intestate's estate as any administrator, by virtue only of being administrator, by pretence or reason of any custom, may claim to have to exempt the same from distribution, but that such part in the hands of such administrator shall be subject to distribution, as in other cases within the said act.

But the great and important alteration upon the custom of the province of York, was that by which the inhabitants of that province were enabled to give and dispose of their whole personal estate, by their last wills and testaments, in as ample a manner as any persons could do within the province of Canterbury or elsewhere. This was effected, as to all parts of the province except the city of York, by an act of the 4th of William III. (g), in these terms:

Whereas by custom within the province of York, or other usage, the widows and younger children of persons dying inhabitants of that province, are entitled to a part of the goods and chattels of their late husbands and fathers (called her and their reasonable part), notwithstanding any disposition of the same by their husbands' and fathers' last wills and testaments, and notwithstanding any jointures made for the livelihood of the said widows by their husbands in their lifetime, which are competent, and according to agreement, whereby many persons are disabled from making sufficient provision for their younger children; for remedy whereof be it enacted, that from and after the 26th day of March 1693, it shall and may be lawful for any person or persons, inhabiting or residing, or who shall have any goods or chattels within the province of York, by their last wills and testaments to

(g) 4 Will. 3. c. 2. This act was prior in date to that already noticed, in regard to the principality of Wales. It does not appear that it excited much attention at the time; it is not noticed in the parliamentary history. It was brought into the House of Commons by Sir Christopher Musgrave, on the 5th of December 1692; and, after going through the usual stages, was read a third time, in the House of Lords, on the 7th of January 1692-3.

give, bequeath, and dispose of all and singular their goods, chattels, debts, and other personal estate, to their executor or executors, or to such other person or persons as the said testator or testators shall think fit, in as large and ample manner as by the laws and statutes of this realm any person or persons may give and dispose of the same within the province of Canterbury or elsewhere; and that from and after the said 26th day of March 1693 the widows, children, and other the kindred of such testator or testators shall be barred to claim or demand any part of the goods, chattels, or other personal estate of such testator or testators, in any other manner than as by the said last wills and testaments is limited and appointed; any law, statute, or usage to the contrary in anywise notwithstanding. (Sect. 1. & 2.)

Provided always, that nothing in this act contained shall extend or be construed to extend to the citizens of the cities of York and Chester, who are or shall be freemen of the said respective cities, inhabiting therein, or within the suburbs thereof, at the time of their death, but that every such citizen's widow and children shall and may have and enjoy such reasonable part and proportion of the testator's personal estate, as she or they might or ought to have had, by the custom of the province of York, before the making of this act. (Sect. 3.)

From some of the expressions used in the first section of this statute, by which it is enacted, that " it shall be lawful "for any person or persons inhabiting or residing, or who "shall have any goods or chattels within the province of "York, by their last wills and testaments to give, bequeath, "and dispose of all and singular their goods, chattels, "debts, and other personal estate," there is reason to suppose that the framers of the statute considered that the lex loci rei sita was of some importance in questions in regard to the custom. (h)

(h) See the speech of the Master of the Rolls in the case of Somerville v. Somerville, infra.

In the exception in this statute with regard to the freemen of the cities of York and Chester, there was a mistake in mentioning Chester; the custom had never extended to that city. Till the erection of the see of Chester, in the time of Henry VIII. (i), the archdeaconry of Chester was not within the province of York, but formed part of the diocese of Litchfield and Coventry within the province of Canterbury. (k) The statute subjecting the see of Chester to the Archbishop of York is silent as to the custom; thus it never obtained in the bishoprick of Chester. When this proviso came to be done away with respect to the city of York, by the statute to be immediately mentioned, it thus was not necessary to repeal the same proviso in regard to the city of Chester.

It is not known why, when this power of making a will of the whole personal estate was given to the inhabitants of the province of York, the city of York should have been excepted. This had probably some reference to the local custom which still subsisted in the city of London; and the inhabitants of York might wish to preserve their own peculiar customs also, in the second city of the nation. But they appear soon afterwards to have altered their views upon this subject; and a similar power of disposition by will was given to the inhabitants of the city of York, by an act of the second and third of Anne, in these terms: (1)

Whereas by an act made and passed in the fourth year of the reign of their late Majesties there is a proviso that nothing in the said act contained should extend or be construed to extend to the citizens of the cities of York and

(i) 33 Hen. 8. c. 31.

(k) 4 Burn's Eccles. Law, p. 456. Lord Alvanley's observation in Pickering v. Stamford, 3 Ves. 338.

Chester, who were or should be freemen of the said respective cities, inhabiting therein, or within the suburbs thereof, at the time of their death, but that every such citizen's widow and children should and might have and enjoy such reasonable part and proportion of the testator's personal estate as she or they might or ought to have had by the custom of the province of York, before the making of the said act: And whereas notwithstanding the mayor and commonalty, on behalf of the inhabitants of the said city of York, have humbly desired that the said proviso may be repealed, so that the freemen of the said city may have the benefit of the said act of parliament, as well as all other persons inhabiting within the said province; be it therefore enacted, that from and after the 26th day of March, in the year of our Lord 1704, the said proviso, so far as the same concerns the citizens of the city of York, shall be repealed, and is hereby repealed, and made null and void; so that from thenceforth it shall and may be lawful for all and every the citizens of the said city of York, who are or shall be freemen of the said city, inhabiting therein, or within the suburbs thereof, at the time of their death, by their last wills and testaments to give, bequeath, and dispose of their goods, chattels, debts, and other personal estates, to their executor or executors, or to such other person or persons as the said testator or testators shall think fit, as any other person or persons inhabiting or residing within the said province of York may lawfully do by virtue of the said act; and that from and after the said 26th day of March the widows, children, and other kindred of such testator or testators, shall be barred to claim or demand any part of the goods, chattels, or other personal estate of the testator or testators, in any other manner than as by the said last wills and testaments is limited and appointed; any thing in the said act, or any other law, statute, or usage to the contrary in anywise notwithstanding.

This had been first introduced as a private bill, upon

the petition of the mayor and commonalty of the city of York (m), stating that the proviso in the act of the 4th of William III. had been found to be very prejudicial to the citizens of that city. In the committee on the bill, a clause was added that the same should be deemed to be a public act, as it now stands in the statute book.

As modified by these statutes, the custom of the province of York subsists in full force to this day. The power of disposing of the whole personal estate by will, within the province, is now universal; and thus the peculiar rules of law applicable to the distribution of intestates' estates are less felt in their operation; but these differ in several very important and intricate particulars from the general law. This shall be further explained in the

sequel.

SECT. III.

Changes on the Custom of the City of London. THE doubt raised as to the operation of the first statute of distributions, in regard to the claims of the administrator to appropriate to himself the residue of the dead's part under the ancient law, applied equally to the custom of the city of London, as it did to the custom of the province of York. As already noticed, this doubt was removed by the clause in the act of 1 James II. c. 17.

It appears that the restriction on the powers of making a will, which had already been abrogated by the legislature in the principality of Wales, and in the province of York, had been felt as a grievance in the city of London. In the 11th of George I. a bill had been introduced into parliament, upon the petition of the mayor and commonalty of the city of London, for the regulation of their

(m) Commons' Journals, 26th January 1703-4.

E