being required, make their election to accept or decline, the lessor may compel them so to do by petition to the Lord Chancellor. This last provision is extended to the case of agreements for the purchase of lands made by any bankrupt, and enables the vendor to call on the assignees in the same way, to make their election whether they will stand to or abandon such agreement.

With regard to leases, it is very commonly an object with lessors to fix the assignees as their tenants, and questions have often arisen under the 49 G.3. c. 121. as to what is sufficient evidence of their acceptance to bind them. Upon this, the general result of the cases seems to be, that the assignees may do all reasonable acts within a reasonable time, to ascertain whether it will be advantageous for them to take to the estate, and in so doing, and for that purpose, to intermeddle with the property, and yet after all, not be bound to become the tenants of it. See Turner v. Richard son, 7 East. 335. Wheeler v. Bramah, 3 Campb. 340.

CHAPTER THE THIRTY-SECOND.

OF TITLE BY TESTAMENT AND

ADMINISTRATION.

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

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, shew who is capable of mak→ ing a last will and testament; shall, thirdly, consider the nature of a testament and it's incidents; shall, fourthly, shew 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. We have more than once observed, that when property came 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, and [490] '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 be come 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. 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 pre-, sumed by the law, we call in England an administration; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

TESTAMENTS are of very high antiquity. We find them in use among the antient 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 shew that he had made him so by will. And indeed a learned writer, 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. 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,) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings ", wherein Jacob [491] bequeaths to his son Joseph a portion of his inheritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, 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. 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 ", 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 subject to different formalities and restrictions in almost every nation under heaven °.

WITH us in England this power of bequeathing is coeval with the first rudiments of the law: for we have no traces or 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 re"pentina, fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem (praeter eam quae jure debetur hereoti "nomine) sibi assumito. Verum possessiones uxori, liberis, et "cognatione proximis, pro suo cuique jure, distribuantur P." 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 inform us, that by the common law, as [ 492 ] 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 a third was at his own disposal: or, if he died without a wife, he might 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 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 ".

W

THIS Continued to be the law of the land at the time of magna carta, 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 de"functo; salvis uxori ipsius et pueris suis rationabilibus parti“ bus suist.” 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 and sir Henry Finch lays it down expressly *, in the reign of Charles the first, to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed [493] sir Edward Coke y is of opinion, that this never was the general law, but only obtained in particular places by special custom and to establish 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 reasonable part to be the common law : but mentions that as a particular exception, which sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law: which also continues to this day to