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whom indeed there foȚmerly was mych debate p, whether or ng he could be compelled to make any distribution of the inteftate's estate. For, though (after the administration was taken in effect from the ordinary, and transferred to the relations of the deceased) the spiritual court endeavoured to compel a distribution, and took bonds of the administrator for that purpose, they were prohibited by the temporal courts, and the bonds declared void at law?. And the right of the husband not only to administer, but also to enjoy exclusively, the effects of his deceased wife, depends still on this doctrine of the common

p Godolph. p. 2. c. 32.

9 1 Lev. 233. Cart. 125. 2 P. Wms. 447:

fuch was the testator's intention. Where a legacy is given to a fole executor, it affords a reasonable concluson, that the teftator intended to give him this alone as a satisfaction and recompense for his trouble; for it would be absurd to give him expressly a part, if it were intended that he should have the whole, or according to a quaịnt phraze, he cannot take all and some. And this inference is not repelled where a wife is the executrix, or the next of kin has also a legacy. But an exception out of a legacy in favour of an executor, does not raise such an implication as to exclude him from the benefit of the residue; as where the use of a service of plate is given to the executor for his life, and after his death it is bequeathed to another, for such an exception is perfectly con. fiftent with the bequest of the residue, and the executor could not have had the benefit of the exception without a special description of it. So also where a legacy is given to one of two or more coexecutors, or where unequal legacies are given to co-executors, they shall take the residue, for this might be done by the teftator not in favour of his next of kin, but with an intent to shew a preference to one above the others. See these distinctions, and the au. thorities, fully and clearly collected and stated in i Cox's P.Wms.550.

If the testator gives the refiduum to a person who dies in his lifetime, in consequence of which this bequest iş lapsed, the executor, though he has no legacy, shall be a trustee for the next of kin, because the testator has expressed a manifeft intention not to give it to his executor. 3 Bro. 28.

And it is probable that now the same would be held of every lapsed legacy and interest.

law:

1

law: the statute of frauds declaring only, that the statute of distributions does not extend to this case. But now these controversies are quite at an end; for by the statute 22 & 23 Car. II. c. 10. explained by 29 Car. II. c. 30. it is enacted, that the surplusage of intestate's estates, (except of femes covert, which are left as at common law ',) shall, after the expiration of one full year from the death of the inteftate, be distributed in the following manner. One third shall go to the widow of the intestate, and the residue in equal proportions to his children, or if dead, to their representatives ; that is, their lineal descendants: if there are no children or legal representatives fubfisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their reprefentatives : if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representa. tives : but no representatives are admitted, among collaterals, farther than the children of the intestate's brothers and 64ters! The next of kindred, here referred to, are to be investigated by the same rules of consanguinity, as those who

are entitled to letters of administration ; of whom we have ( 516 ) sufficiently spoken'. And therefore by this statute the nio

ther, as well as the father, succeeded to all the personal ef-
fects of their children, who died intestate and without wife
or issue : in exclusion of the other sons and daughters, the
brothers and Gifters of the deceased. And so the law still re-
mains with respect to the father ; but by statute 1 Jac. II.
c. 17, if the father be dead, and any of the children die in-
teftate without wife or issue, in the lifetime of the mother,
The and each of the remaining children, or their representa-
tives, shall divide his effects in equal portions (23).
Stat. 29 Car. II. c. 3. $ 25.

t pag. 504
s Raym. 496. Lord Raym. 571.

(23) The next of kin, who are to have the benefit of the statute of distributions, must be ascertained according to the computation of the civil law, including the relations both on the paternal and maternal fides.

And

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

And when relations are thus found who are distant from the inteftate by an equal number of degrees, they will share the personal property equally, although they are relations of very different denominations. As if the next of kin of the intestate are great uncles or aunts, first cousins, and great nephews or nieces, these being all related to the intestate in the fourth degree will all be admitted to an equal disAtributive share of his personal property. There is only one exception to this rule, viz. where the nearest relations are a grandfather or grandmother, and brothers or fifters, although all these are related in the second degree, yet the former shall not participate with the latter; for which fingular exception it does not appear that any good reason can be given. 3 Atk. 762. No difference is made between the whole and half blood in the distribution of intestate personal property. A curious quesion was agitated some time ago respecting the right to the adminiftration. General Stanwix and an only daughter were lost together at sea, and it was contended, that it was a rule of the civil law that when a parent and child perilh together, and the priority of their deaths is un. known, it shall be presumed that the child survives the parent. And by this rule the right to the personal estate of the general would have vested in the daughter, and by her death in her next of kin, who on the part of the mother was a different person from the next of kin to her father.

But this being only an application for the administration, and not for the interest under the statute of distributions, the court declined giving a judgment upon that question. I BI. R. 640. And it does not appear that that point was ever determined in the spiri. taal courts.

But I should be inclined to think that our courts would require more than presumptive evidence to support a claim of this nature. Some curious cases de commorientibus may be seen in Causes Celebres, 3 Tom. 412. et seq. In one of which, where a father and son were flain together in a battle, and on the same day the daughter became a professed nun, it was determined that her civil death was prior to the death of her father and brother, and that the brother having arrived at the age of puberty, should be presumed to have survived his father,

of

of this chapter w; and which fir Edward Coke » himself,
though he doubted the generality of it's 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 intel-
tacy. It allo bears some resemblance to the Roman law
of fucceffions ab inteflcto": which, and becaufc the act was
also penned by an eminent civiliany, has occasioned a notion
that the parliament of England copied it from the Roman
praetor : though indeed it is little more than a restoration,
with some refinements and regulations, of our old constitue
tional law; which prevailed as an established right and cus-
tom from the time of king Canute downwards, many cen-
turies 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 lifetime any estate in lands, or pecu[ 517 } niary portion, equal to the distributive shares of the other chil

dren, shall have any part of the surplusage with their brothers
and fifters; but if the estates so given them, by way of ad
vancement, are not quite equivalent to the other shares, the
children fo advanced shall now have fo much as will make
them equal. This just and equitable provision hath been allo
said to be derived from the collatio bonoruin of the imperial law?:
which it certainly resembles in some 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 fifter
kingdom of Scotland : and, with regard to lands descending
pag. 492

filters, together with the representatives *W 2 Inft. 33. See r P. Wms. 8.

of a brother or fifter deceased. 3. The * The general rule of such fucceffons next collateral relations in equal degree. was chis: 1. The children or lineal 4. The husband or wife of the deceased. descendants in equal portions. 2. On (Ff. 38. 15. 1. Nov. 118. c. 1, 2, 3. failure of these, the parents or lineal

127.0.1.) afcendants, and with them the brethren y Sir Walter Walker. Lord Rsyn. or Gisters of the whole blood; or, if the 574. parents were dead, all the brethren and 2 Fj. 37. 6. s.

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in coparcenary, that it hath always been, and fill is, the common law of England, under the name of botchpota.

BEFORE I quit this subject, I must however acknowlege, that the doctrine and limits of representation, laid down in the statute of distribution, feem to have been principally born towed from the civil law: whereby it will sometimes happen, that personal estates are divided per capita, and sometimes por stirpes; whereas the common law knows no other rule of fuccellion but that per ftirpes 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 juri repraefentationis, in the right of another person. As if the next of kin' be the intestate's three brothers, A, B, and €; 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 ftirpes; 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 intertate, would take in their own rights per capita ; vit. each of chem one fifth part (24).

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(24) There is no representation or distribution per ftirpes but among immediate descendents and the children of brothers and Ifters; for the fatute has expressly declared that no representation fhall be admitted among collaterals after brother's and fifter's children. 1.7. If therefore A the brother of the intestatė be dead, Yeaving only grandchildren, and B be dead, leaving children, and e still be living, the grandchildren of A shall have no share, but one half will be given to the children of B, and the other half te e. iP.Wms.

25.

If the inteftate has a mother living, and brocher's or fifter's children, they shall take per flirpes with the mother, who shall have in such cafe the same thare as a brother or fifter. 1 Atk. 458.

THE

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