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cepted out of the effect of the order, and the prisoner may apply to the court for an allowance for his support during his imprisonment, and for the expense of making out and filing his schedule of his assets and liabilities. The court afterward appoints a particular assignee or assignees of the prisoner's estate and effects, in whom, upon acceptance of the appointment (which is recorded), the estate, effects, rights, and powers of the prisoner, before vested in the provisional assignee, immediately vest. The appointment is duly notified; and neither it nor the vesting order will bind lands in a register county as against a purchaser for value without notice, who has first registered his conveyance, unless registered within two months. The assignees take all powers of appointment, and the powers and rights which the prisoner may exercise for his own benefit (except the unsalable right of appointing to a vacant benefice). Where the prisoner is a beneficed clergyman, the income of his benefice does not vest in the assignees, who can only reach it, as any creditor may do, by a sequestration; nor does the pay or pension of a military, naval, or civil officer vest in his assignees; but the court is authorized, with the consent of the head of the department in the public service to which the prisoner belongs, to appropriate a portion of it for the benefit of the creditors. The assignees may decline to accept any lease belonging to the prisoner; and if they do not declare their option, the landlord may apply to the court to compel them, either to accept or to give up the lease and the possession. If they accept it, the prisoner is discharged from the rent and covenants. The corresponding enactment in the Bankrupt Act, it will be remembered, enables the bankrupt to deliver up the lease, but gives the landlord no right of interference. Goods in the reputed ownership of the prisoner at the commencement of his inprisonment vest in the assignee by virtue of a clause similar to that in the Bankrupt Act; and any voluntary charge, conveyance, delivery, or assignment of his real or per sonal property by the prisoner, being in insolvent circumstances, made either within three months before his imprisonment, or with an intent to take the benefit of the act, is declared fraudulent and void as against his assignees. There is also a provision against executions, after the imprisonment, under previous warrants of attorney or cognovits, which is similar to that contained in the Bankrupt Act (6 Geo. IV., c. 16, s. 108), but not qualified as the latter clause has been, by the 1 Will. IV., c. 7, s. 7

(ante, p. 286, n.), in favor of executions on cognovits given in adverse actions. Warrants of attorney and cognovits not duly filed in the Queen's Bench under the stat. 3 & 4 Geo. IV., c. 39 (amended by 6 & 7 Vict., c. 66), are declared fraudulent and void against the assignees (1 & 2 Vict., c. 110, s. 60.)

The assignees' duties are, to get in and realize the prisoner's estate, ascertain the debts, and declare a dividend. With in fourteen days, or other time to be al lowed by the court, the prisoner is re quired to give into court a schedule under his hand of his debts, payable in præsenti or in futuro, and of his estate and effects, rights, and powers, vested in himself, or in any person or persons in trust for him; such schedule to contain a balance sheet of so much of his receipts and expenditure as shall be required by the court. The court then appoints a day (which must be within four months) for bringing the prisoner before the court (or the commissioner on circuit), on which day his schedule is examined and his creditors are allowed an opportunity to cross-examine him and oppose his discharge on grounds of past misconduct, which may be such as to authorize the court to postpone his discharge for six months, two, or even three years, but with an allowance of not more than 4s. per week from the detaining creditor If the prisoner's conduct has been satisfactory, he is adjudged to be discharged and entitled to the benefit of the act. He may obtain his discharge at an earlier period on procuring sufficient sureties for his appearance.

By his discharge the prisoner is released from any future suit or execution against his person in respect of any of the debts, present or future, existing at the date of the vesting order, to the sev eral persons named in his schedule as creditors or as claiming to be creditors, or to indorsees of any negotiable security set forth in the schedule. But, previously to his discharge, the prisoner is required to execute a warrant of attorney to confess a judgment (with the force of a recognizance) to his assignees for the amount of the debts, under which judgment the court is at any future time authorized to direct execution to issue against any after-acquired property of the insolvent for the benefit of his creditors; and he is also liable to be exam ined on oath at any time as to his estate and effects, and to be ordered to make over to his assignees such property as the judgment may not enable them to reach.

Imprisonment is the foundation of the jurisdiction of the Insolvent Debtors'

Court; but the stat. 5 & 6 Vict., c. 116, has introduced a new principle into our law, and enables any person, not being a trader (or, if he be a trader, owing in the whole less than £300), after due advertisement of his intention, to present a petition to the Court of Bankruptcy for protection from process, with a schedule of his debts, credits, and assets; whereupon the judge or commissioner may grant a protection of the petitioner's person from all process, except arrest under a judge's order, at the same time appointing an official assignee, in whom his estate is to be vested. The petitioner is then to be examined on oath before the commissioner in rotation, and if the result is satisfactory, he obtains a final order for protection from all process, and

for the vesting of his estate and effects, present and future, in an official assignee jointly with an assignee to be chosen by the creditors, which assignees are to be entitled to his estate and effects in the same manner as if he had been a bankrupt and they had been assignees under his fiat. There are special provisions for vesting the future estate of the insolvent from time to time in his assignees; so that the insolvent's future property is not protected by his final discharge under this act, as that of a bankrupt is by his certificate.

The present mode of administering the act is much complained of, as not providing for sufficient notice to creditors, and as affording too great facilities to fraudulent debtors. 589

489

CHAPTER XXXII.

XI. & XII.

or adminis

tration.

OF TITLE BY TESTAMENT AND ADMINISTRATION.

THERE yet remain to be examined, in the present chapter, two Title by will 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.

Subject divided.

First, the or

igin and his

istrations.

XI., XII. In the pursuit, then, of this joint subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show 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. tory of wills We have more than once observed that when property came and admin- 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, gifts, [490] 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 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,b we call in En gland an administration; being the same which the civil law

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

b Ibid., b. 4, c. 11.

yers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

testaments.

Testaments are of very high antiquity. We find them in Antiquity of use among the ancient 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 show 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.f 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),g 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 his son Joseph a portion of his inheritance double to that of his [491] brethren; which will we find carried into execution many hundred years afterward, 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 ; but in many other parts of Greece they were totally discountenanced.k In Rome they were unknown till the laws of the Twelve Tables were compiled, which first gave the right of bequeathing; and, among the northern nations, particularly among the Germans,m 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.o

ary power

With us, in England, this power of bequeathing is coeval Testamentwith the first rudiments of the law; for we have no traces or in England. 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 repentinâ, fuerit intestatus mortuus, dominus tamem nullam rerum sua

c Barbeyr., Puff., 4, 10, 4. Godolph., Orph. Leg., 1, 1.

e

Gen., c. 15.

Taylor's Elem. Civ. Law, 517. f See page 12.

Selden, De Succ. Ebr., c. 24. h Gen., c. 48.

i Plutarch, in Vitâ Solon.
k Pott., Antiq., 1. 4, c. 15.
1 Inst., 2, 22, 1.

m Tacit., De Mor. Germ., 21.
n See p. 13.

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

rum partem (præter eam quæ jure debetur hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur." But we are not to imagine that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will in[492] form usq that by the common law, as it stood in the reign of Henry the Second, a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but if he died without either Reasonable wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them.s

parts of wid. ow and children.

r

This continued to be the law of the land at the time of Magna Charta, which provides that the king's debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased; and, if nothing be owing to the crown, "omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partibus suis." In the reign of King Edward the Third, this right of the wife and children was still held to be the universal or common law;" though frequently pleaded as the local custom of Berks, Devon, and other counties;w and Sir Henry Finch lays it down expressly, in the reign of Charles the First, to be the general law Power to be- of the land. But this law is at present altered by imperceptiqueath by ble degrees, and the deceased may now, by will, bequeath the whole of whole of his goods and chattels, though we can not trace out personal es- when first this alteration began. Indeed, Sir Edward Cokey is of opinion that this never was the general law, but only obtained in particular places by special custom; and to establish [493] that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton lays down the doctrine of the reason

will the

tate as test

ator may please.

P LL. Canut., c. 68.

q L. 2, c. 5.

c. 57.

tertiam partem, &c.; and that her husband died worth 200,000 marks, with

Bracton, 1. 2, c. 26. Flet., 1. 2, out issue had between them; and there

F. N. B., 122.

t9 Hen. III., c. 18.

(M.

.upon she claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the husband's dying A widow brought an action of deti- without issue was denied; but the rule nue against her husband's executors, of law, as stated in the writ, seems to quod cum per consuetudinem totius regni have been universally allowed. Anglia hactenus usitatam et approba- 30 Edw. III., 25.) And a similar case tam, uxores debent et solent a tempore, occurs in H. 17 Edw. III., 9. &c., habere suam rationabilem partem bonorum maritorum suorum: ita videlicet, quod si nullos habuerint liberos, tunc medietatem; et si habuerint, tunc

W

Reg. Brev., 142. Co. Litt., 176.

* Law, 175.

y 2 Inst., 33.

z L. 2., c. 26, § 2.

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