but the wife takes not only one half as her share under the custom, but also of the deadman's part one third under the statute; the other two thirds of the deadman's part go to the grandchildren or other descendants under the statute; and if no widow, the whole is deadman's part. (7)

The intricacy of the distribution by the custom of the province of York, mixed with a distribution under the statute, is strongly marked in a case given by way of example by Burn (m) in the following terms:- "A man inhabiting within the province dieth intestate, leaving a clear personalty of 9000l., and leaving a widow and four children; the first being heir-at-law to freehold lands, and having received likewise of his father 400l. to set him up in trade; the second advanced by the amount of 3000l.; the third partly advanced to the amount of 600l.; and the fourth not at all advanced. The question is, how this personalty shall be distributed? First of all, the widow shall have one third part by the custom, as her widow's portion; to wit, 3000%. Another third part by the said custom shall be distributed among the children: of which the heir-at-law (as such) by the said custom is excluded from receiving any share; the second son also, as being fully advanced, is excluded; but hereunto the third son shall bring his partial advancement of 600l. into hotchpot, and then the third and fourth sons shall divide the 36007. equally between them; but the real benefit thereof to the third son will be but 1200%., and to the fourth son 18007. The remaining third part of the said personalty, which is the deadman's part, shall be distributed by the statute: of which, by the said statute, the widow shall have one third, to

(1) 4 Burn's Eccles. Law, 471.

(m) Ibid. 472.

wit, 1000%.; and the residue, being 20007., shall be distributed equally among the said three children; namely, the heir-atlaw, and the third and fourth sons (the heir-at-law being let in for so much by the statute, and the second son being still excluded, as having more than his just proportion of his father's whole personal estate); but hereunto the heir-atlaw shall first bring his partial advancement of 400l. into hotchpot, and so the said three children shall divide the whole 2400l. equally among them; but the real benefit thereof to the heir-at-law will be but 400%., and to the said two youngest children 8007. each. So that of the clear personalty of 90007.

As already observed, except for the statutes enabling a will to be made of the whole personal estate, this intricacy must have been intolerable; and it would have been much increased if any of the above children had died leaving descendants, thereby introducing new classes of persons into the distribution of the deadman's part.

13. If a person leave no wife, but an heir-atlaw, or an only child being advanced, or partly advanced, though such child might be barred by the custom, or obliged, if there were other children, to bring his or her advancement into hotchpot, such child shall take the whole personal estate. (n)

14. Every share to which a child is entitled, under the custom, becomes vested in such child, whether of age or not, on the death of the intestate; and on the death of such child, shall pass to the executors, or other legal representatives of such child. (0)

SECT. VI.

Of Distribution according to the Custom of London.

THERE is a marked difference betwixt the custom of London and that of the province of York in this respect: that in the latter (as we have seen) (p) the custom applies only to the personal estate of a person dying domiciled in the province of York; in the former the custom applies to the personal estate of a freeman of London, wherever situated, and wherever he may be domiciled, and controls the law of the domicil. (q)

The recent case of Onslow v. Onslow (r), in which the custom was found to rule, even in regard to the personal estate of an honorary freeman, leaves no room for doubt upon this subject. This matter has not yet attracted attention in Scotland; but from the principles laid down in the books of authority in regard to the custom of London, and the cases which have been decided upon this subject, there would, at least, be ground to contend that the custom should prevail against a domicil in Scotland, or a foreign domicil, as it has against a domicil in the province of York,

(0) 4 Burn's Eccles. Law, 477.; Blacks. Comm. 51.; Williams on Executors, 955.

(p) Supra, p. 338.

(q) Cholmley v. Cholmley, 2 Vern. 48. 82.; Webb v. Webb, 2 Vern. 110.; Onslow v. Onslow, 1 Sim. 18.

(r) Supra, p. 107.

or in the province of Canterbury. Thus, also, it might be contended, in terms of the before-mentioned statute of the 11 G. I. (s), enabling all freemen of London to dispose of their whole personal estate by their last wills, that a freeman of London dying domiciled in Scotland, might, notwithstanding the rules of succession in that country, make a testamentary disposition of his whole personal estate. (t)

As noticed in regard to the custom of the province of York, down to the time of passing the statute which enabled a freeman of London to make a will of his whole personal estate (u), the custom must have ruled in every case of the succession of a freeman leaving a widow and children. From that period questions have occurred in regard to the application of the custom in cases of partial intestacy, whether such intestacy were of a legal or of an equitable nature.

In one case, Lord Hardwicke appears to have held, in 1744, where a freeman of London had made a will appointing an executor, but leaving a residue undisposed of, that the executor was to distribute this under the custom (x); but subsequent cases appear to have fully established that courts of equity, in such case of equitable intestacy, distributed the residue under the statutes; and that the custom only applied in a case of legal intestacy, where a will had been made, and no executor appointed. (y) Thus the rule

(s) 11 G. I. c. 18. ss. 17, 18.

(t) I do not know if Mr. Hog, the testator in the noted case of Hog v. Lashley, was a freeman of London or not; but if he was, a new line of argument might have been introduced into that case. (Supra, p. 127.) And, according to the case of Onslow v. Onslow, it is to be presumed, that an honorary freeman would have the same power of bequeathing by will.

(u) 11 G. I. c. 18. ss. 17, 18.

(x) Beard v. Beard, 3 Atk. 73.; 4 Burn's Eccles. Law, 471.

(y) Williams on Executors and Administrators, 939.

laid down by courts of equity appears to have been the same, in such cases, as already noticed in regard to the custom of the province of York. (≈)

The recent statute of 11 G. IV. & 1 W. IV. c. 40. has removed all doubt in regard to the mode of distribution in a case of equitable intestacy, as well in regard to the statutes of distribution generally, as in regard to the customs of London, and of the province of York. In every case where there is an executor under a will, and a residue undisposed of, such residue must now be distributed by the executor under the statutes of distribution.

Since the making of this statute, it does not appear that any question has occurred, in regard to a surplus under a will in a case of legal intestacy, where no executor was appointed, and a residue undisposed of. Such a case may still be regulated according to the train of decisions upon this subject (a), and the residue be distributable under the

custom.

It was clearly understood in former times, that a freeman of London could not, by will or otherwise, devise the disposition of the body, or guardianship, of his child under age; and if he did, yet that the infant should remain in the custody of the mayor and aldermen, who were guardians to the children of all freemen of London under age at their father's death. (b) Thus if a freeman or freewoman died, leaving orphans within age unmarried, the Court of Orphans of the city had the custody of their body and goods, and the executors and administrators were obliged to exhibit inventories before that court, and become bound to the chamberlain of the city to the use of the orphans, to make a true account upon oath; and if they refused, they

(b) Priv. Lon. 287, 288.; 4 Burn's Eccles. Law, 444.