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 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 (x) 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 (z) 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. 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. CHAP. III. 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. SECT. I. 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 Wallia (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. |