ment it is to be understood, that the father in his lifetime bestowed upon his child a competent portion whereon to live." (c) Thus the custom applies only to the personal estate of a person dying domiciled within the province; and in so far as such personal estate is not regulated by the custom, it is distributable by the statutes of distribution. (d) From that Down to the time of passing the statutes which enabled an inhabitant of the province of York to make a will of his whole personal estate, under every circumstance (e), the custom must have ruled in every case of succession to the personal estate of a husband and father. period questions must have occurred in cases of partial intestacy in regard to the distribution of a surplusage under a will; whether such surplusage was to be distributed by the custom or under the statutes. Some of these, of very considerable intricacy, have been decided in regard to the custom of this province. Where an inhabitant of the province of York makes a will, appointing an executor, but making no disposition of the residue of his estate, if such residue did not go to the executor (being a case of equitable intestacy), courts of equity have held that the residue was distributable by the statute, and not by the custom. (f) It seems, however, that if the testator should die, leaving a will, but without having appointed an executor (being a case of legal intestacy), his personal estate undisposed of must be distributed subject to the custom, as if he had (c) Swin. 233.; 4 Burn's Eccles. Law, 457. (d) 4 Burn's Eccles. Law, 452. (e) 4 W. 3. c. 2.; 2 & 3 Ann. c. 5. (f) Wheeler v. Sheer, Moseley, 302.; Lawson v. Lawson, 4 Bro. P. C. 21.; Wilkinson v. Atkinson, 1 Turn. Chanc. Cas. 255.; Fitzgerald v. Field, 1 Rus. Chan. Cas. 416. died actually intestate. (g) Thus, a difference appears to have been introduced by those decisions, between a case of equitable and one of legal intestacy: under the first, the residue undisposed of would be distributed by the statute; but under the second by the custom. Doubts, however, have been stated as to the principle involved in the first class of these decisions, on the ground that a residue undisposed of by the will of an inhabitant of the province of York ought to be divided according to that custom, which was the lex loci. (h) But since the recent statute of 11 G. IV. and 1 W. IV. c. 40. was passed, this matter (though the statute was made for another purpose) appears to be settled in the case where a will has been made appointing an executor, with a surplus undisposed of. In such case, the executor is bound to dispose of the surplus under the statute of distributions, in every part of England. (¿) It has been already noticed, that this statute in its terms only applies to the case where an executor has been appointed, and not to the case where there is no executor; and it does not appear that any question has occurred since the passing of this statute, in regard to the surplusage under a will, where there was no executor. In such case, the residue might still be distributable under the custom. The following rules appear to be established in regard to the custom of the province of York. 1. The custom takes place only in regard to the rights of the widow, and of the child or children of an inhabitant or householder within the province; if there be no widow and no child, the whole per (g) Wheeler v. Sheer, Moseley, 303. sonal property is of the nature of deadman's part; and distribution thereof is made according to the statutes, without any interference of or reference to the custom. (k) The widow is entitled to her customary share whether the children be of her or of a former wife, and a posthumous child shall come in for a customary share, as well as other children. (2) 2. In every case, where any part of the personal estate is distributable by the custom, the deadman's part is distributable solely under the statutes. (m) 3. On the dissolution of a marriage by the death of the husband intestate, leaving a wife and children, or other remoter descendants, after payment of debts and funeral expenses, according to the custom, the personal estate shall be distributable as follows: the wife is entitled by the custom, besides her apparel, the furniture of her bedchamber, and a coffer-box, containing her jewels, chains, and other ornaments of her person, to one third of the whole free personal estate of the intestate; the surviving children, not being the heir at law, or advanced by the father in his lifetime, are entitled to another third part thereof; the remaining third, being the deadman's part, shall be distributed by the statutes of distribution to the widow and children, including the heir (without regard to any shares taken by them under the custom), and to the descendants of children deceased, under similar (k) Swinb. 299.; 4 Burn's Eccles. Law, 457. rules of distribution, with those which, under the statutes, obtain generally within the province of Canterbury in a case of intestacy. (n) Thus, if the property were divided into ninths, the widow takes four ninths (three under the custom, and one under the statute), and the children take the other five ninths. When the act of 1 Jac. II. c. 17., settling the share to be taken by a mother in competition with the brothers and sisters of a party deceased, was passed, a case of Stapleton v. Sherrard was depending in the Court of Chancery of this nature:- Robert Stapleton died an inhabitant of the province of York, intestate, and without issue, leaving Dorothy his widow him surviving. Dorothy, the widow, took administration of his goods and effects, and intermarried with Bennet Sherrard. The next of kin of Robert Stapleton were his brothers and sisters, and their representatives; they filed a bill in Chancery against the administratrix for an account of the personal estate of the deceased, and to make full distribution of the same. The administratrix claimed one half of the personal estate under the custom, as the widow, and one half of the other moiety under the statutes of distribution. The cause was at first heard before the Lord Keeper of the Great Seal on the 24th of February, in the first year of the reign of James II., and his Lordship desired the then Archbishop of York to certify, — when a man dies intestate within the province of York (after his debts and funeral expenses paid), how the residue was to be divided by the custom of the province of York, and what part remained to the ordinary to be distributed. The Archbishop, on the 18th of March, (n) Swinb. 300.; 4 Burn's Eccles. Law, 452. 1 Jac. II., certified that, in such cases aforesaid, the widow of the intestate, by the custom of the said province, had usually allotted to her one moiety of the clear personal estate, and that the other moiety had been distributed amongst the next of kin to the deceased intestate, and that this had been the constant practice of the Ecclesiastical Court at York. The Lord Keeper thereupon decided against the claim of the widow to the moiety of the deadman's part. But, upon a petition to the Lord Chancellor, and a rehearing of the cause, his Lordship declared, that he was fully satisfied that the administratrix ought to have the one moiety of her late husband's personal estate by the custom, and one half of the other moiety by virtue of the statutes of distribution, and made his decree accordingly; and, upon a rehearing before his Lordship, he confirmed this decree. (o) It is singular that this intricacy in regard to the distribution of the deadman's part, which was under consideration thus early, has been allowed to exist till this day, in regard to the distribution of the estate of an intestate in the province of York; and the intricacy is not confined to the share of the widow, but extends also to the shares of children, or the representatives of them. (p) 4. The widow's title to a share of the personal estate under the custom may be barred by settlement, or agreement before marriage; and, being so barred, she shall be, in regard to the custom, as if she did not exist; but, unless such settlement or agreement extends also to bar her share under the statute, she will be entitled to share in the distribution of the deadman's part. (q) (0) Hilary, 1684; 1 Vern. 305. 314. 432.; 4 Burn's Eccles. Law, 452. (p) 4 Burn's Eccles. Law, 472. (9) Williams on Executors and Administrators, 944, 945. |