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in every person to give and bequeath the whole of his personal estate by his last will and testament, as fully as he formerly could any part of such personal estate ; and it does not appear that such power has been, at any subsequent period, objected to as inconvenient or inexpedient. This obviously must have tended to prevent all collision between the conflicting rules of distribution of intestates' estates, which still subsist in the different districts of England; such collisions, it will be seen afterwards, have been little known as matters of discussion in the courts of law.
According to the customs of the province of York and city of London, as modified by these acts of parliament, it will be seen in the sequel, that a great degree of intricacy has been introduced into the law of succession where these customs prevail. In a case of intestacy, the widow and children take their rateable proportions according to the ancient customs; but the dead man's part is distributed by the statutes of distribution.
There is this further intricacy in regard to these customs, that it has been decided in various cases (p), that the customs do not extend to grandchildren. Thus, though grandchildren would represent their deceased parents, and take the distributive shares of such parents under the statute, they would be cut out from all distributive share under the customs, in regard to which their uncles and aunts would be preferred to them.
It could not have been contemplated, that such intricacies should have resulted from the statutes of distribution. It is matter of surprise that they have been allowed to exist in England till the present day; but the universal power of making a will of the whole personal estate, ap
(p) i Vern. 367; 1 P. Williams, 341; 2 Salk. 426.
pears to have operated so as to have made these intricacies little felt. Except for this power of bequeathing by will, it is not too much to say, that the variety of customs, and the intricacy of the rules thence resulting, still subsisting in England, must long ago have become intolerable.
The differences between the rules of distribution, prevailing respectively in the province of Canterbury, in the province of York, and in the city of London, shall be further stated and contrasted in a future part of this treatise.
OF THE LAW OF SUCCESSION IN PERSONAL ESTATE IN
It does not appear that this part of our inquiry is attended with much difficulty or intricacy. At an early period the law of succession in personal estate, with other branches of the common law of England, was introduced from England into Ireland. Henry III. appears to have sent to his subjects in Ireland a charter, in the first year of his reign, containing clauses and privileges similar to those contained in the charter then also granted to the people of England. This, as already noticed (a), directed that the division of the personal estate to the wife and children should be per rationabiles partes.
The charter sent to Ireland comprehended that country and Henry's Irish subjects, in the same way that the original charter comprehended England and the English people. In the conclusion of the writ, transmitting the charter to the chief justiciary of Ireland, there is this clause : “Vo“ lentes ut eisdem vos et cæteri fideles nostri Hibernia
gaudeatis libertatibus quas fidelibus nostris de regno
Angliæ concessimus, et illas vobis concedemus et cofir“ mabimus.” (6)
The law was laid down in similar terms in Magna Carta, in the ninth of the same King (c); and this, amongst other
(a) Supra, p. 6.
ancient English statutes, was extended to Ireland by an act of the Irish Parliament of Henry VII. (d)
This extension of the English statutes to Ireland included those of the 13th of Edward I. and 31st of Edward III. in regard to the granting of administrations, already mentioned in a former chapter.
But even at this period, and for a considerable while afterwards, the laws thus introduced from England had a very partial operation in Ireland. They were confined to the English settlers, and those within the English pale. (e) In the other parts of Ireland the ancient local customs, termed the Brehon law, which had been handed down in Ireland from the earliest period, prevailed among the native tribes, and was administered under their own chieftains. (f)
In the twenty-eighth year of the reign of Henry VIII. an act was passed in Ireland, regulating the mode of granting administrations in that country, nearly in the same way as this had been regulated in England by the statute of the 21st of Henry VIII. C. 5. (g) The administration was to be granted to the widow, or to the next of kin of the intestate, or to both, as the ordinary should think fit, taking security of them for the true administration; and where divers in equal degree of kindred made claim, or where only one claimed while there were several in equal degree, the ordinary might accept one or more of them making request; and where divers required administration, and but one or more of them in equal degree, the ordinary might admit the widow, and him or them making request,
(d) 10 H. VII. c. 22. Ir. Stat.; one of the acts of the Parliament held at Drogheda before Sir Edward Poynings, the King's deputy.
(c) Edmund Spenser's View of Ireland, passim.
(f) Gabbett's Abridgment of English and Irish Statute Law, Preface, p. 6. It appears that the English laws did not overspread the country generally till the reign of Elizabeth and of James I.
(g) 28 Hen. VIII. c. 18. Ir. Stat.
or any of them, at his pleasure, taking nothing for the
At a subsequent period, by an act of the Irish parliament of the 7th of William III. (h), the law of succession in Ireland appears to have been fully regulated, and put upon the footing on which it stands at the present day. This Irish statute enibodied in it, and nearly transcribed, the English act of the 22d & 23d of Charles II. c. 10., already quoted, in regard to the sureties to be granted by administrators, the rules of distribution, and the time of making distribution to be observed by them; it also adopted the regulation contained in the act of the 29th of Charles II. c. 3. in regard to the estates of feme coverts, and the rule contained in the act of the 1st of James II. c. 17. in regard to the mode of distribution as between a mother and children ; and it entirely abolished the custom, which apparently had obtained in Ireland till that time, in regard to the partition among a wife and children per rationabiles partes, and by which a person, having a wife and children, could only dispose of one third of his personal estate by his last will and testament.
This important alteration of the law in Ireland, does not appear to have excited discussion in the parliament of that country. It was almost simultaneous with the statute passed in England in regard to the disposal of personal estate by will in the principality of Wales ; but it went further than was done by this last-mentioned statute (i), inasmuch as by the English statute, though the power of bequeathing by will is given throughout the principality of Wales, yet the custom (though of a doubtful nature) is left in other respects as it then stood; whereas in Ireland not only a
(h) 7 Will. III. sess. 1. c. 6. Ir. Stat.