judgments and recognizances (both which are debts of record, and therefore at other times have a priority), and also bonds and obligations by deed or special instrument (which are called debts by specialty, and are usually the next in order), these are all put on a level with debts by mere simple contract, and all paid pari passu. (o) Nay, so far is this matter carried, that by the express provision of the statutes, (p) debts not due at the time of the dividend made, as bonds or notes of hand payable at a fu-ture day certain, shall be proved and paid equally with the rest, (9) allowing a discount or drawback in proportion. And insurances, and obligations upon bottomry or respondentia, bona fide made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcy. (r) 20 26 Within eighteen months after the commission issued, a second and final dividend shall be made, unless all the effects were exhausted by the first. (s) 27 And if any surplus remains, after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupt. (t) This is a case which sometimes happens to men in trade, who involuntarily, or at least unwarily, commit acts of bankruptcy, by absconding and the like, while their effects are more than sufficient to pay their creditors. And, if any suspicious or malevolent creditor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence; except that, upon satisfaction made to all the creditors, the commission may be superseded. (u) This case may also happen, when a knave is desirous of defrauding his creditors, and is compelled by a commission to do them that justice, which otherwise he wanted to evade. And therefore, though the usual rule is, that all interest on debts carrying interest shall cease from the time of issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt, (w) or his representatives. 23 28 CHAP. XXXII. 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. p Stat. 7 Geo. I. c. 31. o Stat. 21 Jac. I. c. 19. (26) See 6 Geo. IV. c. 16. s. 51. 56. infra, note 1. (27) Sce 6 Geo. IV. c. 16. sect. 109. (28) See 6 Geo. IV. c. 16. sect. 57. 132. and infra, note 1. (1) See in general, Com. Dig. Administration, Administrator, Devise; Bac. Ab. Wills and 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 making a last will and testament; shall, thirdly, consider the nature of a testament and its 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, [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 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 ancient Hebrews; though I hardly think the example usually given, (c) of Abraham's complaining (d) 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 (e) 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 tes taments may be found in the sacred writings, (h) wherein Jacob be[491] queaths 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; (i) but in a Puff. L. of N. b. 4. c. 10. b lbid. b. 4. c. 11. c Barbeyr. Puff. 4. 10. 4. Godolph. Orph. Leg. 1. 1. e Taylor's elem. civ. law, 517. h Gen. c. 48. Testament, and tit. Executors and Administrators; Toller's Law of Executors, and Roper on Legacies; Mascall on Intestates; Bridgman, index, tit. Executors; 2 Saunders by Paiteson, index, tit. Executors. In many other parts of Greece they were totally discountenanced. (k) Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathing: (1) 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; (n) 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. (6) 66 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 repentina, fuerit in"testatus 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, distribuan"tur." (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, (q) that by the common law, as it stood in [492] 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 wife or issue, the whole was at his own disposal. (r) 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) 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 partibus suis.” (t) 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; (u) though frequently pleaded as the local custom of Berks, Devon, and other counties: (w) and sir Henry Finch lays it down expressly, (x) 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 begun. Indeed sir Edward Coke (y) is of opinion, that this never was the general law, but only obtained in particular places by special k Pott. Antiq. l. 4. c. 15. n See p. 13. P LL. Carute, c. 68. ql. 2. e. 5. s F. N. B. 122. 1 Inst. 2 22. 1. u A widow brought an action of detinue against her husband's executors, quod cum per consuetudinem totius regni Angliae hactenus usitatam et approbatam, uxores debent et solent a tempore, &c. habere suam rationabilem partem bonorum maritorum suorum ; ita videlicet, quod si nullos habuerint liberos, tunc medietatem; et si habuerint, tunc tertiam partem, &c. and that her husband died worth 200,000 marks, without issue had between them; and thereupon she claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the husband's dying without issue was denied but the rule of law, as stated in the writ, seems to have been universally allowed. M. 30. Edw. III. 25.) And a similar case occurs in H. 17 Edw. III. 9. w Reg. Brev. 142. Co. Litt. 176. x Law, 175. y 2 Inst. $5. [493] 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 (2) 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 rantionabilis was by the common law which also continues to this day to be the general law of our sister kingdom of Scotland. (a) To which we may add, that, whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the ancient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times: when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided; the one 4 & 5 W. & M. c. 2.3 explained by 2 & 3 Ann. c. 5. for the province of York; another, 7 & 8 W. III. c. 38. for Wales; and a third, 11 Geo. I. c. 18. for London: whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety." In disposing of which, he was bound by the custom of many places (as was stated in a former chapter) (b) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty to bequeath the remainder as he pleased. In case a person made no disposition of such his goods as were testable, whether that were only part or the whole of them, he was, and [494] is, said to die intestate; and in such cases it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom. (c) This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, where matters of all kinds were determined; and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors in their own courts baron and other courts, or to have their wills there proved, in case they made any disposition. (d) Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative: which was done, saith Perkins, (e) because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods therefore of [495] intestates were given to the ordinary by the crown; and he might a Dalrymp. of feud. proper ty, 145. b pag. 426. d Ibid. $7. z l. 2. c. 26. § 2. c 9 Rep. 38. e § 486. (2) In the 4 W. & M. the cities of Chester and of York are excepted from its operation; the 2 & 3 Anne repeals this exception in respect of York, but there is no repeal of the exception in favour of Chester; where "the ancient method" therefore, it would seem, still may prevail. See H. & B. Co. Litt. 176. b. n. 5. (3) But in case of intestacy, the customs of those places still operate, there being a special provision to save them in case of intestacy. Co. Litt. 176. b. n. 5, and note 9. page 178. b. (4) Subject however to the limitations of the 39 & 40 Geo. III. c. 98. to prevent an indefinite accumulation. See ante 174. n. seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios usus and if he did otherwise, he broke the confidence which the law reposed in him. (f) So that properly the whole interest and power which were granted to the ordinary, were only those of being the king's almoner within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious. (g) And, as he had thus the disposition of intestates' effects, the probate of wills of course followed for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby. : The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were therefore not accountable to any, but to God and themselves, for their conduct. (4) But even in Fleta's time it was complained, (i) " quod ordinarii, hujusmodi "bona nomine ecclesiae occupantes, nullam vel saltem indebitam faciunt "distributionem." And to what a length of iniquity this abuse was carried most evidently appears from a gloss of pope Innocent IV., (k) written about the year 1250; wherein he lays it down for established canon law, that "in Britannia tertia pars bonorum decedentium ab intestato in opus "ecclesiae et pauperum dispensanda est." Thus the popish clergy took to themselves (1) (under the name of the church and poor) the whole residue of the deceased's estate, after the partes rationabiles, or two-thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reason it was enacted by the statute of Westm. 2., (m) that the ordinary shall be bound to pay the debts of the intestate so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will: a use more truly pious, than any requiem, or mass for his soul. This was the first check given to that exorbitant power, which the law had entrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary should approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate dependants and therefore the [496] statute 31 Edw. III. c. 11. provides, that, in case of intestacy, the→ ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted (n) to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5. enlarges a little more the power of the ecclesiastical judge; and permits him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion; and b Ibid. (Finch. Law. 173, 174. : 1 The proportion given to the priest, and to other pious uses, was different in different countries. In the archdeaconry of Richmond in Yorkshire, this proportion was settled by a papal bull, A. D. 1254, (Regist, honoris de Richm. 101.) and was observed till abolished by the statute 26 Hen. VIII. c. 15. m 18 Edw. 1. c. 19. n 9 Rep. 39. |