Sayfadaki görseller
PDF
ePub

was in the breast of the ordinary to grant it to whom he pleased.

By this statute, however, the ordinary was required to grant the administration to certain connexions of the deceased to the exclusion of all others. Upon this subject the statute enacts:

And in case any person die intestate, or that the executors named in any such testament refuse to prove the said testament, then the said ordinary, or other person or persons having authority to take probate of testaments, as is above said, shall grant the administration of the goods of the testator, or person deceased, to the widow of the same person deceased, or to the next of his kin, or to both, as by the discretion of the same ordinary shall be thought good, taking surety of him or them, to whom shall be made such commission, for the true administration of the goods, chattels, and debts which he or they shall be so authorised to minister ; and in case where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin, where indeed divers persons be in equality of kindred, as is aforesaid, that in every such case the ordinary to be at his election and liberty to accept any being one or mo making request, where divers do require the administration: or where but one or more of them, and not all being in equality of degree, do make request, then the ordinary to admit the widow, and him or them only making request, or any one of them at his pleasure.

This statute introduced a vast improvement into the law of succession; and it regulates in regard to the grant of administrations to this day. There were some uncertainties and cases not provided for in this act; and it has been the business of the proper courts to provide remedies for these, as they became evolved in future times.

But the greatest alteration in the law of personal suc

cession in England, has been that which was made by that well known act termed the Statute of Distributions. (n)The causes which led to the passing of this statute are mentioned briefly by the writers who have treated upon this subject.

The ordinary was now obliged to grant the administration to some of the connexions of the deceased; yet whoever took administration was entitled to the surplus of the estate of the deceased, after payment of debts, although the ecclesiastical courts claimed the power of making distribution to the next of kin. The objects, therefore, to be obtained by the statute of distributions were, to oblige the administrator to distribute the surplus of the estate of an intestate, instead of retaining it to his own use, and to fix the rules by which he was to be guided in making such distribution. (0)

A case had arisen upon the point, whether the Ecclesiastical Court had the power, or not, of making distribution of the effects of an intestate. Dr. Charles Hughes of London had died worth 12,000l. of personal estate, leaving a son and daughter. (p) Administration was granted by the ordinary to the son. He refused to give his sister any part of the personal estate; and he was thereupon called into the Court Christian by his sister claiming her share of the personal estate of her father. The Ecclesiastical Court appears to have been favourable to this claim; but the case was removed by prohibition into the Court of Common Pleas, and was argued in Trinity Term, 18 Charles II., and in the subsequent term, before Sir Orlando Bridgman Chief Justice, and the other judges of that court. In this prohibition Sir Walter

(n) 22 & 23 C. 2. c. 10.

(0) Humphrey v. Bullen, 1 Atk. 458.

Walker, a distinguished civilian of those days, was heard, by permission, in support of the power of the Ecclesiastical Court to make distribution. The arguments of the counsel and of Sir Walter Walker are given at large in the report in Carter; but the decision of the Court is not there mentioned.

A farther account of this is given in a speech of Chief Justice Holt, in the cause Rex v. Raines, or Pett v. Pett, T. 1700., reported by Lord Raymond. (q) Chief Justice Holt (in that case) says, "Bridgman, Chief Justice, in"clined in opinion to Sir Walter Walker, but the other "Judges opposed it, and it never obtained in Westminster "Hall; but prohibitions were granted upon the first "motion, and when he could not obtain his point in the courts of law, he procured an act of parliament." (r)

This act, all expedient as it was, does not appear to have excited much attention in parliament at the time. The discussions upon it are not mentioned in the parliamentary history of that period. It was introduced into the House of Lords on the 18th of March 1670-71, while Sir Orlando Bridgman was Lord Keeper. In the House of Commons there must have been some discussion upon the bill, for at the second reading it was carried upon a division of 28 to 13, but the nature of this discussion does not appear. By this statute it is thus enacted:

[ocr errors]

All ordinaries, as well the judges of the prerogative courts of Canterbury and York for the time being, as all other ordi

[ocr errors]

(q) 1 Lord Raymond, 574.

"Et puis

(7) Carter, at the end of the case of Hughes v. Hughes, says, per act del Parliament pur melieux settlement des Intestates Estates "fuit contrived." The arguments of counsel in this case are curious. It is to the honour of those practising in the Ecclesiastical Courts, that this great improvement appears to have originated with them. The then state of things must have been almost intolerable.

naries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may, upon their respective granting and committing of administrations of the goods of persons dying intestate after the 1st day of June 1671, of the respective person or persons to whom any administration is to be committed, take sufficient bonds, with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner (as therein specified).

Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any courts of justice; and also, that the said ordinaries and judges respectively shall and may, and are enabled to proceed and call such administrators to account, for and touching the goods of any person dying intestate; and, upon hearing and due consideration thereof, to order and make just and equal distribution of what remaineth clear (after all debts, funerals, and just expences of every sort first allowed and deducted,) amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation hereafter set down; and the same distributions to decree and settle, and to compel such administrators to observe and pay the same, by the due course of his Majesty's ecclesiastical laws; saving to every one, supposing him or themselves aggrieved, their right of appeal, as was always in such cases used. (Sect. 3.)

Provided that this act, or any thing herein contained, shall not anyways prejudice or hinder the customs observed within the city of London, or within the province of York, or other places, having known and received customs peculiar to them; but that the same customs may be observed as formerly; any

D

thing herein contained to the contrary notwithstanding. (Sect. 4.)

Provided always, and be it enacted, that all ordinaries, and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following; that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made; and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime, by portion not equal to the share which will be due to the other children by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. (Sect. 5.)

And in case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the

« ÖncekiDevam »