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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. (2)
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
(x) 4 Burn's Eccles. Law, 410
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 crown. 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. (6), 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.
been passed, would have been entitled, in cases where there is not any person who would be entitled to the testator's estate under the statute of distributions, in respect of any residue not expressly disposed of. (Sect. 2.) It may
be remarked of this statute, that it had no retrospect, but went to regulate the wills and codicils of persons dying within a limited time after the passing of the act; and that in regard to the crown, in a case of escheat, by reason of bastardy or otherwise, the old common law was still allowed to prevail.
It was specially enacted that the act should not extend to Scotland ; and it will be seen in the sequel, that, to a certain extent, the matter had already been regulated in that country.
OF THE CHANGES ON THE CUSTOMARY LAW OF SUCCESSION
IN ENGLAND, MADE BY VARIOUS STATUTES OF LOCAL OPERATION.
It had followed, from the reservation contained in the first statute of distributions, as already remarked, that the customs known and received in Wales, in the province of York, and in the city of London, were specially preserved to them. Thus, within those districts and places, the same rule of distribution among the wife and children, by the partes rationabiles, obtained after the statute as before it; and the power of bequeathing by will was confined to the dead's part, as it had been according to the ancient common law of England. But it has been found necessary further to modify these local customs by the statute law.
Changes on the Custom of the Principality of Wales. LITTLE is stated distinctly in the books of authority in the law, as to the extent and nature of the local customs observed in regard to the succession of personal estate within that part of the kingdom. By the Statutum Walliæ (a), Wales was annexed and united to England, so as to form part of the same kingdom : but in Wales they still retained much of their ancient policy, particularly their rule of inheritance, that the lands were to be divided among all the issue male, and not to descend to the eldest son alone;
(a) 12 Edw. 1.
and the law of the partes rationabiles in regard to succession in personal estate.
By subsequent statutes, particularly by that of the 27th of Henry VIII. (b), these local customs were done away, in so far as regarded the law of inheritance in real estate, which was made conformable to the common English rules of descent; but the law of succession in personal estate remained unaltered by statute till a later period. At last, however, the statute of the 7th & 8th of William III. (c) gave the power to the inhabitants of the principality to dispose of their whole personal estate by will. The act is in these terms:
Whereas in several counties and places, within the principality of Wales and marches thereof, the widows and younger children of persons dying inhabitants therein have often claimed and pretended to be entitled to a part of the goods and chattels of their late husbands or fathers, called her and their reasonable part, by virtue or colour of a custom or other usage within the said principality and marches thereof, notwithstanding any disposition of the same by their husbands' and fathers' last wills and testaments, or by deed in their lives-time, and notwithstanding a competent jointure, according to the agreement made for the livelihood of the said widows by their husbands, which have often occasioned great troubles, disputes, and expences about and concerning such custom and usage, whereby many persons have been and are disabled from making sufficient provision for their families, younger children, and relations ; and great disputes, troubles, and expences have often happened concerning the same, to the great damage or ruin of many : for remedy thereof be it enacted, that from and after the 24th day of June 1696, it shall and may be lawful for any person or persons inhabiting or residing, or who shall have
(6) 27 Hen. 8. c. 26.
(c) 7 & 8 Will. 3. c. 38.