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CHAP. IV.

OF THE LAW OF SUCCESSION IN PERSONAL ESTATE IN

IRELAND.

Ir 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 Hiberniæ gaudeatis libertatibus quas fidelibus nostris de regno Angliæ concessimus, et illas vobis concedemus et cofir"mabimus." (b)

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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.

(b) Blackstone on the Great Charter, &c., Introduction, p. 44. (c) 9 H.III. c. 18.

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. (ƒ)

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. (e) 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

same.

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 embodied 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 (2), 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.
(i) 7 & 8 W. III. c. 38. already stated.

power was given of bequeathing by will, but the custom as to the division per rationabiles partes was altogether abolished.

Thus, by this Irish statute, the law of succession in personal estate was put upon the same footing in that country, as it already was in the province of Canterbury in England, and upon that footing it now remains at this day. (k)

(k) There is thus but one rule for the whole of Ireland, and it is, in respect to the law of succession and distribution, in a more desirable state than any other part of the realm.

CHAP. V.

OF THE LAW OF SUCCESSION IN SCOTLAND FROM ITS EARLY PERIOD TILL THE PRESENT TIME.

IN a former chapter we left this subject with what appeared to be the reasonable conclusion, that at the period to which the inquiry had then extended, the law of succession in personal estate had been nearly the same in England and in Scotland. In our last chapter, it appeared that the law of succession in Ireland had been placed upon the same footing, as it was in England by the charters of Henry III. We have traced downwards, the alterations which have been introduced in England and in Ireland upon this branch of the law. The same thing is now proposed to be done, as far as any lights appear, in regard to the law of Scotland.

From the period above mentioned, and a considerable time afterwards, the same obscurity continues to exist in regard to the history of the law of Scotland. We have no series of authentic writers, as in England, through whom our legal history may be deduced; we can only proceed, therefore, to trace this in the scanty notices which we find in the other books published by Skene, and in our early undoubted statute law.

1. In the statutes of William the Lyon, who reigned in the end of the 12th and beginning of the 13th century, as published by Skene, we see it thus laid down: "Gif ane "free man decease intestat, his gudes sal be distribute be ❝ the sicht of his friends, parents, and be the provision of "halie kirk, reservand to all creditors the debts auchtand "to them be the defunct. 2. After the decease of anie "man intestat, and awand debts to creditors, his gudes

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