Front Page Titles (by Subject) CHAPTER XXXII.: OF TITLE BY TESTAMENT, AND ADMINISTRATION. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XXXII.: OF TITLE BY TESTAMENT, AND ADMINISTRATION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF TITLE BY TESTAMENT, AND ADMINISTRATION.
There yet remain to be examined, in the present chapter, two other methods of acquiring personal estates,—viz., by testament and administration. And these I propose to consider in one and the same view; they being in their nature so connected and blended together as makes it impossible to treat of them distinctly without manifest tautology and repetition.
XI., XII. In the pursuit, then, of this joint-subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show what an executor and administrator are, and how they are to be appointed; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators.
First, as to the original of testaments and administrations. We have more than once observed that, when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it, which introduced the doctrine and practice of alienations, **490]gifts, and contracts. But these precautions would be very short and imperfect if they were confined to the life only of the occupier; for then, upon his death, all his goods would again become common, and create an infinite variety of strife and confusion. The law of very many societies has therefore given to the proprietor a right of continuing his property after his death in such persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other persons.(a) The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law,(b) we call in England an administration; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.
Testaments are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually given(c) of Abraham’s complaining(d) that, unless he had some children of his body, his steward, Eliezer of Damascus, would be his heir, is quite conclusive to show that he had made him so by will. And, indeed, a learned writer(e) has adduced this very passage to prove that in the patriarchal age, on failure of children or kindred, the servants born under their master’s roof succeeded to the inheritance as heirs-at-law.(f) But (to omit what Eusebius and others have related of Noah’s testament, made in writing and witnessed under his seal, whereby he disposed of the whole world)(g) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings,(h) wherein Jacob bequeaths to his son Joseph a portion of his *[*491inheritance double to that of his brethren; which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens;(i) but in many other parts of Greece they were totally discountenanced.(k) In Rome they were unknown till the laws of the twelve tables were compiled,1 which first gave the right of bequeathing:(l) and among the northern nations, particularly among the Germans,(m) testaments were not received into use. And this variety may serve to evince that the right of making wills and disposing of property after death is merely a creature of the civil state,(n) which has permitted it in some countries and denied it in others; and even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven.(o)
With us in England, this power of bequeathing is coeval with the first rudiments of the law: for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate’s estate, after payment of the lord’s heriot, is then directed to go according to the established law. “Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem (præter eam quæ jure debetur hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur.”(p) But we are not to imagine that this power of bequeathing extended originally to all a man’s personal estate. On the contrary, Glanvil informs us(q) that by the common law, *[*492as it stood in the reign of Henry the Second, a man’s goods were to be divided into three equal parts: of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal: or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal.(r) The shares of the wife and children were called their reasonable parts, and the writ de rationabili parte bonorum was given to recover them.(s)
This continued to be the law of the land at the time of magna carta, which provides that the king’s debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased; and, if nothing be owing to the crown, “omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilibus partibus suis.”(t) In the reign of king Edward the Third, this right of the wife and children was still held to be the universal or common law;(u) though frequently pleaded as the local custom of Berks, Devon, and other counties:(w) and Sir Henry Finch lays it down expressly,(x) in the reign of Charles the First, to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now, by will, bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began. Indeed, Sir Edward Coke(y) is of opinion that this never was **493]the general law, but only obtained in particular places by special custom: and to establish that doctrine he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton(z) lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bracton, that this right to the pars rationabilis was by the common law; which also continues to this day to be the general law of our sister kingdom of Scotland.(a) To which we may add, that whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the antient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times; when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided: the one 4 & 5 W. and M. c. 2, explained by 2 & 3 Anne, c. 5, for the province of York; another 7 & 8 W. III. c. 38, for Wales; and a third, 11 Geo. I. c. 18, for London: whereby it is enacted that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter)(b) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty to bequeath the remainder as he pleased.
**494]In case a person made no disposition of such of his goods as were testable, whether that were only part or the whole of them, he was, and is, said to die intestate; and in such case it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom.(c) This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts-baron, and other courts, or to have their wills there proved, in case they made any disposition.(d) Afterwards, the crown, in favour of the church, invested the prelates with this branch of the prerogative: which was done, saith Perkins,(e) because at was intended by the law that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased. The goods, therefore, of intestates were given to the ordinary by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios usus: and, if he did otherwise, he broke the confidence which the law reposed in him.(f) So that, properly, the whole interest and power which were granted to the ordinary were only those of being the king’s almoner within his diocese; in trust to distribute the intestate’s goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious.(g) And, as he had thus the disposition of intestates’ effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby.
*[*495The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were, therefore, not accountable to any, but to God and themselves, for their conduct.(h) But even in Fleta’s time it was complained(i) “quod ordinarii, hujusmodi bona nomine ecclesiæ occupantes nullam vel saltem indebitam faciunt distributionem.” And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of Pope Innocent IV.,(k) written about the year 1250; wherein he lays it down for established canon law that “in Britannia tertia pars bonorum decedentium ab intestato in opus ecclesiæ et pauperum dispensanda est.” Thus, the popish clergy took to themselves(l) (under the name of the church and poor) the whole residue of the deceased’s estate, after the partes rationabiles, or two-thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. For which reason, it was enacted by the statute of Westm. 2,(m) that the ordinary shall be bound to pay the debts of the intestate so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will: a use more truly pious than any requiem, or mass for his soul. This was the first check given to that exorbitant power, which the law had intrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary shall approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate *[*496dependents: and therefore the statute 31 Edw. III. c. 11 provides, that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the original of administrators, as they at present stand; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate; who is interpreted(n) to be the next of blood that is under no legal disabilities. The statute 21 Hen. VIII. c. 5 enlarges a little more the power of the ecclesiastical judge; and permits him to grant administration either to the widow, or the next of kin, or to both of them, at his own discretion; and, where two or more persons are in the same degree of kindred, gives the ordinary his election to accept whichever he pleases.
Upon this footing stands the general law of administrations at this day. I shall, in the further progress of this chapter, mention a few more particulars, with regard to who may, and who may not, be administrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only serving to show the original and gradual progress of testaments and administrations; in what manner the latter was first of all vested in the bishops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular persons nominated expressly by the law.
I proceed now, secondly, to inquire who may, or may not, make a testament; or what persons are absolutely obliged by law to die intestate. And this law(o) is entirely prohibitory; for, regularly, every person hath full power and liberty to make a will, that is not under some special prohibition by law or custom: which prohibitions are principally upon three **497]accounts: for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal conduct.
1. In the first species are to be reckoned infants, under the age of fourteen if males, and twelve if females; which is the rule of the civil law.(p) For, though some of our common lawyers have held that an infant of any age (even four2 years old) might make a testament,(q) and others have denied that under eighteen he is capable,(r) yet, as the ecclesiastical court is the judge of every testator’s capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admitted to the will of an infant of fourteen, merely for want of age: but, if the testator was not of sufficient discretion, whether at the age of fourteen or four-and-twenty, that will overthrow his testament. Madmen, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper,3 such as have their senses besotted with drunkenness,4 —all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.
2. Such persons as are intestable for want of liberty or freedom of will are, by the civil law, of various kinds; as prisoners, captives, and the like.(s) But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such person could be supposed to have liberum animum testandi. And, with regard to feme-coverts, our law differs still more materially from the civil. Among the Romans there was no distinction: a married woman was as capable of bequeathing as a feme-sole.(t) But with us a *[*498married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the license of her husband. For all her personal chattels are absolutely his; and he may dispose of her chattels real, or shall have them to himself if he survives her: it would be therefore extremely inconsistent to give her a power of defeating that provision of the law, by bequeathing those chattels to another.(u) Yet by her husband’s license she may make a testament:(v) and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license is more properly his assent; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will.(w) Yet it shall be sufficient to repel the husband from his general right of administering his wife’s effects; and administration shall be granted to her appointee, with such testamentary paper annexed.(x) So that, in reality, the woman makes no will at all, but only something like a will;(y) operating in the nature of an appointment, the execution of which the husband, by his bond, agreement, or covenant, is bound to allow. A distinction similar to which we meet with in the civil law. For though a son who was in potestate parentis could not by any means make a formal and legal testament, even though his father permitted it,(z) yet he might, with the like permission of his father, make what was called a donatio mortis causa.(a) The queen-consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord:(b) and any feme-covert may make her will of goods, which are in her possession in auter droit, as executrix or administratrix; for these can never be the property of her husband:(c) and, if she has any pin-money or separate maintenance, it is said she may dispose of her savings thereout *[*499by testament, without the control of her husband.(d) But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will.(e)
3. Persons incapable of making testaments, on account of their criminal conduct, are, in the first place, all traitors and felons, from the time of conviction; for then their goods and chattels are no longer at their own disposal, but forfeited to the king.5 Neither can a felo de se make a will of goods and chattels, for they are forfeited by the act and manner of his death; but he may make a devise of his lands, for they are not subjected to any forfeiture.(f)6 Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time.(g) As for persons guilty of other crimes short of felony, who are by the civil law precluded from making testaments, (as usurers, libellers, and others of a worse stamp,) by the common law their testaments may be good.(h) And in general the rule is, and has been so at least ever since Glanvil’s time,(i)quod libera sit cujuscunque ultima voluntas.
Let us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make; or, what are the nature and incidents of a testament. Testaments, both Justinian(j) and Sir Edward Coke(k) agree to be so called, because they are testatio mentis: an etymon which seems to savour too much of the conceit; it being plainly a substantive derived from the verb testari, in like manner as juramentum, incrementum, and others, from other verbs. The definition of the old Roman lawyers is much better than their etymology:—“voluntatis nostræ justa sententia de eo, quod quis post mortem suam fieri velit:”(l) which may be thus rendered into English, “the legal declaration of a man’s intentions, **500]which he wills to be performed after his death.” It is called sententia, to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostræ sententia, because its efficacy depends on its declaring the testator’s intention, whence in England it is emphatically styled his will: it is justa sententia; that is, drawn, attested, and published, with all due solemnities and forms of law: it is de eo, quod quis post mortem suam fieri velit, because a testament is of no force till after the death of the testator.
These testaments are divided into two sorts: written, and verbal or nuncupative. of which the former is committed to writing, the latter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing. A codicil, codicillus, a little book or writing, is a supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of, a testament; being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator.(m) This may also be either written or nuncupative.
But, as nuncupative wills and codicils (which were formerly more in use than at present, when the art of writing is become more universal) are liable to great impositions, and may occasion many perjuries, the statute of frauds, 29 Car. II. c. 3, hath laid them under many restrictions; except when made by mariners at sea, and soldiers in actual service. As to all other persons, it enacts: 1. That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testator reduced to writing, and read over to him, and approved;7 and unless the same be proved to have been so done by the oaths of three witnesses at the least; who, by statute 4 & 5 Anne, c. 16, must be such as are admissible upon trials at common law. 2. That no nuncupative will shall in any wise be good, where the estate bequeathed exceeds 30l., unless proved by three such witnesses, present at the making thereof, (the Roman law requiring seven,)(n) and unless they or some of them were specially required to bear **501]witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwelling-house, or where he had been previously resident ten days at the least, except he be surprised with sickness on a journey, or from home, and dies without returning to his dwelling. 3. That no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow, or next of kin, to contest it, if they think proper. Thus hath the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse,8 and is hardly ever heard of, but in the only instance where favour ought to be shown to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness; for he must require the bystanders to bear witness of such his intention: the will must be made at home, or among his family or friends, unless by unavoidable accident; to prevent impositions from strangers: it must be in his last sickness; for, if he recovers, he may alter his dispositions, and has time to make a written will: it must not be proved at too long a distance from the testator’s death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience, or surprised.9
As to written wills, they need not any witness of their publication. I speak not here of devises of lands, which are quite of a different nature; being conveyances by statute, unknown to the feodal or common law, and not under the same jurisdiction as personal testaments. But a testament of chattels, written in the testator’s own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good, provided sufficient proof can be had that it is his handwriting.(o) And though *[*502written in another man’s hand, and never signed by the testator, yet, if proved to be according to his instructions and approved by him, it hath been held a good testament of the personal estate.(p) Yet it is the safer and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses: which last was always required in the time of Bracton;(q) or, rather, he in this respect has implicitly copied the rule of the civil law.10
No testament is of any effect till after the death of the testator. “Nam omne testamentum morte consummatum est: et voluntas testatoris est ambulatoria usque ad mortem.”(r)11 And therefore, if there be many testaments, the last overthrows all the former:(s) but the republication of a former will revokes one of a later date, and establishes the first again.(t)12
Hence it follows, that testaments may be avoided three ways: 1. If made by a person labouring under any of the incapacities before mentioned: 2. By making another testament of a later date: and, 3. By cancelling or revoking it. For, though I make a last will and testament irrevocable in the strongest words, yet I am at liberty to revoke it: because my own act or words cannot alter the disposition of law, so as to make that irrevocable which is in its own nature revocable.(u) For this, saith lord Bacon,(w) would be for a man to deprive himself of that which of all other things is most incident to human condition; and that is, alteration or repentance. It hath also been held, that, without an express revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a presumptive or implied revocation of his former will, which he made in his state of celibacy.(x)13 The Romans were also wont to set aside testaments as being inofficiosa, deficient in natural duty, if they disinherited or totally passed by (without assigning a true and suf**503]ficient reason)(y) any of the children of the testator.(z) But, if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause: and in such case no querela inofficiosi testamenti was allowed. Hence probably has arisen that groundless vulgar error, of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficiosi to set aside such a testament.14
We are next to consider, fourthly, what is an executor, and what an administrator; and how they are both to be appointed.
An executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as feme-coverts15 and infants: nay, even infants unborn, or in ventre sa mere, may be made executors.(a) But no infant can act as such till the age of seventeen years; till which time administration must be granted to some other, durante minore ætate.(b) In like manner as it may be granted durante absentia, or pendente lite; when the executor is out of the realm,(c) or when a suit is commenced in the ecclesiastical court touching the validity of the will.(d) This appointment of an executor is essential to the making of a will:(e) and it may be performed either by express words, or such as strongly imply the same.16 But if the testator makes an incomplete will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act: in any of these cases, the ordinary must *[*504grant administration cum testamento annexo(f) to some other person; and then the duty of the administrator, as also when he is constituted only durante minore ætate, &c. of another, is very little different from that of an executor. And this was law so early as the reign of Henry II.; when Glanvil(g) informs us, that “testamenti executores esse debent ii, quos testator ad hoc elegerit, et quibus curam ipse commiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere.”
But if the deceased died wholly intestate, without making either will or executors, then general letters of administration must be granted by the ordinary to such administrator as the statutes of Edward the Third and Henry the Eighth, before mentioned, direct. In consequence of which we may observe, 1. That the ordinary is compellable to grant administration of the goods and chattels of the wife, to the husband or his representatives:(h) and of the husband’s effects, to the widow, or next of kin; but he may grant it to either or both at his discretion.(i) 2. That, among the kindred, those are to be preferred that are the nearest in degree to the intestate; but, of persons in equal degree, the ordinary may take which he pleases.(k) 3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians;(l) and not of the canonists, which the law of England adopts in the descent of real estates:(m) because in the civil computation the intestate himself is the terminus, a quo the several degrees are numbered, and not the common ancestor, according to the rule of the canonists. And therefore in the first place the children, or (on failure of children) the parents, of the deceased, are entitled to the administration; both which are indeed in the first degree; but **505]with us(n) the children are allowed the preference.(o) Then follow brothers,(p) grandfathers,(q) uncles or nephews,(r) (and the females of each class respectively,) and lastly cousins. 4. The half-blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and only excluded from inheritances of land upon feodal reasons. Therefore the brother of the half-blood shall exclude the uncle of the whole blood;(s) and the ordinary may grant administration to the sister of the half or the brother of the whole blood, at his own discretion.(t) 5. If none of the kindred will take out administration, a creditor may, by custom, do it.(u) 6. If the executor refuses, or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin.(w) 7. And lastly, the ordinary may, in defect of all these, commit administration (as he might have done(x) before the statute of Edward III.) to such discreet person as he approves of: or may grant letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only business being to keep the goods in his safe custody,(y) and to do other acts for the benefit of such as are entitled to the property of the deceased.(z) If a bastard, who has no kindred, being nullius filius, or any one else that has no kindred, dies intestate and without wife or child, it hath formerly been held(a) that the ordinary might seize his goods and dispose of them in pios usus. But the usual course now is for some one to procure letters-**506]patent, or other authority from the king; and then the ordinary of course grants administration to such appointee of the crown.(b)
The interest vested in the executor by the will of the deceased may be continued and kept alive by the will of the same executor: so that the executor of A.’s executor is to all intents and purposes the executor and representative of A. himself;(c) but the executor of A.’s administrator, or the administrator of A.’s executor, is not the representative of A.(d) For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another in whom he has equal confidence: but the administrator of A. is merely the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased has reposed no trust at all: and therefore, on the death of that officer, it results back to the ordinary to appoint another. And, with regard to the administrator of A.’s executor, he has clearly no privity or relation to A., being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore, in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the ordinary to commit administration afresh of the goods of the deceased not administered by the former executor or administrator. And this administrator de bonis non is the only legal representative of the deceased in matters of personal property.(e) But he may, as well as an original administrator, have only a limited or special administration committed to his care, viz., of certain specific effects, such as a term of years, and the like; the rest being committed to others.(f)
*[*507Having thus shown what is and who may be an executor or administrator, I proceed now, fifthly and lastly, to inquire into some few of the principal points of their office and duty. These, in general, are very much the same in both executors and administrators; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and secondly, that an executor may do many acts before he proves the will,(g)17 but an administrator may do nothing18 till letters of administration are issued; for the former derives his power from the will and not from the probate;(h) the latter owes his entirely to the appointment of the ordinary. If a stranger takes upon him to act as executor, without any just authority, (as by intermeddling with the goods of the deceased,(i) and many other transactions,)(k) he is called in law an executor of his own wrong, (de son tort,)19 and is liable to all the trouble of an executorship without any of the profits or advantages. But merely doing acts of necessity or humanity, as locking up the goods or burying the corpse of the deceased, will not amount to such an intermeddling as will charge a man as executor of his own wrong.(l) Such a one cannot bring an action himself in right of the deceased,(m)20 but actions may be brought against him. And, in all actions by creditors against such an officious intruder, he shall be named an executor, generally;(n) for the most obvious conclusion which strangers can form from his conduct is, that he hath a will of the deceased wherein he is named executor, but hath not yet taken probate thereof.(o) He is chargeable with the debts of the deceased so far as assets come to his hands,(p) and, as against creditors in general, shall be allowed all payments made to any other creditor in the same or a superior degree,(q) *[*508himself only excepted.(r) And though, as against the rightful executor and administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages;(s) unless perhaps upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt.(t)21 But let us now see what are the power and duty of a rightful executor or administrator.
1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself,(u) and not to the creditors or legatees of the deceased.
2. The executor, or the administrator durante minore ætate, or durante absentia, or cum testamento annexo, must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed.(w) When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him: all which together is usually styled the probate. In defect of any will, the person entitled to be administrator must also, at this period, take out letters of administration under the seal of the ordinary, whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him: and he must, by statute 22 & 23 Car. II. c. 10, enter into a bond with sureties faithfully to execute his trust. If all the goods of the deceased lie within the same jurisdiction, a probate before the **509]ordinary, or an administration granted by him, are the only proper ones: but if the deceased had bona notabilia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved or administration taken out before the metropolitan of the province, by way of special prerogative;(x) whence the courts where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts and the prerogative offices of the provinces of Canterbury and York. Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele, interprets these hundred shillings to signify solidos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles, or 16l. 13s. 4d. He therefore computes(y) that the hundred shillings, which constituted bona notabilia, were then equal in current money to 23l. 3s. 0¼d. This will account for what is said in our antient books, that bona notabilia in the diocese of London,(z) and indeed everywhere else,(a) were of the value of ten pounds by composition: for if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to a hundred and fifty nobles, we shall extend the present amount of bona notabilia to nearly 70l. But the makers of the canons of 1603 understood this antient rule to be meant of the shillings current in the reign of James I., and have therefore directed(b) that five pounds shall, for the future, be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation: that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are, in effect, no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased other than such as lay within their *[*510own dioceses, beyond which their episcopal authority extends not. But it would be extremely troublesome if as many administrations were to be granted as there are dioceses within which the deceased had bona notabilia; besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid. A prerogative is, therefore, very prudently vested in the metropolitan of each province, to make in such cases one administration serve for all. This accounts very satisfactorily for the reason of taking out administration to intestates, that have large and diffusive property, in the prerogative court; and the probate of wills naturally follows, as was before observed, the powers of granting administrations; in order to satisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of administering the effects.
3. The executor or administrator is to make an inventory(c) of all the goods and chattels, whether in possession or action, of the deceased; which he is to deliver in to the ordinary upon oath, if thereunto lawfully required.22
4. He is to collect all the goods and chattels so inventoried; and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased,(d) and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, a sale or release by one of them shall be good against all the rest;(e) but in case of administrators it is otherwise.(f)23 Whatever is so recovered, that is of a salable nature and may be converted into ready money, is called assets in the hands of the executor or administrator;(g) that is, sufficient or enough (from the French assez) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. *[*511Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him: which is the next thing to be considered; for,
5. The executor or administrator must pay the debts of the deceased. In payment of debts he must observe the rules of priority: otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. And, first, he may pay all funeral charges, and the expense of proving the will, and the like. Secondly, debts due to the king on record or specialty.(h) Thirdly, such debts as are by particular statutes to be preferred to all others: as the forfeitures for not burying in woollen,(i) money due upon poor-rates,(k) for letters to the post-office,(l) and some others. Fourthly, debts of record; as judgments, (docketed according to the statute 4 & 5 W. and M. c. 20,) statutes and recognizances.(m)24 Fifthly, debts due on special contracts; as for rent, (for which the lessor has often a better remedy in his own hands by distreining,) or upon bonds, covenants, and the like, under seal.(n) Lastly, debts on simple contracts, viz., upon notes unsealed, and verbal promises. Among these simple contracts, servants’ wages are by some(o) with reason preferred to any other: and so stood the antient law, according to Bracton(p) and Fleta,(q) who reckon among the first debts to be paid, servita servientium et stipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himself first, by retaining in his hands so much as his debt amounts to.(r) But an executor of his own wrong is not allowed to retain: for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased; and would besides be taking advantage of his own wrong, which is contrary to the rule of law.(s) If a **512]creditor constitutes his debtor his executor, this is a release or discharge of the debt, whether the executor acts or no;(t) provided there be assets sufficient to pay the testator’s debts: for though this discharge of the debt shall take place of all legacies,25 yet it were unfair to defraud the testator’s creditors of their just debts by a release which is absolutely voluntary.(u)26 Also, if no suit is commenced against him,27 the executor may pay any one creditor in equal degree his whole debt, though he has nothing left for the rest: for, without a suit commenced, the executor has no legal notice of the debt.(w)28
6. When the debts are all discharged, the legacies claim the next regard; which are to be paid by the executor so far as his assets will extend; but he may not give himself the preference herein, as in the case of debts.(x)
A legacy is a bequest, or gift, of goods and chattels by testament; and the person to whom it was given is styled the legatee: which every person is capable of being, unless particularly disabled by the common law or statutes, as traitors, papists,29 and some others. This bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor: for if I have a general or pecuniary legacy of 100l., or a specific one of a piece of plate, I cannot in either case take it without the consent of the executor.(y) For in him all the chattels are vested;30 and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just before he is permitted to be generous; or, as Bracton expresses the sense of our antient law,(z) “de bonis defuncti primo dedueenda sunt ea quæ sunt necessitatis, et postea quæ sunt utilitatis, et ultimo quæ sunt voluntatis.” And in case of a deficiency of assets, all the general legacies must abate proportionably, in order to pay the debts; *[*513but a specific legacy (of a piece of plate, a horse, or the like) is not to abate at all, or allow any thing by way of abatement, unless there be not sufficient without it.(a)31 Upon the same principle, if the legatees had been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid.(b) And this law is as old as Bracton and Fleta, who tell us,(c) “si plura sint debita, vel plus legatum fuerit, ad quæ catalla defuncti non sufficiant, fiat ubique defalcatio, excepto regis privilegio.”
If a legatee dies before the testator, the legacy is a lost or lapsed legacy, and shall sink into the residuum.32 And if a contingent legacy be left to any one, as when he attains, or if he attains, the age of twenty-one, and he dies before that time, it is a lapsed legacy.(d)33 But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy; an interest which commences in præsenti, although it be solvendum in futuro: and if the legatee dies before that age, his representative shall receive it out of the testator’s personal estate at the same time that it would have become payable in case the legatee had lived.34 This distinction is borrowed from the civil law;(e) and its adoption in our courts is not so much owing to its intrinsic equity, as to its having been before adopted by the ecclesiastical courts. For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations, and that the subject should have the same measure of justice in whatever court he sued.(f) But, if such legacies be charged upon a real estate, in both cases they shall lapse for the benefit of the heir;(g)35 for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction.36 And, in case of a vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, *[*514interest shall be payable thereon from the testator’s death;37 but if charged only on the personal estate, which cannot be immediately got in, it shall carry interest only from the end of the year after the death of the testator.(h)38
Besides these formal legacies, contained in a man’s will and testament, there is also permitted another death-bed disposition of property; which is called a donation causa mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods, (under which have been included bonds, and bills drawn by the deceased upon his banker,) to keep in case of his decease. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors; and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa.(i)39 This method of donation might have subsisted in a state of nature, being always accompanied with delivery of actual possession;(k) and so far differs from a testamentary disposition: but seems to have been handed to us from the civil lawyers,(l) who themselves borrowed it from the Greeks.(m)
7. When all the debts and particular legacies are discharged, the surplus, or residuum, must be paid to the residuary legatee, if any be appointed by the will; and if there be none, it was long a settled notion that it devolved to the executor’s own use, by virtue of his executorship.(n) But, whatever ground there might have been formerly for this opinion, it seems now to be understood(o) with this restriction; that although where the executor had no legacy at all the residuum shall in general be his own, yet wherever there is sufficient *[*515on the face of a will (by means of a competent legacy or otherwise) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin,40 the executor then standing upon exactly the same footing as an administrator, concerning whom indeed there formerly was much debate,(p) whether or no he could be compelled to make any distribution of the intestate’s estate. For, though (after the administration was taken in effect from the ordinary, and transferred to the relations of the deceased) the spiritual court endeavoured to compel a distribution, and took bonds of the administrator for that purpose, they were prohibited by the temporal courts, and the bonds declared void at law.(q) And the right of the husband not only to administer, but also to enjoy exclusively, the effects of his deceased wife, depends still on this doctrine of the common law: the statute of frauds declaring only that the statute of distributions does not extend to this case. But now these controversies are quite at an end; for, by the statute 22 & 23 Car. II. c. 10, explained by 29 Car. II. c. 30, it is enacted, that the surplusage of intestates’ estates (except of femes-covert, which are left as at common law)(r) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner:—One-third shall go to the widow of the intestate, and the residue in equal proportions to his children, or, if dead, to their representatives; that is, their lineal descendants: if there are no children or legal representatives subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representatives: but no representatives are admitted, among collaterals, further than the children of the intestate’s brothers and sisters.(s) The next of kindred, here referred to, are to be investigated by the same rules of consanguinity as those who are entitled to letters of administration; of whom we have sufficiently spoken.(t) **516]And therefore by this statute the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate, and without wife or issue; in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father; but by statute 1 Jac. II. c. 27, if the father be dead, and any of the children die intestate, without wife or issue, in the lifetime of the mother, she and each of the remaining children, or their representatives shall divide his effects in equal portions.41
It is obvious to observe how near a resemblance this statute of distributions bears to our ancient English law, de rationabili parte bonorum, spoken of at the beginning of this chapter;(u) and which Sir Edward Coke(w) himself, though he doubted the generality of its restraint on the power of devising by will, held to be universally binding (in point of conscience at least) upon the administrator or executor, in the case of either a total or partial intestacy. It also bears some resemblance to the Roman law of succession ab intestato;(x) which, and because the act was also penned by an eminent civilian,(y) has occasioned a notion that the parliament of England copied it from the Roman prætor: though, indeed, it is little more than a restoration, with some refinements and regulations, of our old constitutional law; which prevailed as an established right and custom from the time of king Canute downwards, and many centuries before Justinian’s laws were known or heard of in the western parts of Europe. So, likewise, there is another part of the statute of distributions, where directions are given that no child of the intestate (except his heir-at-law) on whom he settled in his lifetime any estate in lands, or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their **517]brothers and sisters; but, if the estates so given them, by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. This just and equitable provision hath been also said to be derived from the collatio bonorum of the imperial law:(z) which it certainly resembles in some points, though it differs widely in others. But it may not be amiss to observe, that, with regard to goods and chattels, this is part of the antient custom of London, of the province of York, and of our sister kingdom of Scotland: and, with regard to lands descending in coparcenary, that it hath always been, and still is, the common law of England, under the name of hotchpot.(a)
Before I quit this subject, I must, however, acknowledge that the doctrine and limits of representation laid down in the statute of distributions seem to have been principally borrowed from the civil law: whereby it will sometimes happen that personal estates are divided per capita and sometimes per stirpes; whereas the common law knows no other rule of succession but that per stirpes only.(b) They are divided per capita to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure representationis, in the right of another person. As, if the next of kin be the intestate’s three brothers, A., B., and C.; here his effects are divided into three equal portions, and distributed per capita one to each: but if one of these brothers, A., had been dead, leaving three children, and another, B., leaving two, then the distribution must have been per stirpes; viz., one-third to A.’s three children, another third to B.’s two children, and the remaining third to C., the surviving brother: yet, if C. had also been dead without issue, then A.’s and B.’s five children, being all in equal degree to the intestate, would take in their own rights per capita.; viz., each of them one fifth part.(c)42
The statute of distributions expressly excepts and reserves the customs of the city of London, of the province of York, *[*518and of all other places having peculiar customs of distributing intestates’ effects. So that, though in those places the restraint of devising is removed by the statutes formerly mentioned,(d) their antient customs remain in full force with respect to the estates of intestates. I shall, therefore, conclude this chapter, and with it the present book, with a few remarks on those customs.
In the first place, we may observe that, in the city of London,(e) and province of York,(f) as well as in the kingdom of Scotland,(g) and probably also in Wales, (concerning which there is little to be gathered but from the statute 7 & 8 W. III. c. 38,) the effects of the intestate, after payment of his debts, are in general divided according to the antient universal doctrine of the pars rationabilis. If the deceased leaves a widow and children, his substance (deducting for the widow her apparel and the furniture of her bedchamber, which in London is called the widow’s chamber) is divided into three parts; one of which belongs to the widow, another to the children, and the third to the administrator: if only a widow, or only children, they shall respectively, in either case, take one moiety, and the administrator the other;(h) if neither widow nor child, the administrator shall have the whole.(i) And this portion, or dead man’s part, the administrator was wont to apply to his own use,(k) till the statute 1 Jac. II. c. 17 declared that the same should be subject to the statute of distributions. So that if a man dies worth 1800l. personal estate, leaving a widow and two children, this estate shall be divided into eighteen parts; whereof the widow shall have eight, six by the custom and two by the statute; and each of the children five, three by the custom and two by the statute: if he leaves a widow and one child, she shall still have eight parts, as before, and the child shall have ten, six by the custom and four by the statute: if he leaves a widow and no child, the widow shall have three-fourths of the whole, two by the custom and one by the sta*[*519tute; and the remaining fourth shall go by the statute to the next of kin. It is also to be observed that if the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of non-entity with regard to the custom only;(l) but she shall be entitlted to her share of the dead man’s part under the statute of distributions, unless barred by special agreement.(m) And if any of the children are advanced by the father, in his lifetime, with any sum of money, (not amounting to their full proportionable part,) they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow,43 before they are entitled to any benefit under the custom:(n) but, if they are fully advanced, the custom entitles them to no further dividend.(o)
Thus far in the main the customs of London and of York agree; but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage-part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testament:(p) and if they die under that age, whether sole or married, their share shall survive to the other children; but after the age of twenty-one it is free from any orphanage-custom, and, in case of intestacy, shall fall under the statute of distributions.(q) The other, that, in the province of York, the heir at common law, who inherits any land either in fee or in tail, is excluded from any filial portion or reasonable part.(r) But, notwithstanding these provincial variations, the customs appear to be substantially one and the same. And, as a similar policy formerly prevailed in every part of the island, we may fairly conclude the whole to be of British original; or, if derived from the Roman law of successions, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points **520](particularly in the advantages given to the widow) it very considerably differs; though it is not improbable that the resemblances which yet remain may be owing to the Roman usages introduced in the time of Claudius Cæsar, who established a colony in Britain to instruct the natives in legal knowledge;(s) inculcated and diffused by Papinian, who presided at York as præfectus prætorio, under the emperor Severus and Caracalla:(t) and continued by his successors till the final departure of the Romans in the beginning of the fifth century after Christ.
the end of the second book.
[(a) ] Puff. L. of N. b. 4, c. 10.
[(b) ] Ibid. b. 4, c. 11.
[(c) ] Barbeyr. Puff 4 10, 4. Godolph. Orph. Leg. i. 1.
[(d) ] Gen. xv.
[(e) ] Taylor’s Elem. Civ. Law, 517.
[(f) ] See page 12.
[(g) ] Selden, de succ. Ebr. c. 24.
[(h) ] Gen. xlviii.
[(i) ] Plutarch in vita Solon.
[(k) ] Pott. Antiq. l. 4, c. 15.
[1 ] This position is very questionable. Long before the compilation of the laws of the Twelve Tables, a testament might be made by a Roman, and his private will converted into a public law, by promulgation in calatis comitiis. A Roman, also, who was girt for war, and about to proceed to battle, was allowed, antecedently to the laws of the Twelve Tables, to make what was termed testamentum in procinctu. And a third mode of making a will, without the formality of ratification by the comitia, and by persons who were not entitled to the exclusively-military privilege of making testamentum procinctum, was in use before the introduction of the laws of the Twelve Tables. This was by means of a fictitious purchase by the intended inheritor, to whom the purchase-money was tendered, and weighed in a balance, before witnesses,—which was termed testamentum per æs et libram.
“Sciendum est, olim quidem duo genera testamentorum in usu fuisse; quorum altero in pace et otio utebantur, quod calatis comitiis appellabant; altero, cum in prælium exituri essent, quod procinctum dicebatur. Accessit deinde tertium genus testamentorum, quod dicebatur per æs et libram, scilicet quod per emancipationem, id est, imaginariam quandam venditionem agebatur, quinque testibus et libripende civibus Romanis puberibus, præsentibus, et eo qui familiæ emptor dicebatur. Sed illa quidem priora duo genera testamentorum ex veteribus temporibus in desuetudinem abierunt: quod vero per æs et libram fiebat, diutius permanserit.” Vinnius, lib. 2, tit. 10. Heineccius, in his commentary on this passage, observes that the comitia, which were calata, or convocata, for the purpose of giving a public sanction to private wills, could neither have been the comitia centuriata nor the comitia tributa, but must necessarily have been the comitia curiata, quæ sola, primis temporibus, cum in concione testamenta fiebant, in urbe haberentur. Certum est tempore mediæ jurisprudentiæ comitiis testari desitum fuisse. Immo, latis tabulis xii. desiisse testamenta in comitiis calatis fieri, verisimillimum est. Quis enim voluisset voluntatem svam submittere populi suffragiis, quum libere suoque arbitrio testari posset? Et quis maluisset publice et palam hæredem nuncupare, quam jure uti xii. tabularum concesso?—Chitty.
[(l) ] Inst. 2, 22, 1.
[(m) ] Tacit. de Mor. Germ. 21.
[(n) ] See page 13.
[(o) ] Sp. L. b. 27, c. 1. Vinmus in Inst. l. 2, tit. 10.
[(p) ] LL. Canut. c. 68.
[(q) ]L. 2, c. 5.
[(r) ] Bracton, l. 2, c. [Editor: illegible characer][Editor: illegible characer] 2, c. 57.
[(s) ] F. N. B. 122.
[(t) ] 9 Hen. III. c. 18.
[(u) ] A widow brought an action of detinue against her husband’s executors, quod cum per consuetudinem totius regni Angliæ hactenus usitatam et approbatam, uxores debent et solent a tempore, &c. habere suam rationabilem partem bonorum maritorum suorum; ita videlicet. quod si nullos habuerint liberos, tunc medietatem; et si habuerint, tunc tertiam partem, &c., and that her husband died worth 200,000 marks, without issue had between them; and thereupon she claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the husband’s dying without issue was denied, but the rule of law, as stated in the writ, seems to have been universally allowed. M. 30 Edw. III. 25. And a similar case occurs in H. 17 Edw. III. 9.
[(w) ] Reg. Brev. 142. Co. Litt. 176.
[(x) ] Law, 175.
[(y) ] 2 Inst. 33.
[(z) ]L. 2, c. 26, 2.
[(a) ] Dalrymp. of Feud. Property, 145.
[(b) ] Page 426.
[(c) ] 9 Rep. 38.
[(d) ] 9 Rep. 37.
[(e) ] 486.
[(f) ] Finch, Law, 173, 174.
[(g) ] Plowd. 277.
[(h) ] Ibid.
[(i) ]L. 2, c. 57, 10.
[(k) ] In Decretal. l. 5, t. 3, c. 42.
[(l) ] The proportion given to the priest and to other pious uses was different in different countries. In the archdeaconry of Richmond in Yorkshire this proportion was settled by a papal bulle, ad 1254, (Regist. honoris de Richm. 101,) and was observed till abolished by the statute 26 Hen. VIII. c. 15.
[(m) ] 13 Edw. I. c. 19.
[(n) ] 9 Rep. 39.
[(o) ] Godolph. Orph. Leg. p. 1, c. 7.
[(p) ] Godolph. p. 1, c. 8. Wentw. 212. 2 Vern. 104, 469. Gilb. Rep. 74.
[2 ] This has been thought an error of the press in Perkins, and that four by mistake was printed for fourteen. See this subject learnedly investigated by Mr. Hargrave, who concludes, with the learned judge, that a will of personal estate may be made by a male at the age of fourteen, and by a female at the age of twelve, and not sooner. Harg. Co. Litt. 99.—Christian.
However, by the late Wills Act, statute 1 Vict. c. 26, 7, 34, it is enacted that no will made after the first day of January, 1838, by any person under the age of twenty-one years, shall be valid.—Stewart.
[(q) ] Perkins, 503.
[(r) ] Co. Litt. 89.
[3 ] See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party’s incapacity, (Lewis vs. Pead, 1 Ves. Jr. 19;) but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction, (Griffiths vs. Robins, 3 Mad. 192;) for that hypothetical disability which is always supposed to exist during infancy may really subsist when the party is of age, and even a much greater degree of incapacity, though the case be not one of insanity, or of lunacy, strictly speaking. Sherwood vs. Saunderson, 19 Ves. 283. Ridgway vs. Darwin, 8 Ves. 67. Ex parte Cranmer, 12 Ves. 449.—Chitty.
[4 ] See Swinburne, pt. 2, sect. 6. A commission of lunacy has issued against a party who when he could be kept sober was a very sensible man, but whose constant habits were those of intoxication. Anonym. cited in 8 Ves. 66. And in the case of Rex vs. Wright, 2 Burr. 1099, a rule was made upon the defendants to show cause why a criminal information should not be exhibited against them for the misdemeanour of using artifices to obtain a will from a woman addicted to liquor, when she was under very improper circumstances of mind to make one.—Chitty.
[(s) ] Godolph. p. 1, c. 9.
[(t) ]Ff. 31, 1, 77.
[(u) ] 4 Rep. 51.
[(v) ] Dr. and St. d. 1, c. 7.
[(w) ] Bro. Abr. tit. Devise, 34. Stra. 891.
[(x) ] The King vs. Bettesworth, T. 13 Geo. II. B. R.
[(y) ] Cro. Car. 376. 1 Mod. 211.
[(z) ]Ff. 28, 1, 6.
[(a) ]Ff. 39, 6, 25.
[(b) ] Co. Litt. 133.
[(c) ] Godolph. 1, 10.
[(d) ] Prec. Chan. 44.
[(e) ] 4 Rep. 60. 2 P. Wms. 624.
[5 ] But in this case the will is of no effect, not from the incapacity of the testator, but because he has no goods to bequeath. And a similar observation applies to the other instances given by Blackstone,—that of a felo de se, whose goods and chattels are forfeited by the act and manner of his death, although he may make a devise of his lands, for they are not subjected to any forfeiture. Plowd. 261. Thus, also, outlaws, though it be but for debt, “are said to be” incapable of making a will; for their goods and chattels are forfeited during the time (Fitz. Abr. tit. Descent, 16) the outlawry subsists.—Kerr.
[(f) ] Plowd. 261.
[6 ] Lands never were forfeited without an attainder by course of law, (3 Inst. 55;) and now no attainder, except for high treason, petit treason, or murder, or abetting those crimes, extends to the disinherison of any heir, nor to the prejudice of the right or title of any other persons than the offenders. Stat. 54 Geo. III. c. 145.—Chitty.
[(g) ] Fitz. Abr. tit. Descent, 16.
[(h) ] Godolph. p. 1, c. 12.
[(i) ]L. 7, c. 5.
[(j) ] Inst. 2, 10.
[(k) ] 1 Inst. 111, 322.
[(l) ]Ff. 28, 1, 1.
[(m) ] Godolph. p. 1, c. 1, 3.
[7 ] But if a legacy given by a written will has lapsed, or is void, quatenus the subject of such legacy, there is no written will; and a noncupative codicil is quasi an original will for so much, not an alteration of that disposition which had previously become determined, or which was in its creation void. Stonywell’s case. T. Raym. 334. And the act which says that no written will shall be repealed or altered by a nuncupative codicil does not prohibit the disposition by such codicil of that which is not disposed of by the written will.—Chitty.
[(n) ] Inst. 2, 10, 14.
[8 ] Nuncupative wills are not favourites with courts of probate, though, if duly proved, they are equally entitled to be pronounced for with written wills. Much more, however, is requisite to the due proof of a nuncupative will than of a written one, in several particulars. In the first place, the provisions of the statute of frauds must be strictly complied with to entitle any nuncupative will to probate. Consequently, the absence of due proof of any one of these—that enjoining the rogatio testium, or calling upon persons to bear witness of the act, for instance, (Bennet vs. Jackson, 1 Phillim. 191. Parsons vs. Miller, ibid. 195)—is fatal at once to a case of this species. But, added to this, and independent of the statute of frauds, the factum of a nuncupative will requires to be proved by evidence more strict and stringent than that of a written one, in every single particular. This is requisite in consideration of the facilities with which fraud in setting up nuncupative wills are obviously attended,—facilities which absolutely require to be counteracted by courts insisting on the strictest proof as to the facta of such wills. The testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear by the clearest and most indisputable testimony. Above all, it must plainly result from the evidence that the instrument propounded contains the true substance and import, at least, of the alleged nuncupation, and consequently that it embodies the deceased’s real testamentary intentions. Lemann vs. Bonsall, 1 Addams, 389.
The statute of frauds is imperative that a nuncupative will must be proved by the oaths of three witnesses: therefore, supposing no more than three witnesses were present at the making of such will, the death of any one of them before such proof has been formally made will render the nuncupative will void, however clear and unsuspected the evidence of the two surviving witnesses to the transaction may be, (Phillips vs. The Parish of St. Clement’s Danes, 1 Eq. Ca. Abr. 404;) though at law the execution of a written will is usually proved by calling one of the subscribing witnesses; and, notwithstanding it is the general rule of equity to examine all the subscribing witnesses, this rule does not apply when any of the witnesses are dead, or cannot be discovered or brought within the jurisdiction.—Chitty.
[9 ] But nuncupative wills, if made after the 1st of January, 1838, are no longer valid at all; for by the Wills Act, 1 Vict. c. 26, s. 9, the 29 Car. II. c. 3 is repealed to this extent, and it is enacted that no will shall be valid unless it shall be in writing; but, by s. 9, the wills of soldiers and mariners, being in actual military service or at sea, may dispose of their personal estate as they might have done before the act; and, by s. 12, the act is not to affect certain provisions of stat. 11 Geo. IV. and 1 W. IV. c. 60, with respect to the wills of petty officers and seamen of the royal navy and marines so far as relates to their wages, prize-money, or allowances.—Stewart.
[(o) ] Godolph. p. 1, c. 21. Gilb. Rep. 260.
[(p) ] Comyns, 452, 453, 454.
[(q) ]L. 2, c. 26.
[10 ] But this distinction between wills of real and personal estate is now entirely abolished so far as it relates to wills made after the 1st of January, 1838; for by s. 9 of stat. 1 Vict. c. 26 it is enacted that no will shall be valid unless it shall be signed at the foot by the testator, or by some other person in his presence or by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary; and, by s. 12, any will executed in this manner shall be valid without any other publication.—Stewart.
[(r) ] Co. Litt. 1.
[11 ] This, lord Loughborough observed, was the most general maxim he knew, (Matthews vs. Warner, 4 Ves. 210:) it is essential to every testamentary instrument that it may be altered even in articulo mortis, (Balch vs. Symes, 1 Turn. & Russ. 92:) irrevocability would destroy its essence as a last will. Hobson vs. Blackburn, 1 Addams, 278. Reid vs. Shergold, 10 Ves. 379.—Chitty.
[(s) ] Litt. 168. Perk. 478.
[(t) ] Perk. 479.
[12 ] Republication of a will makes the will speak as of the time of such republication. Long vs. Aldred, 3 Addams, 51. Goodtitle vs. Meredith, 2 Mau. & Sel. 14. If a man by a second will revokes a former, but keeps the first undestroyed, and afterwards destroys the second, whether the first will is thereby revived has been much questioned. The result seems to be that no general and invariable rule prevails upon the subject, but it must depend upon the intention of the testator as that is to be collected from the circumstances of each particular case.—Chitty.
[(u) ] 8 Rep. 82.
[(w) ] Elem. c. 19.
[(x) ] Lord Raym. 441. 1 P. Wms. 204.
[13 ] But by 1 Vict. c. 26, s. 19, no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances: it is, however, expressly provided (s. 18) that a will shall be revoked by marriage, but that no will shall be revoked otherwise, or but by another will or codicil executed in the manner hereinbefore mentioned or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed; or by burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, with the intention of revoking the same; and, by s. 21, no alteration in a will shall have any effect unless executed as a will; and, by s. 22, no will revoked shall be revived otherwise than by a re-execution or a codicil to revive it.—Stewart.
[(y) ] See book i. c. 16.
[(z) ] Inst. 2, 18, 1.
[14 ] Courts of probate, however, look with much greater jealousy at, and require more stringent evidence in support of, an inofficious testament than one which is consonant with the testator’s duties and with natural feeling. Brogden vs. Brown, 2 Addams, 449. Dew vs. Clerk, 3 Addams, 207.—Chitty.
[15 ] But a feme coverte should not be allowed to act as an executrix or administratrix without the assent of her husband; for, as he would be answerable for her acts in either of those capacities, he ought not to be exposed to this responsibility unless by his own concurrence. See 1 Anders. 117, case 164. It might be equally injurious to the legatees, creditors, or next of kin of a testator or intestate, if a married woman were allowed to act as executrix or administratrix when her husband was not amenable to the courts of this country; for, if she should waste the assets, the parties interested would have no remedy, as the husband must be joined in any action brought against her in respect of such transactions. Taylor vs. Allen, 2 Atk. 213.—Chitty.
[(a) ] West. Symb. p. 1, 635.
[(b) ] Went. Off. Ex. c. 18.
[(c) ] 1 Lutw. 342.
[(d) ] 2 P. Wms. 589, 590.
[(e) ] Went. c. 1. Plowd. 281.
[16 ] Swinburne, in pt. 4, sect. 4 of his treatise, supplies many instances in which the intention of a testator to appoint certain persons his executors may be implied, though he has not described them eo nomine: and see Pickering vs. Towers, Ambl. 364.—Chitty.
[(f) ] 1 Roll. Abr. 907. Comb. 20.
[(g) ]L. 7, c. 6.
[(h) ] Cro. Car. 106. Stat. 29 Car. II. c. 3. 1 P. Wms. 38[Editor: illegible characer]
[(i) ] Salk. 36. Stra. 532.
[(k) ] See page 496.
[(l) ] Prec. Chanc. 593.
[(m) ] See pages 203, 207, 224.
[(n) ] Godolph. p. 2, c. 34, 1. 2 Vern. 125.
[(o) ] In Germany there was a long dispute whether a man’s children should inherit his effects during the life of their grandfather; which depends (as we shall see hereafter) on the same principles as the granting of administrations. At last it was agreed at the diet of Arensberg, about the middle of the tenth century, that the point should be decided by combat. Accordingly, an equal number of champions being chosen on both sides, those of the children obtained the victory, and so the law was established in their favour,—that the issue of a person deceased shall be entitled to his goods and chattels in preference to his parents. Mod. Un. Hist. xxix. 28.
[(p) ] Harris in Nov. [Editor: illegible characer]18 c. 2.
[(q) ] Prec. Chan. 527. 1 P. Wms. 41.
[(r) ] Atk. 455.
[(s) ] 1 Ventr. 425.
[(t) ] Aleyn, 36. Styl. 74.
[(u) ] Salk. 38.
[(w) ] 1 Sid. 281. 1 Ventr. 219.
[(x) ] Plowd. 278.
[(y) ] Wentw. ch. 14.
[(z) ] 2 Inst. 398.
[(a) ] Salk. 37.
[(b) ] 3 P. Wms. 33.
[(c) ] Stat. 25 Edw. III. st. 5, c. 5. 1 Leon. 275.
[(d) ] Bro. Abr. tit. Administrator, 7.
[(e) ] Styl. 225.
[(f) ] 1 Roll. Abr. 908. Godolph. p. 2, c. 30. Salk. 36.
[(g) ] Wentw. ch. 3.
[17 ] Before he proves the will, he may lawfully perform most acts incident to the office. Wankford vs. Wankford, 1 Salk. 301. He does not derive his title under the probate, but under the will: the probate is only evidence of his right. Smith vs. Milles, 1 T. R. 480. It is true that in order to assert completely his claims in a court of justice he must produce the copy of the will, certified under the seal of the ordinary; but it is not necessary he should be in possession of this evidence of his right at the time he commences an action at law as executor; it will be in due time if he obtain it before he declares in such action, so, if he file a bill in equity, in the same character, a probate obtained at any time before the hearing of the cause will sustain the suit. Humphreys vs. Humphreys, 3 P. Wms. 351.—Chitty.
[18 ] A person who takes upon himself to interfere with the effects of a party deceased, or, at all events, to dispose thereof or apply them to his own use, will by such interference constitute himself an executor de son tort, as stated in the text, (and see Edwards vs. Harben, 2 T. R. 597;) but lord Hardwicke held that, although a person entitled to administration could not, before administration actually granted to him, commence an action at law, (see the last note as to an executor who has not obtained probate,) he might be allowed to file a bill in equity as administrator, and that such bill would be sustained by an administration subsequently taken out. Fell vs. Lutwidge, Barnard, Ch. Rep. 320. S. C. 2 Atk. 120.—Chitty.
[(h) ] Comyns, 151.
[(i) ] 5 Rep. 33, 34.
[(k) ] Wentw. ch. 14. Stat. 43 Eliz. c. 8.
[19 ] Whether a man has or has not rendered himself liable to be treated as an executor de son tort is not a question to be left to a jury, but is a conclusion of law, to be drawn by the court before which that question is raised. Padget vs. Priest, 2 T. R. 99.—Chitty.
[(l) ] Dyer, 166.
[(m) ] Bro. Abr. tit. Administrator, 8.
[20 ] But if a person entitled to letters of administration is opposed in the ecclesiastical court, and does any acts pendente lite to make himself executor de son tort, those acts will be purged by his afterwards obtaining letters of administration. Curtis vs. Vernon, 3 T. R. 590.—Chitty.
[(n) ] 5 Rep. 31.
[(o) ] 12 Mod. 471.
[(p) ] Dyer, 166.
[(q) ] 1 Ch. Ca. 33.
[(r) ] 5 Rep. 30. Moor. 52.
[(s) ] 12 Mod. 441, 471.
[(t) ] Wentw. ch. 14
[21 ] It is held that the least intermeddling with the effects of the intestate—even milking cows, or taking a dog—will constitute an executor de son tort. Dy. 166. An executor of his own wrong will be liable to an action unless he has delivered over the goods of the intestate to the rightful administrator before the action is brought against him; and he cannot retain the intestate’s property in discharge of his own debt, although it is a debt of a superior degree. 3 T. R. 590. 2 T. R. 100.—Christian.
[(u) ] Salk. 198. Godolph. p. 2, c. 26, 2.
[(w) ] Godolph. p. 1, c. 20, 4.
[(x) ] 4 Inst. 335.
[(y) ]Provinc. l. 3, t. 13, c. item. v. centum. &c. statutum [Editor: illegible characer] laicis.
[(z) ] 4 Inst. 335. Godolph. p. 2, c. 22.
[(a) ] Plowd. 281.
[(b) ] Can. 92.
[(c) ] Stat. 21 Hen. VIII. c. 5.
[22 ] The ecclesiastical courts do not compel all executors to give an inventory, and always inquire into the interest of a party who requires one; but even a probable or contingent interest will justify a party in calling for an inventory; and, in such cases, that which is by law required generally must be enforced. There is only one case in which it could be refused; that is, if a creditor had brought a suit in chancery for a discovery of assets: there the ecclesiastical court might say the party should not proceed in both courts. Phillips vs. Bignell, 1 Phillim. 240. Myddleton vs. Rushout, ibid. 247.—Chitty.
[(d) ] Co. Litt. 209.
[(e) ] Dyer, 23.
[(f) ] 1 Atk. 460.
[23 ] It has been determined, since the decision of Hudson vs. Hudson, 1 Atk. 460, both in law and equity, that there is no distinction in this respect between executors and administrators: one of the latter has all the power which one of the former has. Willand vs. Fenn, cited in Jacomb vs. Harwood, 2 Ves. Sen. 267.—Coleridge.
[(g) ] See page 244.
[(h) ] 1 And. 129.
[(i) ] Stat. 30 Car. II. c. 3.
[(k) ] Stat. 17 Geo. II. c. 38.
[(l) ] Stat. 9 Anne, c. 10.
[(m) ] 4 Rep. 60. Cro. Car. 363.
[24 ] A final decree for payment of a debt, or other personal demand, is equal to a judgment. Gray vs. Chiswell, 9 Ves. 125. Goate vs. Fryer, 2 Cox, 202. Courts of equity will not restrain proceedings at law by creditors who are seeking in that way to obtain payment by executors, until there is a decree for carrying the trusts of the will into execution,
[(n) ] Wentw. ch. 12.
[(o) ] 1 Roll. Abr. 927.
[(p) ]L. 2, c. 26.
[(q) ]L. 2, c. 56, 10.
[(r) ] 10 Mod. 496. See book iii. p. 18.
[(s) ] 5 Rep. 30.
[(t) ] Plowd. 184. Salk. 299.
[25 ] Such is certainly the rule at common law; and it has been questioned, formerly, whether it did not hold in equity. Brown vs. Selwyn, Ca. temp. Talb. 242. But it seems to have been long esteemed the better opinion that a debt due from a testator’s executor is general assets for payment of the testator’s legacies, (Phillips vs. Phillips, 2 Freem. 11. Anonym. c. 58. Ibid. 52;) and that in such cases, though the action at law is gone, the duty remains,—which may be sued for either in equity or in the spiritual court. Flud vs. Rumsey, Yelv. 150. Hudson vs. Hudson, 1 Atk. 461. Lord Thurlow (in Casey vs. Goodinge, 3 Br. 111) and Sir William Grant (in Berrv vs. Usher, 11 Ves. 90) treated this as a point perfectly settled; and lord Erskine (in Simmons vs. Gutteridge, 13 Ves. 264) said a debt due by an executor to the estate of his testator is assets, but he cannot sue himself; and the consequence seems necessary that, in all cases under the usual decree against an executor, an interrogatory ought to be pointed to the inquiry whether he has assets in his hands arising from a debt due by himself; and any legatee has a right to exhibit such an interrogatory if it has been omitted in drawing up the decree to account.
Some writers have, indeed, thought that the appointment of a debtor to be the executor of his creditor ought to be considered in the light of a specific bequest or legacy to the debtor, (see Hargrave’s note (1) to Co. Litt. 264, b.;) yet, even if this really were so, it would be difficult to maintain the executor’s right of retainer as against other legatees, (see post, p. 512:) but lord Holt (in Wankford vs. Wankford, 1 Salk. 306) said, “When the obligee makes the obligor his executor, though it is a discharge of the action, yet the debt is assets; and the making him executor does not amount to a legacy, but to payment and a release. If H. be bound to J. S. in a bond of 100l., and then J. S. makes H. his executor, H. has actually received so much money, and is answerable for it; and if he does not administer so much, it is a devastavit.”—Chitty.
[(u) ] Salk. 303. 1 Roll. Abr. 921.
[26 ] The rule of law is correctly laid down upon the principle that a debt is merely a right to recover something by way of action; and, as the executor cannot sue himself, it must be taken that the testator meant to release the debt when he appointed as executor a person who could not sue for it. Upon the same principle, if a debtor should be appointed administrator, the legal remedy would be suspended during his lifetime, but no longer; because, when the technical difficulty ceases, there does not remain the same presumption of intention to release the debt forever; and therefore upon his death an administrator de bonis non may sue his representative. Lockin vs. Smith, 1 Sid. 79. Nor is this principle inconsistent with the latter part of the rule,—that the testator’s creditors are not to be disappointed of their just debts by this voluntary release: the right of action is, indeed, gone: but the law will presume that the executor, in his individual capacity, has paid the debt to himself in his representative, and will consider the amount assets in his hands for which he will be personally liable to the action of any creditor; because the non-production of the same to answer the demand will, upon that presumption, be proof of a wasting of the testator’s estate.
The doctrine of the courts of equity upon this subject is in effect very different; but, commencing upon principles very analogous, they seem gradually to have departed more and more widely from the practice of the courts of law. At one time, looking to the intention of the testator, they considered the appointment as turning the debt into a legacy, or specific bequest, and, as such, they in general sustained it against the other legatees, because any specific bequest given to any other person would have been so sustained. But, as no legacies—not even specific—could stand against the demands of creditors, so this presumed legacy in the hands of the executor became a trust; and he was held answerable for it to them if the other assets were not sufficient.
Upon the same ground of intention, if it appeared upon the will that the testator did not intend to discharge his executor,—as if he should have left a legacy and directed it to be paid out of the sum due from the executor,—in any such case the executor became, as to all the legatees, general and specific, a trustee to the amount of his debt, and was not discharged. Flud vs. Rumsey, Yelv. 160. Carey vs. Goodinge, 3 Bro. Ch. Rep. 110.
Now, however, the general rule is that the executor is to be considered as a trustee for the legatees; or, if they have been satisfied by other assets, for the persons entitled to the residue of the testator’s personal estate under the will. See Berry vs. Usher, 11 Ves. 90, and the cases collected in the note there. Simmons vs. Gutteridge, 13 Ves. 262.—Coleridge.
[27 ] It is not enough that a suit has been commenced, (Sorrell vs. Carpenter, 2 P. Wms. 483:) there must have been a decree for payment of debts, or an executor will be at liberty to give a preference amongst creditors of equal degree. Maltby vs. Russell, 2 Sim. & Stu. 228. Perry vs. Philips, 10 Ves. 39. But if an executor who has, in any way, notice of an outstanding bond, or other specialty affecting his testator’s assets, confesses a judgment in an action brought for a simple contract-debt, should judgment be afterwards given against him on the bond, he will be obliged, however insufficient the assets, to satisfy both the judgments; for to the debt on simple contract he might have pleaded the demand of a higher nature. An executor must not, by negligence or collusion, defeat specialty-creditors of his testator, by confessing judgments on simple contract-debts of which he had notice. Sawyer vs. Merrer, 1 T. R. 690. Davis vs. Monkhouse, Fitz-Gib. 77. Britton vs. Bathurst, 3 Lev. 115. And where the testator’s debt was a debt upon record, or established by a judgment or decree, the executor will be held to have had sufficient constructive notice thereof; and it will be immaterial whether he had actual notice or not. If he has paid any debts of inferior degree, he will be answerable as for a devastavit. Littleton vs. Hibbins, Cro. Eliz. 793. Searle vs. Lane, 2 Freem. 104, S. C. 2 Vern. 37.
Since the statute of 3 Will. and Mary, c. 14, simple contract-debts are let in to be paid pari passu with debts by specialty, when a testator has limited lands to his executors or trustees in trust for payment of his debts generally. Kidney vs. Coussmaker, 12 Ves. 154. But this rule seems to have been of earlier date than the statute. Foly’s case, 2 Freem. 49. Hickson vs. Witham, ibid, c. 12, in appendix to 2d ed. 306. And it is now settled that a charge for payment of debts, which does not break the descent of real estate to the heir, will be equitable assets for the payment of all creditors alike. Shiphard vs. Lutwidge, 8 Ves. 30. Bailey vs. Ekins, 7 Ves. 323. Clay vs. Willis, 1 Barn. & Cress. 372.
If, therefore, specialty-creditors sweep away the whole of the testator’s personal assets, they will not be allowed to participate in the benefit of the devise until the creditors by simple contract have received so much thereout as to make them equal and upon the level of the creditors by specialty in respect of what they received out of the personal estate. Haslewood vs. Pope, 3 P. Wms. 323. And whenever a plaintiff is under the necessity of applying to the court of chancery for relief, the general rule of that court is to do equal justice to all creditors, without any distinction as to priority. Plunkett vs. Penson, 2 Atk. 293. Thus, the equity of redemption of a mortgage of a term for years has been held equitable assets, (Sir Charles Cox’s case, 3 P. Wms. 341. Hartwell vs. Chitters, Ambl. 308. Newton vs. Bennet, 1 Br. 137. Clay vs. Willis, 1 Barn. & Cress. 372;) and so, perhaps, would an equity of redemption of a mortgage in fee, if mere bond-creditors contended for priority of payment, (for it is clear such assets could only be got at by aid of equity:) but it has been decided that, in such a case, judgment-creditors could not be compelled to come in pari passu with simple contract creditors, but that, as the judgment-creditors had a right to redeem, they must be paid in the first instance and there could be no marshalling as against them. Sharpe vs. Earl of Scarborough, 3 Ves. 542.
The personal estate of a testator is the primary fund for payment of his debts and legacies; and it will not be enough for the personal representative to show that the real estate is charged therewith: he must satisfactorily show that the personal estate is discharged. Tower vs. Lord Rous, 18 Ves. 138. Bootle vs. Blundell, 19 Ves. 548. Watson vs. Brickwood, 9 Ves. 454. Barnewall vs. Lord Cawdor, 3 Mad. 456. Still, where such an intention is plainly made out, it will prevail, (Greene vs. Greene, 4 Mad. 127. Burton vs. Knowlton, 3 Ves. 108;) and parties entitled by descent or devise to real estate cannot claim to have the encumbrance thereon discharged out of their ancestor’s or devisor’s personal estate, so as to interfere with specific, or even with general, legatees, (Bishop vs. Sharpe, 2 Freem. 278. Tipping vs. Tipping, 1 P. Wms. 730. O’Neale vs. Meade, ibid. 694. Davis vs. Gardiner, 2 P. Wms. 190. Rider vs. Wager, ibid. 335;) and, a fortiori, they could not maintain such a claim when it would go to disappoint creditors. Lutkins vs. Leigh, Ca. temp. Talb. 54. Goree vs. Marsh, 2 Freem. 113.
When the owner of an estate has himself subjected it to a mortgage-debt, and dies, his personal estate is first applicable to the discharge of his covenant for payment of that debt, (Robinson vs. Gee, 1 Ves. Sen. 252;) and the case would be the same even although the mortgagor had entered into no such personal covenant, provided he received the money. King vs. King, 3 P. Wms. 360. Cope vs. Cope, 2 Salk. 449. The mere form of devising a mortgaged estate, subject to the encumbrance thereon, (but without expressly exonerating the other funds from liability in respect thereof,) will not affect the question as to the application of assets in discharge of the debt: those words convey no more than would be implied if they had not been used. Serle vs. St. Eloy, 2 P. Wms. 386. Bootle vs. Blundell, 19 Ves. 523. This rule, however, does not apply where the mortgage-debt was not contracted by the testator, and whose personal estate, consequently, was never augmented by the borrowed money; for such a construction would be to make the personal estate of one man answerable for the debt of another. Evelyn vs. Evelyn, 2 P. Wms. 664. Earl of Tankerville vs. Fawcett, 1 Cox, 239. Basset vs. Percival, 1 Cox, 270. Parsons vs. Freeman, Ambl. 115. Tweddel vs. Tweddel, 2 Br. 154. But any one may, of course, so act as to make his personal assets liable to the discharge of debts contracted by another. Woods vs. Huntingford, 3 Ves. 152.
Though a court of equity cannot prevent a creditor from coming upon the personal estate of his deceased debtor in respect of a debt which might be demanded out of his real estate, still, the other creditors will have an equity to charge the real estate for so much as by that means is taken out of the personal estate. Colchester vs. Lord Stamford, 2 Freem. 124. Grise vs. Goodwin, ibid. 265. And if a bill has been filed for administration of the assets, should it appear that a specialty-creditor has been paid out of the personal estate, it is not necessary to file another bill for the purpose of marshalling the assets, but the court will, without being called on, give the requisite directions. Gibbs vs. Augier. 12 Ves. 416.—Chitty.
[(w) ] Dyer, 32. 2 Leon. 60.
[28 ] The rules laid down in the text as to the order of payment apply only to what are called legal assets,—that is, such things as the executor takes as executor, and as are subject to the testator’s debts generally by rule of law, and independently of any direction to that effect in his will. But there are also equitable assets,—which are such things as the testator has made subject to his debts generally, but which without his act would either not have been subject to any of his debts, or only to debts of a special nature. These the executor takes, not as executor, but as trustee; and they are to be distributed, not according to the rule of law, but of equity,—that is, equally among all the creditors. What are legal and what equitable assets is often a disputed question; but, the principle of distribution of the latter being consonant to natural justice, the leaning of the courts has long been to extend their range. See 2 Fonblanque, 397.—Coleridge.
It may be added here also that, by statute 11 Geo. IV., and 1 W. IV. c. 47 and 3 & 4 W. IV. c. 104, real estate, whether freehold or copyhold, and whether devised (unless devised for payment of, or charged with, the debts) or descended, is made assets to be administered in equity for payment of simple contract-debts; so that a simple contract-creditor, instead of proceeding at law against the executor and running the risk of a plea of plene administravit, may at once appeal to the court of chancery and have his claim paid from the real estate of the deceased. The statutes which enable a simple contract-creditor to take this step expressly reserve a priority to specialty creditors.—Kerr.
[(x) ] 2 Vern. 434. 2 P. Wms. 25. 2 Freem. 134. 2 Atk. 171.
[29 ] This ground of disability no longer disgraces the statute-book.—Chitty.
[(y) ] Co. Litt. 111. Aleyn. 39.
[30 ] It has been much questioned whether it was not the intention of the legislature that a specific devise of stock in the public funds should be considered in the nature of a parliamentary appointment, and not want the assent of the executor, (Pearson vs. The Bank of England, 2 Cox, 179;) though a different practical construction has been put on the statute creating government-annuities, (Bank of England vs. Lunn, 15 Ves. 578;) and it must now be taken to be the law that stock, like all other personal property, is assets in the hands of the executor. The consequence necessarily follows that it must vest in the executor, and till he assents, the legatee has no right to the legacy. Franklin vs. The Bank of England, 1 Russ. 597. Bank of England vs. Moffat, 3 Br. 262.
The assent of the executor is equally necessary whether a legacy be specific or merely pecuniary, (Flanders vs. Clarke, 3 Atk. 510. Abney vs. Miller, 2 Atk. 598:) a court of equity, indeed, will compel the executor to deliver the specific article devised, (Northey vs. Northey, 2 Atk. 77;) but, as a general rule, no action at law can be maintained for a legacy, (Deeks vs. Strutt, 5 T. R. 692,) or for a distributive share under an intestacy. Jones vs. Tanner, 7 Barn. & Cress. 544. It was held, however, in Doe vs. Guy, (3 East, 123,) to be clear, from all the authorities, that the interest in any specific thing bequeathed vests, at law, in the legatee upon the assent of the executor; and, therefore, that whenever an executor has given assent (expressly, and not merely by implication) to a specific legacy, should he subsequently withhold it the legatee may maintain an action at law for the recovery of the interest so vested in him. If a deficiency of assets to pay creditors were afterwards to appear, the court of chancery would have power to interfere and make the legatee refund in the proportion required.—Chitty.
[(z) ]L. 2, c. 25.
[(a) ] 2 Vern. 111.
[31 ] A specific legacy is an immediate gift of any fund bequeathed, with all its produce: and is therefore an exception to the general rule that a legacy does not carry interest till the end of a year after the testator’s death. Raven vs. Waite, 1 Swanst. 557. Barrington vs. Tristram, 6 Ves. 349. And though the payment of a principal fund bequeathed to an infant may depend on his attaining his majority, yet the interest accrued from the death of the testator may belong to the legatee, notwithstanding he does not live to take any thing in the principal. Deane vs. Test, 9 Ves. 153.
The criterion of a specific legacy is that it is liable to ademption; that when the thing bequeathed is once gone, in the testator’s lifetime, it is absolutely lost to the legatee. Parrot vs. Worsfield, 1 Jac. & Walk. 601. When, therefore, a testator has bequeathed a legacy of certain stock in the public funds, or of a particular debt, so described as to render the bequest in either case specific, if that stock should be afterwards sold out by the testator, or if that debt should in his lifetime be paid or cancelled, the legacy would be adeemed. Ashburner vs. McGuire, 2 Br. 109. And it appears that there is no distinction between a voluntary and a compulsory payment to the testator, as to the question of ademption. Innes vs. Johnson, 4 Ves. 574. The idea of proceeding on the animus adimendi (though supported by plausible reasoning) was found to introduce a degree of confusion into the decisions on the subject, and to afford no precise rule. Stanley vs. Potter, 2 Cox, 182. Humphreys vs. Humphreys, 2 Cox, 185. It seems, therefore, now established that whenever the testator has himself received, or otherwise disposed of, the subject of gift, the principle of ademption is that the thing given no longer exists; and if, after a particular debt given by will had been received by the testator, it could be demanded by the legatee, that would be converting it into a pecuniary instead of a specific legacy. Fryer vs. Morris, 9 Ves. 363. Barker vs. Rayner, 5 Mad. 217. Where, indeed, the identical corpus is not given, (Selwood vs. Mildmay, 3 Ves. 310,) where the legacy is not specific, but what is termed in the civil law a demonstrative legacy,—that is, a general pecuniary legacy, with a particular security pointed out as a convenient mode of payment,—there, although such security may be called in, or fail, the legacy will not be adeemed, (Guillaume vs. Adderley, 15 Ves. 389. Sibley vs. Perry, 7 Ves. 529. Kirby vs. Potter, 4 Ves. 751. Le Grice vs. Finch, 3 Meriv. 52. Fowler vs. Willoughby, 2 Sim. & Stu. 358;) but when it is once settled that a legacy is specific, the only safe and clear way, it has been judicially said, is to adhere to the plain rule, that there is an end of a specific gift if the specific thing do not exist at the testator’s death. Barker vs. Rayner, 5 Mad. 217, S. C. on appeal, 2 Russ. 125.
Courts of equity are always anxious to hold a legacy to be pecuniary rather than specific, where the intention of the testator is at all doubtful. Chaworth vs. Beech, 4 Ves. 566. Innes vs. Johnson, ibid. 573. Kirby vs. Potter, ibid. 572. Sibley vs. Perry, 7 Ves. 529. Webster vs. Hale, 8 Ves. 413.
The greater part of this note is extracted from 1 Hovenden’s Suppl. to Ves. Jun. Reports, 312.—Chitty.
[(b) ] Ibid. 205.
[(c) ] Bract. l. 2, c. 26. Flet. l. 2, c. 57, 11.
[32 ] Except that, by the statute 1 Vict. c. 26, s. 33, a gift to a child or other issue of the testator will not lapse in case of the death of the legatee, leaving issue which survives the testator, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.—Kerr.
[(d) ] Dyer, 59. 1 Eq. Ca. Abr. 295.
[33 ] A legacy may be so given as that the legatee shall be entitled to the interest or produce thereof from the time of the testator’s death to his own, although such legatee may not live long enough to entitle himself to the principal. Deane vs. Test, 9 Ves. 153, as cited in the last note.
But where a bequest is made to a legatee “at the age of twenty-one,” or any other specified age, or “if he attain such age,” this is such a description of the person who is to take, that, if the legatee do not sustain the character at that time, the legacy will fail: the time when it is to be paid is attached to the legacy itself, and the condition precedent prevents the legacy from vesting. Parsons vs. Parsons, 5 Ves. 582. Sansbury vs. Read, 12 Ves. 78. Errington vs. Chapman, ibid. 24. But if the legacy be to an infant, “payable at twenty-one,” the legacy is held to be vested: the description of the legatee is satisfied, and the other part of the direction refers to the payment only. This distinction (as stated in the text) is borrowed from the civil law, but is adopted as to personal legacies only, not as to bequests charged upon real estate; and it has been spoken of in many cases as a rule neither to be extended nor approved. Dawson vs. Killett, 1 Br. 123. Duke of Chandos vs. Talbot, 2 P. Wms. 613. Mackell vs. Winter 3 Ves. 543. Bolger vs. Mackell, 5 Ves. 509. Hanson vs. Graham, 6 Ves. 245. If real estate, either copyhold or freehold, be devised to an infant and his heirs “when and so soon as” he should attain a certain age, these words, it has been decided, only denote the time when the beneficial interest is to take effect in possession, but the interest vests immediately upon the testator’s decease; and, should the devisee die before he attains the specified age, the estate will descend to his heir-at-law. It would be a different thing if the devise were to the infant “if he attained a certain age:” those words would create a condition precedent, and no interest would vest in him unless he attained that age. Doe vs. Lea, 3 T. R. 42. Boraston’s case, 3 Rep. 21.—Chitty.
[34 ] But it seems, if the testator’s personal representatives were to be accountable for interest, and the delay of payment as to the principal was only directed with reference to the minority of the legatee, his executor or administrator may claim the legacy forth with, provided a year has elapsed since the death of the original testator. Crickett vs. Dolby, 3 Ves. 13. Cloberry vs. Lampen, 2 Freem. 25. Anonym. ibid. 64. Anonym. 2 Vern. 199. Green vs. Pigot, 1 Br. 105. Fonnereau vs. Fonnereau, 1 Ves. Sen. 119. But a small yearly sum directed to be paid for the maintenance of the infant legatee will not be deemed equivalent, for the purpose of vesting a legacy, to a direction that interest should be paid on the legacy. Chester vs. Painter, 2 P. Wms. 338. Hanson vs. Graham, 6 Ves. 249. Roden vs. Smith, Ambl. 588. If a bequest, however, be made to an infant “at his age of twenty-one years, and, if he die before that age, then over to another;” in such case the legatee over does not claim under the infant, but the bequest over to him is a distinct substantive bequest, and is to be paid on the death of the infant under twenty-one. Laundy vs. Williams, 2 P. Wms. 480. Crickett vs. Dolby, 3 Ves. 16.—Chitty.
[(e) ]Ff. 35, 1, 1 and 2.
[(f) ] 1 Eq. Ca. Abr. 205.
[(g) ] 2 P. Wms. 601.
[35 ] Unless there be something in the will to show an intention to the contrary, as if there be a residuary devise. For, by the Wills Act, (1 Vict. c. 26, s. 25,) unless a contrary intention appears by the will, such real estate or interest therein as shall be comprised in a lapsed devise, or in a devise which fails as being contrary to law (as where given to a charity) or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.—Kerr.
[36 ] Where legacies are charged upon land, or if the gift at all savours of the realty, the trusts must be carried into execution with analogy to the common law. Scott vs. Tyler, 2 Dick. 719. Long vs. Ricketts, 2 Sim. & Stu. 183. And the general rule of common law is, that legacies or portions charged on lands do not vest till the time of payment comes. Harvey vs. Aston, 1 Atk. 378, 379, S. C. Willes, 91. Harrison vs. Naylour, 2 Cox, 248. But a testator may make a legacy vested and transmissible, though charged on a real estate and payable at a future time, provided he distinctly expresses himself to that effect, or the context of the will affords a plain implication that such was his intention. Hargrave’s note to Co. Litt. 237. In coming to a just conclusion as to this matter, it has been often said it ought to be examined whether the testator has directed payment to be postponed from a consideration of circumstances merely personal as to the legatee, or with reference to the condition of the estate to be charged, and the interests of others therein. When the direction that the charge shall not be raised till a future day refers to the circumstances of the person to take, (as, for instance, if the charge be intended for a portion,) there the construction has been that the gift is so connected with the purpose for which it was given, that if such purpose fail the land ought not to be charged: but, it has been as repeatedly said, a legacy vests immediately in interest, though it be charged on lands, if the time of payment appears to have been postponed only out of regard to the circumstances of the estate, Lowther vs. Condon, 2 Atk. 128. Dawson vs. Killet, 1 Br. 123. Godwin vs. Munday, ibid. 194. Smith vs. Partridge, Ambl. 267. Sherman vs. Collins, 3 Atk. 320.—Chitty.
[37 ] The old authorities are in conformity with the text, and hold that where a fund, of whatever nature, upon which a testator has charged legacies, is carrying interest, there interest shall be payable upon the legacies from the time of the testator’s death. But that is exploded now by every day’s practice. Though a testator may have left no other property than money in the funds, interest upon the pecuniary legacies he has charged thereon is now never given till the end of a year after his death. Gibson vs. Bott, 7 Ves. 97. The rule is different with respect to legacies charged on land. Whether the reason assigned for this distinction in the text and in Maxwell vs. Wettenhall (1 P. Wms. 25) be the true one, has been doubted. A fund consisting of personalty may be “yielding immediate profits” as well as lands; but it is obvious that the reason of the rule as to the commencement of interest upon legacies given out of personal estate, which is a rule adopted merely for convenience, (Garthshore vs. Chalie, 10 Ves. 13. Wood vs. Penoyre, 13 Ves. 333,) cannot apply to the case of legacies not dependent on the getting in of the personal estate, and charged upon lands only: in such case interest, it has been said, must be chargeable from the death of the testator, or not at all. Pearson vs. Pearson, 1 Sch. & Lef. 11. Spurway vs. Glyn, 9 Ves. 486. Shirt vs. Westby, 16 Ves. 396.—Chitty.
[(h) ] 2 P. Wms. 26, 27.
[38 ] As a legacy, for the payment of which no other period is assigned by the will, (Anonym. 2 Freem. 207,) is not due till the end of a year after the testator’s death, (Hearle vs. Greenbank, 716,) and as interest can only be claimed for non-payment of a demand actually due, it is an undisputed general rule that, although a legacy vests (where no special intention to the contrary appears) at the testator’s death, (Garthshore vs. Chalie, 10 Ves. 13,) it does not begin to carry interest till a year afterwards, unless it be charged solely on lands. See the last note. That general rule, however, has exceptions. Raven vs. Waite, 1 Swanst. 557. Beckford vs. Tobin, 1 Ves. Sen. 310. A specific bequest of a corpus passes an immediate gift of the fund, with all its produce, from the death of the testator. Kirby vs. Potter, 4 Ves. 751. Barrington vs. Tristram, 6 Ves. 349. Another exception arises when a legacy is given to an infant by a parent, or by a benefactor who has put himself in loco parentis: in such case, the necessary support of the infant may require immediate payment of interest. Lowndes vs. Lowndes, 15 Ves. 304. Heath vs. Perry, 3 Atk. 102. Mitchell vs. Bower, 3 Ves. 287. It must, however, be observed, this latter exception operates only when the child is otherwise unprovided for. When a father gives a legacy to a child, it will carry interest from the death of the testator, as a maintenance for the child, where no other fund is applicable for such maintenance, (Carew vs. Askew, 1 Cox, 244. Harvey vs. Harvey, 2 P. Wms. 22;) but where other means of support are provided for the child, then the legacy will not carry interest from an earlier period than it would in the case of a bequest to a perfect stranger. Wynch vs. Wynch, 1 Cox, 435. Ellis vs. Ellis, 1 Sch. & Lef. 5. Tyrrel vs. Tyrrel, 4 Ves. 5. And the general rule as to non-payment of interest upon a legacy, before such legacy becomes due, must not be broken in upon by an exception in favour of an adult legatee, however nearly related to the testator, (Raven vs. Waite, 1 Swanst. 588;) nor, as illegitimate children are no more in legal contemplation than strangers, (Lowndes vs. Lowndes, 15 Ves. 304,) will interest be allowed by way of maintenance for such legatees, (Perry vs. Whitehead, 6 Ves. 547,) unless it can be satisfactorily collected from the will that the testator intended to give interest. Beckford vs. Tobin, 1 Ves. Sen. 310. Ellis vs. Ellis, 1 Sch. & Lef. 6. Newman vs. Bateson, 3 Swanst. 690. Even in the case of a grandchild, an executor must not take upon himself to pay interest upon a legacy by way of maintenance, when that is not expressly provided by the will; for, though a court of equity will struggle in favour of the grandchild, (Crickett vs. Dolby, 3 Ves. 12. Collis vs. Blackburn, 9 Ves. 470,) yet it seems there must be something more than the mere gift of a legacy, something indicating that the testator put himself in loco parentis, to justify a court in decreeing interest for a grandchild’s maintenance. Perry vs. Whitehead, 6 Ves. 547. Rawlins vs. Goldtrap, 5 Ves. 443. Hill vs. Hill, 3 Ves. & Bea. 186. But, of course, even when a legacy to a grandchild will never become due unless he attains his majority, still, maintenance may be allowed for his support during his infancy, provided the parties to whom the legacy is given over in case of the infant’s death are competent and willing to consent. Cavendish vs. Mercer, 5 Ves. 195, in note. Under any other circumstances, when a legacy to infants is not given absolutely and in all events, but is either not to vest till a given period, or is subject to being devested by certain contingencies, upon the occurrence of which it is given over, (Errington vs. Chapman, 12 Ves. 25,) if the words of the will do not authorize the application of interest to the maintenance of the infant legatees, a court of equity never goes further than to say that if it can collect before it all the individuals who may be entitled to the fund, so as to make each a compensation for taking from him part, it will grant an allowance for maintenance, (Errat vs. Barlow, 14 Ves. 203. Marshall vs. Holloway, 2 Swanst. 436. Ex parte Whitehead, 2 Younge & Jerv. 249;) or, where there is no gift over, and all the children of a family are to take equally, there, although other children may possibly come in esse after the order made, yet all the children born or to be born will be held to have a common interest; and therefore the interest of the fund, as far as it may be requisite, will be applicable for maintenance. Fairman vs. Green, 10 Ves. 48. Greenwell vs. Greenwell, 5 Ves. 199. Errat vs. Barlow, 14 Ves. 204. Haley vs. Bannister, 4 Mad. 280. But if the will contain successive limitations, under which persons of another family, and not in being, may become entitled, it is not sufficient that all parties presumptively entitled then living are before the court; for none of the living may be the parties who eventually may become entitled to the property. In such a case, an order for interest by way of main tenance might be in effect to give to one person the property of another. Marshall vs. Holloway, 2 Swanst. 436. Ex parte Kebble, 11 Ves. 606.
No exception is to be made, in favour of the testator’s wife, to the general rule that a pecuniary legacy does not bear interest before the time when the principal ought to be paid, unless a distinct intention to give interest from an earlier period can be fairly collected from the words of the testator’s will. Stent vs. Robinson, 12 Ves. 461. Lowndes vs. Lowndes, 15 Ves. 304. Raven vs. Waite, 1 Swanst. 559.
Great part of this note is extracted from 1 Hovenden’s Suppl. to Ves. Jr. Rep. 144, 145.—Chitty.
[(i) ] Prec. Cha. 269. 1 P. Wms. 406, 441. 3 P. Wms. 357.
[39 ] A donatio mortis causâ has many of the properties of a legacy: it is liable to debts, and dependent on survivorship. Tate vs. Hilbert, 2 Ves. Jr. 120. Jones vs. Selby, Prec. in Cha. 303. Miller vs. Miller, 3 P. Wms. 357. It is not a present absolute gift, vesting immediately, but a revocable and conditional one, of which the enjoyment is postponed till after the giver’s death. Walter vs. Hodge, 2 Swanst. 98. On the other hand, though liable to be defeazanced, it must, subject to such power of revocation, be a complete gift inter vivos, and therefore requires no probate, (Ward vs. Turner, 2 Ves. Sen. 435. Ashton vs. Dawson, Sel. Ca. in Cha. 14;) though a question has been made whether, as such a gift is only to take effect in case of the donor’s death, it ought not to be held so far testamentary as to be liable to legacy-duty. Woodbridge vs. Spooner, 3 Barn. & Ald. 236.
A donatio mortis causâ plainly differs from a legacy in this particular: the subject of gift must in the former case be delivered by the donor, in the latter case by his representative. Walter vs. Hodge, 2 Swanst. 98. So, the distinction between a nuncupative will and a donatio mortis causâ is, that the bounty given in the first-named mode is to be received from the executor, but in the latter case may be held against him, and requires no assent on his part, the delivery having been completed by the donor himself. Duffield vs. Elwes, 1 Sim. & Stu. 244. Ward vs. Turner, 2 Ves. Sen. 443. The greater number of cases upon this subject have turned on the question of actual tradition of the gift; the general rule, according to which delivery is necessary, is never now disputed; but whether such delivery has or has not been legally completed, or whether the nature of the gift constitutes an exception, exempting it from the general rule, are points which still not unfrequently present debatable ground. Tate vs. Hilbert, 2 Ves. Jr. 120. Lawson vs. Lawson, 1 P. Wms. 441. Where actual tradition is impracticable, if the donor proceed as far as the nature of the subject admits towards a transfer of the possession, effect may be given to his intended bounty. Thus, a ship at sea has been held to be virtually delivered by a delivery of the bill of sale thereof, defeasible on the donor’s recovery; and delivery of the key of a warehouse or of a trunk has been determined to be a sufficient delivery of the goods in such warehouse and of the contents of the trunk; for in these instances the bill of sale and the keys were not considered as mere symbols, but as the means of obtaining possession of the property. Brown vs. Williams, cited in 2 Ves. Sen. 434. Jones vs. Selby, as cited ibid. p. 441. A mere symbolical delivery, however, will not be sufficient: therefore there can be no donatio mortis causâ of a simple contract-debt, (Gardner vs. Parker, 3 Mad. 185,) though there may of a bond, (Snellgrove vs. Bailey, 3 Atk. 214;) for, notwithstanding it is a chose en action, somo property is conveyed by the delivery. Ward vs. Turner, 2 Ves. Sen. 442. But the case of a bond-debt is an exception, not a rule; and where a bond is only a collateral security for a mortgage-debt, the delivery of the bond will not be a complete gift of the mortgage Duffield vs. Elwes, 1 Sim. & Stu. 244. A check drawn by the donor on a banker, (Tate vs. Hilbert, 4 Br. 291,) or a promissory note payable to him, (Miller vs. Miller, 3 P. Wms. 357,) cannot, it seems, be disposed of by way of donatio mortis causâ. No banker, indeed, is justified in paying a check after the death of the drawer; and a promissory note, not being a negotiable security payable to the bearer, must come under the same consideration as any other simple contract-debt; and as the amount thereof could only be sued for in the name of the executors, that seems a sufficient reason why it could not be made the subject of a donatio mortis causâ. Miller vs. Miller, 3 P. Wms. 357. It is to be observed that although there may have been a complete delivery of the gift, yet, if the possession be not continued in the donee, but the donor resume it, the gift (whether such resumption of possession be intended to have that effect or not) is at an end. Bunn vs. Markham, 7 Taunt. 232, S. C. 2 Marsh, 539.—Chitty.
It was a disputed point among the Roman lawyers whether this donation was to be resembled to a proper gift or a legacy. It appears to have been settled finally in favour of its testamentary character. It resembles a legacy in some respects, but has many points peculiar to itself. Like a legacy, it is revocable at the will of the donor, and, in general, the mere resumption of possession by the donor will amount to such a revocation. It is liable to the debts of the donor, but it would seem, upon principle, although no decision or even dictum to that effect is to be found in the books, it shall wait till all the assets of the testator, including specific and pecuniary legacies, are exhausted, before it is made liable for the debts. Indeed, no case has occurred involving directly the question of its liability for debts; but the law seems clear on this point. It reverts to the donor on the death of the donee before him. It differs from a legacy in the circumstance of immediate tradition of the subject-matter to the donee, or some one for his use. It is a gift in præsenti to become absolute in futuro. It does not require probate in the ecclesiastical court. It does not wait for the assent of the executor; nor need it be proved by more than one witness. The civil law, however, required five witnesses; but a plurality of witnesses to a fact is not consistent with the analogy of the common law, and is necessary in no civil case except by the express requirement of some statute. It differs from a gift inter vivos in its revocable character and its being subject to debts, which a bonâ fide gift, accompanied by delivery of possession by a person not indebted at the time, is not. It is distinguished also by the peculiar condition, which is indispensable to its taking effect in this particular form, that if the donor recover, or escape the impending peril, whether it be sickness, battle, or sea-voyage, it shall revert. Such a condition arises by presumption of law whenever the gift is made in extremis. By the civil law, in case the donor recovered, it returned to him with the immediate profits. Nam deficisnte conditione, a principio nihil actum fuisse videtur. The gift is but inchoate, not perfect, until death: the condition failing, it is as though the gift had never been. In Nicholas vs. Adams (2 Whart. 17) it was decided that it was not necessary that the donor should be in extremis, as in the case of a nuncupative will. “I would briefly define a donatio causâ mortis to be a conditional gift, dependent on the contingency of expected death. There may, doubtless, be a conditional gift when death is not expected; but in that case the condition would have to be expressed and the contingency specified: in the donatio causâ mortis both are implied from the occasion. But it certainly is not requisite that the donor be in such extremity as is requisite to give effect to a nuncupation, which is sustained from necessity merely where the donor was prevented, by the urgency of dissolution, from making a formal bequest. Between these ways of disposition there is not an approximating line. Donatio causâ mortis is sometimes spoken of as being distinct from a gift inter vivos,—the former having sometimes been supposed to be made in reference to the donor’s death, and not to vest before it, but inaccurately, as it seems to me; as this gift, like every other, is not executory, but executed in the first instance by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, or deliverance from the peril. The donee would certainly not be bound to make compensation for the immediate use of the thing; and, evidently, because the immediate ownership was vested in him. The gift is consequently inter vivos. All agree that it has no property in common with a legacy, except that it is revocable in the donor’s lifetime and subject to his debts in the event of a deficiency. The first is, not because the gift is testamentary, but because such is the condition annexed; and the second, not because it is in the nature of a legacy, but because it would otherwise be fraudulent as to creditors; for no man may give his property who is unable to pay his debts. It is decisive that the subject is not within the jurisdiction of the ecclesiastical courts; and the donee consequently takes paramount to the executor or a legatee. For this reason it is that a subsequent will which becomes operative only when the period of reclamation is past, and when the gift has become absolute by the event of the contingency, is not an effective act of revocation.” C. J. Gibson. A mere gift by parole made in the prospect of death, and professing to pass to the donee all of the property of the decedent, is not valid as a donatio causâ mortis, though accompanied by delivery. Headley vs. Kirby, 6 Harris, 326. If, however, the words of donation have reference only to the things given and delivered, and do not extend to other things, it is a good donatio, though it may, in fact, be all the donor had in the world. Michener vs. Dale, 11 Harris. 59.—Sharswood.
[(k) ] Law of Forfeit. 16.
[(l) ] Inst. 2, 7, 1. Ff. 1, 39, t. 6.
[(m) ] There is a very complete donatio mortis causâ in the Odyssey, b. 17, v. 78, made by Telemachus to his friend Piræus; and another by Hercules, in the Alcestes of Euripides, v. 1020.
[(n) ] Perkins, 525.
[(o) ] Prec. Cha. 323. 1 P. Wms. [Editor: illegible characer] 544. 2 P. Wms. 338. 3 P. Wms. 43, 194. Stra. [Editor: illegible characer] Lawson vs. Lawson, Dom. Proc. 28 April, 1777.
[40 ] The right of an executor to a beneficial interest in the assets of his testator, not expressly disposed of, may be excluded, not only by a plain declaration of trust in the will, but by circumstances indicated by the will; in support of which parol evidence may be given to raise a presumption of trust; as, on the other hand, the executor may adduce evidence to repel such presumption. But, where a conclusive intention is evident on the face of the will, parol evidence cannot be let in on either side. Gladding vs. Yapp, 5 Mad. 59. Lynn vs. Beaver, 1 Turn. & Russ. 68. Langham vs. Sandford, 2 Meriv. 17. Giraud vs. Hanbury, ibid. 153. Pratt vs. Sladden, 14 Ves. 197. Walton vs. Walton, ibid. 322.
Lord Eldon said he feared there was no possibility of denying now that parol declarations of a testator, both previous and subsequent to the time of making his will, are admissible evidence to repel a legal presumption; but, his lordship added, such declarations are not all alike weighty and efficacious: a declaration at the time of executing a will is of more consequence than a declaration made afterwards; and a declaration by the testator subsequently to his will, as to what he had done, is entitled to more weight than a declaration before making his will, as to what he intended to do, for he may very well have altered that intention: therefore, although all such declarations are equally admissible, very different degrees of credit and weight are to be attached to them. Trimmer vs. Bayne, 7 Ves. 518. Pole vs. Lord Somers, 6 Ves. 32. See also Ustricke vs. Bawden, 2 Addams, 128. Langham vs. Sandford, 2 Meriv. 23.
The proposition, sometimes alleged, that the appointment of an executor gives him every thing not disposed of by the will, is not correct. In the strongest way of putting the executor’s right, he can only take what the testator did not mean to dispose of. In the case of a lapse, for instance, the executor would not take a lapsed bequest. So, if a testator appoint an executor in trust, but omit to express the intention of such trust, the executor will not, by virtue of his office, take beneficially. Dawson vs. Clarke, 18 Ves. 254, 255. Urquhart vs. King, 7 Ves. 228. And where a testator leaves an unfinished clause in his will, this is understood as an indication that he intended to make a further disposition, in exclusion of any claim by his executors. Knewell vs. Gardner, Gilb. Eq. Rep. 184. Lord North vs. Purdon, 2 Ves. Sen. 496. For the slightest indication of a testator’s intention to dispose of the residue of his property is sufficient to exclude his executor, though it may be wholly uncertain what disposition the testator may have intended to make of that residue. Mence vs. Mence, 18 Ves. 351. Mordaunt vs. Hussey, 4 Ves. 118. Even an intention on the part of a testator to make such a disposition of his residue as should exclude the claims of his next of kin, if it cannot be collected from the evidence that he meant to effect that object by any other mode than an express disposition of the residue, will not turn the scale in favour of the executor. Langham vs. Sandford, 17 Ves. 451. The Bishop of Cloyne vs. Young, 2 Ves. Sen. 95. Nourse vs. Finch, 1 Ves. Jr. 361. It is true that in the case of Clennel vs. Lewthwaite, (2 Ves. Jr. 476,) the bequest of a “shilling” to the testator’s sister was held a material circumstance in exclusion of her claim to any part of his residuary estate, and, coupled with other evidence of intention, it might fairly be deemed some corroboration of that evidence; but it is well settled that mere legacies to the next of kin will not rebut their claim to a residue undisposed of, where the executors would otherwise be held trustees. Griffiths vs. Hamilton, 12 Ves. 309. Seely vs. Wood, 10 Ves. 75. Langham vs. Sandford, 17 Ves. 451.
Numerous cases have fully established as a general rule that testamentary words of recommendation, request, or confidence are imperative, and raise a trust, (Paul vs. Compton, 8 Ves. 380. Taylor vs. George, 2 Ves. & Bea. 378. Parsons vs. Baker. 18 Ves. 476. Kirkbank vs. Hudson, 7 Pr. 220;) and although the testator’s object fails, or is contrary to the policy of the law, or is too vaguely expressed to be capable of being carried into execution, yet, as it was the intent that the executor should only take as trustee, the necessary legal consequence is that there must be a resulting trust for the testator’s next of kin. Morice vs. The Bishop of Durham, 9 Ves. 405. James vs. Allen, 3 Meriv. 19. Vezey vs. Jamson, 1 Sim. & Stu. 71. Paice vs. The Archbishop of Canterbury, 14 Ves. 370.
Where a single executor is named, a legacy of any part of the testator’s personal estate to such executor will (unless there are special circumstances) bar his general right as executor to any residue not disposed of by his testator’s will. Dicks vs. Lambert, 4 Ves. 729. But a legacy to one of several executors, or unequal legacies to more than one, will not exclude the legal title which executors, as such, have to a beneficial interest in the property of their testator, of which he has indicated no intention to make a different disposition: by giving a legacy to one only, or by giving unequal legacies to several, the testator may only have intended a preference pro tanto. Rawlings vs. Jennings, 13 Ves. 46. Langham vs. Sandford, 2 Meriv. 22. Griffiths vs. Hamilton, 12 Ves. 309.
Sir Wm. Grant, in the case of Seely vs. Wood, 10 Ves. 75, expressed a clear opinion that a reversionary interest, after a previous interest for life, would exclude an executor as effectually as a direct and immediate legacy. Lord Eldon, however, without expressly overruling, has thrown some doubt on, this dictum. Lynn vs. Reaver, 1 Turn. & Russ. 69.—Chitty.
But now, by statute 11 Geo. IV. and 1 W. IV. c. 40, unless it appear by the will or codicil thereto that the executor was intended to take beneficially, he shall be held to be but a trustee for the person entitled to the residue under the statute of distributions.—Kerr.
[(p) ] Godolph. p. 2, c. 32.
[(q) ] 1 Lev. 233. Cart. 125. 2 P. Wms. 447.
[(r) ] Stat. 29 Car. II. c. 3, 25.
[(s) ] Raym. 496. Lord Raym. 571.
[(t) ] Page 504.
[41 ] The next of kin, who are to have the benefit of the statute of distributions, must be ascertained according to the computation of the civil law, including the relations both on the paternal and maternal sides.
And when relations are thus found who are distant from the intestate by an equal number of degrees, they will share the personal property equally, although they are relations to the intestate of very different denominations, and perhaps not relations to each other. There is only one exception to this rule,—viz.: where the nearest relations are a grandfather or grandmother, and brothers or sisters: although all these are related in the second degree, yet the former shall not participate with the latter; for which singular exception it does not appear that any good reason can be given. 3 Atk. 762. No difference is made between the whole and half blood in the distribution of intestate personal property.
A curious question was agitated some time ago respecting the right to the administration. General Stanwix and an only daughter were lost together at sea; and it was contended that it was a rule of the civil law that, where a parent and child perish together, and the priority of their death is unknown, it shall be presumed that the child survives the parent. And by this rule the right to the personal estate of the general would have vested in the daughter, and by her death in her next of kin, who on the part of the mother was a different person from the next of kin to her father.
But this being only an application for the administration, and not for the interest under the statute of distributions, the court declined giving a judgment upon that question. 1 Bla. R. 640. And it does not appear that that point was ever determined in the spiritual courts. But I should be inclined to think that our courts would require more than presumptive evidence to support a claim of this nature. And in 6 East, 82, it is said that lord Mansfield required the jury to find whether the general or his daughter survived; but it is not stated upon what occasion. Some curious cases de commorientibus may be seen in Causes Célébres, 3 tom. 412, et seq., in one of which, where a father and son were slain together in a battle, and on the same day the daughter became a professed nun, it was determined that her civil death was prior to the death of her father and brother, and that the brother, having arrived at the age of puberty, should be presumed to have survived his father.—Christian.
In a recent case, where a husband and wife were drowned at sea, having been washed off the side of the ship by the same wave, and there was no direct evidence of the survivorship of either, it was held that there was no presumption in favour either of the survivorship of the husband or the wife, the medical evidence only amounting to a probability either way. Underwood vs. Wing, 4 De G. Mar. N. & G. 633. By the civil law, where two persons died together and there was no evidence which of them died first, the presumption was in favour of the younger having been the survivor if he were above puberty, the elder being held to have been the survivor if the younger were below puberty. Ff. xxxiv. 5, 5, 22, 23. This rule is very precise, but quite inconsistent with what would probably take place; and accordingly, in framing the French Code, another rule was adopted,—viz., that, failing all proof, the person above fifteen and under sixty years of age shall be held to survive those under fifteen or above sixty. The presumption can, of course, only be given effect to in the absence of all circumstances tending to show the facts. Thus, if two persons were to perish by shipwreck, and, the vessel being discovered water-logged, one body was found drowned in the hold and the other dead on the mast, the presumption would certainly be that he whose body was found in the hold perished first. In one case, where a father and son had been executed for sheep-stealing, and it became important to discover who was the last survivor, evidence was given as to which showed signs of vitality longest on the scaffold.—Kerr.
It may be added to the statement of the French Code in the above note, that if the parties were between the ages of fifteen and sixty, and of different sexes, the male shall be presumed to have been the survivor, provided the ages were within a year of each other; if of the same sex, then the youngest of the two is presumed to have survived. Toullin Droit Civil Français, tom. iv. No. 76. Burgé’s Com. on Colonial and Foreign Laws, vol. iv. pp. 11-29. The case of Pell vs. Ball, on the same subject, occurred in the court of chancery in South Carolina, and was decided in January, 1840. 1 Cheves’s Eq. Rep. 99. The husband and wife both perished, with many others, in the dreadful destruction of the steamer Pulaski by explosion of a boiler, in the night of June 14, 1838, on her passage from Charleston to New York. The wife (Mrs. Ball) was seen alive on the wreck for a short time after the explosion; but the husband was not seen after the explosion. Chancellor Johnston decided, upon that fact, in favour of the survivorship of the wife. 2 Kent, 436, n. See Fearne, Posth. Works, p. 37. Sillich vs. Booth, 1 Younge & Collyer, Rep. 121.—Sharswood.
[(u) ] Page 492.
[(w) ] 2 Inst. 33. See 1 P. Wms. 8.
[(x) ] The general rule of such successions was this:—1. The children or lineal descendants in equal portions. 2. On failure of these, the parents or lineal ascendants, and with them the brethren or sisters of the whole blood; or, if the parents were dead, all the brethren and sisters, together with the representatives of a brother or sister deceased. 3. The next collateral relations in equal degree. 4. The husband or wife of the deceased. Ff. 38, 15, 1. Nov. 118, c. 1, 2, 3; 127, c. 1.
[(y) ] Sir Walter Walker. Lord Raym. 574.
[(z) ]Ff. 37, 6, 1.
[(a) ] See ch. xii. page 191.
[(b) ] See ch. xiv. page 217.
[(c) ] Prec. Cha. 54.
[42 ] Representations of lineal descendants are admitted to the remotest degree, (Carter vs. Crawley, T. Raym. 500;) but the 7th section of the statute of distributions provides that “no representations shall be admitted amongst collaterals after brothers’ and sisters’ children.” This proviso has been construed to mean brothers and sisters of the intestate, and not as admitting representation, when the distribution happens to fall among brothers and sisters who are only remotely related to the intestate. The reasonableness of this construction of the act was demonstrated by powerful arguments in the case of Carter vs. Crawley, before cited, and was admitted in Pett vs. Pett, (Comyns, 87; S. C. 1 P. Wms. 27,) in the Anonymous case in Appendix to 2 Freem. 298, and in Bowers vs. Littlewood, 1 P. Wms. 594.
In a question of distribution, the next of kin to an intestate, though such next of kin be a collateral relative only, may, since the statute of Car. II., be preferred to a more remote lineal relation in the ascending line; but, between relatives in equal degree, a lineal will be preferred to a collateral claimant. Blackborough vs. Davis, 1 P. Wms. 50.—Chitty.
[(d) ] Page 493.
[(e) ] Lord Raym. 1329.
[(f) ] 2 Burn, Eccl. Law, 746.
[(g) ] Ibid. 782.
[(h) ] 1 P. Wms. 541. Salk. 246.
[(i) ] 2 Show. 175.
[(k) ] 2 Freem. 85. 1 Vern. 133.
[(l) ] 2 Vern. 665. 3 P. Wms. 16.
[(m) ] 1 Vern. 15. 2 Cha. Rep. 252.
[43 ] Advances which an intestate has made to any of his children are never brought into hotchpot for the benefit of his widow, (Kirkcudbright vs. Kirkcudbright, 8 Ves. 64,) but solely with a view to equality as among the children, (Gibbons vs. Caunt, 4 Ves. 847;) and in cases arising upon the custom of London, the effect of the full advancement of one child is merely to remove that child out of the way and to increase the shares of the others. Folkes vs. Western, 9 Ves. 460. So, when a settlement bars or makes a composition for the wife’s customary share, that share, if the husband die intestate, will be distributable as if he had left no wife, (Knipe vs. Thornton, 2 Eden, 121. Morris vs. Burrows, 2 Atk. 629. Read vs. Snell, ibid. 644,) and will not go to increase what is called “the dead man’s part,” (Medcalfe vs. Ives, 1 Atk. 63,) to a distributive share of which the widow would be entitled notwithstanding she had compounded for her customary part, (Whithill vs. Phelps, Prec. in Cha. 328,) unless the expressed or clearly-implied intention was that she should be barred as well of her share of the dead man’s part as of her share by the custom. Benson vs. Bellasis, 1 Vern. 16. A jointure in bar of dower, without saying more, will be no bar of a widow’s claim to a customary share of personal estate; for dower affects lands only, and land is wholly out of the custom. Babington vs. Greenwood, 1 P. Wms. 531.—Chitty.
[(n) ] 2 Freem. 279. 1 Eq. Ca. Abr. 155. 2 P. Wms. 526.
[(o) ] 2 P. Wms. 527.
[(p) ] 2 Vern. 558.
[(q) ] Prec. Cha. 537.
[(r) ] 2 Burn, 754.
[(s) ] Tacit. Annal. l. 12, c. 32.
[(t) ] Selden, in Fletam, cap. 4, 3.