into three equal portions, and distributed per capita, one to each: but, if one of these brothers, A., had been dead, leaving three children, and another, B., leaving two; then the distribution must have been per stirpes; viz. one third to A.'s three children, another third to B.'s two children; and the remaining third to C. the surviving brother: yet, if C. had also been dead, without issue, then A.'s and B.'s five children, being all in equal degree to the intestate, would take in their own rights per capita; viz. each of them one fifth part (c) (58).

(a) See ch. 12, page 191. (b) See ch. 14, page 217. (c) Prec. Chanc. 54.

(57) See ante, note (18) to chapter 12, p. 190, and also p. 493, with the reference given in note (8) subjoined thereto.

(58) Representations of lineal descendants are admitted to the remotest degree. (Carter v. Crawley, T. Raym.

500); but the 7th section of the statute of distributions provides, that "no representations shall be admitted amongst collaterals after brothers' and sisters' children." This proviso has been construed to mean brothers and sisters of the intestate, and not as admitting re


[ *518 ]

The statute of distributions expressly excepts and reserves Exceptions in the customs of the city of London, of the province of York, favour of local *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 (d), 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.

of the distribution of the eftestate, by the

fects of an in

customs of London and York,

land and Wales.

In the first place we may observe, that, in the city of London (e), and province of York (ƒ), as well as in the kingdom of Scotland (g), and probably also in Wales, (concerning which there is little to be gathered, but from the statute 7 & 8 W. III. c. 38), the effects of the intestate, after pay- and also in Scotment 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 for the widow her apparel and the furniture of her bedchamber, 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 respectively, in either case, take one moiety, and the administrator the other (h); if neither widow nor child, the admin(d) Page 493.

(e) Lord Raym. 1329.

(f) 2 Burn. Eccl. Law, 746.

presentation, when the distribution happens to fall among brothers and sisters who are only remotely related to the intestate. The reasonableness of this construction of the act was demonstrated by powerful arguments, in the case of Carter v. Crawley before cited: and was admitted in Pett v. Pett, (Comyns, 87; S. C. 1 P. Wms. 27), in the Anonymous case, in Appendix to 2 Freem. 298, and in Bowers v. Littlewood, (1

(g) Ibid. 782.

(h) 1 P. Wms. 341. Salk. 246.

P. Wms. 594).

In a question of distribution, the next of kin to an intestate, though such next of kin be a collateral relative only, may, since the statute of Cha. II. be preferred to a more remote lineal relation in the ascending line: but, between relatives in equal degree, a lineal will be preferred to a collateral claimant. (Blackborough v. Davis, 1 P.Wms. 50).

istrator shall have the whole (i). And this portion, or dead man's part, the administrator was wont to apply to his own use (k), till the statute 1 Jac. II. c. 17, declared that the same should be subject to the statute of distributions. So that if a man dies worth 1,500l. 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 cus

[ *519] tom and one by *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 non-entity, with regard to the custom only (l); but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreement (m). And if any of the children are advanced by the father, in his life-time, 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 (59), before they are entitled (i) (1) 2 Vern. 665. 3 P. Wms. 16. (m) 1 Vern. 15. 2 Chan. Rep. 252.

Show. 175.

(k) 2 Freem. 85. 1 Vern. 133.

(59) Advances which an intestate has made to any of his children, are never brought into hotch-pot for the benefit of his widow; (Kirkcudbright v. Kirkcudbright, 8 Ves. 64); but solely with a view to equality as amongst the children; (Gibbons v. Caunt, 4 Ves. 847); and in cases arising upon the custom of London, the effect of the full advancement of one child is merely to remove that child out of the way, and

to increase the shares of the others. (Folkes v. Western, 9 Ves. 460). So, when a settlement bars, or makes a composition for, the wife's customary share, that share, if the husband die intestate, will be distributable as if he had left no wife; (Knipe v. Thornton, 2 Eden, 121. Morris v. Burrows, 2 Atk. 629. Read v. Snell, Ibid. 644); and will not go to increase what is called "the dead man's part," (Medcalfe

to any benefit under the custom (n): but, if they are fully advanced, the custom entitles them to no further dividend (0).

between the customs of Lon


Thus far in the main the customs of London and of York Of the difference agree; but, besides certain other less material variations, there are two principal points in which they considerably don and of 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 (q). 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 (r). 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 *(particularly in the advantages [520] given to the widow) it very considerably differs; though it is

(n) 2 Freem. 279. 1 Eq. Cas. Abr. 155. 2 P. Wms. 526.

(0) 2 P. Wms. 527.

(p) 2 Vern. 558.
(q) Prec. Chan. 537.
(r) 2 Burn, 754.

v. Ives, 1 Atk. 63), to a distributive share of which the widow would be entitled, notwithstanding she had compounded for her customary part; (Whithill v. Phelps, Prec. in Cha. 328); unless the expressed, or clearly implied, intention was, that she should be barred as well of her share of the dead

man's part, as of her share by the cus

tom. (Benson v. Bellasis, 1 Vern. 16).
A jointure in bar of dower, without say-
ing more, will be no bar of a widow's
claim to a customary share of personal
estate; for dower affects lands only,
and land is wholly out of the custom.
(Babington v. Greenwood, 1 P. Wms.

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