If, after the death of the wife, the husband shall die without having taken out administration to her, the ecclesiastical courts formerly found themselves bound by the statute 21 Hen. VIII. c. 5. to grant administration to the next of kin of the wife, and not to the representatives of the husband; and in such case the administrator was considered, in equity, with respect to the residue, as a trustee for the representatives of the husband. (n) But now, as it has been already seen, the practice of the Ecclesiastical Court has been altered, and administration is granted to the representatives of the husband. (0)

5. But if the marriage be dissolved by the predecease of the husband, the chattels real of the wife, of which the husband had made no disposition in his lifetime; and the choses in action of the wife, not recovered or reduced into possession by the husband, shall survive to the wife as her own, and shall not go by will to the executors, or, in case of intestacy, to the personal representatives of the husband. (p)

Thus, in regard to two species of the personal property of the wife, her chattels real (such as leases for years), and her choses in action (such as bonds and other securities for money), the dissolution of the marriage by the predecease of the husband operates a change in the rights of the parties. The chattels real were vested in the husband, not absolutely, but sub modo; they were vested in the husband and wife by a species of joint-tenancy, and as such

(n) Williams on Executors and Administrators, 910.

(0) Supra, p. 274.

(p) Popham, 5.; Co. Litt. 351.; 2 Blacks. Com. 434.

accrued to the survivor absolutely, as the surviving jointtenant. (q)

As to the choses in action of the wife, these were not carried absolutely by the marriage; they might have been recovered or reduced into possession by the husband, but if the wife survived would again belong to her. The distinction, however, is now unimportant if the husband survive; for the before-mentioned statutes of 29 Car. II. c. 3. s. 25. and 1 Jac. II. c. 17. s. 5. have given to the husband the administration of all the personal property of the wife for his own benefit; and, supposing him to die after her, and before he has recovered or reduced her choses in action into possession, his personal representatives will be entitled to them, and not the next of kin of the wife. (r)

In other respects, the law of succession and distribution in England, as laid down in the statutes of distribution, is modified by the local rules established in the different parts of that country. It is necessary, therefore, to see how the law is fixed, taking these local rules also into consideration.

The statutes of distribution apply generally to the province of Canterbury (s); and they apply to the principality of Wales, the province of York, and to the city of London, where not controlled by the customs established in those parts of the kingdom, which were reserved by the statutes, in so far as these customs are still in force. We shall, therefore, consider, first, how the law of succession is regulated generally under the statutes of distribution; and,

(q) 2 Blacks. Com. 434.

(r) 4 Burn's Eccles. Law, 420.; 2 Blackstone, 434.; in notis of Coleridge's edition.

(s) The same rules obtain in Ireland, in British India, in the West Indies, and in other British colonies, so far as these are subject to the

next, how this is controlled by the local customs of the principality of Wales, of the province of York, and of the city of London.

SECT. III.

Of the Rules of Distribution under the Statutes of Distribution in England.

THE statutes of distribution apply only to cases of intestacy; and it has been held, in repeated instances, that the Ecclesiastical Courts have no power to compel an executor to make distribution of the surplus undisposed of in a case of testate succession. (†)

According to the older authorities of the ecclesiastical law, the appointment of an executor was essential to a testament (u); and in the case of Woodward v. Lord Darcy, the common-law judges laid down, that without an executor a will is null and void. (x) Thus, there may be a legal intestacy where there is a will, if no executor be appointed: but this strictness has long ceased to exist, except in regard to the power of the Ecclesiastical Courts to make distribution; and the Court of Chancery has long held that, where the testator made his will, but named no executor, still the will was good in equity. (y) Courts of equity have also compelled the distribution of a residue not disposed of in a case of quasi or partial intestacy, in such manner as it would be distributed under the statutes. Where no executor was appointed, there was less of dif

(t) Petit v. Smith, L Raym. 86. Rex v. Raines, L. Raym. 363. Hatton v. Hatton, Strange, 865. 4 Burn's Eccles. Law, 395. (u) Swinburne, pt. i. s. 3. pl. 19. Godolphin, pt. i. c. 1. s. 2. (x) Plowd. 185.

(y) Wyrall v. Hall, 2 Chanc. Rep. 112.; Swin. 7th ed. p. 15. in notis. Williams on Executors, pp. 7. 54.

ficulty upon this subject; but where an executor was named, a question in many cases arose, whether the executor was to distribute the residue, or if he was entitled to take it to himself. Down to a very recent period, the executor was the testator's residuary legatee appointed by law, and, as such, was entitled to the personal estate (except lapsed legacies) which the testator had not otherwise disposed of; but notwithstanding their legal title, courts of equity deemed executors to be trustees for the testator's personal representatives in all cases, where the intention of the testator was apparent, that the executors should not take beneficially by virtue of their office. Upon this subject many cases of great intricacy, in regard to the intention of testators, occurred in the courts of equity. (*)

But all difficulty upon this subject is done away by the recent statute (11 G. IV. and 1 W. IV. c. 40.), and now executors are to be "deemed, by courts of equity, trustees for the person or persons (if any) who would be entitled to the estate under the statute of distribution, in respect of any residue not expressly disposed of, unless it shall appear by the will, or any codicil thereto, the person or persons so appointed executor or executors was or were intended to take such residue beneficially."

Thus, in every case, the rules of the statute are now to be applied, as well by the administrator in a case of pure intestacy, as by the executor, or administrator with the will annexed, in a case of quasi or partial intestacy.

1. On the dissolution of a marriage by the death of a husband intestate, leaving a widow, and a child

(*) 2 Roper on Legacies (by White), 590. et sequen., and 640. et sequen.

Y

or children, one-third of the clear personal estate (after all debts, funerals, and just expenses of every sort first allowed and deducted) shall go to the widow, and the residue to the child or children, or their lineal descendants; if no children, or lineal descendants of them, then one moiety shall go to the widow, and the other moiety to the next of kindred. (a)

The widow's title under the statute may be barred by a settlement before marriage, excluding her from her distributive share of her husband's personal estate; and even a female infant may be barred of her right by such a settlement made before marriage, with the approbation of her parents or guardians. (b)

Various questions have occurred in the courts in regard to the meaning and interpretation of settlements, as affecting the rights of the wife in the distribution of her husband's personal estate. (c) These do not affect the general rule, but only show how this is to be applied in special cases, and it would be out of place to enter into them here.

2. In case there be no wife, the child, if only one, or, if more than one, the children, or such persons as shall legally represent them, in case any of the said children be then dead, shall take the clear personal estate of the deceased under the statutes of distribution. (d)

Though the expression distribution does not strictly apply in the case ofone child, yet, where there is only one

(a) 4 Burn's Eccles. Law, 392.

(b) Williams on Executors and Administrators, 912. et sequen. (c) Ibid.

(d) 4 Burn's Eccles. Law, 411.