be made in regard to the international rules of succession in personal estate, this point of bastardy cannot be overlooked.

But the other rules of the law of the two countries upon these subjects differ widely; and it is necessary to treat of them in detail, in regard to the one country and the other.

It has been an advantage on the part of Scotland, that, as far back as our knowledge of the Scottish law distinctly extends, there has been but one general rule of law in regard to the succession in personal estate, common to every part of that country; and any alterations in the law which may from time to time have been made, have been regulations of a general, not a local, nature. It has also been an important advantage, that a confirmation obtained in any of the courts established in Scotland for granting confirmations, is of force in the whole of that country. (2) It has long, also, been in the power of parties residing in Scotland, when entering into contracts of marriage, to make special covenants and stipulations in regard to the rights of the husband and wife, and of their issue, in the personal

estate of the parties contractors.

This must have tended

to render the present state of the law less felt, and less the subject of observation, in that country, than it otherwise must have been. (a)

In England, on the other hand, besides the general law under the statutes of distribution, there always have existed, and still exist, local customs of great intricacy, in regard to the succession in personal estate. These have been already traced to their present state. be controlled by the deeds of settlement between a husband and wife, in so far as the rights of the husband and wife are concerned; and now, by the several statutes before mentioned, by the last will and testament of

(*) Erskine, b.iii. t. 9. s. 29.

(a) Ibid. b. iii. t. 3. s. 30., t. 9. s. 23.

They may

the father: but in so far as the succession is left to be regulated by law, these local customs still take effect in their full vigour. (b)

It has also been a source of much inconvenience in England, that probates and administrations have been granted in that country by a vast variety of courts; and that such probates and administrations were only effectual within the limited range of these local jurisdictions. (c) But this inconvenience is now, probably, in the course of receiving an effectual remedy.

Thus it happens, that there are few general rules in the law of succession in personal estate which apply to every part of England. The following rules, however, are of a general nature in that country, and apply as well to the general law under the statutes of distribution, as to the local customs reserved from the operation of these sta

tutes.

SECT. II.

Rules applicable to England generally.

1. EVERY husband and father, in every part of England, may dispose of his whole personal estate by his will, or other testamentary disposition, in the same manner as, before the statutes enabling him in that behalf, he could have disposed of any part of such personal estate. (d)

It has been seen that the same power was extended to Ireland, by the Irish statute of the 7th of W. III. before referred to. (e) Some of these alterations in the law of England were not made without much consideration. (ƒ)

(b) Supra, p. 53.

(c) Supra, p. 250. (d) Statutes 4 W. 3. c. 2., 2 & 3 Ann. c. 5., 11 G. 1. c. 18.

(e) Supra, p. 57.

(f) Protests on 11 G. 1. c. 18. Supra, p. 50.

As far as is known, they have never been objected to as inconvenient; and, except for this power, the anomalies in the rules of distribution which still exist in different parts of England, must have been attended with inconveniences altogether intolerable. It will be for consideration, whether a similar power should not also be extended to Scotland, in any alteration to be made in the law of succession in that country. Already this power is competent to all husbands and fathers in Scotland, in those cases in which the rights of the wife and children are fixed with reasonable provisions, in lieu of their legal provisions under contracts made before marriage; and the assimilation of the law of Scotland to the law of England, in this respect, would merely be an extention of the law which the parties can at present lay down for themselves by contract for the regulation of their own properties. (g)

(g) Infra. In Swinburne we find the arguments for and against the universal power of testing, nicely balanced. He lived in the latter end of the reign of Elizabeth, and was judge of the Prerogative Court of York. In his time the customs were in their full vigour, and the power of making a will of the whole personal estate extended only to the province of Canterbury. He says, "In the opinion of some, the law of this land, which "leaveth all the residue to the disposition of the testator, funerals and "debts deducted, seemeth to have better ground in reason, than the "custom whereby he is forced either to leave two parts of three, or at "least the one half, to his wife and children; for what if the son be an unthrift or naughty person? what if the wife be not only a sharp shrew, but of worse conditions? Is it not hard that the testator "must leave either the one half of his goods to that wife or child, or cc more; for the which, also, peradventure, he had laboured full sore all "his life? Were it not more reason that it should be in the liberty of "the father or husband to dispose thereof at his own pleasure? which, "when the wife and children understood it, might be a means whereby "they might become more obedient, live more virtuously, and content "with good desert to win the good will and favour of the testator. "Those reasons make for the testator, and for the equity of the common law, which leaveth the whole residue to his disposition.

"But the custom whereby this liberty of the testator is restrained, is

2. A married woman, or female under coverture, can make no will or testamentary disposition of personal estate, unless thereto specially empowered by her marriage settlement, by the consent of her husband, or by the deed or will of some other person giving her such power in regard to some special property. (h)

In this respect, the law of England appears to differ from the laws of those countries which recognise a communion of goods between persons in a state of marriage, and particularly from the law of Scotland. (i) In England, the rights of the married pair, in regard to personal estate, during the subsistence of the marriage, are totally merged in the husband.

3. Upon the dissolution of a marriage by the predecease of the wife, the whole rights in the per

"not without reason also: for when it is asked, What if the child be an "unthrift, the wife worse than a shrew? so it may be demanded, with like "facility, What if the child be no unthrift, but frugal and virtuous? "what if the wife be an honest and modest woman? which thing is " rather to be presumed; but, if it be not amiss to fear the worst, then, on the contrary, What if the testator be an unnatural father or un"kind husband? perhaps, also, greatly enriched by his wife, whereas "before he was but poor. Standeth it not with as great reason, that “such a wife and children should be provided for, and that it should "not be in the power of such a testator to give all from them, or to "bestow it upon such as had not so well deserved it, and by that means "set his wife and children a begging? Surely the custom hath as good

ground in reason against lewd husbands and unkind fathers, as hath "the law in meeting with disobedient wives and unthrifty children." (Swinburne, p. 303.)

It is to be remarked that, in addition to the arguments in Swinburne in favour of the universal power of bequeathing, we have, in its favour, the experience of the long period that has elapsed since the enabling statutes were passed in England.

(h) 4 Burn's Eccles. Law, p. 50. et sequen. (i) Infra.

sonal estate of the husband remain vested in him as before her death, without any right or claim accruing thereby to the next of kin of the predeceasing wife. (k)

It does not appear that this has ever been otherwise in England. The contrary rule, in Scotland and other countries, has resulted from the doctrines incident to the communion of goods between husband and wife, established in the laws of Scotland and of those other countries.

4. In such case, also, where the wife dies possessed of personal property not vested in the husband, the husband surviving is entitled to obtain letters of administration to such personal property; and, under such letters of administration, to apply the same wholly to his own use. (1)

After the statute of distributions was passed, doubts were raised whether, in the case of a surviving husband, administrator to his wife, he was not bound by the statute to distribute her property to her next of kin. To obviate these, it is provided by a clause in the statute of frauds (29 Car. II. c. 3. s. 25.), that neither the statute of distributions, nor any thing therein contained, "shall be construed to extend to the estates of feme coverts that shall die intestate; but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of the said act." This was made perpetual by 1 Jac. II. c. 17. s. 5. (m)

(k) 2 Blacks. Com., 434.

(1) 4 Burn's Eccles. Law, 278., with Tyrwhitt's note.