10. In what case is title to property acquired by intestacy?-408.

When a person dies, leaving personal property undisposed of by will; and in that case, the personal estate, after the debts are paid, is distributed among the widow and next of kin.

11. With whom does the power of granting letters of administration lie?-410, 411.

Now, usually with the surrogate of the county; and he has generally discretionary power to elect among the next of kin any one in equal degree, in exclusion of the rest, and to make such person sole administrator. So, under the English law, he may grant administration to the widow or next of kin, or to both jointly, at his discretion.

12. In case of a married woman dying intestate, who is entitled to administer to her estate?-411.

The husband, in preference to any other person; and he is liable, as administrator, for the debts of his wife, only to the extent of the assets received by him. If he does not administer, he is presumed to have assets, and is liable for the debts.

13. May letters of administration be revoked?-413.

Yes, if they have been unduly granted; and administration may be granted upon condition, or for a limited time, or for a special purpose.

14. What is the established doctrine regarding all bona fide sales by executors and administrators ?-413.

That all sales made in good faith, and all lawful acts by administrators, before notice of a will, or by executors or administrators who may be removed or superseded, or become incapable, shall not be impeached on any will appearing, or by any subsequent revocation or superseding of such executors or administrators.

15. How is nearness of kin computed under the English law?

-413.

According to the civil law, which makes the intestate himself the terminus a quo, or point from whence the degrees are numbered.

16. What are among the principal powers and duties of an ad

ministrator ?-414-416.

He should first give a bond with sureties, before a competent court, for the due execution of his trust. According to the common law, he should then make an inventory and appraisal of the goods and chattels of the intestate. On completion of the inventory and appraisal, he should collect outstanding debts, collect the property into money, and pay debts due from the intestate. In paying debts he should, under the common law, pay, first, funeral charges and probate expenses; next, debts due to the State; then debts of record, such as judgments, recognizances, and final decrees; next, debts due for rents, and debts by specialty, as bonds and sealed notes; and lastly, debts by simple contract. When debts are in equal degree, he may pay which he pleases first, and may prefer himself to other creditors in equal degree. But these common law rules have now been more or less altered, by statute law, in most of the States of the Union.

17. What is the substance of the English statute of distributions?

-420-422.

That after the debts, funeral charges and just expenses are paid, a just and equal distribution of what remaineth clear, of the goods and personal estate of the intestate, shall be made amongst the wife and children or children's children, if any there be; or otherwise to the next of kin to the intestate, in equal degree, or legally representing their stock; that is to say, one third part of the surplusage to the wife of the intestate, and all the residue, by equal portions, to and amongst the children of the intestate, and their representatives, if any of the children be dead, other than such child or children who have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made. And if the portion of any child who hath had such settlement or portion, be not equal to the share due to the other children by the distribution, the child so advanced is to be made equal with the rest. If there be no children, or their representatives, one moiety of the personal estate

C.C.P.1643

of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them; but no representation is admitted among collaterals, after brothers' and sisters' children ;.if there be no wife, the estate is to be distributed equally among the children; and if no child, then to the next of kin in equal degree and their lawful representatives, as already mentioned.

18. How are the next of kin determined ?-422-428.

By the rule of the civil law; and under that rule the father" stands in the first degree, and the grandfather and the grandson in the second; and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, and the intestate and his uncle in the third. The half blood are admitted equally with the whole blood, for they are equally as near of kin; and the father of an intestate, without wife or issue, succeeds in exclusion of the brothers and sisters, and the mother would have also succeeded as against collaterals, but for a special clause which' gives her only a ratable share. The distribution of personal property of intestates, in these United States, has undergone considerable modification. In many of them, the English statute of distributions, as to personal property, is pretty closely followed. In a majority of the States, the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance, as the English statute of distributions, with the exception of the widow, as to the real estate, who takes one third for life only, as dower.

19. What is the rule where the place of the domicil of the intestate, and the place of the situation of the property is different ?—

429.

That the disposition, succession to, and the distribution of personal property, wherever situated, is governed by the law of the country of the owner's or intestate's domicil, at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. On the other hand,

it is equally settled in the law of all civilized countries, that real property, as to its tenure, mode of enjoyment, transfer and descent, is to be regulated by the lex loci rei site.

LECTURE XXXVIII.

OF TITLE TO PERSONAL PROPERTY BY GIFT.

1. What two kind of gifts are there?—438.

1. Gifts, simply so called, or gifts inter vivos. 2. Gifts causâ mortis are those made in apprehension of death. Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action; and it is the same whether it be a gift inter vivos, or causâ mortis. The subject of the gift must be certain, and there must be the mutual consent or concurrent will of both parties.

2. What kind of delivery is requisite to perfect a gift?-439.

Delivery, in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery, so far as the subject is capable of delivery. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property.

3. How do gifts affect creditors ?-440.

They do not affect the rights of creditors; as gifts of goods and chattels, as well as of lands, by writing or otherwise, made with intent to delay, hinder and defraud creditors, are void, as against the person to whom such fraud would be prejudicial.

4. What is the nature of gifts causâ mortis ?-444.

They are conditional, like legacies; and it is essential to

them that the donor make them in his last illness, or in contemnplation and expectation of death; if the donor recovers, they are void, if he die, they are good notwithstanding a previous will. The apprehension of death may arise from infirmity or old age, or from external and anticipated danger.

5. What is the rule as to the revocation of gifts?-444. That gifts inter vivos are irrevocable, but that gifts causâ mortis are conditional and revocable.

LECTURE XXXIX.

OF CONTRACTS.

1. What is an executory contract ?-449.

It is an agreement of two or more persons, upon a sufficient consideration, to do or not to do a particular thing.

2. Into what classes are contracts divided?-450.

Into contracts under seal and not under seal. If under seal, the contract is denominated a specialty, and if not under seal, an agreement by parol; and the latter includes equally verbal and written contracts not under seal.

3. What is the distinction between a contract executed, and a contract executory ?-450.

It is this; if one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time, and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely. There are also express and implied contracts The former exist when the parties contract in express words, or by writing; and the latter are those contracts which the law raises.