receive it out of the testator's personal estate, at the same time that it would have become payable in case the legatee had lived. 52 This distinction is borrowed from the civil law; (e) and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations; and that the subject should have the same measure of justice in whatever court he sued. (f) But if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir; (g) for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction. 53 And in case of a vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, inter[514] est shall be payable thereon from the testator's death; but if charged only on the personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator. (h) 54

Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed disposition of property; which is called a donation causu mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers, or causes to be delivered to another, the possession of any personal goods (under which have been. included bonds, and bills drawn by the deceased upon his banker), to keep in case of his decease. This gift, if the donor dies, needs not the assent

55

e Ff. 35. 1. 1 & 2.

f 1 Eq. Cas. Abr. 295.

g 2 P. Wms. 601.

h 2 P. Wms. 267, 2.

the interest in the estate will be vested, and upon the death of the devisee before that age, will descend to his heir. 3 T. R. 41. Chitty.

(52) Where a legacy is given to another, in case the first legatee dies under twenty-one or a certain age, the legacy must be paid upon the death of the infant. And where it is not given over to another, if it bears interest, his representative shall be entitled to it immediately, 1 Ves. 118.; but if the interest allowed by the testator is less than the interest allowed by a court of equity, the executor of the testator shall be entitled to the difference until the first legatee would have arrived at the age prescribed by the testator. 2 P. Wms. 478. 1 Bro. 105. A bequest of a residue or fund to all the children of A., to be paid when they shall attain the age of twentyone, must be divided among those only who are in existence when the eldest attains that age. S Bro. 404. Where a legacy was given to the eldest child of A. upon the death of B., A. had at the death of B. only illegitimate children, but had afterwards a legitimate child, it was held that neither could take, the first not legally answering the description, and the second not existing when the legacy was to vest. 6 Ves. Jun. 43. The rule of the court of chancery now is to let in all children, until there is a distributive share to be given to one. 6 Ves. 348. Chitty. (53) It is generally true, that both portions created by deed or will, and legacies which are to be raised out of a real property and to be paid upon a future day, shall never be raised if the person to whom they are given dies before the day of payment. But legacies and portions in a will shall be raised, if the time of payment is postponed on account of the circumstances of the testator's estate, or till after the death of the testator's wife, 2 Atk. 127. ; or of any other person, 1 Ves. 44.; and not on account of the circumstances of the legatee, 3 Atk. 319. ; or where it is the apparent intention of the testator, notwithstanding the death of the legatee prior to the time specified. If the portions are to be raised out of land, and no time is limited, although the cases upon the subject are contradictory, it seems they shall sink into the estate, if the children die before they are wanted. See the cases upon this subject fully collected in 2 Cox's P. Wms. 612. aud Harg. Co. Litt. 237. Chitty. (54) A pecuniary legacy, given by a parent to a legitimate child, shall carry interest from the death of the testator, although their legacies are payable at a future day, 3 Atk. 60. 432. Ves. 13.; and it seems the rule prevails in the case of grandchildren, 13 Ves. 12. 5 ibid. 194. ; and illegitimate children, if it clearly appear, that the testator intended to put himself in loco pa rentis, 3 ibid. 12. 6 Ves. 546.; otherwise the child might perish within the year for want of maintenance, 1 Ves. 310.; still it is denied that this rule applies to money in the funds, &c. See 7 Ves. 97. 8 Ves. 412. 1 Scho. &. Lefr. 11.

3

(55) There may be a donatio casua mortis of bonds, bank-notes, and bills payable to bearer, but not of other promissory notes or bills of exchange, these being choses in action which cannot VOL. I.

102

of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa. (i) This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession; (k) and so far differs from a testamentary disposition; but seems to have been handed to us from the civil lawyers, (1) who themselves borrowed it from the Greeks. (m)

7. When all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if any be appointed by the will; 56 and if there be none, it was long a settled notion that it devolved to the executor's own use by virtue of his executorship. (n) But whatever ground there might have been formerly for this opinion, it seems now to be understood (o) with this restriction; that although where the executor has no legacy at all, the residuum shall in general be his own: yet wherever there is sufficient on the face of a will (by means of a competent le[515] gacy or otherwise), to imply that the testator intended his executor should not have the residue, the undivided surplus of the estate shall go to the next of kin, the executor then standing upon exactly the same footing as an administrator: " concerning whom indeed there formerly was

57

i Prec. Chanc. 269. 1 P. Wms. 406. 441. 5 P. Wms. 357. k Law of forfeit. 16. 1 Inst. 2. 7. 1. Ff.l. 59. t. 6. m There is a very complete donatio mortis causa, in the Odyssey, b. 17. v. 78. made by Telemachus to bis friend Piracus; and another by Hercules, in the Alcestes of Euripides, v. 1020.

n Perkins, 525.

o Prec. Chanc. 323. 1 P. Wms. 7. 541. 2 P. Wms. 338. 3 P. Wms. 43. 194. Stra. 559, Lawson v. Lawson, Dom. Proc. 28 Apr. 1777.

pass by a delivery; 3 P. Wms. 357. and 2 Ves. 431. where this subject is largely discussed by lord Hardwicke.

See in general, Toller, 233 to 237. The law upon this subject could hardly be said to be defnitely settled till within the last few years, as the cases in the earlier reports do not embrace all the necessary points, and are in some instances at variance with each other. The judgment of the court of Common Pleas in the case of Bunn v. Markham, 7 Taunt. 224. and 2 Marsh. 532. was delivered after a full consideration of the law, as it had been pronounced in the different courts before that time, and as the court of king's bench had declared that case to be a very strong authority, and made it the foundation of their own decision upon a question of a similar nature, (see Irons v. Smallpiece, 2 Bar. and Ald. 551.) it may be expedient to state the principles then established. The facts were shortly these: Sir Jervase Clifton, supposing himself in extremis, caused India bonds, bank-notes, and guineas, to be brought out of his iron chest and laid on his bed. He then caused them to be sealed up in three parcels, and the amount of the contents to be written on them, with the words "for Mrs. and Miss C." the plaintiffs; he then directed the parcels to be replaced in the iron chest, the chest to be locked and the keys to be sealed up in a paper parcel, and written on "To be delivered to Mr. Januson after sir Jervase Clifton's decease. (Mr. Jamson was his solicitor and one of his executors.) The keys were then replaced in his custody by the bed-side. He afterwards spoke of the property as given to the plaintiffs. It was held this was not a donatio mortis causa, for want of a delivery and continuing possession. That if the donor, after delivery, resumes the possession, it ends the gift. And that facts denoting intention only, however strongly, are insufficient. In Irons v. Smallpiece, however, it seems to have been considered, that if the gift, as of a horse, &c. remain in the possession of the donor, and the donee incurs, or renders himself liable for expenses in respect of it, the non-delivery to the donee will not defeat his right to the possession. See 2 Bar. and Ald. 553. A donatis mortis causa is subject to debts on a deficiency of assets, 1 P. Wms. 409.; and to the duties imposed upon legacies by the 36 Geo. III. č. 52. s. 7. But it is not within the jurisdiction of the ecclesiastical court; it is not to be possessed by the executor, it does not regularly fall within an administration, nor requires any act by or from the executor to constitute a title in the donee. 1 Roper's Law of Legacies, 2. "There is a species of appointment in the nature of a donation mortis causa, which may take effect without delivery, as where a person upon his death-bed draws a bill upon his banker, and by writing indorsed upon it, declares that the money is to be applied to the benefit of a person for a particular purpose, which necessarily supposes death," 1 Roper, 6. as to buy mourning. See Dawson v. Lawson, 1 P. Wms. 441. as cited in 2 Ves. Jun. 111. And such a gift would now be supported, notwithstanding the cases above stated. Chitty

(56) See in general, Toller, 342. 351. 382, &c. Mascall on Intestates.

(57) Courts of equity now construe executors to be trustees for the next of kin in all cases

much debate, (p) whether or no he could be compelled to make any distribution of the intestate'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. (9) 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 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) (r), shall, after the expiration of one full year from the death of the intestate, 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 subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: 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 representatives: but no representatives are admitted, among collaterals, farther than the children of the intestate's brothers and sisters. (s) * 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 sufficiently spoken. (t) And therefore by this statute the mother, as [516] well as the father, succeeded to all the personal effects of their children, who died intestate and without wife or issue: in exclusion of the other sons and daughters, the brothers and sister of the deceased. And so the law still remains with respect to the father; but by the statute 1 Jac. II. c. 17. if the father be dead, and any of the children die intestate without wife or issue in the lifetime of the mother, she and each of the remaining

p Godolph. p. 2. c. 32.
r Stat. 29 Car. II. c. 3. § 25.

58

q 1 Lev. 233. Cart. 125. 2 P. Wms. 447.
s Raym. 496. Lord Raym. 571.
t Pag. 504.

where a fair inference can be collected from the expressions and circumstances of the will, that such was the testator's intention. When a legacy is given to a sole executor, it affords a reasonable conclusion, that the testator 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 not have the whole, or, according to a quaint phrase, 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 consistent 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 co-executors, or where equal legacies are given to co-executors, or where some have legacies and not all, they shall take the residue, for this might be done by the testator, 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 authorities, fully and clearly collected and stated in 1 Cox's P. Wms. 550. 7 Ves. Jun. 225. 12 Ves. 298. Toller, 350, 1. & n. Christian.

If the testator give the residuum to a person who dies in his lifetime, in consequence of which this bequest is lapsed, the executor, though he has no legacy, shall be a trustee for the next of kin, because the testator has expressed a manifest 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. Where an executor has a specific legacy given him, still parol evidence may be admitted, to shew that it was the testator's intention, at the time of making his will, to give him the residue. 2 Ves Jun. 465. Christian.

(58) How construed, see Toller, 382, 3.

children, or other representatives, shall divide his effects in equal por-
tions. 59

It is obvious to observe, how near a resemblance this statute of distribu-
tion bears to our ancient English law, de rationabili parte bonorum, spoken
of at the beginning of this chapter: (u) and which sir Edward Coke (~)
himself, though he doubted the generality of its 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 intestacy. It also bears some resemblance to the Roman law of suc-
cession ab intestato ; (x) which, and because the act was also penned by
an eminent civilian, (y) has occasioned a notion that the parliament of Eng-
land copied it from the Roman praetor: though indeed it is little more than
a restoration, with some refinements and regulations, of our old constitu-
tional law; which prevailed as an established right and custom from the
time of king Canute downwards, many centuries 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 pecuniary portion, equal to the
distributive shares of the other children, shall have any part of the [517]
surplusage with their brothers and sisters; but if the estates so given
them, by way of advancement, are not quite equivalent to the other shares,
the children so advanced shall now have so much as will make them equal.
This just and equitable provision hath been also said to be derived from the
collatio bonorum of the imperial law: (2) 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, that is part of the ancient
custom of London, of the province of York, and of our sister kingdom of
Scotland and, with regard to lands descending in coparcenary, that it hath
always been, and still is, the common law of England, under the name of
hotchpot. (a)

u Pag. 492.

w 2 Inst. 33. See 1 P. Wms. 8.

x The general rule of such successions was this: 1. The children or lineal descendants in equal por-
tions. 2. On failure of these, the parents or lineal ascendants, and with them the brethren and sisters,
together with the representatives of a brother or sister deceased. 3. The next collateral relations in
equal degree. 4. The husband or wife of the deceased. Ff. 38. 15. 1. Nov. 118. e. 1, 2, S, 127. c. 1.
a See ch. 12. pag. 191.

y Sir Walter Walker. Lord Raym. 574.

z Ff. 37. 6. 1.

(59) The next of kin, who are to have the benefit of the statute of distribution, must be ascer-
tained according to the computation on the civil law, including the relations both on the paterna!
and maternal sides. Toller, 382, 3. And when relations are thus found who are distant from
the intestate by an equal number of degrees, they shall share the personal property equally, al-
though they are relations to the intestate of very different denominations, and perhaps not rela-
tions to each other. As if the next of kin of the intestate are great uncles and aunts, first cousins,
and great nephews or nieces, these being all related to the intestate in the fourth degree, will be
admitted to an equal distributive share of his personal property. There is only one exception
to this rule, viz. where the nearest relations are a grandfather and grandmother, and brothers
or sisters; although all these are related in the second degree, yet the former shall not participate
with the latter; for which singular 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 question was agitated some time ago respecting the
right to the administration. 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 perish to-
gether, and the priority of their death is unknown, 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 dif-
ferent person from the next of kin to her father. But this being only an application for the ad-
ministration, and not for the interest under the statute of distribution, the court declined giving a
judgment upon that question. 1 Bl. R. 640. And it does not appear that that point was ever de-
termined in the spiritual courts. But I should be inclined to think that our courts would require

Before I quit this subject, I must however acknowledge, that the doctrine and limits of representation, laid down in the statute of distributions, seem to have been principally borrowed from the civil law: whereby it will sometimes happen, that personal estates are divided per cupita, and 7, sometimes per stirpes; whereas the common law knows no other rule of succession but that per stirpes 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 jure representationis, in the right of another person. As if the next kin be the intestate's three brothers, A, B, and C; 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 stirpes; 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 intestate, would take in their own rights per capita; viz. each of them one-fifth part. (c) 6o The statute of distributions expressly excepts and reserves the custom of the city of London, of the province of York, and of [518 all other places having peculiar customs of distributing intestates' effects. So that, though in those places the restraint of devising is removed by the statutes formerly mentioned, (d) their ancient customs remain in full force, with respect to the estates of intestates. I shall therefore conclude this chapter, and with it, the present book, with a few remarks on those customs.

60

In the first place, we may observe that in the city of London, (e) and province of York, (f) as well as in the kingdom of Scotland, (g) 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 ancient 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 children, they shall respectively, in either case, take one moiety, and

d Pag. 493.

b See ch. 14. pag. 217.
c Prec. Chanc, 54.
e Lord Raym. 1329.
g Burn. Eccl. Law. 732.

f2 Barn. Eccl. Law. 746.

And in 6 East, 82. it is said more than presumptive evidence to support a claim of this nature. that lord Mansfield required the jury to find whether the general or his daughter survived; but it is not stated upon what occasion. 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 slain 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.—Mr. Christian's

note.

(60) There is no representation or distribution per stirpes but among the immediate descendants of the intestate, and the children of his brothers and sisters; for the statute has expressly declared that no representation shall be admitted among the collaterals, after brother's and sister's children. s. 7. If therefore A., the brother of the intestate, be dead, leaving only grandchildren, and B. be dead, leaving children, and C. 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 to C. 1 P. Wms. 25. If the intestate has a mother living, and brother's or sister's children, they shall take per stirpes with the mother, who shall have in such case the same share as a brother or sister. 1 Atk. 458. An aunt's child, or a cousin, cannot take by representation with an uncle, for as a nephew's child cannot take by representation, so a collateral equally remote shall not be admitted to take by reChitty. presentation with a nearer kinsman, 1P. Wms. 594.