« PreviousContinue »
The statute of distributions expressly excepts and reserves the custom of the city of London, of the province of York, and of all other places having peculiar customs of distributing inteftates' effects. So that, though in those places the restraint of devising is removed by the statutes formerly mentionedd, their antient customs remain in full force, with respect to the estates of inteftates. I shall therefore conclude this chapter, and with it the present book, with a few remarks on those customs.
In the first place we may observe, that in the city of London", and province of Yorks, as well as in the kingdom of Scotland 3, 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 payment 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's apparel and the furniture of her bed-chamber, 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 chil. dren, they shall respectively, in either case, take one moiety, and the administrator the other; if neither widow nor child, the administrator Thall have the whole'. And this portion, or dead man's part, the administrator was wont to apply to his own usek, till the statute i Jac. II. e. 17. declared that the same should be subject to the statute of distribution. So that if a man dies worth 1800l. personal estate, leaving a widow and two children, this estate shall be divided into eighteen parts ; whereof the widow shall have eight, fix 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 Thall have ten, fix 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 custom 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'; but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreement. And if any of the children are advanced by the father in his lifetime 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 fifters, but not with the widow, before they are entitled to any benefit under the custom" : but, if they are fully advanced, the custom entitles them to no further dividendo
d page 493.
hi P. Wms. 341. Salk. 346.
Thus far in the main the customs of London and of York agree: but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (of orphanage part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testamentp: 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 cuftom, and in case of intestacy, shall fall under the statute of distributions 4. 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
But, notwi:hstanding 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, 1 2. Vern. 665. 3 P. Wms. 16.
• 2 P. Wms. 527.
4 Prec. Chanc. $37.
12 Burn. 754 VOL. II.
to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points (particularly in the advantages given to the widow) it very considerably differs : though it is not improbable that the resemblances which yet remain may be owing to the Roman usages; introduced in the time of Claudius Caesar, who established a colony in Britain to instruct the natives in legal knowlege'; inculcated and diffused by Papinian, who
presided at York as praefectus praetorio under the emperor Severus and Caracalla"; and continued by his fucceffors till the final departure of the Romans in the beginning of the fifth century
Selden, in Fletam. cap. 4. § 3.
THE END OF THE SECOND BOOK,
014 NT presentes et futuri, quod ego Willielmus, Premises,
hannis de Saleford, pro quadam summa pecunie quam
Livery ef seisin endorled.
Ageniozandum, quod die et anno infrascriptis plena et pacifica seilina acre infraspecificate, cum pertinentiis, data et deliberata fuit per infranominatum Willielmum de Segenho infranominato Johanni de Saleford, in propriis perfonis fuis, fecundum tenorem et effectum carte infrascripte, in presentia Nigelli de Saleford, Johannis de Sey. broke, et aliorum,
S [ 2
A modern Conveyance by LEASE and RELEASE.
$. 1. LEASE, ar BARGAIN and Sale, for a year.
HIS Indenture, made the third day of September, in
the twenty-first year of the reign of our sovereign lord GEORGE the second by the grace of God king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in
the year of our Lord, one thousand, seven hundred, and forty: Parties.
seven, between Abraham Barker of Dale Hall in the county of Norfolk, esquire, and Cecilia his wife, of the one part, and David Edwards of Lincoln's Inn in the county of Middlesex, esquire, and Francis Golding of the city of Norwich, clerk, of the other
part, witnesseth ; that the said Abraham Barker and Cecilia his Confidera
wife, in consideration of five fillings of lawful money of Great Britain to them in hand paid by the said David Edwards and Francis Golding at or before the enfealing and delivery of these presents, (the receipt whereof is hereby acknowleged,) and for
other good causes and confiderations them the said Abraham Bargain and Barker and Cecilia his wife hereunto specially moving, habe
bargained and fuld, and by these presents do, and each of them
doth, bargain and fell, unto the said David Edwards and FranParcels.
cis Golding, their executors, administrators, and affigns, 311 that the capital mesfuage, called Dale Hall in the parish of Dale in the said county of Norfolk, wherein the said Abraham Barker and Cecilia his wife now dwell, and all those their lands in the faid parish of Dale called or known by the name of Wilson's farm, containing by estimation five hundred and forty acres, be the fame more or less, together with all and singular houses, dovehouses, barns, buildings, flables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profirs, easements, commodities, advantages, emoluments, heredi. timents, and appurtenances whatsoever to the said capital mes. suage and farm belonging or appertaining, or with the same used or enjoyed, or accepted, reputed, taken or known, as part, parcel, or member thereor, or as belonging to the same or any part thereof; and the reverfion and reversions, remainder and
remainders, yearly and other rents, issues, and profits thereof, Iluterdum. and of every part and parcel thereof: To have and to hold the
said capital messuage, lands, tenements, hereditaments, and all and fingular other the premies herein-before mentioned or in. tended to be bargained and fold, and every part and parcel thereof, with their and every of their rights, members, and appur