intestate who are in equal degree, and those who legally represent them. (Sect. 6.)

Provided that there be no representations admitted among collaterals after brothers' and sisters' children; and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. (Sect. 7.)

Provided also, and be it likewise enacted, to the end that a due regard be had to creditors, that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death; and that such and every one to whom any distribution and share shall be allotted shall give bond, with sufficient sureties, in the said courts, that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear, that then and in every such case he or she shall respectively refund and pay back to the administrator his or her rateable part of that debt or debts, and of the costs of suit and charges of the administator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid. (Sect. 8.) Provided always, and be it enacted, that in all cases where the ordinary hath used heretofore to grant administration cum testamento annexo; he shall continue so to do, and the will of the deceased in such testament expressed shall be performed and observed, in such manner as it should have been if this act had never been made. (Sect. 9.) (s)

(s) I do not give the statute in a more abridged form; it is important that it should be most attentively considered before coming to any

The following remarks be made may

upon

this statute:

1. Its primary object appears to have been to give those powers to the ecclesiastical courts, for which Sir Walter Walker had unsuccessfully contended in the Court of Common Pleas ; and to fix the rules which were to guide these courts in the distribution of intestates' estates. 2. The customs of the province of York, of the city of London, and of other places, having known and received customs peculiar to themselves, were specially reserved; and thus it followed, that, according to these customs, the wife and children were still entitled to their partes rationabiles; and the same restraints as to making a will remained within the districts or places over which those customs extended as before the making of the statute. 3. The children of an intestate, advanced by him in his lifetime, were obliged to bring their advancements, whether of land or goods, to account, before sharing in the surplusage; but the heir at law was not to abate in respect of the land which he had by descent, or otherwise, from the intestate.

This statute appears to have been very inaccurately penned; it soon received amendments by other statutes ; and it will be seen in the sequel that it has in numerous cases required the construction of courts of equity under various heads of the statute. (t) When the Statute of Frauds and Perjuries was passed in the 29th of Car. 2. (u), a clause was introduced into it, to explain the former statute, in regard to the goods of a feme covert, which had rendered the law upon this subject doubtful. By this last

conclusion in regard to the alterations which ought to be made upon the law of Scotland.

(t) See the judgment of Lord Hardwicke in Stanley v. Stanley (May 1739), 1 Atk. 458.

(u) 29 Car. 2. c. 3. s. 25. made perpetual by 1 Jac. 2. c. 17. s. 5.

mentioned statute it is declared that nothing contained in the former act 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.

Before the making of the statute of the 22d & 23d Car. 2. it had been clearly understood that the administration of the goods of a married woman of right appertained to her husband, as her next and most lawful friend within the statute of administrations of the 21 Hen. 8. c. 5. (x) Having thus the right to the administration, the surviving husband had also under the law, before the statute, a a right to retain the whole property to himself; but as a doubt arose under the words of the first statute of distributions whether the personal estate of the wife did not go to her next in kin, exclusive of her husband, this doubt was removed by the declaratory act of the 29 Car. 2. last mentioned.

In an act passed in the reign of James II. (y) a clause was introduced for removing a doubt which had occurred in regard to the rights of a mother under the statute of distributions. According to the interpretation of that lastmentioned statute, in the event of failure of descendants the father and mother were in the first degree of kindred. If the father survived, he took the whole estate of a child predeceasing, in his own right; and if the father had died, leaving the mother surviving, she would also have become entitled to the whole personal estate of her child. This was regulated by the before-mentioned act of James II., by which it is enacted, that if after the death of a father any of his children shall die intestate without wife or children in

(r) 1 Roll's Abridgment, 910.

(y) 1 Jac. 2. c. 17. s. 7.

the lifetime of the mother, every brother and sister, and the representatives of them, shall have an equal share with her, any thing in the last-mentioned acts to the contrary notwithstanding.

When these important statutes do not reach every case that occurs, great respect is paid in England to the three' first chapters of the 118th novel of the Emperor Justinian, not only because these contain the latest improvements of the civil law, in regard to the disposition of intestates' estates, but because the statute law of England, on the subject of distributions, is understood to have been modelled in great part on these chapters of the jus novissimum of the civil law. (z)

It would be out of place here, where the object is chiefly to show the general policy and bearing of the law, to enter into a statement of the numerous cases which have occurred in regard to the distribution of the estates of intestates in England since these acts were passed. These have gone to settle points which were not distinctly regulated by the statutes, or which were left in doubt from the expressions used in them. It must probably always occur, even if a code of the law were made with the greatest diligence and care, that the courts would be called upon to apply the principles of such code to other cases which had not, at the time, been fixed or contemplated.

A very important alteration in the law of England connected with this subject has been introduced at a recent period. It was long a settled rule of law in that country, that if there was no residuary legatee appointed by the will of a testator, the surplus or residuum devolved to the executor for his own use, by virtue of the executorship. This restriction to the rule was afterwards introduced in courts of equity-that although, where the executor

(*) 4 Burn's Eccles. Law, 410

crown.

had no legacy, the residuum in general should be his own; yet where there was enough on the face of the will, by reason of a competent legacy, or otherwise, to imply that the testator intended that his executor should not have the residue, the undivided surplus of the estate should go to the next of kin; and if there were no kindred, then to the Thus frequent cases occurred in the courts of equity in England, upon the interpretation of wills, as to the meaning and intention of the testator in this respect. Lord Thurlow stated the rule to be "that the executor shall "take the residue, unless there is an irresistible inference to "the contrary (a) ;" and it was often extremely difficult to see clearly what the meaning and intention of a testator, in such cases, truly were.

The difficulty and uncertainty upon this state of the law, however, have happily been removed by a recent act of parliament of the 11 Geo. 4. & 1 Will. 4. (b), which enacts, that when any person shall die after the first day of September next after the passing of this act, having by his or her will, or any codicil or codicils thereto, appointed any person or persons to be his or her executor or executors, such executor or executors shall be deemed, by courts of equity, to be a trustee or trustees for the person or persons (if any) who would be entitled to the estate under the statute of distributions, 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. (Sect. 1.)

Provided, that nothing herein contained shall affect or prejudice any right to which any executor, if this act had not

(a) Bowker v. Hunter, 1 Brown's Chanc. Cas. 328.

(b) 11 Geo. 4. and 1 Will. 4. c. 40.