PS7 CJornrll ICaui ^rl^onl Hibrary Cornell University Library KD 1500.P87 Principles of the law of succession to d 3 1924 022 200 038 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022200038 PEINCIPLES LAW OP SUCCESSION DECEASED PEESONS BY T. EADrOED POTTS, B.O.L., M.A., OF LINC. COLL. OXON,, AND THE INNEK TEMPLE, BAEEISTER-AT-LAW. LONDON : STETENS AND SONS, 119, OHANOEET LANE, gafo UuWisI/fni aiiJ» linoIitirTIfrs, 1888 liONBON ; miHTED BY 0. F. EOWOBTS, GEEAT NEW BTEEET, FETTEE LANE, E.O. PREFACE. The present treatise is an attempt to solve, so far as regards elementary English law, the problem which has been thus conciselj stated — " What becomes of the rights and obligations of a person when that person dies ? " {Marltby's Elements of Law, section 773.) My object has been to place before the student, in a connected and systematic form, the leading principles of English law on this important subject. In deaKng with rights and obligations in general, and pointing out those wMch are capable of passing by succession, I have availed myself, as far as possible, of the classifications of private rights and obligations contained ia Professor Holland's work on Jurisprudence. By adopting them I have been enabled to state concisely, and, I hope, clearly and with some degree of completeness, the effect of a person's death upon his various legal relations. This result will, I trust, be considered sufficient justification for the introduction into an English law book of classifications and terms seldom met «2 IV PEEFACE. with except in works on the general theory of law. The remainder of the subject is necessarily more or less covered by chapters or passages in our standard elementary text books, and to these I am under great obligations, but especially am I indebted to om- leading authority — Williams on the Law of Executors and Administrators. I have given very frequent references to these works, not only as an acknowledgment of the assistance they have rendered to me, but also with the object of indicating to the reader the sources whence he may derive further information upon the various topics under discussion. I take this opportunity of expressing my gratitude to W. Maekby, D.C.L., Reader in Indian Law in the University of Oxford, and Fellow of All Souls' College, and to E. A. Whittuck, M.A., Law Lecturer of Oriel and Lincoln Colleges, for many valuable suggestions which they have kindly made from time to time, and which have added much to whatever merits the Work might other- wise have possessed — for its imperfections I alone am responsible. T. R. P. 10, New Inn Hall Stebet, Oxford. November, 188S. TABLE OF CONTENTS. INTEODUOTION. PAQE Meaning of succession to deceased persons, and th'e chief divisions of the subject . . . . . . . . . , .... 1 PAET I. Historical Sketch op the Law op Succession to Deceased Peesons. Testamentary succession unknown to primitive society . . . . 6 Its introduction into England prohably due to the Eomish clergy . . 7 Early Anglo-Saxon law of intestate succession . . .... 7 Testamentary succession to land in Anglo-Saxon period . . . . 8 Testamentary succession to moveables in Anglo-Saxon period . . .. 11 Intestate succession to land and moveables during Anglo-Saxon period . . . . . . . . . . . . ..11 The Church acquires jurisdiction in matters relating to testamentary and intestate succession, and administers the property of intestates 12 General effect of the Norman Conquest . . . . . . . . 15 History of succession to moveable property after the Conquest — (1) Intestate succession . . . . . . . . . . 16 (2) Testamentary succession . . . . . . .... 19 History of succession to land after the Conquest — (ij Intestate succession . . . . . , . . . , 20 (2) Testamentary succession . , . . . . .... 36 vi TABLE OF CONTENTS. PAET II. The Eights asd Obligations which pass by Stjcoession Am> THEiB Divisions. PAGE Di-nsion of the subject . . . . • • • • . . 40 CHAPTER I. ElOHTS AND ObLIOATIONS WHICH PASS ET SuOOESSION. A. Sights. May be antecedent or remedial. . .. .. .. ..42 I. Antecedent rights . . . . . . . . . , 42 Are m rem or in personam , . . . .... 42 1. Antecedent rights in rem , . . . . . 43 Are more or less closely connected with personality of owner, in which case they are extinguished by his death ; or, . . . . . . .... 43 Are unconnected with his personality, and include rights in rem over property ; these rights are not extinguished by death, rmless they merely con- stitute life interests . . . . . . . . 43 Zife inte^-ests in real property . , , . . . 43 Life interests in personal propei'ty .. ..46 2. Antecedent rights in personam . . . . . . 48 These either arise from contract or do not — (1) Eights in personam not arising from contract . . 49 (i) Domestic. — Extinguished by death . . 49 (ii) Existing between trustee and cestui que trust, executor and legatee and creditors, administrator and next of kin and cre- ditors. — Seldom extinguished by death 49 (iii) Quasi-contractual. — Not extinguished by death . . . , .... 49 (iv) Official. — Only extinguished when con- nected with the personality of the deceased . . . . . , . , 50 (2) Eights in personam arising from contract . . 51 (i) Eights acquired by one person ; not extinguished by his death, except where the contract is intimately de- pendent on his personahty , , . . 51 (ii) Eights acquired by two or more ; with some exceptions, the survivor alone acquires these lights, so they do not pass by succession. . ,, ..61 TABLE OF CONTENTS. Vll A. Eights — continued. page II. Bemedial Mights . , ,. ,. ., ,. ..51 Arise from breach of antecedent rights, and form three classes according as they arise from— 1. Breach of Trust. — Not extinguished by death .. .. 52 2. Breach of Contract. — Not extinguished except in cases "where the maxim actio personalis moritur cum persond applies . . . , . . . , . . 52 3. Tprt. — Extinguished by death. — The maxim actio per- sonalis moritur cum persond always applies, with three exceptions . , . . . , . . .... 63 Effect of obtaining a verdict or judgment before death . . 65 B. Ohligations. Obligation distinct from duttj , . , , . , . . 55 Correlate to rights in personam . . . . .... 66 I. Correlating to antecedent rights j» ^ersoKBOT .. .,56 1. "Where the right does not arise from contract. (1) Bomestic obligations. — Extinguished by death .. .. 56 (2) Obligations existing between trustee and cestui que trust, ^c, generally pass, but not always to the representa- tives of the deceased, in manner to be explained later . . , . . . . . .... 66 (3) Quasi-eontraetualobligations. — Not extinguishedby death 66 (4) Official obligations. — Of a public ofEcial pass with the office ; of a private person to a public official are not extinguished by death unless of a personal character . , . . . . . . . . 56 2. Where the right arises from contract. (1) Where the obligation is incurred by a single person it is not extinguished by his death unless intimately de- pendent upon his individuality . , . . . . 67 (2) Where two or more persons incur the obligation, the survivor, with some exceptions, is alone bound . . 67 II. Correlating to remedial rights . . . . . . . . 57 1 . Where the right arises from breach of trust. The obligation to make good losses occasioned by the breach is not extinguished by the death of the trustee 57 2. Where the right arises from breach of contract. The obligation is only extinguished by the death of the person liable, where the maxim actio personalis moritur cum persond applies . . . . . . ■ 68 3. Where the right arises from tort. The maxim actio personalis moritur cum persond applies, and the obligation is extinguished by the death of the wTOng-doer, but with two exceptions . . . , 58 Effect of a verdict or judgment being obtained against a person before Ms death . , . , . . . . 69 Tiii TABLE OF CONTENTS. CHAPTER II. Reai aud Peesonai. Estate. PAGE Heal estate, i. e., the rights whioli pass to the real representatives . . 60 Personal estate, i. t>., the rights Vhioh pass to the personal represen- tatives.. .. .. .. .. •• .... 60 A. Rights in rem. Over real property are real estate , . . . . . . . 60 Over personal property are personal estate . . . . • • 60 'Wh&t is real property ? .. .. .. .. ..61 'Whaiia personal property ? .. .. .. .... 61 B. JRights in personam. Are all personal estate except rights arising — I. Under covenants running with land or reversion . , . . 65 II. Under covenants which would confer a freehold interest . . 68 III. From breach of either of above covenants (but not in all cases) . . . . . . . . . . . . 69 IV. Und^ contract to purchase real property .. .. ..71 CHAPTER III. The Manneb in ■which Obligations oe Deoeasee Peesons abe divided BETWEEN THEIB ReAL KSn> PeESONAI, RePEESENTATIVES. General rule, obligations are binding on the personal representatives alone . . . . . , . . . . . . . . 72 Exceptions. — In the following cases the real representatives are also bound : — I. Obligations to pay money charged on real estate; sometimes bind real representatives alone . . . . .... 72 II. Obligations under covenants running with the land or reversion 73 III. Obligations under certain contracts under seal . . . . . . 76 IV. Obligations to convey real property sold by deceased; until recently real representatives alone could convey . . 77 V. Obligations under judgments, decrees, ^c, affecting real pro- perty .. .. . . . , . . .... 77 VI Obligations to pay crown debts . . . , , . . , 73 VII. Obligations to pay general debts after personal estate has been ' " 79 TABLE OF CONTENTS. IX PAET III. The Law op Intestate SrccEssioir. PAOB Division of tlie subject . . , . . , . . .... 80 CHAPTER I. The Sugoessioh- of the Administeatob. ^eaiioxiT.— The different kinds of administrators Section II. — The persons entitled to be appointed administrators Widow and next of kin entitled Manner of ascertaining next of kin . . Table of kindred Kules for selecting administrator Special administrators , , . . . , . . The persons entitled where the deceased was domiciled in Eng land, but his personal estate is not in England, or vice versA Section III, — The appointment of the administrator To what Court application must be made . . , . 93 — 95 Affidavit of person applying . . . . . . .... 95 Administration bond . . . . ' . . Grant of letters of administration Administration to deceased soldiers and sailors Section IV. — The rights and obligations of the administrator A. As representative of the intestate . . B. As trustee for the creditors and next of kin of the intestate,. Relating to — I. Healization of the estate II. Discharge of obligations III. Distribution of the residue Rules governing distribution — A. Where the intestate was a male . . . . B. Where the intestate was a female No distribution compulsory for a year after death of intestate Local customs of London and York, and certain other place abolished Distribution always governed by law of the intestate's domicU 81 83 83 84 88 89 91 92 93 . 97 . 98 . 98 . 101 . 102 . 103 . 108 . 109 . 116 . 118 i, . 118 . 119 X TABLE OF CONTENTS. CHAPTER II. The Succession op the Hbie. PAQE Section I. — The rules of deseent .. . . . . . . • • 120 I. The rules of deseent established by the general law .. . . 120 Table of desceat .. .. .. •• ..128 II. The rules of deseent established by Zocal Customary Law . . . . 129 The rules of descent are not affected by the domioil of the deceased . . . . . . . . ■ . • • 132 Section II. — The rights and obligations of the heir . . . . . . 133 His rights and obligations as representative of the deceased 133 Kight of the deceased's widow to dower . , . . . . 134 And to f reebench .. .. .. .. ..135 Eight of the deceased's hi*band to curtesy . . .... 136 Admittance to copyholds .. .. .. ..136 Effect of not claiming admittance , . . . .... 137 Difference between the interest of a single heir and that of a coparcener . . . . . . . . . ■ 138 Succession to real property mortgaged to the deceased . . 139 CHAPTER III. EiaHTS AUD Oelioatiohs of the Heib and Auministbatoe intee se. These chiefly relate to — 1. Contracts for the purchase or sale of real estate .. .. 140 2. The payment of debts .. .. .. .... 141 3. Apportionment of rent .. .. ,, .. .. 144 4. ^Emblements . . . . . . . . .... 145 CHAPTER IV. The Suooession to deceased Exeoutobs, AdministbatobS, ob Teustees, who die intestate. I. Where the deceased was an executor or administrator . , , , 147 1. Where deceased was one of several executors or adminis- trators . . , . , . . , .... 147 2. Where deceased was sole executor or administrator . . 147 TABLE OF CONTENTS. XI II. Where the deceased was a trustee . , Trusts may be express or implied A. lExpress trusts 1 . Where deceased -was one of several trustees (1) Trust property (2) Office of trustee 2. Where deceased was sole trustee. (1) Trust property (2) Office of trustee B. Implied trusts . . 1. Where deceased was one of several trustees 2. Where deceased was sole trustee Liability for breaches of trust or devastavit PAQE 147 147 149 149 149 149 150 ISO 151 151 151 151 PAET IV. The Lav of Testamentaey Succession. Division of the subject . . . , , . . , , , 153 CHAPTER I. The Essentials of a valid Will. Section I. — The will must be expressed in the form required iy law , . 156 Eorm before and since WUls Act . , . . . . . . 156 Soldiers' and sailors' wills . . . . . , .... 160 Effect of domicil of testator on form of wills . . .. ,,161 Witnesses . . . . . . . . , . .... 163 Section II. — The testator must have capacity to make a will .. , , 164 Incapacity may be caused by — I. Immaturity of age .. ,. ., .. ,. 164 II. Coverture .. . . . . . , ■ , . . 165 A. Where the marriage took place hefore Ist January, 1%&^ 166 B. Where the marriage took place on or after 1st January, 1883 .. .. .. .. .. ..171 III. Unsoundness of mind .. .. ., .... 172 arising from — 1. Insanity. .. .. .. .. 173 2. Decay or loss of the mental faculties from old age, §c. ., ., .... 174 3. Intoxication ,. ,, ,,175 IV. Civil death .. ., ,, ,, ., ,, 175 XU TABLE OP CONTENTS. FAQE Section III. — The will expressed in the form required by law must be the genuine will of the testator .. ,. .. . . 176 It may fail to be the genuine will by reason of — 1. Mistake on the part of the testator, . . . .... 176 2. Fraud practised upon the testator . . . . . . 179 3. TJndue influence exercised over the testator . . . . . , 180 Section IV. — The provisions of the will must not he contrary to law . . 183 I. Restrictions upon the creation of future estates or interests in real or personal property . . , . .... 183 1. The creation of contingent remainders .. .. 184 2. The creation of executory interests . . . . . . 184 3. The accumulation of income in favour of future owners. . 185 II. Eestrictions upon dispositions of property for charitable purposes and superstitious uses . . . , . . 187 1. Charitable purposes .. ., .. .... 187 2. Superstitious uses . , .. .. .. ., 194 Section V. — The persons to whom interests are given under a will must he capable of acquiring such interests by will .. .. ., 196 I. Natural persons who are under incapacity . . . . 196 1 . A witness, or wife or husband of a witness . . . . 196 2. Aliens (but now only alien enemies) .. ,. 197 II. Artiflcial persons -who axe ■aniei uioa,Tpacitj .. .. .. 197 Corporations cannot hold real estate except by Hcence from the Crown or by statute . . . . . , 198, 199 Section Yl.—The will must remain unrevoked at the death of the testator 199 A. Ways in which wills may be revoked — 1. By marriage of testator . , . . . . . . 199 2. By making another will . . . . . , . , 200 3. By "some writing" executed like a will .. .. 200 i. By mutilating or destroying the wiU with the intention of revoking it . . . . . . . . . . 201 5. By disposing of specific property given by the wiU. . , 201 6. By change of domicil in some cases . . .. .. 202 B. Ways in which a revoked will may be revived . . .. . . 202 1. Byre-execution .. .. ,. ,. ,, 202 2. By a codicil showing intention to revive it .... 203 TABLE OF CONTENTS. Xlll PAQE . 204 CHAPTER II. The Stjocession of the Exectjtob. Section I. — The appointment of the executor .. Section II. — The persons who are capable of acting as executors , . 206 All are capable except — 1. Infanta .. ., .... 206 2. Idiots and lunatics . . . . . . 206 3. Executors who have renounced prohate 206 4. Bankrupts — in most cases . . . . 206 Section III. — JProbate of the will . . .. .. .. .. 207 1. In common form . . . . . . . . .... 208 2. In solemn form , . .. .. .. .. ,, 209 EfEect of domicil on prohate . . . . . . .... 210 Section IV. — The rights and obligations of the executor . . , , 212 A. As representative of the deceased .. .. .... 212 B. As trustee for creditors, legatees, and {in some cases) next of Join of the deceased . . . . . . . , . . 214 I. Sealization of the estate . . . . . . .... 216 II. Discharge of obligations .. .. ., ..215 III. Fai/ment of legacies .. ., .. .... 216 Vested and contingent legacies . . . . . . 217 Lapse . . . . . . . . .... 218 Satisfaction of dehts hy legacies . . . . . . 219 Satisfaction of portions by legacies . . , , . . 220 Ademption of legacies by portions . . . , . . 221 General legacies . . . . . . .... 221 Specific legacies . . . . , . . . , , 222 Demonstrative legacies . . . . . . .... 222 Residuary legatee . . . . . . . . 223 Abatement of legacies . . . . . . .... 224 rV. Distribution of the residue after payment of legacies . , 225 Effect of domicil on the construction of wills of personal estate . . 226 An executor de son tort . . . . , . . , . , 227 CHAPTER III. The Sttcoession of the Administeatoe cum testamento annexo. When appointed . . . . . . . . . . .... 228 Section I. The persons entitled to be appointed .. ,, .. 229 Section II. The appointment . . . . .. .... 230 Application for, and form, of letters of administration cum testa- mento annexe . . . . • • • ■ • . . . 230 An administrator cmn testamento annexo de bonis non administratis 230 XIV TABLE OF CONTENTS. CHAPTER IV. The Succession of the Devisee. FAQE Time when the interest vests . . . . . . . . . . 231. To the extent of his interest the legal position of the devisee is much the same as that of the heir of an intestate . . . . . . , . 232 Effect of devisee dying before his interest vests , . . . . . 233 The nature and extent of the devisee's- interest depends upon the terms of the will . . . . . . . . .... 235 Difference between construction of deeds and that of wills . . . . 236 Special rules of construction established by the WiUs Act . . 238 — 243 Effect of devise of real estate to trustees where the object of the devise fails , , , . . . . . . . . . . , 244 Probate of a will of real estate not necessary unless personal estate also passes by the will . . . . . . . , , . 244, 245 Registration of wills . , . . . . . , , , . . 245 Succession to real property mortgaged to the testator , . . . . . 247 CHAPTER V. The Rights and Obmoations os the Devisee, oe Heie, and the EXECUTOB, INTEE SB. These chiefly relate to — 1. Contracts for the sale or purchase of real estate ., ,. 249 2. The payment of debts . , . , , , .... 250 3. Apportionment of rent . , . . . . . . . , 253 4. Emblements , . . . . . . . .... 253 CHAPTER VI. The StrooEssiON to Deceased Exeoutoes, Administeatobs, and Textstees WHO DIE TESTATE. I. Where the deceased was an executor or administrator . . . . 255 1. Where deceased was one of several executors or administrators 255 2. Where deceased was sole executor or administrator . . . , 255 II. Where the deceased was a trustee , . . . . , . , 256 The succession is the same as if the deceased had died intestate . . 256 TABLE OF CONTENTS. XV PAET V. DONATIONBS MORTIS CATJSA. PAOE Explanation of a donatio mortis causA , . , . .... 257 The conditions of a valid donatio mortis causd , . . . 257 — 260 Points of resemblance between legacies and donationes mortis causd , . 260 Points of difference between legacies and donationes mortis causd , , 261 Donationes mortis causd were not affected by the Wills Act , , . , 262 APPENDIX. The Duties payable in bespect op Testamentaet and Intestate Stjccession. I. Succession duty . , . , . . , . . . . . 263 II. Duty on applying for probate or letters of administration . , 264 III. Legacy duty . . . . . . , . , . . . 265 TABLE OF CASES. PAaE Acton v. Acton . , 223 Alien V. M'Pherson 1 80 Arnold ». Earl 166 Ashton V. Lord Langdale .... 191 Att.-Gen. ■». Baxter 194 -' — ^ v. Graves 190 V. Meyiiok 190 ■ ■- — «. Nasli 192 • ». Parsons 192 ■;;. Philpott 192 ■ ■- — ». Weedon 197 Attree v. Hawe 191 Attwater v. Attwater 223 Ayrey ». HiU 175 Banks v. GoodfeUow 174 Baxter ». Portsmouth 60 Birtwhistle v. Vardill 132 Bligh V. Brent 62 Bodger v. Arch 99 Boughton V. Knight 172 Boyse v. Eossborough .... 180, 181 Bradshaw v. Lancashire and Yorkshire Ry. Co 53 Brogden v. Brown 173 Brown V. AUen 223 V. Amyot 144 Browne v. Shore 118 Buckeridge v. Ingram 62 Buckingham v. Drury 109 Bunn V. Markham 269 Calvin's Case 197 Cart 1). Eees 117 Oartwright d. Cartwright 173 Gary v. Abbot 196 Gave V. Roberts Ill Chanoey's Case 220 Clay and Tetley, Be ..... 216 Clements v. Scudamore 130 Clun's Case 144 Cooper V. Maodonald 117 Corbyn v. IVenoh 192 Coward, Se 167 Cranmer's Case 220 P, PAOB Davis V. -Lowndes 32 De Costa «>. De Pas 194, 195 Dolan V. Macdermbt 187 Duane, In the goods of 178 Duke of Anoaster v. Mayer . . 142 Dyer v. Dyer 148 Dyke v. Walford 14 Earl of Newburgh v. Countess ofNewburgh ,". 179 Earl of Sefton v. Hopwood . . 172 Eastwood V. Vinke 220 Elliot V. Davenport 119 Enohin i). Wylie 226 Entwistle i). Davis 191 " Evelyn)'. Evelyn 113 Fairclough v. Marshall '. 68 Earrer v. St. Catherine's Coll. Camb 187 Eettiplace v. Gorges 167 Finlay v. Chimey 68 Fletcher v. Ashbumer 64 Ford V. De Pontes 201 Foster v. Bates .' 99 Eraser, In the goods of 201 Gardner v. Parker 261 Giblett V. Hobson 192 Gore V. Gibson 50 Graham v. Graham 220 Guardhouse v. Blackburn .... 176, 178, 179 HaU V. HaU 180 Harwood v. Baker 172, 174 Hawkins v. Blewitt 258 Hayter v. Tucker 190 Heasman v. Pearse 186 Hensloe's case 12, 83 Hensman ». Fryer 261 Holt 1). Frederick 116 Hookr. Hook 130 b XVlll TABLE OF CASES. FAQE Howard, Re 200 Howse V. Chapman 190 Hughes V. Hughes 18 Hunt, In the goods of 177 Jones V. Selby 261 V. Williams 187 Keech v. Sandford 149 Keppell V. Bailey 74 Kindleside ». Harrison 174 Kingdou v. Nottle 69, 70 Lacy V. Hill 233 Lady Eosslyn's Trust, Re 186 Lake v. Currie 243 V. Gibson 46 Lancefield v. Iggulden ..;.,. 251 Langham's Trusts, Re 191 Lemage v. G-oodbau 200 Livesay v. Eedfem 223 London & S. W. Ey. Co. v. Gomm 75 Longford v. Purdon 180 Lord Southampton v. Marquis of Hertford 186 Lowia V. Kumney 103 Lucy V. Levington 71 M'Gonnell v. Murray 260 MoMurdo, Re 165 March V. Att. -Gen 190 V. Russell 106 Marsh V. Evans 224 Martin, In the goods of 167 Matthews v. Matthews 220 Mercer v. Moorland 90 Moloney v. Kennedy 117 Moor V. Eaisbeck 201 Moore v. Moore 259 Morioe v. Bishop of Durham. . 187 MorreU ». Morrell 178 Mountford v. Lord Cadogan . . 67 Muggleton v. Bamett 129 Myers v. Perigal 190 PAQE Natt, Re HO Newton v. Sherry 107 Nioolls V. Judson 220 Orme v. Broughton 71 Overbury v. Overbury 200 Parfitt V. Lawless ........ 181, 182 Parkes v. White 168 Pelham v. Anderson ........ 192 Phillips V. Homfray 58 Head V. Stedman 226 Eeid, Re 202 (J. Eeid 171 Eex ». Portington 194 Rhodes «!. Ehodes 179 Eichardson v. Elphinstone . . 220 Roberts v. Pocook 223 Roseingrave v. Burke 253 Ross's Trust, Re 110 Smith v. Adams 136 4). Tracy Ill SneUing's Case 14 Somerville «. Somerville .... 119 Stanley v. Stanley 112, 113 Stead ». Hardaker 251 Stookdale v. Bushby 177 Stratton v. Linton 90 Sugden 1). Lord St. Leonards . 201 Taylor v. Meads 168 TheUusson v. Woodford 185 Trye ». Corporation of Glou- cester 192 Tulk V. Moxhay 74, 75 Ward V. Turner 257, 259 Warwick v. GreviUe 89, 90 West V. Shuttleworth 195, 196 Whorwood v. University CoU. Oxford 193 WUsou V. Wilson 186 Wood«. Ordish 251 V. Weightmau 107 Wooton V. Cooke 68 TABLE OF STATUTES. HENET III. -, „ , . PAGE Magna Carta, re-issue a.d. 1217 (Alienation to religious houses) . . 198 EDWAED I. A.D. 1272. 7 Edw. I. Bt. 2, c. 13 (Mortmain) , . . , , . . . 198 13 Edw. I. St. 2, u. 19 (Ordinaries liable for debts) . . . . . . 17 e. 32 (Mortmain) . . . . . . . , . . 198 18 Edw. I. u. 3 (Mortmain) . . . . . . .... 198 EDWAItD III. A.D. 1327. 4 Edw. III. 0. 7 ) ,„ ,. „ 15 Edw III e 5 ( (^^™^<"^s ^°^ certam torts) . . . . . . 54 31 Edw. III. St. 2, 0. 11 (Administration taken from ordinaries) .. 17, 18, 83, 91 RIOHARB II. A.E. 1377. 15 Eio. II. c. 5 (Mortmain) .. .. .. ,. ..198 HENRY VIII. A.D. 1609. 21 Hen. VIII. c. 5, s. 3 (Widow may be administratrix) 18, 83, 91, 96 23 Hen. VIII. u. 10 (Superstitious uses) . . . . . . 194 27 Hen. VIII. o. 10 (Statute of Uses) . . . . .... 38 32 Hen. VIII. o. 1 (Certain wiUs of land legaKsed) . . . . 38 c. 34 (Covenants running with reversion) 66, 73, 166 . ( s. 3 (Interpretation of 32 Hen. VIII. o. 1) 38 34 & 35 Hen. VIII. o. 5 j s. 14 (WiUs of married women and infants) 165, ( 166 EDWAED ,VI. A.r. 1547. 1 Edw. VI. 0. 14 (Superstitious uses) . . . . . . . . 194 ELIZABETH, a.d. 1558. 43 Eliz. 0. 4 (Charitable purposes) . . . . . . 187, 188 b2 XX TABLE OF STATUTES, CHARLES II. A.D. 1649 (King de facto 1660). PAQB 12 Car. II. 0. 24 (Military tenures abolished. This Act was to take effect from the 24th February, 1645) . . . . 39 22 & 23 Car. 11. o. 10 (Statute of Distributions) . . , . 19, 108 s. 1 (Administration bond) . . . . 96 29 Car. II. o. 3, s. 4 (Promises by executors and administrators) . , 107 s. 5 (Wills of real property) . . . . . . 136 B. \2 l^&t&iea pwr autre vie) ., .. ..62 es. 19, 20 (Wills of personal property) . . . . 136 8. 23 (Right of husband to residue) . . 86, 118 s. 28 (Wills of soldiers and sailors) . . . . 157 JAMES II. A.D. 1685. 1 Jac. II. c. 17 (Statute of Distributions) . . . . 108, 112 WILLIAM & MART. a.d. 1688 ; WUliam alone 1694, but the statutes are numbered from 1688. 1 WiU. & Mary, o. 18 (Toleration Act) . . . . .... 194 3 & 4 Will. & Mary, c. 14, s. 2 (Devisee bound by covenants, &c., which bind the heir) . . . . 76 4 WHl. & Mary, c. 24, s. 12 (Representatives of deceased liable for his devastavit) . . . . 57, 152 6 & 7 Wm. III. 0. 14 (Made 3 & 4 Will. & Mary, c. 14, s. 2, per- petual) . . . . , . . . 76 7 & 8 Will. III. 0. 37 (Licence to alienate in mortmain) . . . . 199 ANNE. A.II. 1702. 2 & 3 Anne, u. 4, o. 20 ^ „ . , , . ..„._,,. „ , g . „„ I (Registration of wills m Yorkshire, &o.) . . 245 7 Anne, c. 20, s. 8 (Registration of wills in Middlesex) . . . . 245 GEORaE II. A.D. 1727. 8 Geo. II. c. 6, s. 15 (Registration in Torkshire) . . . . . . 245 9 Geo. II. c. 36 (The Mortmain Act) . . . . . . 188—192 17 Geo. II. 0. 29 (Gifts to Foundling Hospital) .. .. ..194 0. 38, s. 3 (Priority of money due from deceased over- seers).. .. .. ., ,. 104 26 Geo. II. c. 6 (Legacies to witnesses of the will) . , . . . . 163 26 Geo. II. 0. 22 (Gifts to British Museum) . . . . . . 194 GEORGE III. A.D. 1760. 12 Geo. III. u. 67 (Gifts to Marine Society) . . . . . . 194 19 Geo. III. u. 23 (Gifts to the Bath Infirmary) .. ..194 33 Geo. III. vi. 54, s. 10 (Priority of money due from deceased ofBcer of a friendly society) . . . , . , 106 86 Geo. III. 0. 62, s. 7 (Legacy duty) .... 261 'TABLE or STATUTES. xxi fa6e 38 Geo. III. c. 87 (Infant executors) . . . . .... 206 39 & 40 Geo. III. c. 98 [The Thellussm Act) .. .. . . 185 43 Geo. III. 0. 107 (Gifts to Queen Anne's Bounty) . . . . . . 194 47 Geo. III. c. 74 (Liability of real estate of deceased traders for debts) .. .. .. .. ..79 61 Geo. III. 0. 105 (Gifts to Eoyal NaraJ Asylum) . . . . . . 194 53 Geo. III. c. 160 (Toleration extended to Unitarians) , . . . 194 55 Geo. m. e. 184 (Legacy duty) . . . . . . .... 265 c. 192 (Wills of copyholds valid without surrender) . . 164 GEORGE rV. & WILLIAM IV. a.d. 1830 (i. «., the last year of Geo. rV. and first of Will. IV.) 11 Geo. IV. & 1 Will. IV. 0. 20, s. 56 (Wages and prize money of marines and sailors) 97, 160 s. 64 (Creditors of sailors cannot be their administrators) . . 91 c. 40 (As to residue undisposed of by -will) 225 c. 41 (Administration in respect of prize money and pensions) . . . . 97 c. 47 (As to covenants, &c., binding heir and devisee) . . . . .... 76 c. 66 (As to lord's right to seize copy- holds) .. .. 137,138 WILLIAM rV. A.D. 1830. 2 & 3 Will. rV. u. 115 (Toleration extended to Eoman Catholics) . . 195 3 & 4 Will. IV. c. 9, ss. 1, 2 (Gifts to the Seamen's Hospital) . . . . 194 c. 42, ss. 2, 3 (Remedies for certain torts). . 64, 68 0. 53, s. 25 (Administration in respect of prize money) . . . . .... 97 0. 104 (Liability of heirs and devisees for simple contract debts) . . . . . . 79 c. 105 {The Sower Act) . . . . . . 135, 136 c. 106 {The Inheritance Act) . . 27, 32, 120—127, 252 4 Will. IV. c. 38 (Gifts to St. George's Hospital) , . . . . . 194 WILLIAM IV. AND VICTORIA. 7 Will. IV. & 1 Viet. c. 26 {The Wills Act), B. 1 (" WiU " includes "codicil ") s. 3 (As to -wills of copyholds) ss. 3, 6 '(As to estates ^M?- autre vie) s. 7 (As to infants) 8. 8 (Wills of married women) s. 9 (Form of will) . . B, 10 (Execution of a power by will) . . A.D. 1837. .. 159 . ..164 . .. 62 .. 165 . ..166 , , 157, 179 • • • • .. 244 XXll TABLE OF STATUTES. 7 Will. rV. & 1 Vict. 0. 26— continued. pa&b s. 11 (Soldiers and sailors -wills) . , . . . . . . 160 ss. 14—17 (Witnesses to wiUs) . . . . . . 163, 196 s. 18 (Eevooation by marriage) ., ., .. ..199 8. 19 (No reTOoation by change of testator's circumstances) . . 202 s. 20 (Revocation of wiUs) . . . . . . . . 200, 201 s. 21 (As to alterations, &c. in wills) . . . . . . 159 s. 22 (Revival of revoked will) . . . . .... 202 B. 23 (As to dealings with the property after making the will) 201 s. 24 (AU wiUs now speak from death) . . . . . . 238 s. 26 (As to lapsed devises) . . . . . . .... 239 H. 26 ("Devise" passes leaseholds) .. .. ., 242 B. 27 (Power of appointment executed by general words) . . 243 8. 28 (Eee simple passes without words of limitation) . . 240 s. 29 (Construction of the words " die without issue," &c.) . . 241 s. 32 (No lapse of estate in tail or in quasi tail) . . . . 234 8. 33 (No lapse in certain other cases) . . , , 218, 234 VICTORIA. A.D. 1837. 1 & 2Vict. c. 110 (Judgmentdebts) .. .. .... 78 2 & SVict. c. 11, S3. 8, 10 (Crowndebts) .. .. ..78 3 & 4 Vict. c. 82, B. 2 (Judgment debts) . . . . .... 78 8 & 9 Vict. V. 76, o. 4 {Donatio mortis causd) ,, . . 261, 262, 265 o. 106, D. 3 (Partition by agreement must be by deed) . . 138 9 & 10 Vict. c. 59 (Toleration extended to Jews) . . . . . . 195 c. 93 [Lord CampbeWs Act) . . ., . . . . 64 12 & 13 Vict. 0. 89 (Crown debts) .. .. .. .... 78 13 & 14 Vict. c. 65 (Grifts to museums of arts and science) . . . . 194 15 & 16 Vict. 0. 24 (Place of signature to wills) . . . . . . 158 16 & 17 Vict. 0. 81 (Succession duty) . . . . . . 263, 264, 265 u. 70, ss. 108 et seq. (As to lord's right to seize copy- holds) . . . . 137, 138 c. 107, ss. 195— 197 (Crown debts) ,. .... 78 17 & 18 Vict. 0. 104, s. 200 (As to wills of sailors in merchant service) 161 0. W^ (LooTie Xing' s Act) .. .. .. 142,250 18 & 19 Vict. c. 15, ss. 4, 5 (Judgment debts) . . .... 78 19 & 20 Vict. 0. 94 (Abolition of certain special customs in London and York, &o.) . . . , .... 118 20 & 21 Yict. 0. 77 {Court of Probate Act) .. ., 19,94 fl. 19 (As to vesting) . . , , .... 98 ss. 46, 59 (Where applications for probate, &c., are to be made) . . , , 95, 207 s. 73 (Discretionary power of the Court enlarged) 90 s. 79 (Renunciation by executor irrevocable) . . 206 ss. 80 — 82 (As to administration bonds) . . . . 98 0. 79, s. 95 (As to Irish probate) , , . . . . 210 0. 85 (Divorce and Matrimonial Causes Act) . . . . 168 TABLE OF STATUTES. XXIU PAGE 20 & 21 Vict. e. 85, s. 21 (Protection order) . . . . . . 169 s. 25 (Judicial separation) . . . , . . 169 21 & 22 Vict. c. 56, s. 12 (As to Scotch confirmation) . . , . 210 c. 95 (To amend Court of Probate Act) . . . . . . 19 s. 10 (As to contentious jurisdiction) . , . , 208 s. 18 (Remedy of creditor where administrator is abroad) . . . . . . .... 92 22 & 23 Vict. 0. 35, s. 16 (Power of executors over real estate) . . 253 s. 19 (Introduction of quasi-purohaser) . . . . 127 s. 22 (Crown debts) . . . . . . . . 78 SB. 27 — 29 (Protection of executors and adminis- trators) . . . . 105, 106, 216 23 & 24 Vict. c. 38, s. 1 (Judgment debts) . . . . . , 78 s. 5 (Judgment includes decree, &c.) . . . . 105 24 & 26 Vict. c. 114, 8. 1 (Wills of British subjects made abroad) 162, 211 s. 2 (Wills of British subjects made in United Kingdom) . . . . . . 163, 212 s. 3 (Wills of British subjects not affected by change of domicil) . . . . 202, 226 c. 121 (Administration to foreigners dying in her Majesty's dominions) . . . . . . 93 26 & 27 Vict. 0. 57 (Priority of regimental debts) , . , . . . 105 27 & 28 Vict. c. 112, o. 1 (Judgment debts) . . . . .... 78 28 & 29 Vict. 0. 72, ss. 6, 7 (Wills of sailors in the navy) . . . . 160 c. 104, B. 4 (Crown debts) . . . . .... 78 30 & 31 Vict. 0. 69, o. 2 (Discharge of Kens and mortgages on real estate) 143, 250 32 & 33 Vict. 0. 46 (Priority of specialty debts abolished) . . . . 105 33 Vict. c. 14 {Naturalization Act, 1870) B. 2 (Eight of aliens to hold real and personal pro- perty) . . . . . . ■ • • • 137 33 & 34 Vict. 0. 23 (Abolition of forfeiture for treason and felony) 101, 175 0. Z5[Apportionmmt Act, l?,10) .. .. ..144 0. 93 [Married Women'' s Property Act, 1870) .. 45, 169 ss. 1, 3—5, 7, 8 (Statutory separate estate) . . 169 36 & 37 Vict. c. 67, s. 16 (Administration to certain officers and soldiers) . . . . . . . . 97 u. 66 (The Judicature Act, 1873), ss. 3, 34 (Jurisdiction of Court of Probate transferred to Probate Division) 19, 94 BS. 16, 34 (Vesting of estate pending adminis- tration) . . . . . . 99 s. 34 (Jurisdiction as to construing wills) . . 217 37 & 38 Vict. 0. 78, s. 8 (Priority of registered conveyance) . . 246 38 & 39 Vict. c. 60, s. 16 (Priority of money due from a deceased officer of a friendly society) . . . . 105 40 & 41 Vict. c. 34 (Discharge of Uens and mortgagees on real estate) . . . . . . 65, 140, 143 FAOE 41 Vict. I!. 19, B. 4 (Effleot of certain separation orders) . ■ . . 169 43 Vict. i;. 14, s. 13 (Legacy duty) .. .. .. ..265 44 Vict. c. 12 (Probate, &o. duty) . . . . . . . . 264, 265 s. 38 (Duty on donatio mortis ea/usA) . . 261, 262 44 & 46 Vict. 0. 41 {Conveyancing and Law of Property Act, 1881), s. 4 (1) (Conveyance to purchaser by personal re- presentatiyes) . . . . . . 65, 141 8. 30 (Personal representatives succeed to real estate which vras — held by deceased as mortgage . . 139,247 held by deceased as sole trustee) . . 150, 151, 256 s. 31 (Appointment of new trustees) . . . . 151 s. 37 (1) (Executor's discretion as to evidence of debts, &o.) . . . . .... 215 (2) Power for executor to compromise claims, &c.) . . . . . . . . 215 s. 51 (The word "heirs," &o.) . . ..44, 235 s. 58 (1), (Covenants relating to inheritance bind heirs and assigns though not so ex- pressed) . . . . . . . . 67 s. 59 (All contracts under seal bind heirs and real estate, though not so expressed) . . 76 46 & 46 Vict. c. 76 {Married Women's Property Act, 1882) , . 45, 170 ss. 1, 2, 5 (Statutory separate estate) .. 170, 171 46 & 47 Vict. c. 52 (The Bankruptcy Act, 1883) . . . . . . 108 47 & 48 Vict. c. 54 (Yorkshire Eegistries Act, 1884) . . . . 245, 246 0. 71 {Intestates' Estates Act, 1884), s. 4 (Equitable estates escheat) . , . . 129 8. 7 (As to ineffectual disposition by will of a beneficial interest) . . . . .... 244 61 & 52 Vict. c. 42 {Mortmain and Charitable Uses Act, 1888) , . 189 88. 6 — 8 (Exceptions from the Act) . . . . 193 c. 43, 8. 87 (Administration actions in county courts) . . 79 frim^Ies OF THE ENGLISH LAW OF SUCCESSION TO DECEASED PERSONS. INTRODUCTION. When a person dies some of his rights and obligations may be completely extinguished, e.g., a life estate must be extinguished by the death of the tenant for life ; others may survive but in a changed or modified form, e.g., the legal right of a joint owner of property ceases at his death, but an equitable right to a share of the property often survives ; the remainder may survive unchanged, e.g., the right of the owner of an estate in fee simple. All the rights and obliga- tions which survive will devolve upon some other person or persons, who will thus be placed, to a greater or less extent, in the legal position formerly occupied by the deceased and accordingly will be said to succeed him. What persons will be entitled to succeed, and the nature and extent of the rights and obligations to which they will succeed, are questions which must be determined by that branch of the law which we are about to consider, and it is proposed to deal with the subject in the following order : — 1. It would be difficult to explain some of the leading p. B 2 LAW OF SUCCESSION TO DECEASED PERSONS, principles of the law of succession without referring to their early histoiy ; and therefore, in order to prevent any long digression in the body of the work, it seems convenient at the outset to give a short historical sketch of the origin and development of the law on this subject. 2. We must next inquire what classes of rights and obliga- tion of a deceased person are extinguished by his death, and thereby shall ascertain what rights and obligations are capable of passing by succession. The rights which pass by succession constitute what is called the estate of the deceased. The estate is divisible into real estate and ^personal estate, a division of the greatest importance and one of the most peculiar features of the English law of succession. This division of the estate {i. e., of the rights) has led to what is, to a certain extent, a corresponding division of obliga- tions. These divisions of rights and obligations lie at the very root of much of the law of succession, and accordingly we must explain them as early as possible, i.e., as soon as we have ascertained what rights and obligations are capable of passing by succession. 3. Having ascertained the rights and obligations which will pass by succession, and explained their divisions, we will then be in a position to consider more in detail the rules of law which determiae the persons who are entitled to succeed, and the nature and extent of the rights and obligations to which they will succeed. The law of succession to deceased persons is divisible into two distinct branches according as the deceased has, or has not, made a valid icill. Where he has not made a valid will, he is said to die intestate, and the succession is regulated by the Law of Intestate Succession ; where he has made a valid wUl, he is said to die testate, and the succession is regulated by the Law of Testamentary INTRODUCTION. - 3 The following are the leading characteristics of each of these two kinds of succession. When a person dies intestate (1) the person who happens to be his heir-at-law succeeds, from the moment of the death, to all the real estate and to certain of the obligations ; and is entitled to the estate for his own benefit ; (2) a person appointed by the Probate Division of the High Court of Justice succeeds, from the date of his appointment, to all the personal estate and to the remainder of the obligations ; but he is not entitled to the estate for his own benefit, and, after discharging the obligations, he is bound to distri- bute the residue of the estate amongst the next of kin of the deceased. When a person dies testate (1) the persons to whom he has given his real estate, and who are called the devisees {a), succeed, generally from the moment of the death, to the interests conferred on them; they also succeed to certain obhgations ; (2) the executor {i. e., the person appointed by the will to carry out its directions) succeeds, from the moment of the death, to all the personal estate, and to the remaining obligations ; his legal position is almost identical with that of the administrator ; and after discharging the obligations he is bound to hand over the residue of the estate to the persons to whom interests in the personal estate have been given ; such interests are called legacies, and the persons entitled to them legatees. The persons who succeed to the real estate, whether by testate or intestate succession, i. e. the heir and the devisees, axe, from that circumstance, called the real representatives of the deceased ; while those who succeed to the personal estate, i.e. the administrator and executor, are, for a like reason, called the personal representatives. (a) Wien real estate is disposed of by a will, it is said to be devised, b2 4 LAW OF SUCCESSION TO DECEASED PERSONS. 4. Lastly, we must describe a peoiiliar kind of transfer of rights which cannot properly he placed under either testa- mentary or intestate succession, and yet is closely connected with the subject of succession to deceased persons, namely, donationes mortis causa. The whole subject of the law of succession to deceased persons will therefore be divided as follows : — Part I. — Historical Sketch of the Law of Succession to Deceased Persons. II. — The Eights and Obligations which pass by Suc- cession, and their divisions. III. — The Law of Intestate Succession. lY. — The Law of Testamentary Succession. V. — ^Donationes Mortis CausS,. ( 5 ) Part I. HISTORICAL SKETCH OF THE LAW OF SUCCESSION TO DECEASED PERSONS. Very little reliaMe information respecting the early law of testamentary and intestate succession is furnished by the records of the Anglo-Saxon period. There seems no doubt, however, that the law of intestate succession derived its origia from pure Teutonic customary law, imported by the various German tribes who invaded and settled in Britain after its evacuation by the Eomans in the fifth century. " The Angles, Jutes, and Saxons, who, according to Bede, furnished the mass of immigrants in the fifth century, were amongst those tribes of Lower Germany who had been the least affected by Eoman influences " («) ; and the absence of any vestige of Roman law in the evidence of Anglo-Saxon customary law which has been handed down to us, poiats conclusively to the fact that the customary law of our Teutonic ancestors was not, to any appreciable extent, affected by any remnant of Eoman legal institutions which may have survived the departure of the Eomans (b) . The passage in the Oermania — "JTmredes autem siiccessoresqtte sui cuique liberi, et nullum tedamentum ; si liberi -non sunt, proximus gradus in possessione, fratres, patrui, avuneuli" (c) — proves that testamentary succession was unknown amongst (a) Stubbs, Select Charters, p. 1; 3rd ed. ; Stubbs, Consl;. Hist. Const. Hist. vol. i. pp. 40, 41. vol. i. p. 62. (6) Digby's Eeal Prop. p. 1, (c) Cap. 20. 6 HISTORICAL SKETCH OF THE the Teutonic tribes at tlie time Tacitus wrote. We have no further information on the subject until about the ninth century, and we then find testamentary succession an established institution. What produced this change ? Testamentary succession is perfectly incompatible "with what we know of the proprietary rights of primitive society. Property held in common by a family, or larger group bound together by real or imaginary ties of blood relation- ship, is the rule; individual ownership, or ownership in severalty, is the exception. Each individual member of the group had merely a right of enjoyment over the common property during his life, and it is obvious that he could not be permitted to defeat the rights of the other members by disposing of this right by will. When, at a later period, absolute ownership in severalty became the rule, instead of the exception, the old idea as to the community of rights over property still survived ia the customary rights of the children, or, faiiling children, of the more distant relations of the owner in severalty, to succeed to the property at his death (^). It appears, therefore, that individual ownership, and also the right to defeat the customary right of children and other relations, are conditions precedent to the estabhsh- ment of testamentary succession. " Without conjecturing how the change took place, we may safely assume that, although traces still remain of common land tenure at the opening of Anglo-Saxon history, absolute ownership of land in severalty was established and becoming the rule" (e). Moveables had probably become the subject of separate ownership long before, their changeable and perishable nature rendering them inconvenient objects of common ownership. But although separate property {d) Of. Maine, Ancient Law, (e) Stubbs, Const. Hist. vol. i. pp. 197 et acq. p. 75. LAW OP SUCCESSION TO DECEASED PERSONS. 7 appears to have thus early become an established institution amongst the Anglo-Saxons, there are indications that the ■ customary rights of the relations to succeed to a dead man's property were still vigorously asserted, and it was only after a long conflict that the right to defeat them became generally -recognised, subject, at any rate as to personal property, to certain limitations in favour of the family of the deceased. The precise date when this conflict commenced and ended cannot be ascertained, but it is generally agreed that wills were originally introduced into Britain by the Eomish clergy, after the inhabitants had been converted to Christianity. A will would enable a man to leave part of his property to the Church after his death ; and as such gifts were held by the clergy to confer benefit upon the soul of the donor, the interest of the Church and the religious belief of the age would both lend their powerful influence in support of testa- 'mentary succession, and this, no doubt, is one of the chief reasons of its ultimate triumph. We will flrst state shortly the principles of intestate succession in early Anglo-Saxon law, so far as they can be ascertained, and then attempt to show how far they were altered by the creation of new customs and broken in upon hy testamentary succession, during the later portion of the Anglo-Saxon period of our history. As we have no record of Anglo-Saxon law before the ninth century, we must try to trace it out in the oustoma,ry law of the Teutonic tribes to whom the Anglo-Saxon race owes its origin. There is much conflict of opinion, amongst the leading authorities upon the subject, respecting the manner and order in which the more distant grades of relations were entitled to succeed (/), but they seem to be (/) The controversy is summarized in "Essays in Anglo-Saxon La-w," p. 130. 8 HISTORICAL SKETCH OF THE generally agreed tliat amongst near relations the following order of succession was observed : — Eirst sons, secondly daughters, thirdly grandchildren, and so on in case there were other descendants. But it seems that grandchildren whose parent (whether a son or daughter) died hefore their grandfather, were not entitled to a share in the property if any of the brothers or sisters of their parent were living. On failure of descendants, . first the father, secondly the mother, thirdly the brothers, and fourthly the sisters of the deceased person were successively entitled {g). It appears that the persons who formed each of these classes of relations shared equally without distinction of age, and there is no trace in early Anglo-Saxon law of any difference between succession to moveable and immoveable property. How far could these customary rights be broken in upon by will ? Let us take the case of succession firstly to land, and secondly to moveable property. Land in the ninth century was divisible into two chief classes — (1) public land, or as it was called fok-hnd; and (2) land held by private persons. Tolc-land might be granted to private persons by charter, or hook as it was also called, and it then lost its character of public land; but such grants cotdd only be made by the king with the consent of the witenagemot until, at a later period, the king had acquired the sole right of dealing with the folc-land. Land so granted was called boc-land — ^book-t land ih). Folc-land might also be granted to private persons to hold for a certain time subject to the payment of a rent or performance of services, and in this case it did not lose itg character of public land, and it seems that the right of enjoy- (^)Essay8m Anglo-Saxon Law, (A) Digby's Eeal Prop. p. 12, P- 132. 3rd ed. LAW OF SUCCESSION TO DECEASED PEESONS. 9 ment over it could not be alienated either inter vivos or by •wlU without the consent of the community or its chief («). Land held by private persons was divisible into two classes — (1) land held in severalty ; (2) land held in common. The latter, of course, could not be disposed of by will. Land held in severalty was divisible into — (1) Alodial land, i. e., land held in absolute ownership ; (2) Lmn-land, i. e., land let out by the owner to another person on such terms as might be agreed on between them. If let for a term ex- ceeding the life of the person to whom it was let, it might be the subject of testamentary or intestate succession. Alodial land was divisible into — (1) heir-land {It) or family land ; and (2) book-land. Heir-land seems to have included inherited land as well as land acquired otherwise than by inheritance, except book- land. Book-land was so called because the grant was evidenced by a book or charter. "It is generally expressed in the charter that the grantee may grant the land away to whom- soever he pleases in his hfe-time, or leave it by his last will, and, if not so disposed of, it is to descend to his representa- tives. These powers, however, seem to have depended upon the form of the gift as expressed in the charter : the power of alienation might have been restricted so that the land could not be granted away from the kindred, or the descent of the land might be confined to lineal descendants, or to heirs male or female. In these respects it was a principle of Anglo- Saxon customary law that the nature and extent of the rights of the grantee depended upon the form of the gift" il). Fole-land, as we have seen, might be converted iato book- land, and it then became private property. Heir-land was (i) Digby's Eeal Prop. p. 16, p. 197, 2nd ed. 3rd ed. {I) Digby's Eeal Prop. p. 14, {h) The Land Laws, Pollock, 3rd ed. 10 HISTORICAL SKETCH OF THK also frequently the subject of a grant by book, and then became book-land ; but such grants seem to have been at first stoutly resisted' by the grantor's near relatives, and there is some evidence that originally they were not valid unless made with the consent of, or confirmed by, the relations. It is probable, too, that a man never acquired the power to grant away the ivhole of the family land(OT). Book- land seems always to have been alienable by will, except so far as it was forbidden by the terms of the grant (»), though it seems probable that if a man had no heir-land to leave to his relations he could not dispose of all his book-land, so as to disinherit them entirely (o). And, as it is sometimes trans- lated " terra testamentalk " as opposed to " terra hcereditaria " or heir-land, it seems that the right to dispose of it by wiU was established before wills of heir-land were recognised as bind- ing dispositions of property. There is some evidence that wiUs of heir-land were ori- ginally mere re-settlements of the property amongst the rela- tions of the testator (jij), and that when made in favour of strangers the relations successfully resisted them. In course of time, however, .their validity seems to have become esta- blished, though it is probable that, as in the case of book- land, a testator could not entirely disinherit his near relations (j) . Mr. Digby mentions " the characteristic which prevailed before the Conquest of entire freedom of alienation, both inter vivos and by will, at all events of boc-land, except so far as this right is limited hy the claims of the family" (f). It seems, then, that during the Anglo-Saxon period freedom (m) Glanville, Lib. 7, c. 1, (o) Glanville, suj>ra. quoted in Digty's Eeal Prop. (;)) Cod. Dip.cccxvii, ccccxcii, p. 8T, 3rd ed. mccxlii. (m) Of. Laws of Alfred, c. 41, (j) Glanville, iwpra. quoted in Stubbs, Select Charters, (r) Eeal Prop. p. 28, 3rd ed. p. 62. LAW OF SUCCESSION TO DECEASED PEKSONS. 11 of testamentary disposition over land had been established, except so far as it was limited (1) by the terms of the grant to the testator, and (2) by the claims of his family, though what proportion of his property a man was bound to leave to his family is unknown. No alteration seems to have been made during the Anglo-Saxon period in the rules (above stated) of intestate succession, so far as they related to land. Our information respecting testamentary succession to moveables is exceedingly meagre, but it seems that if a man had a wife and children he could only dispose by will of one- third of his moveables ; at his death his widow took one of the remaining thirds, his children the other; if he had children but no wife, or a wife and no children, he could dispose by will of half his moveables, and the widow or children took the other half ; in case he had neither wife nor children, he could dispose of the whole (s). A most important alteration was effected in the rules of intestate succession to moveables. (1) It seems ■ that the old Teutonic custom that males should be preferred to females had been broken through, and that females took an equal share with males in the moveables of the deceased. (2) After payment of debts, the moveables of the deceased were divided into three parts, if he left a widow and children ; iato two, if he left a widow and no children, or children and no widow ; the widow or children taking a third or half, as the case might be, and the remaining third or half being disposed of by the clergy in p)ios usus (f) . These shares of the widow and children came to be known as their pars rationahilis of the effects of the deceased, and were for a long period recognised as their common law right. (s) 2 Bl. Com. 491, quoting Kent, p. 518 ; Eobinson's Com- Glanville, Lib. 2, o. 5. men Law of Kent, p. 285 ; Bede's (i) Kentish customs quoted in Eco. Hist. Lib. 6, o. 12. Lambard's Perambulations of 12 HISTORICAL SKETCH OF THE The equal division of moveable property amongst both males and females has remained the established rule to the present time, "with the exception of certain classes of moveables to be presently mentioned («), which being ia some manner attached to or connected with land are subject to the same rules of succession as land. We have hitherto spoken of the relatives of a deceased per- son succeeding to his personal as well as to his real property, for duriag the Anglo-Saxon period we have no indication that any successor was known who corresponded to the ad- ministrator of modern times. Any conjecture upon the subject is involved in the consideration of a most important event in the history of testamentary and intestate succession to personal property with which we must now deal. The Church acquired the right to take possession of, and to ad- minister, the moveable property of intestates, and also juris- diction in matters relatiag to wiUs. How and when were these rights acquired ? We have no direct evidence, but probably the explanation given in Ilensloe's Case (x) furnishes the most correct answer to the first part of the question. It is there said, that when of ancient times a man died iatestate, and had made no disposition of his goods, nor committed his trust to anyone, the king (who is parens patrix, and has the supreme care of providing for all his subjects, that each may enjoy that which he ought to have) was accustomed to seize by the hands of his officers the goods of the intestate, to the intent that they might be preserved and disposed of for the burial of the dead,- payment of debts, advancement of the wife and issue, or, faUing issue, of other relatives. The words " no disposition of his goods," &c., would seem to refer to a custom similar to the donationes mortis causa of modem times (y), that is the distribution of property by a man on («) Post, p. 61. (x) 9 Eep. 38. [y) See post, Pt. V. LAW OP SUCCESSION TO DKCEASED PERSONS. 13 his death-bed ; and in this case the intervention of the king's officers would he unnecessary. These officers were probably the officers of the county court of the sheriff, where matters of all kinds used to be determined (2) ; in this court the bishop sat to declare the spiritual law (a) , so that, if the property of iatestates were administered in the county court, it would come under the special oogniizance of the bishop, who would be the most fit person to declare in what way " the third " of the goods ought to be disposed of for the benefit of the soul of the deceased (b). If this view be correct, it is easy to imagine that in course of time the bishop would acquire the sole jurisdiction over the administration of intestate estates ; and when this jurisdiction had been established a jurisdiction in the matter of wills, " also, 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" (c). At any rate this view seems con- sistent with the authorities quoted and relied upon ia ITensloe's Case (d), which decide, that the jurisdiction of the Church in respect of probate of wills, and administrations of intestate moveable property, was a custom, and not a common law right, and that their authority m such matters was derived from the Crown. In theory no doubt the ordinary (e) had merely the right of administering the goods, and was bound to pay the debts of the deceased, and the partes rationaUles of the widow and (z) 2 Bl. Com. p. 494. o^^ otter person with. " ordinary (a) Stubbs, Const. Hist. vol. i. jurisdiction " in matters ecclesi- p_ i]^4_ astical. Staph.. Com. vol. ii. (J) Perkins, s. 486. P- 184, 9th ed. He is so called (c) 2 Bl. Com. p. 494. "quia hahet ordinarium juriadic- (d) 9 Eep. 38. tionem, in jure propria et non per (e) A name taken from the deputationem." Co. Litt. 96 a. canonists and applied to a bishop, 14 HISTORICAL SKETCH OF THE cluldreii, and to dispose of the residue inpios usus; in practice, however, he seems to have acquired absolute and uncontrolled power over the property. This was probably due to the fact that he alone was supposed to be competent to decide to what extent it was necessary to dispose of the goods in pios usus for the benefit of the soul of the deceased, and to what pios usus they ought to be applied, and accordingly was regarded as accountable to no one but to Grod and his own conscience for the manner in which he administered the goods (e). If he disposed in pios usus of so much of the goods that creditors remained unpaid, and the widow and children were unprovided for, it seems that these persons had no remedy whatever against him (/), although, as regards creditors at any rate, it seems certain that they always had, at common law, a right to be paid before the goods were disposed of inpios usus (g). ' The jurisdiction of the ordiaary only extended to the goods of the intestate which he could seize into his possession, and he could neither sue for debts due to the intestate, nor be sued for debts due from him (A) . The ordinary accordingly succeeded to the rights of the deceased over goods of which possession could be taken with- out having recourse to an action ; the relations did not succeed to any right of the deceased over such goods ; they merely had a right, at common law, to obtain a share of such goods, but had no means of enforcing their right as against the ordinary. In case a person died testate, the validity of the will had to be proved to the satisfaction of the ordinary, and it seems that the executor was accountable to him for the manner in ■which the estate was administered. The executor suc- ceeded, not only to the choses in possession (i), but also to the (e) 2 Bl. Com. p. 495. P. 0. 434, 491 ; Coke, 2 Inst. o. 20. (/) Dyke v. Wal/ord, 5 Moo. (i) I.e., any moveable property P. 0. 434, 491, 492. in the actual or constructive pos- (g) Snelling's Case, 5 Co. 83 b. session of a person ; see 2 Steph. (h) Dyke v. Walford, 5 Moo. Com. p. 10, 10th ed. LAW OF SUCCESSION TO DECEASED PERSONS. 15 choses in action (J) of the deceased, and was liable for the pay- ment of his debts, so far as the estate would extend to meet them (k). If no executor were appointed by the wiU, it is doubtful whether the ordinary was bound to carry out the intentions of the testator, or whether he could administer the estate as if the testator had died intestate; but the opinion, formerly prevalent among lawyers, that the appoint- ment of an executor was essential to the validity of a will (/), probably represents the early law upon this point. At what date this jurisdiction of the Church was acquired is uncertain. The authorities prove that the jurisdiction was held to be an old-established institution in the thirteenth century (?») ; and although there is no direct evidence to show whether it arose before or after the Conquest, yet the great power and influence of the Anglo-Saxon- Church in temporal matters seem to favour the presumption that it was esta- blished during the Anglo-Saxon period. We have attempted to draw an outline of the law of testa- mentary and intestate succession during the Anglo-Saxon period, and we have seen that during the latter portion of that period a marked distinction had arisen between the rules which governed succession to land and moveable property respectively. That distraction became still more marked after the Norman Conquest and establishment of feudalism in England. No change which would affect the Anglo- Saxon law of property seems to have been brought about by direct legislation during the reigns of WUliam I. and his immediate successors (w) : it seems that their policy was rather to confirm, as far as possible, the laws and customs of the English. The changes which did take place were due to the (y) I.e., a mere rigtt to recover (l) Wentworth, Exors. pp. 3, 4, moveable property by bringing an 4tli ed. ; 2 Bl. Com. 503. action. 2 Stepb. Com. p. 11. (to) 3 Bl. Com. p. 96. (h) Coke, 2 Inst. c. 19. (») Stubbs, Const, Hist. vol. i. p. 267. 16 HISTORICAL SKETCH OF THE introduction of the feudal customs and ideas of the Normans, and their gradual combiaation with Anglo-Saxon customs and ideas (o). These feudal customs and ideas almost exclu- sively related to the holding of land, and thus a complete revolution in the Anglo-Saxon law of land was gradually effected, while the Anglo-Saxon law of moveable pro- perty remained practically unaltered by the establishment of feudalism in England. For this reason the history of the law of succession to land after the Conquest is quite different from that of the law of succession to moveable property, and we will therefore deal with each separately. At present we will speak only of land and moveable property ; probably from an early period some few kinds of moveable property passed by succession in the same manner as land, while some interests in land passed in the same manner as moveable pro- perty, but these exceptions can be more conveniently dealt with when we come to consider the modem division of the estate into real and personal estate. "We will now attempt to trace the history of the law of succession after the Norman conquest, and we wiU deal first with moveable property, and afterwards with land. I. The Succession to Moveable Property. (1) Intestate Succession. — "We have seen that at some early period the Ohurch had acquired the sole jurisdiction in all matters relating to testamentary and intestate succession to personal property. "We have seen, also, that the ordinaries had acquired what was practically an absolute and uncon- trolled power of-disposing of the choses in possession of iates- tates. As might be expected, this extraordinary power was often abused. One old authority complains " qvad ordinarii hujus modi bona nomine ecclesice occupantes, nullum rel saltern (o) Digby's Eeal Prop. p. 37, 3rd ed. LAW OF SUCCESSION TO DECEASED PERSONS. 17 indehitam faciunt distributionem " {p). It appears, too, that it was usual to dispose of a certain proportion of the goods in pios usus before the debts were discharged, and in the thirteenth century this proportion was fixed by canon law at one-third of the whole of the goods (5') ; so that i£ the debts amounted to more than one-third they must either have re- mained unpaid to that extent, or the sum necessary to dis- charge them must have been deducted from the partes rationabiks of the widow and children. The first attempt to check this abuse was made by the Statute of "Westminster II. (?•), which provided as follows : — " The ordinary from henceforth shall be bound to answer the debts as far forth as the goods of the dead wiU extend in such sort as the executor of the same party should have been bound if he had made a testament." This statute was in afiirmance of the common law, which, as we have seen, made the debts of the deceased a first charge upon his estate (s) . The residue of the property, after payment of debts, re- mained in the hands of the ordinaries, so that the relations of the deceased were still at their mercy, until, in the foUowiug century, a statute {t) was passed which put an end to the power of the ordinaries to administer intestate estates. This statute provided as follows : — " In case where a man dieth intestate the ordinaries shall depute the next and most lawful friends of the dead person intestate to administer his goods ; which deputies shall have an-action to demand and recover as executors the debts due to the said person intestate, in the King's Court, for to ad- minister and dispend for the soul of the dead; and shall {p) Fleta, Lib. 2, o. 57, s. 10. (s) See supra, p. 14. (2) 2 Bl. Com. p. 495. (<) 31 Edw. III. stat. 1, c. 11. if) 13 Edw. I. c. 19 ; A.D. 1283. P. c 18 HISTOEICAL SKETCH OF THE answer also in the King's Court to other to whom the said dead person was holden and hound, in the same manner as executors shall answer " (u). The " next and most lawful friends " were interpreted to be the next of blood to the deceased who were under no legal disability (x). The person deputed to administer the estate was afterwards known as the "administrator," and his appointment was called the ^^ granting of letters of administration." A subsequent statute {y) provided that admiaistration might be granted to the widow or next of kin of the deceased, or to both : and that when several who were in the same degree of kindred claimed administration, the ordinary might elect one or more at his discretion. The effect of the stat. 31 Edw. III. e. 11, was as foUows : — On the death of a person intestate his rights over the goods ia Ms possession vested in the ordinary, but his cJioses in action and obligations were in suspense. When the ordinary granted administration, the grant passed ail his rights to the admi- nistrator, who, subject to the payment, of debts, &c., thus obtained the same absolute right over the property as the ordinary formerly possessed. In addition to this, all choses in action of the deceased vested in him by the express provision in the statute, and he thus became the universal successor of the deceased, just as an executor became the universal suc- cessor of his testator. The statute, however, made no provi- sion for the distribution of the residue of the estate after payment of debts, &c., and great doubts existed as to whether the administrator was boimd to distribute it amongst the next of kin, in case he was not the sole next of kin. The point was finally decided in the ease of Hughes v. Hughes {%), {u) 31 Ed-w. III. stat. 1, c. 11; (z) Cart. 125; the decision of A.D. 1357. the Court is reported in 1 Lev. {x) Henshe'a case, 9 Eep. 39. 233. (V) 21 Hen. VIII. c. 5, s. 3. LAW OF SUCCESSION TO DECEASED PERSONS. 19 the Court being of opinion that the administrator, like the ordinary, acquired uncontrolled power over the residue of the property and was not bound to distribute it, and that a bond taken by the ordinary to compel him to do so was void. Shortly after this decision the first Statute of Distribution (o) was passed, whereby the distribution of the estates of intestates was regulated in favottr of the next of kin. This statute forms the basis of the order of distribution at the present day, and will therefore be fully considered in a subsequent part of this treatise {b). The Ecclesiastical Courts retained their jurisdiction in granting probate and administration until 1857. In that year the Court of Probate Act (c) was passed, whereby this jurisdiction of the Ecclesiastical Courts was transferred to a special secular tribunal created by that Act, called the Court of Probate. Finally, by the Judicature Act of 1873 {d), the jurisdiction of the Court of Probate was assigned to the Pro- bate, Divorce, and Admiralty Division of the High Court of Justice, whence all grants of administration must now be obtained. (2) Testamentary Succession. — Little alteration took place after the Conquest with respect to testamentary succession. The widow and children were entitled to their third or half,- as the case might be ; this was now called their joars rationa- bilis, and to recover it an action de rationabili parte would lie. This Hmitation upon the free power of testamentary disposi- tion was recognised as a general rule of the common law in the reign of Henry II. (e), and seems to have continued to be so regarded until as late as the reign of Charles I. (/) ; although, in Sir Edward Coke's opinion, it was nothing but a (o) 22 & 23 Oar. II. o. 10. (d) 36 & 37 Vict. c. 66, ss. 3, 34. (6) Poet, p. 108. (e) Glanville, Lib. 7, c. 5. (c) 20 & 21 Vict. c. 77; amended (/) Fincli, 175. by 21 & 22 Vict. c. 95. c2 20 HISTORICAL SKETCH OF THE local custom {g). After that period tlie Umitation disap- pears, " though, we cannot trace out when the alteration began" (h). The testator was also hound to give his hest and principal chattel to his lord, and to bequeath something to the church («). The former, under the name of heriot, could probably have been claimed by the lord in Anglo-Saxon times (y), and in some manors the custom still exists {k). Bequests to the church have long siuce ceased to be obh- gatory. II. The Succession to Land. (1) Intestate Succession. — Tenure seems to have been gradu- ally established in England by the introduction, after the Conquest, of "Norman customs and ideas, and their com- bination with Anglo-Saxon customs and ideas " {I). The result was that the king came to be regarded as the only absolute owner of land ; all other persons were deemed to have merely "estates" in it. These estates were said to be "held" either of the king or of some intermediate lord, who in his turn held of the king. The person of whom the land was held was called the lord; the person holding, the tenant. The estate might be merely an estate for the life of the tenant, and in this case, on the death of the tenant, the land would revert to the lord ; or the estate might be one which would descend to the heirs of the tenant, and the land would not then revert to the lord until there was a failure of the heirs of the tenant. "Feudal donations were not extended beyond' the precise terms of the gift by any presumed intent, but were taken strictly" (m) : so a grant "to A. B." was a grant {g) 2 Inst. 33. {h) SeeWms. Eeal Prop. p. 420, {h) 2 Bl. Com. 492. 16tli ed. (i) Glanville, Lib. 7, c. 5. [l) Digby's Eeal Prop. p. 37, (/) Canute, c. 71, 72; Stubbs, 3rd ed. Select Charters, p. 74. (m) Wms. Eeal Prop. p. 22, | 16th ed. LAW OF SUCCESSION TO DECEASED PERSONS. ai" to A. B. personally, and he could, only hold it for his life ; if, therefore, it were intended that the heirs of the tenant should succeed to the land, it was necessary to expressly mention them in the grant. The common form of expressiag such intention was, " to A. B. and his heirs." By the term " heirs " it seems that the issue of the tenant were at first only meant — collateral relations, such as brothers and cousias, heing excluded; the true feudal reason of this construction is stated by Blackstone to be, that what was given to a man for his personal service and personal merit ought not to descend to any but the heirs of his person (w). ' Perhaps this construction may have been applied to grants made to new tenants subsequently to the establishment of tenure, but it seems extremely doubtful whether it would apply to cases where the old aUodial proprietors became tenants of a lord by the process called commendation {i. e., surrender of the land to the lord and re-grant by him to the tenant) (o). The point is not, however, of much importance, for by the reign of Henry II. " heirs" included collaterals in all cases, unless a contrary intention were expressed in the grant. It seems, too, that at first a grant to " A. B. and his heirs" was con-: strued as if it had constituted separate grants to A. B. and to his heirs, so that after the death of A. B. his heirs would take the land, not as successors to A. B., but as direct grantees of the grantor. This construction, however, appears to have soon given way to that which has ever since been recognized by the Courts, namely, that such grants vest a fee simple estate (the largest freehold estate) in the grantee, and that the heir takes by descent from the grantee, and not from the grantor. In other words, the term " heirs" is not a word of " limitation" («. e., used to indicate the estate which the heirs are to take), but of "purchase" {i. e., it indicates the kind of (n) 2 Bl. Com. p. 221. (o) See Digby's Keal Prop. pp. 31, 34, 3rded. 22. HISTORICAL SKETCH OF THE estate wHoh the grantee is to take, namely, that it is an estate pf inheritance as opposed to merely a life estate). The grant specified the kind of service which the tenant was required to render to the lord, and the different kiads of service which thus became due from different tenants led eventually to the division of tenures into the following chief classes {p): — 1. Frankalmoign — the tenure hy which religious houses held land ; they were only bound to render spiritual service. 2. Grand serjeanty. — " Where a man held his lands of the king by services to be done in his own proper person to the king, as to carry the banner of lie king, or his lance, or to be his marshal, or to carry his sword before him at his coro- nation, or to do other like service " {q). 3. Knight service. — Where the tenant was bound to perform military service ; he was also bound to do homage, and give reliefs and aids, &c. ; but military service was the distinctive mark of this kind of tenure. 4. Socage. — " Tenure in socage is where the tenant holdeth of his lord the tenancy by certaia services for all manner of services, so that the service be not knight's service. As where a man holdeth his land of his lord by fealty and certain rent for all manner of services ; or else where a man holdeth his land by homage, fealty, and certain rent for aU manner of services ; or where a man holdeth his land by homage and fealty for all manner of services : for homage by itself maketh not knight's service " (■/■). 5. Petit serjeanty. — This was merely a species of socage tenure ; the service consisted in rendering to the king (p) Probably the distinctions 3rd ed. between tbe various kinds of (q) Litt. Tenures, s. 153. tenure were not accurately ascer- (?•) Ibid. s. 117 ; Digby's Real tained until the reign of Henry 11. Prop. p. 46, 3rd ed. See Digby's Eeal Prop. p. 38, n., LAW OP SUCCESSION TO DECEASED PERSONS. 23 annually some small thing belonging to war, e. g. " a bow or a sword or a dagger or a knife, or a pair of gilt spurs or an arrow or divers arrows." Thus it only occurred where lands were held of the king (s). Tenants holding by any of these tenures " were regarded as free holders, having an estate or interest in lands worthy of a freeman and involving no service derogatory to the status of freedom " (t). Before the reign of Henry II. land held by these tenures was called Uberum tenementum (t), and later freehold land. In tracing the history of intestate succession to freehold land we are only concerned with tenure by knight service and socage tenure. Ecclesiastical like other corporations do not die, and the succession of one ecclesiastic to another does not therefore belong to the branch of the law of succession which is the subject of the present treatise. "Where land was held by grand serjeanty the rules of intestate succession seem to have been the same as those which relate to tenure by knight service ; while petit serjeanty is merely a species of socage tenure. In the reign of Henry II. an important distinction had arisen between the rules of intestate succession to land held by knight service, and that held by socage tenure. The effect of these rules was as follows (m) : — (1) Tenure by knight service. If there were two or more males in the nearest degree of kindred to the deceased tenant, the rule of primogeniture always prevailed, i.e., the eldest succeeded to the whole of the estate. («) Litt. Tenures, s. 159 ; (m) See Grlanville, Lib. 1, cc. 3 Digby's Real Prop. p. 48, Srd ed. and 4 ; quoted in Digby's Eeal («) Digby's Eeal Prop. p. 48, Prop. p. 84, Srd ed. 3rd ed. 24 HISTORICAL SKETCH OF THE But if there were only females in tlie nearest degree, the rule of primogeniture did not apply, and all succeeded together; except that the eldest alone was entitled to the mansion house (capitale messuagium), provided she made satisfaction to the others for its value. (2) Socage tenure. (i) " Antiquitus dwisum" i.e., divisible according to the old rules. All males in the nearest degree of kindred to the deceased shared equally, except that the eldest was entitled to the mansion house, provided he made satisfaction to the others for its value. Failing males, all females in the nearest degree shared equally, hut the eldest had the same privilege as the eldest male respecting the mansion house. (ii) Non antiquitus divismn. Sometimes the rule of primogeniture was the custom, sometimes the youngest son or other descendant was entitled to the whole inheritance, if there were males in the nearest grade of relationship. Failing males, females in the nearest degree succeeded in the same manner as in the case of antiquitus divisiim. (3) Rules applicable to both species of tenure. (i) Males were always preferred to females in the same degree of relationship, e. g., if a man died leaving one son and several daughters, the son would take the whole inheritance. Exception : a special custom of long standing ia a particular city might enable females to share the inheritance with males, (ii) The son of a second wife was preferred to the daughters of a first wife, but daughters of a first and second wife shared equally. LAW OF SUCCESSION TO DECEASED PERSONS. 25 (iii) The order in wliich difierent grades of relations were entitled to succeed was : — a. Sons and their descendants. b. Daughters and their descendants. c. Brothers and their descendants. d. Sisters and their descendants. e. "Uncles (paternal and maternal) and their de- scendants. f. Aunts (paternal and maternal), and their de- scendants. It was stni a moot point in Grlanville's time, whether, if a man died leaving a younger son and a grandson by a deceased elder son, the younger son or grandson should succeed. It was subsequently settled in favour of the grandson. Thus, in the reign of Henry II., the leading principle of the feudal law of succession — the rule of primogeniture (x) — had entirely superseded the Anglo-Saxon custom of equal division in respect of land held by military tenure, and was fast encroaching upon the same custom in respect of land held by socage tenure. The feudal principle that an inheritance never ascended {y) had also been established, and consequently the lineal ancestors of a deceased person were excluded from succession to his land. The reason for this change cannot be satisfactorily explained, but the theory which seems to be most generally received is, that at the time when grants of land were con- strued as passing the land only to the descendants of the grantee, and not to his collateral relations (z), a custom was introduced of expressly providing in the grant, that the land should descend in the same manner as if it had been an ancient inheritance which had descended upon the grantee. {x) For tlie origin of primo- {y) " Hoereditas nunguam a$- geniture, see Maine's Ancient cendit," Glanyille, Lib. 7, c. 1. Law, pp. 227 et seq. (z) See supra, p. 21. 26 HISTOEICAL SKETCH OF THE This was called a grant of a feudum novum, or new estate of inheritance, to be held ut feudum antiquum, i. e., as an ancient estate of inheritance — one which had descended from some remote common ancestor. Consequently, collateral relations of the grantee were entitled to succeed in case he died without descendants. But on the other hand Hneal ascendants were excluded ; for, according to this fiction, they must have been the owners of the estate before it could descend upon the grantee. The weak point in this theory is, that it would, if consistently worked out, exclude an elder brother of the grantee, or an uncle who was an elder brother of the grantee's father ; for the elder brother would be en- titled to the land before the grantee, and the imcle before the grantee's father, whereas, on failure of other nearer relations, these persons were always held entitled to succeed to the land of a younger brother, or a nephew by a younger brother respectively (o). In the reign of Henry III. the following changes had taken place : — (I.) The distinction between socage tenures " aniiquitm divisuDi" and. " non antiquitus divisum" had disappeared, and the rule of primogeniture applied to all socage tenures iadis- crimiaately, except in some particular localities, where by custom a different rule prevailed, e. g., the Kentish custom of gavelkind tenure, whereby all the sons, or other class of male relatives, succeeded in equal shares ; customs attached to burgage tenure («'. e., socage tenure of land in towns), as that of " borough-English," whereby the youngest son was entitled to succeed in exclusion of the elder sons. (2.) The question whether a man's younger son or his grandson by a deceased" elder son should succeed to his land, had been decided iu favour of the grandson; esta- (a) Wms. Real Prop. p. 126, 16tli ed. LAW OF SUCCESSION TO DECEASED PEESONS. 27 blisliiiig the rule that the issue represents the ancestor in infinitum. (3.) Where a person purchased land and died without descendants, leaving a sister of the whole blood and a brother of the half-blood, the sister was entitled to succeed in prefer- ence to the half-brother ; but it seems to have been still undecided whether, if in the above case the person so dying had obtained the land by descent [i. e., had inherited it from his father or other ancestor), the half-brother would not have been preferred to the sister ; Bracton seems to have been in favour of the half-brother (h). The point was ultimately decided adversely to the half-blood. (4.) Where the deceased person had no descendants, all relations on his father's side, however remote, were preferred to the nearest relations on his mother's side ; and so until the father's relations were exhausted, the mother's relations were not entitled to succeed to the property (c) . Before the close of the next reign (Edward I.) the rules of intestate succession seem to have been finally settled {d), and continued unaltered until the Act "for the amendment of the law of inheritance" was passed in 1833 (e). They have been summarized (/) as follows : — 1. "Inheritances shall Hneally descend to the issue of the person last seised in infinitum ; but shall never lineally A man was said to be seised of an estate of inheritance when he had taken feudal possession of the land in which the estate of inheritance had been granted (g). Suppose A., being seised of an estate of inheritance, died leaving issue a son, B. ; B. would be entitled to succeed as (6) Bracton, f. 65. (/) 2 Bl. Com. pp. 206 et seq. (c) Ihid. {9) ^^ to what constitutes seisin , (d) Hale's Hist. Com. Law, see Wms. Eeal Prop. p. 166, 332, 3rd ed. 16tli ed. (e) 3 & 4 Will. IV. c. 106. 28 HISTOEICAL SKETCH OF THE the issue of the person last seised; but supposing B. died before lie had taken feudal possession of the land, leaving issue a son, C. ; C. could not claim the estate as the issue of B., for B. was never seised of the estate, and accordingly he must claim as issue of A., his grandfather, who would he in this case the person last seised. Every person who became seised thus formed a new root from which the right of succession was to be traced, or, as it was expressed, seisina facit stipitem. The consequences of this rule will be explained later (h). 2. " The male issue shall be admitted before the female." This was the old Anglo-Saxon rule (i). 3. " Where there are two or more males in equal degree the eldest only shall inherit, but the females all together." 4. " The lineal descendants,, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living." These two rules may be illustrated thus : — A. dies seised of an estate of inheritance leaving issue two sons, C. the elder, and D. the younger ; C. will be entitled to the estate in exclusion of D. 0. takes feudal possession and then dies, leaving two daughters living, and also a grandson by a daughter who predeceased him. If the deceased daughter had been living at the death of her father, C, she and her two sisters would each have been entitled to a third of the estate, consequently her son will be entitled, as representing her, \si her third. The two daughters and the grandson of C. will, . therefore, share the estate in the same manner as if C. had left three daughters surviving. When several females succeed to an estate they are called coparceners {k) . So, if A. dies seised of land, leaving a grandson by a deceased elder son, {h) Post, p. 30. {k) Seejiosi, p. 133. (i) Supra, p. 8. LAW OF SUCCESSION TO DECEASED PERSONS. 29 and a yotmger son, tlie grandson wiR " represent " his de- ceased father and thus be entitled to succeed in preference to the younger son. 5. " On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral rela- tions, being of the blood of the first piirohaser, subject to the three preceding rules." The term "purchaser" was used as denoting any person ■who acquired an inheritance in any manner except by intes- tate succession, or, as it was usually called, "descent" (/). Thus, a person who acquired an estate as devisee under a will was, in this sense, a purchaser. But it was an established rule of law that a person could not make his right heirs take by purchase, either by conveyance or devise of the estate to them (m) ; so if a man devised or conveyed his estate of inheritance to the person who became his heir, the heir took by descent and was not therefore the purchaser. The collateral relation who claimed the succession must, according to this rule, have proved (1) that he was of the blood of the purchaser, and (2) that he was a collateral rela- tion of the person last seised, for seisina facit stipitem. Blood relationship can only exist where the persons are descended from a common ancestor. For instance : — ^A. has a son B. and a daughter C. ; the son purchases an estate and dies intestate and without issue. Meanwhile 0. has died leaving a son D. Here D. is " of the blood " of B., the pur- chaser, for both trace their descent from the common ancestor, A. Now suppose D. enters upon the estate of B. and then dies intestate, and without issue, his only collateral relations being his uncle X. {who was a brother of D.'s father), and his great uncle E. {who was the brother of A.). Here X. will be the nearest collateral relation to D., but he wiU be excluded from the inheritance, because, having no ancestor common to- il) Litt. Tenures, s. 12. (m) Co. Litt. 22 b. 30 HISTORICAL SKETCH OF THE himself and the purchaser B., he is not " of the hlood of the pur- chaser " ; and so B., being the nearest collateral relation of the blood of the purchaser will be entitled to succeed to the estate. 6. " The collateral heir of the person last seised must be his next collateral kinsman of the whole blood." No satisfactory explanation can be given of the introduc- tion of this rule which excludes the half-blood from the inheritance (»). Persons are relations of the half-blood when they are descended from a common paternal ancestor, but not from a common maternal ancestor, or vice versd. Thus, if A. has a son B. by his first wife and a son C. by his second wife, B. will be related by the haif-blood to 0., and so all descendfl,nts of B. will be relations of the half-blood to G. and his descendants. But, of course, both B. and 0. and their issue will be kinsmen of the whole blood to A.'s ascendants and collateral relations. The effect of this rule ia connection with the maxim seisina facit stipiiem., may be illustrated thus : — (1.) A. dies intestate seised of an inheritance which he had obtained by purchase, leaving issue a son B. by his first wife, and a son C. by his second wife. B. being the elder son will be entitled to succeed to A.'s estate. Now suppose B. should obtain seisin of the estate and die intestate, without issue, his only collateral relations being his half-brother 0. and his paternal uncle X. In this case X. would be entitled to succeed, being of the blood of A. the purchaser and next col- lateral kinsman of the whole blood to B., the person last seised, while 0. would be excluded, for although of the blood of A. and next collateral kinsman to B., yet he is only a collateral kinsman of the half-blood to B. (S.) But suppose, in the case above given, B. had died before he had become seised of the estate, then his father. A., would be both the purchaser and also the person last seised, (m) Wms. Real Prop. p. 129, 16th ed. LAW OF SUCCESSION TO DECEASED PERSONS. 31 and B.'s half-brother C, being in this case the issue of the person last seised, would be heir to A. and entitled to succeed, in exclusion of his uncle X. (3.) Again, suppose in the case first given the uncle X. should have succeeded B. and become seised of the estate, and should then have died without issue and intestate, leaving B.'s half-brother C. his only collateral relation. In this case C. would be entitled to succeed, being of the blood of A., the purchaser, and also the next collateral kinsman of the whole blood to X., the person last seised. If, however, X. had died before he had become seised, 0. would have been entirely excluded from the succession, and the estate would have escheated through failure of heirs ; for in this case B. would have been the person last seised, and, as we have seen, 0. could not claim the estate as collateral relation to him. 7. "In collateral inheritances the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female, unless where in fact the lands have descended from a female." For example, supposing A. to be the person last seised, if A. should die without issue leaving a paternal uncle and a paternal great uncle, and also a maternal uncle and a maternal great uncle, the order of succession would be as foUows : — 1. The paternal uncle and his descendants. 2. The paternal great uncle and his descendants. 3. The maternal uncle and his descendants. 4. The maternal great uncle and his descendants. But if A. derived the estate from his mother's branch of the family, then the maternal uncle and great uncle would be entitled before the paternal uncle and great uncle. If it was doubtful from which line the estate had in fact descended, the paternal line was always preferred. 32 HISTORICAL SKETCH OF THE It was formerly a disputed point wliether, on failure of the issue of all the male paternal ancestors, the descent should be traced through the nearer or the more remote female paternal ancestor. For instance, where the only next of kin of the person last seised were the relations of his father's mother and the relations of his paternal grandfather's mother, which rela- tions were entitled to priority ? The question seems to have been decided in favour of the relations of the more remote female paternal ancestor (o) , and that view has been adopted in the accompanying Table of Descent. It must be remembered that the above rules governed the descent of inheritances where the owner died intestate before the 1st January, 1834. Where the death has occurred on or after that date the "Act to amend the Law of Inherit- ance" (p) applies, and, as we shall see (g'), this Act has introduced several most important alterations iato the old law of descent. In the Table of Descent given upon the opposite page the figures (1), (2), &o., indicate the order in which the descendants of the different ancestors are entitled to succeed. The plaiQ figures indicate the order in which the persons in each group of descendants are entitled to succeed inter sd Every pferson to whom no plain figure is affixed is excluded from the succession. (o) 2 Bl. Com. p. 238 ; Davies v. (^) 3 & 4 WiU. IV. o. 106. Lowndes, 7 Scott, 56; 5 Bing. (g) Post, ■p. 121. N. 0. 169. LAW OF SUCCESSION TO DECEASED PERSONS. 83 in I 3 I — «a s 34 HISTORICAL SKETCH OF THE It must be observed that tbese rules of succession were liable to be excluded by the local customs wbich still pre- vailed in some districts. In almost every part of the county of Kent, for instance, the custom of gavelkind prevailed, and in some places the custom of borough English. When a local custom was proved to exist the rules of succession established by the general law were excluded so far as they were incon- sistent with the custom (r). "We must now briefly refer to another kind of tenure which had become established as early as the reign of Edward IV. " Towards the end of the Anglo-Saxon period it had become common for large districts of land to be held by lords or great men, king's thanes, or others. ... Of such districts a large portion was retained by the lord in his own hands. This portion was called terra dominica, terrw dominicales, or domain lands. On this stood the principal house, the mansio or manor-house as it was called in later times. The lands were cultivated for the benefit of the lord by serfs, or perhaps, in some cases, by freemen bound to render agricultural ser- vices. On the remainder of the occupied land the rights of the lord were rather in the nature of a seignory or lordship. He had no right to the actual possession of the land itseU, but only to the rents or dues to be paid or rendered by the persons in occupation of the soil " (s). After the Conquest these districts received the name of maneria or manors {t), the lord, whether the former Anglo-Saxon lord or a Norman who had replaced him, beCame by commendation or grant the tenant of the king, and the free persons who formerly occupied the land in the district became freehold tenants of the lord (u). The remainder of the cultivated land comprised (r) See^os*, p. 129. (<) A few new manors seem (s) Digby's Eeal Prop. p. 24, also to have been created. Ilni- Srd ed. p. 43. (tt) Ihid. pp. 44 et seq. , LAW OF SUCCESSION TO DECEASED PERSONS. 35 in the manor, the terra dominica or domain land, was still re- tained by the lord in his own hands. So much of the domain land as was not let out to farmers was cultivated by serfs or by freemen bound to render agri- cultural service for the benefit of the lord, but who in return were allowed to occupy a plot of the domain land for their own benefit. These freemen and serfs became known as mllani and the plots of lands which they occupied were said to be held by non-free tenure or villenagium. They held the land, however, merely at the will of their lord, and if ejected by him they had no legal remedy against him — ^unless, at least, the lord had entered into a covenant with the villein to secure the continued enjoyment of the tenure (v). But although they had, generally speaking, no legal right to the land they occupied, yet it is probable that from a very early period they acquired customary rights which were in most cases respected by the lords. The relation of lord and villein was regulated by the customs which grew up m each manor ; custom defined the services or dues to be rendered or paid by the vOleia and determined the nature of the villein's interest ia the land, and these interests were analogous to the estates of freehold tenants; in some manors the interest of the viUein would be in the nature of a fee simple estate ; in others of a conditional fee ; in others of an estate tail. At the death of a villein who had a fee simple estate, it was sometimes the custom for all his male issue to succeed ; sometimes the youngest son or other descendant alone succeeded. AH ques- tions respecting the customs of a manor were determined in the customary court of the manor, presided over by the lord or his steward, and recorded on the court roU. At the death of a tenant, or in case a tenant sold his interest, his successor, or purchaser, was not entitled to the land until he had been admitted tenant ia the customary court : a memorandum of [v) Digby's Eeal Prop. p. 244, 3rd ed. ; Bracton, Lib. 4, c. 28, fol. 208. d2 36 HISTORICAL SKETCH OF THE his admission was then entered upon the court roll, and a copy of such entry upon the roll furnished the evidence of his title to the land ; and from this circumstance the villeins hecame known as copyholders, and their tenure as copyhold tenure. In the reign of Edward IV. the customary rights of copy- holders became recognised hy the courts of law ; and thence- forth, the customs of a manor, when proved by proper evidence, became rules of customary law. This very brief and imperfect sketch of the origia of copy- hold teniire {x) wOl serve to explaia the reason why intestate succession to copyhold land is sometimes governed by rules peculiar to the particular locality where the land is situated, and why the rules of intestate succession in one manor often differ from those which prevail in another. But, so far as a different rule was not proved to exist, the general rules of intestate succession to freeholds, which we have seen had become settled in the reign of Edward I., applied also to copyholds (y). (2) Testamentary succession. — ^By the middle of the twelfth century, the right to dispose of freehold land by will had become completely extinguished, except in the city of London and a few other places where it still survived as a local custom. Glanville explains the reason for the change as follows : — " Licet autem ita generaliter cuiHbet de terra sua rationabilem partem pro sua voluntate, cuicunque yoluerit, libere in vita sua donare ; in extremis tamen agenti non est cuiquam haotenus permissum; quia possit tunc immodioa fieri hsereditatis distributio, si fuisset hoc permissum iUi qui fervore passionis instantis et memoriam et rationem amittit, quod non nunquam evenire solet ; unde presumeretur quod si quis in infirmitate positus ad mortem, distribuere cepis {x) As to the origin of copy- Eeal Prop. p. 244, 3rd ed. told tenure, see further Wms. {y) See jaosi, p. 130. Eeal Prop. Part III.; Digby's LAW OP SUCCESSION TO DECEASED PERSONS. 37 terram suam, quod in sanitate sua minime facere Yoluisset, quod potius proveniret illud ex furore animi quam ex mentis deliberatione" (s). But the true reason seems to have been that alienation by will, like alienation inter vivos, was considered prejudicial to the rights of the feudal lords («), especially to their right to acquire by escheat the land of a tenant who died without heirs. From the time when feudalism became established until about the reign of Henry V., the power to dispose of land by will was in abeyance. In that reign the practice of con- veying land to " uses" seems to have first received the sanc- tion of the Court of Chancery (b). The effect of such a con- veyance was shortly this : suppose A. conveyed land to B. to hold to the use of C. ; the conveyance passed the legal estate in the land to B., and as the " use" in favour of C. was an interest unknown to the law of real property, B. could, at law, enjoy and dispose of the property as absolute owner, and C. had no remedy against him, although it was perfectly clear that A. intended to benefit C, and not B. But about the time of Henry V., the Court of Chancery commenced to intervene in such cases, and, overriding the strict letter of the law, would give effect to the intention of A., by compelling B. to hold the land as trustee for C. ; thus B. would stiE remain legal owner, but C. would have the beneficial enjoy- ment of the land, and, besides, could compel B. to convey to bi-m the legal estate. These new interests, or, as they were called, " uses," being the sole creation of the Court of Chan- cery, were consequently unfettered by the old feudal rules which still governed legal estates in land, and one important result was that a man could dispose of his use by will. Supposing, therefore, that A. wished to dispose of his land (z) GlanviUe, Lib. 7, c. 1; (o) See Wriglit, Tenures, p. 172. quotedinDigby'sEealProp.p.87, (i) Digby's Eeal Prop. p. 280, 3rd ed. 3rd ed. 38 HISTOKICAL SKETCH OF THE by will, all he had to do was to convey his land to B. "to the use" of himself (A.), or " to the use" of his (A.'s) will : he could then dispose of this use hy his will, and B. would be compelled by the Court of Chancery to convey the legal estate to the person or persons to whom the use was devised. This testamentary power was put an end to by the Statute of Uses (c), which, after stating ia the preamble that by the common law " lands, tenements, and hereditaments be not devisable by testament," and that by the introduction of wOls of uses "divers and many heirs have bben unjustly at sundry times disinherited, the lords have lost their wards, marriages, reliefs, harriots, escheats, sl^ pur fair fitz chivalier, and pur file marier, and scantily any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or execution for their rights, titles, and duties," provides that the person in favour of whom the use was declared, i. e., the cestui que use, shall be deemed to have the same legal estate as that of the person to whom the conveyance was made, i. e., the feoffee to uses. The use was thus, by force of the statute, turned into the legal estate with all its feudal incidents and restrictions. Probably this new abolition of testamentary power over land met with great opposition in the eoimtry ; at any rate, six years later, an Act was passed (d) whereby power was given to tenants in fee simple to dispose by wiU of all their lands held by socage tenure, and of two-thirds of those held by knight service ; but the rights to primer seisins, rehefs, and fines on alienation, in the case of socage lands, and of ward- ship over the 'third part of knight service lands, were pre- served in favour of the King or other lord. EinaUy, by the Act for the aboHtion of military tenures (e), (c) 27 Hen. VIII. o. 10. c. 5, s. 3. \d) 32 Hen. VIII. o. 1; inter- (e) 12 Car. 11. c. 24. preted by 34 & 35 Hen. VIII. LAW OF SUCCESSION TO DECEASED PEESONS. 39 whicli came into operation on the 24th Fehmary, 1645, tenure by knight service was turned iuto free and common socage tenure ; so that, after that date, free and unrestricted power of testamentary disposition over freehold land was established, and is still the rule. The right to dispose of copyhold land by wiU depended upon the custom of the manor wherein the land happened to be situated. 40 RIGHTS AND OBLIGATIONS Paet II. THE BIGHTS AND OBLIGATIONS WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. We muBt in the first place attempt to discover what classes of rights and obligations are capable of passing from a deceased person to his representatives ; and for this purpose it will he necessary to take a general survey of all the various classes of rights which may be vested in a person in his private capacity, and the various classes of obhgations to which he may be subject. We limit the inquiry to the rights and obligations of a person ia his private capacity for the simple reason that where a person is acting in a public capacity his rights and obligations are attached to the office which he holds, and not to him personally ; at his death such rights and obligations pass to his successor in the office, but they do not pass to such successor as representing the deceased holder of the office, but as the person who for the time being is to perform the functions of the office. So long as a public office is, allowed to exist the rights and obligations attached to it are not affected by the death of the person who chances to be the holder of it ; and the death of the holder for the time beiag extinguishes all his official rights and obligations. Of course where the holder of the office has exceeded his official rights or neglected his official obligations, and thereby caused injury to another person, his representatives may, at his death, be liable ; the reason being that in such cases he has acted unlawfully, and is liable, like every other citizen, for WHICH PASS BY SUCCESSION, AND THEIE DIVISIONS. 41 tlie consequences. Such wrongful acts or omissions are either crimes or civil injuries [a). Having attempted to ascertain what rights and obligations are capable of passing by succession, we must in the next place inquire how they are divided between the real and personal representatives of the deceased. The whole mass of rights which pass by succession constitute what is called " the estate " of the deceased ; of such rights those which pass to the real representatives constitute what is called "the real estate," while those which pass to the personal representatives constitute what is called "the personal estate." We have, therefore, to divide rights into those which constitute "real" and those which constitute " personal " estate. Having dealt with rights, we must then inquire what obligations pass to the real and personal representatives respectively. Accordingly the subject will be dealt with under the following heads : — 1. The rights and obligations which pass by succession. 2. Real and personal estate. 3. The manner in which the obligations of deceased persons are divided between their real and personal representa- tives. {a) Bsepost, p. 51. 42 RIGHTS AND OBLIGATIONS OHAPTEE L THE EIGHTS AND OBLIGATIONS WHICH PASS BY SUCCESSION. We will deal first with rights and secondly with obligations. A. Rights. We will first divide rights into antecedent and remedial. Antecedent rights are rights which exist before any wrongful act or omission, e.g., the right of the owner of a garden that no one should trespass upon it, of a servant to have his wages paid, of a purchaser to have goods delivered to him (a). Remedial rights are rights which "are given merely in substitution or compensation for rights antecedent, the exer- cise of which has been impeded, or which have turned out not to be available," e.g., the right of the owner of a garden to damages from a party of men who have broken into his garden, of a servant to sue his master for unpaid wages, of a purchaser to get damages from a vendor who refuses to deliver the goods sold (a). I. Antecedent Rights. Antecedent rights are either rights in rem or rights in personam. A right in rem is a right available against all persons indefi- nitely (b) ; e.g. : A. is owner of land, he has a right that no one should trespass upon his land. A right in personam is a right available only against a definite person or persons {b) ; e.g. : A. has entered into a contract with B. whereby B. has undertaken to do work for (o) Holland's Jurisprudence, p. 125, 4th ed. (6) Ihld. p. 123. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 43 A. ; in this case B. is the only person from wliom A. has a right to demand performance of the contract. 1. Antecedent rights in rem. For our present purpose these may be divided into the two following classes : — (1) Eights in rem which are more or less closely connected with the personality of the individual iu whom the right resides (c). Under this class are included the right to personal safety and freedom, to reputation, to the society and control of one's family and dependents, to enjoy the advantages open to the community generally (as the free exercise of one's calling, &c.), to immunity from fraud {d). It is obvious that aU. these rights must be extinguished by the death of the person in whom they reside. (2) Eights 'in rem which are unconnected with the per- sonality of the iudividual in whom they reside. Under this class are included aU rights to the possession and ownership of property (e). All such rights in rem pass by succession at the death of the person in whom they were vested, except where the right consists merely of a life interest in property. We have, therefore, to inquire in what cases a person has merely a Hfe interest in property. "We wOl first take real property, and afterwards personal property (/). Life interests in Real Property. (i.) Where a person is sole owner of real property he will, in the following cases, have merely a life interest : — (a) Where he acquired the property by a conveyance inter vivos, which did not expressly limit the property to the (c) Holland's Jurisprudence, p. (/) As to the difierenoe be- 143, 4tli ed. t-ween real and personal property, (d ) Ihid. pp. 144 et seq. see post. p. 60. (e) See ibid. p. 157, 4th ed. 44 RIGHTS AND OBLIGATIONS grantee and Ms " heirs," wliether with or without words of procreation, or (in case the conveyance was executed after the 31st December, 1881) to him "in fee simple" or "in tail" (i). Any other limitation, e.g., to "A. and his assigns for ever," to "A. and his seed for ever," &c., gives merely a life estate, (h) Where he acquired the property under a will which expressly gg-ve him merely a life interest, or from which an intention to give merely a life interest could be implied. The reader will find this subject dealt with at p. 236, ^o-s^. (c) Where, either by deed or will, he acquired an estate tail in the property {i.e., where by a conveyance inter vivos the property is expressly limited to him and his heirs with words of procreation, as, " the heirs of his body "; or, in case the conveyance was executed after 31st December, 1881, to him "m tail" ; or where a will contains the same limitations or any others which show an intention to confer an estate tail {k) ) , he has practically a life interest only ia the pro- perty, unless he bars the entail. If he bars the entail he can acquire an estate in fee simple {I), which, of course, he may devise by will, and which, if not devised, will pass to his heir. If he does not bar the entail duriag his lifetime, his iaterest ceases at his death, and the heir of his body takes the property, not as successor to the deceased, but as the donee of the person who origiaally granted the property to the deceased in tail. An entail can only be barred by deed inrolled ; it cannot be barred by will or contract (m) . (d) Where by vsdll or by conveyance inter vivos real pro- perty has been given to another person to hold in. trust for him, and an intention that he shall only have such beneficial (i) 44 & 45 Vict. c. 41, s. 51. heirs of Ms body become extinct. {k) Qeepost, p. 236. Wms. Eeal Prop. p. 75, 15th ed. {I) Either an ordinary estate in (m) Wms. Eeal Prop. p. 73, fee simple, or a base fee, i. e., one 16th ed. which is extinguished when the WHICH PASS BY SUCCESSION, AND THEIE DIVISIONS. 45 interest for life is expressed in, or can be implied from, the terms of the will, or, in case of a conveyance inter vivos, an intention to confer a beneficial interest for life only is ex- pressed in, or can be implied from, the deed of conveyance, or some other deed or writiag. (e) Where a husband holds real property of his wife, by virtue of his marital right, or where a widower holds real pro- perty of his late wife as tenant hy the curtesy (w) ; or where a widow holds real property, which belonged to her late hus- band, by virtue of her right to dower (o), ot freehench {p). It must be observed that in cases where the marriage has taken place on or after the 1st January 1883, all the wife's real and personal property remains her separate property {q) ; and, in cases where the marriage took place before that date, all property acquired after that date is the wife's separate property (r)'. Formerly (in the absence of any settlement), the husband acquired a right to all the wife's real estate, except freehold or copyhold or customaryhold property which any woman who was married after the 9th August, 1870, had acquired as heiress or co-heiress of an intestate (s). And this marital right continued so long as the coverture lasted. (f) Where a person acquires an ofiB.ce to which real pro- perty is attached his interest ia the property, of course, comes to an end when he vacates the ofi&ce by death; e.g., the land belonging to a rectory or vicarage. At the present time it seems that the only hereditary public office of any practical importance in Great Britaia is that of sovereign of Great Britain. (ii.) Where a person is co-owner with one or more other persons, and the co-ownership constitutes what is called a Joint tenancy {t), each co-owner has in reality merely a life (n) See post, p. 136. W Sect. 5. o) See W, p. 134. (s) 33 & 34 Vict. c. 93, s. 8. _ ( p) See post, p. 135. (i) In order to constitute a joint \q) 45 & 46 Vict. c. 76, s. 2. tenancy there must be the four 46 RIGHTS AND OBLIGATIONS interest, even where the property was acquired by them in fee simple. For the general rule is that at the death of one joint tenant his interest is extinguished and the survivor or survivors have a right to the whole property hy survivorship. But to this rule there are certain exceptions. (a) Where the property is held for the purpose of some trade, or trading partnership, or other commercial transac- tion, and one joint tenant dies, the survivor or survivors will be regarded merely as trustees of the property to the extent of the deceased joint tenant's share (w), i. e., the representa- tives of the deceased will have an equitable right to his share, although the legal right to the whole property is vested in the surviving joint tenant, or joint tenants, by survivorship. (b) Courts of equity have always looked with disfavour upon joint tenancies, and have seized upon any circumstance which seemed to indicate an intention that the survivor should not take the whole beneficial interest, as furnishing an equit- able ground for interfering, and treating the survivor merely as a trustee of the deceased tenant's share for the benefit of his representatives («). Thus, where A. and B. purchase land and it is conveyed to them jointly in fee simple, but they pay the purchase-money in unequal shares, this circumstance will furnish sufficient evidence that A. and B. did not intend that the survivor should have the whole beneficial interest {y). Life Interests in Personal Property. (i.) Where a person is sole owner of personal property, he will, in the following cases, have merely a hfe interest : — (a) Where land has been granted to him for a term of ■unities, i.e., (1) unity of posses- and tenancies in common is sion; (2) unity of interest; (3) pointed out. unity of title; and (4) unity of {u) Wms. Personal Prop. p. the time of the commencement of 395, 13th ed. such title. See Wms. Eeal Prop. [x) Snell's Equity, 137, 8th ed. pp. 157 et seq., 16th ed., where the {y) Lake v. Oibson, 1 White & difference between joint tenancies Tudor's L. 0. p. 198. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 47 " 99 years [or any other definite term] if he shall so long live" (s), or with similar words showing an intention to give only a life interest. (h) Where he has acquired a term of years under a will which expressly gave him a life interest, or from which an intention to give merely a life interest could be implied. This is the only exception admitted by the common law to the rule that the absolute ownership of personal property can alone he recognised by the Courts («). (c) Where he has acquired any personal property under a will, or by assignment inter vivos, (except a term of years under a will), and the will expressly or by implication expresses an intention that he shall only have a life interest, or, in the case of an assignment inter vivos, it is declared by deed or writing, or even, it seems, by word of mouth, unless the pro- perty be a term of years (5), that he shall only have a life interest, this limitation will be recognised by the rules of equity, unless indeed the property be of a kind quce ipso usu consumuntur (as wines, &c.), and he will have a beneficial interest for life only (c). His legal interest passes in such cases to his representatives, for, as we have seen, the rules of com- mon law, with one exception, only recognise the absolute ownership of personal property {d), but such representatives will hold the property merely as trustees for the persons who may have an equitable right to it. (d) Where by will or assignment inter vivos any personal property has been given to another person to hold in trust for him, and an intention that he shall only have the beneficial interest for life is expressed in or can be implied from the {x) Wms. Eeal Prop. p. 446, (J) Snell's Equity, pp. 53, 54, 16th ed. Sth ed. (a) See Wms. Personal ' Prop. (c) Wms. Personal Prop. pp. p. 339, 13th ed. 341, 342, 13th ed. [d) Supra. 48 EIGHTS AND OBLIGATION'S ■ terms of the will, or, in the case of an assignment inter vivos, an intention to confer merely a beneficial interest for life is declared by deed or other writing, or even, it seems, by parol, provided the property be not a term of years (e), (ii.) Where a person is co-owner with one or more other persons, and the co-ownership constitutes a Joint ownership (as opposed to an ownership in common (/)), each joint-owner has, in effect, merely a life interest in the property. For the general rule is that at the death of one joint owner his interest is extinguished, and the survivor or survivors have a right to the whole property by survivorship. But to this rule there are certain exceptions. (a) Where the property is held for purposes of trade, the share of a deceased joint-owner vests in his personal represen- tatives (g'). This right of the personal representatives is conferred by the common law "for the advancement and continuance of commerce and trade which is pro bono publico, for the rule is, thatyws accrescendi inter mercatores pro beneficio commercii locum non habet"(h). (Id) Joint ownership of personal property, like joint tenancy of real property, is not favoured by equity, and therefore courts of equity have laid hold of almost any circumstances from which it could be reasonably implied that ownership in common was intended (i) . 2. Antecedent rights in personam. These are divisible into two chief classes, namely, (1) rights in personam not arising from contract, and (2) rights in per' sonam arising from contract (A;). (p) SneU's Equity, pp. 53, 54, 396, 398, 13th ed. 8th ed. (k) Holland's Jurisprudence, p. (/)Wms. Personal Prop. p. 392, 201, 4th ed. Profeiasor Holland 13th ed. describes class (1) as rights aris- (g) Ibid. p. 395. ing "ex lege." For definitions of (h) 1 Wms. Bxors, p. 656, 8th ed, a contract, see ibid. p. 211, and (i) Wms. Personal Prop. pp. Anson, Contracts, p. 9, 6th ed. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS, 49 (1) Rights in personam not arising from contract. Under this class are included the following rights in per- sonam {I) : — (i.) Domestic, i. e., those existing hetween hushand and ■wife, parent and child, guardian and ward. These rights are of course extinguished by the death of either party. (ii.) Those existing hetween a trustee and cestui que trust, executor and legatee and creditors of a deceased testator, adminis- trator and next of kin and creditors of a deceased intestate {m) . All rights of the cestui que trust, legatee, next of kia, and creditors pass hy succession ; except in cases where the cestui que trust or legatee has merely a life interest in the property held hy the trustee or executor ; and even in these cases the representatives of the deceased cestui que trust or legatee will have a right to any part of the income which has accrued due before the death. The rights of the trustee, executor, and administrator pass to a successor in the manner to be explained later on (»). Generally speaking, this successor is not the representative of the deceased. (iii.) Quasi-contractual (m), (o), i. e., those which arise where, without agreement or breach of duty or obligation, A. has paid something which B. ought to pay, or B. has received something which A. ought to have received, or A. has per- formed some service for B. for which B. ought to compensate (Z) Holland's Jurisprudence, (o) This seems to be the most pp. 202 et seq., 4tli ed. convenient term for describing tMs (m) For our present purpose it miscellaneous group of rights; see seems advisable to adopt this divi- Anson, Contracts, pp. 8, 370 — 372, sion, instead of following that of oth ed. It -will be observed that Professor Holland (Jurisprudence, - the term is not used in the wide pp. 204 — 206, 4th ed.), but ob- sense attached to quasi-contract viously it is not a scientific one. in Eoman Law. («) Post, pp. 147, 251. P. E 50. EIGHTS AND OBLIGATIONS him. For example, the right of one of several co-debtors, who has paid the whole debt, to recover from each of the others his proportionate share ; the right to recover money from A. which had been paid to him uader the mistake that he was B. ; the right of salvors of ships in distress to compensation from the owners ; the right of those who -have supplied necessaries to limatics and drunken persons, incapable of entering into an agreement, to be paid for the necessaries {p). Such rights pass to the representatives of the deceased person in whom thej were vested. (iv.) Official, i.e., the right to call upon a public, official to exercise his functions. "Such rights are enforced in English law against all ministerial officers, as collectors of customs, registrars of births, bishops, lords of manors, sheriffs, or postmen ; but high officials, such as the Postmaster-General, are not responsible for the negligence of their subor- dinates" {q). Where such rights are merely personal, e. g., the right to call upon a bishop to induct to a benefice, they are of course extinguished by the death of the person in whom they are vested ; ia other cases, i. e., when they affect his property, they pass to his representatives. From these rights against the official must be distinguished the rights of public officials against definite members of the community, e. g., the right of a tax-collector to receive income tax from every person whose income exceeds a fixed sum. At the death of the official such rights pass, of course, to his successor in the office, and not to his representatives : such rights are attached to the office, and not to the person who exercises it. {p) Gore V. Gibson, 13 M. & W. (?) Holland's Jurisprudence, p. 623 ; Baxter v. Portsmouth, 5 B. 207, 4tli ed. & 0. 170. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 51 (2.) Eights in personam arising from contract. We -will divide contracts into two classes, namely (i.) con- tracts whereby a single person acquires rights against another or others, and (ii.) contracts whereby two or more persons jointly acquire rights against another or others. (i.) Where a single person acquires rights imder a con- tract, such rights will pass at his death to his representative, unless the act or forbearance due under the contract is inti- mately dependent upon the individuality of the deceased, in which case the right is of course extinguished by his death ; e. g., the rights under a contract to marry, or to enter into a partnership, are extinguished by the death of either party to the agreement. (ii.) Where two or more persons jointly acquire rights under a contract, the general rule is that, at the death of one, his rights pass to the surviving contractor or contractors; but where the contract has been entered into for the purpose of some trade or commercial undertaking which the co-con- tractors were carrying on as partners, the representatives of a deceased co-contractor will be entitled to a share of any benefit which the survivor may derive from the contract (r). II. Remedial rights. The infringements of antecedent rights constitute either crimes or cwil injuries ; the distinction is that civil injuries are an " infringement or privation of the private, or civil, rights belonging to individuals, considered as individuals ; crimes are a breach of public rights and duties which affect the whole community, considered as a community " (s) . Where the infringement constitutes a crime, the wrong-doer will be punished by the state, and, generally speaking, the individual who is injured will have no remedial right ; his death, there- (r) 1 Wms. Exors. p. 850, Stli ed. (s) 2 Bl. Com. p. 2. E 2 52 EIGHTS AND OBLIGATIONS fore, will not affect the liability of tlie wrong-doer. In some cases, however, the injured party has a remedy independently of the prosecution by the State^n some cases of libel for instance— and this remedial right is subject to the same rules as those arising from civil injuries. When the infringement constitutes a civil iajury, the injured party always has a remedial right against the wrong-doer. Civil injuries may be divided into the three following classes — 1. Breaches of Trust ; 2. Breaches of Contract ; and 3. Torts. 1. Breaches of trust. — These are infringements by the trus- tee, executor, or administrator, of the rights in personam of the cestui que trust, legatee, next of kin, or creditors of a deceased person. Where the breach of trust consists ia the mismanagement or misapplication of the estate of a deceased person by the executor or administrator it is termed, in tech- nical language, a devastavit. Where a breach of trust or devastavit has been committed the injured party has a right that the trustee, executor, or administrator should make good the loss which he has caused, and this right passes, at the death of the iajured party, to his representatives. If, for instance, 1,000^. has been given to A. in trust to invest it in Grovernment securities and to hold such securities in trust for B., and A. lends the money on personal security to X. who becomes bankrupt, and in consequence 900/. is lost, B. will have a right that A. should make good the 900/. out of his own property, and if B. should die before he has enforced his right his repre- sentatives will be entitled to enforce it. 2. Breaches of contract. — These are infringements of the rights in personam arisiag from contract. In all cases the injured party may sue for damages for the breach, but in some cases he may, instead of suing for damages, bring an WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 63 action for specific performance, i. e. to compel the otlier party to perform tlie contract. At the death of the injured party these rights pass to his representatives, unless the contract is of that class which, -we have seen (s), are extinguished hy his death. Where the contract is of that class, the maxim actio personalis moritur cum persond {t) applies, and the right to sue for the breach does not pass to the representatives of the deceased, unless it has resulted in actual loss to the estate of the deceased, and then only for the amount of the actual loss. Thus in Chamberlain V. Williamson (?(), A. promised to marry B., and broke his promise ; B. died without having sued A. for breach of promise of marriage ; and her executor brought the action : the Court held that the executor could not bring the action, since it was not certain that the breach of contract had caused damage to the estate, for " although marriage may be regarded as a temporal advantage to the party as far as respects personal comfort, stiH it cannot be considered as an in- crease of the transmissible personal estate." On the other hand, in Bradshaw Y.Lancashire 8^ Yorkshire Ry. Co. («), A. had been injured in a railway accident, and died after incurriag the expense of medical attendance rendered necessary in conse- quence of the injuries he had sustaiaed : it was held that the representatives of A. could not sue for breach of the implied contract to carry the deceased safely, but that they had a right of action to recover the amount of the actual loss incurred by his estate in consequence of the medical expenses. 3. Torfo.— These are all infringements of rights in rem or in personam except breaches of trust and breaches of contract. This is somewhat wider than the meaning usually attached to the term tort in EngUsh law (y), but is convenient for our present purpose. It) For the most recent exposi- (a!) 1.. -K. lU O- r. laa. _ tion of tliis maxim, see Finlay v. {y) See Hoi land's Junspru- Chimey, 57 L. J. (N. S.) Q.B. 247. deuce, p. 269, 4t]i ed. 54 RIGHTS AND OBLIGATIONS Where a tort has been committed, the injured party has a right to sue the ■wrongdoer for damages, and the general rule is that this right to sue is extiaguished hy the death of the injured party — this heing another case where the maxim actio personalis moritur cum persond applies. To this general rule there are the following exceptions : — (1) Where a person has been accidentally killed ia conse- quence of some wrongful act, neglect, or default of another person, Lord Campbell's Act (z), confers a right of action for damages upon the personal representatives of the deceased ; and (if the personal representatives do not briag the action within six months after the death) upon the persons benefi- cially interested. But the action can only be brought for the benefit of the widow, husband, parents, or children of the deceased, and the jury who assess the damages are to direct by their verdict the manner in which such damages are to be distributed. (2) The personal representatives of a deceased person have a right to sue the wrongdoer in respect of any injury to the personal estate of the deceased, provided such injury has rendered the estate less beneficial to the personal representa- tives (a) ; e.g., a horse belonging to A., and which is worth 100^., is wrongfully injured by B., and in consequence its value is reduced to 201. ; A. dies before he has sued B. A.'s personal representatives wOl have a right to sue B. for 801., which represents the loss to the estate caused by the wrongful act of B. (3) The personal representatives of a deceased person may bring the same action for injuries done to the real or personal estate as the deceased might have brought had he lived, pro- vided the injury has been committed within six calendar month before the death of the deceased, and the action is brought within one year after his death (J). If this proviso be not fulfilled, the (z) 9 & 10 Vict. c. 93. p. 797, 8th ed. (a) 4 Edw. III. 0. 7 ; 15 Edw. (J) 3 & 4 Will. IV. c. 42, s. 2, III. c. 5. See 1 Wms. Exors. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 55 personal representatives have no rigM of action, unless the case comes within exception (2), «.f., there is actual loss to the personal estate ; but if it be fulfilled, the representatives have the same right of action as the deceased, and are not hound to prove actual loss : e.g., they could sue for a mere trespass, although no positive loss could he shown to the personal estate. N.B. — Where a person has brought an action to enforce a remedial right, arising out of either breach of contract or tort, and before his death has obtained judgment or even a verdict in his favour, the benefit of the judgment or verdict will pass, at his death, to his representatives (c), although the remedial right may have been one which would have been extinguished by his death; e.g., if A. has sued B. for damages for breach of promise of marriage, and has obtained a verdict for 100/. damages, and dies the moment after the verdict, the right to payment of the 100/. will pass to A.'s personal representa- tives; so if A. has obtaiaed a verdict for 10/. damages against B. for an assault, or libel, the right to the 10/.. wiU pass in like manner at A.'s death. But the bringiag of an action has no such effect if the plaintiff should die before obtaiaiag judgment or a verdict. B. Ohligations. The terms " duty " and " obligation " have been used as synonymous by some writers {d), and it is therefore necessary to explain the meaning attached to them in the following A duty is the general liability to respect rights in rem which is imposed by the law upon every person other than the person in whom the right is vested ; in other words, a duty is the liability which correlates to a right in rem: e. g., (c) 2 Wms. Exors. p. 1747, Court, 1883, Ord. XVII. r. 1. 8th ed.; Eules of the Supreme [d) Austin and Bentham. 56 EIGHTS AND OBLIGATIONS A. is o-wner of a f axm ; every other person is under a duty to respect A.'s rights of ownership. An obligation is the special Kahility imposed by law upon a definite person or persons against whom another definite person has a right ; in other words, an obligation is the lia- bility which correlates to a right in personam (e) ; e. g., B. has contracted to perform some service for A., or B. has assaulted A. ; in each case A. has a right in personam against B., and B. is under an obligation to A. It is obvious that duties as above defined cannot pass from one person to another, for they are common to every citizen : we are therefore only concerned with obligations. As obligations correlate to rights in personam, they may be divided in the same manner. I. Obligations which correlate to antecedent rights in personam. 1. Where the right in personam does not arise from contract. (1) Domestic Obligations. — These are extinguished by the death of husband or wife, parent or child, guardian or ward. (2) Obligations existing between trustee and cestui que trust, erecutor and legatee and creditors, administrator and next of kin and creditors. — These obligations pass to a successor in the manner explained later -on (/), except where the obH- gation is personal to a trustee — where for instance a discre- tionary power is given- to him by the creator of the trust which is to be exercised in performing the trust {g). As a rule, the successor is not the representative of the deceased. (3) Quasi-contractual Obligations. — These pass to the repre- sentatives of the deceased person who had incurred them. (4) Official Obligations. — The obligations of a puhHo official pass to the person who is appointed to succeed to the office, (e) See Anson, Contracts, p. 6, (/) Post, pp. 147, 251. Sth ed. ; Holland's Jiirisprudence, {g) See post, p. 149. pp. 199, 200, 4th ed. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 57 and not of course to the representatives of the deceased official. The obligations of a private person to public officials pass to his representatives, except where the obligation was merely personal to the deceased; e.g., the obligation to pay a tax ■wiU pass, but the obligation to obey a summons of the sherifE to serve on a jury is of course extinguished by death. 2. Where the right in personam arises from contract. (1) Where a single person incurs an obligation under a contract, such obligation will, at his death, pass to his repre- sentatives, unless the performance of the contract is intimately dependent upon the individuality of the deceased; e. g., the obli- gations arising from a contract to marry, to enter into a partnership, to sing at a concert, are extinguished by death. (2) Where two or more persons jointly incur an obligation- under a contract, the general rule is that, at the death of one, his obligation is extinguished, and the surviving contractor or contractors alone remain liable to discharge the whole obliga- tion. But where the contract has been entered into for the purpose of some trade or commercial undertating which the co-contractors were carrying on as partners, the representatives of a deceased co-contractor will be liable to share any loss incurred under the contract by the survivor [h). II. Obligations which correlate to remedial rights in per- sonam. 1. Where the right in personam arises from a breach of trust. The obligation to make good losses occasioned by a breach of trust passes to the representatives of the trustee, executor, or administrator («). {h) 2 Wms. Exors. pp. 1747, Cadogan, 17 Ves. 485; as to exe- 1748, 8tli ed. cutors and administrators, 4 Will. (»■) As to trustees, Mountford v. & M. o. 24, s. 12. 58 EIGHTS AND OBLIGATIOKS 2. Wliere the right in personam arises from breach of con- tract. The ohligation to pay damages for breach of contract, or, in some cases (k), to specifically perform it, passes to the re- presentatives of the deceased contractor, except when the con- tract was of that class which, we have seen, are extinguished by death {I), for in these cases the maxim actio personalis moritur cum persona, applies: e.g., A. was engaged to marry B., broke his promise, and died ; B. sued A.'s executors for damages for breach of promise of marriage : it was held that the action would not lie (w). But it seems probable that even in these cases the representatives of a deceased person would be liable to make good any actvMl pecuniary hss which has been caused by the breach of contract of the deceased. 3. Wliere the right in personam arises from tort. Here the maxim actio personalis moritur cum persond again applies, and all obligations to pay damages for tort are ex- tinguished by the death of the wrongdoer. But to this rule there are the following exceptions : — (1) Where the personal estate of the deceased wrongdoer has derived actual benefit fi-om the tort, his personal repre- sentatives are liable to be sued for damages to the amount of such actual benefit. It seems that such benefit must consist in the " acquisition of property or its proceeds or value" (»). (2) By 3 & 4 WiU. IV. c. 42, s. 3, it is provided that the personal representatives of a deceased person may be sued for any wrong committed by the deceased in his lifetime " to the property, real or personal," of another person ; provided such injury has been committed mthin six calendar months before such deceased person' s death, and provided the action be brought within six calendar months after his personal representatives had taken upon themselves the administration of his estate. (Jc) SeeAnson, Contracts, p. 317, (m) Finlayj. Ohirney,5TL.3- 5th ed. (N. S.) Q. B. 247. {I) Supra, p. 51. (») Phillips v. Homfray, 26 Ch. D. 439, 454. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 59 It wiR he observed that unless these provisoes are fulfilled, HO obligation for tort passes to the representatives of the deceased, unless the case falls under exception (1), and that these exceptions only relate to injuries to the property of the N.B. — Where an action has been brought against a person for breach of contract or tort, and judgment, or even a verdict, has been obtained against him, the judgment or verdict will, at his death, be binding upon his representatives, even though the breach of contract or tort may have been one which would have been extinguished by his death (o) : e. g., A. has sued B. for breach of promise of marriage and obtained a verdict for 100^. damages ; B. dies ; his represen- tatives wiU be bound to pay the 100^. So if A. has obtained a verdict for 10/. damages against B. for an assault, and then B. dies, B.'s representatives will be bound to pay the 10/. But ia such oases the mere bringing of an action imposes no obligation on the representatives of the defendant if he should die before judgment or a verdict has been obtained. Liability for Crime. — Before leaving the subject of obliga- tions it must be mentioned that where the infringement of a right constitutes a crime, the liability for the crime is extin- guished by the death of the wrongdoer. (o) 2 Wma. Exors. p. 1747, 8th. ed. ; Eules of tHe Supreme Court, 1883, Ord. XVII. r. 1. 60 KIGHTS AND OBLIGATIONS CHAPTER II. EEAL AKD PERSONAL ESTATE. The real estate of a deceased person consists of those rights whicli will pass by succession to his real representa- tives ; his personal estate consists of those rights which will pass by succession to his personal representatives. We will deal first with rights in rem, and secondly with rights in per- sonam. A. Rights in rem. We have already seen that the only rights in rem which pass by succession are rights in rem over property {a) . The question whether a given right in rem passes to the real representatives, or whether it passes to the personal representatives, of the deceased, depends upon the nature of the property which forms the subject-matter of the right. If such property be real property it passes to the real representa- tives ; if it be personal property, it passes to the personal representatives. The question, therefore, which we have to consider is, what property is real and what personal (6) . The basis of the division of property into real and personal is the distinction, recognised at a very early period of EngUsh law, between land and moveables (c), and the general rule is, that all estates and interests in land are real. property, while moveables, and all interests in moveables, are personal pro- perty. To this general rule there are a number of exceptions, (a) Supra, p. 43. of Law, ss. 129, 130; and Wme. (6) As to the origin of the terms Eeal Prop. pp. 6 et seq., 16th ed. real and personal, as applied to (c) Supra, p. 15. property, see Markby's Elements WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 61 some of which appear to date, like the rule, from an early period, while others have heen introduced from time to time as new kiads of property, or interests m property, came into existence. It would he impossible, within the limits of this treatise, to enumerate all the exceptions to the general rule, but the more important are included in the following general statement. Heal property comprises all freehold and copyhold estates, whether in possession, reversion, or remainder, easements and profits whether appendant or appurtenant, seignories and ad- vowsons whether appendant or in gross, rents seek, rentcharges, and commons in gross, and everything growing on, or per- manently attached to, land, as trees, or houses or other build- ings, or "fixtures," i.e., things permanently affixed to houses or other buildings or land. Personal properii/ comprises all moveable property and all interests in moveable property, e.g., horses, sheep, money, plate, furniture not permanently affixed to a house, trees which have been cut or blown down, fixtures which have been severed from the land or building to which they were attached, stock in the public funds, securities for money {b), &c., &c. Eipceptions. The following kinds of property are personal : — 1. Terms of years and leases of land (c). 2. Emblements, i. e., things growing upon land, but which are the annual produce of agricultural labour, such as crops of grain, flax, hemp, or roots {d). 3. Shares in canal and railway companies are generally made personal property by the Acts of Parliament under which such companies have originated ; but it seems that (in (6) As to mortgages of real pro- exception is explained, perty, see post, p. 139. W Wms. Personal Prop. p. 25, (c) See Wms. Eeal Prop. p. 10, 13tli ed. ; and see further, as to 16th ed., where the origin of this emblements, post, p. 145. 62 EIGHTS AND OBLIQATIONS the absence of express legislation) shares in compames, formed for an object which is necessarily connected with the holding of land, are, as a rule, real property (e), hut in other cases they are personal, although the company may have power to hold land (/). 4. Real property acquired by partners for partnership pur- poses is, as a general rule, considered personal to this extent, that at the death of a partner the equitable right to his share will pass to his executor or administrator, and not to his heir. But the terms of the partnership agreement may be such as to exclude the general rule (g). (This exception is founded upon the doctrine of conversion, see next page.) 5. "Where a tenant pur autre vie dies without having devised his estate, and there is no special occupant, the estate pur autre vie passes to the executor or administrator of the tenant (A). 6. The next presentation to a benefice is personal property in two cases. (1) When the benefice has become vacant. In this case the right to present is " a chattel personal, like rent due or any other fruit fallen " («). (2) When the owner of the advowson has granted the next presentation to another person. The right to present, although the benefice is not vacant, will be personal property of the grantee (i). The following kinds of property are real. 1. Title deeds of land. 2. Heir-looms. " They may be defined to be such personal (e) BKcferWjre V. JKjrram, 2 Ves. (Ji) 29 Oar. II. c. 3, s. 12, re- jun. 653. pealed and virtually re-enacted (/) Bligh V. Brent, 2 Ton. & by 7 Will. IV. & 1 Vict. c. 26, CoU. 268. ss. 3, 6; Wms. Eeal Prop. p. 26, (j) 1 Lindley, Partnership, p. 16tli ed. 670. (i) lWms.Exors.p.676,8tlied. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 63 chattels as go, by force of a special custom, to the heir, along ■with the inheritance, and not to the executor or administrator of the last owner. . . . The ancient jewels of the Crown are heir-looms. And if a nobleman, knight, or esquire be buried in a church, and his coat armour or other ensigns of honour be set up, or if a tombstone be erected to his memory, his heirs may maintain an action against any person who may take or deface them. The boxes in which title-deeds of land are kept are also in the nature of heir-looms " {V). In popular language the term " heir-looms " is generally applied to plate, pictures, &c., assigned by deed or bequeathed by will to trustees in trust to permit the same to be used for the time being by the owners of certain real estate {k). Such heir-looms are not real property ; the right to use them passes to the owner of the land by reason of the trust. 3. Titles of honour, e. g., peerages. It must be observed that equitable rights in rem are subject to the same rules as legal rights in rem. Thus if real pro- perty be vested ia trustees in trust for A. in fee simple, A.'s equitable right wiU. pass at his death to his heir or devisee ; and if personal property be vested in trustees in trust for A. absolutely, A.'s equitable right will pass at his death to his administrator or executor. It may happen, however, that property may be real pro- perty according to the rules of law, but may be personal property according to the rules of equity, or vice versa. This is the result of the equitable doctrine of conversion to which we must refer very briefly. It is an established principle of equity, " that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property/ into which they are directed to be con- verted ; and this in whatever manner the direction is given, {h) Wms. Personal Prop, p, 19, 13th ed. 64 EIGHTS AND OBLIGATIONS whetlier by will, by way of contract, marriage articles, settle- ment, or otherwise ; and whether the money is actually deposited, or only covenanted to be paid, whether the land is actually conveyed, or only agreed to be conveyed, the owner of the fund, or the oontractiug parties, may make land money or money land " (to) . For example, if land be conveyed to trustees in trust to sell it and to hold the proceeds of sale in trust for A., and before the land is sold A. dies, his interest will be an interest in per- sonal property and will pass to his personal representatives, for, in consequence of the trust to sell, the land will be treated in equity as converted into money /row the moment the trust teas created. On the other hand, if money had been given to the trustees in trust to invest it ia land, and to hold the land in trust for A. in fee simple, A. would immediately have acquired an interest in real property which would have passed to his heir, although the money had not been invested in land at the time of his death. Again, suppose A. enters into a contract with B. to sell a piece of freehold or copyhold land ; the effect of the contract will be to convert the land into personal property from the moment the contract was entered into : accordingly, if A. dies the moment after the contract has been made, the right to receive the purchase-money of the land will pass to his personal representatives. So, on the other hand, if A. con- tracts to purchase land and dies before the contract has been carried out, it was formerly the law that the money which he had agreed to give for the land was converted into real estate from the moment the contract had been made, and accordingly the real representatives were entitled to have the land con- veyed to them, and the personal representatives were bound to pay for it. But by a recent Act («), the real representa- (m) Fletcher v. Ashburner, 1 (n) 40 & 41 Vict. c. 34. See Bro. 0. C. 497 ; 1 Smith's Lead- post, p. 140. ing Oases, 899. WHICH PASS BY SUCCESSIONj AND THEIE DIVISIONS, 65 ,tive must pay tlie puroliase-moiiey out of his own pocket in case the deceased died since the 31st Decemher, 1877. We must ohserve, however, that in these cases equity does not alter the succession to the legal right in rem either to the land contracted to he sold, or to the money agreed to he paid for land: the former, like other real property, passes to the real representative, the latter to the personal representatives, hut in the former case the personal representatives have an equitable right in personam to the purchase-money, while in the latter the real representative has an equitable right in personam (1) to have the land conveyed to him, and (2) to have the purchase-moaey paid by the personal representatives, provided the deceased died before the 1st January, 1878 (o). In case of the death occurring after 31st December, 1881, the personal representatives have power to convey the land to the purchaser, if it be of freehold tenure {p). B. Bights in personam. The general rule is that all rights in personam pass to the personal representatives. The only exceptions to this rule seem to be the following : — I. Mights to the benefit of Covenants which run with the Land or with the Reversion. Covenants of this kind are covenants which "touch or concern " land in which the covenantee has an estate in possession or reversion. They are said to " run with " the land or reversion, because every successive owner of the land or reversion has a right to enforce them, or to recover damages for their breach, ]ust as the original covenantee might have done. ■ They may be entered into between the owner and a person to whom he demises the land {i.e., between lessor and lessee), (o) 40 & 41 Vict, c. 34. (2)) 44 & 45 Vict. c. 41, s. 4. P. F 66 EIGHTS AND OBLIGATIONS or between the owner and some person other than a lessee, e. g., covenants for title between vendor and purchaser. The old conunon law rule was that covenants between lessor and lessee " ran with the land but not with the rever- sion" — ^that is, they ran with the leasehold interest of the lessee, but did not run with the reversionary interest of the lessor. But this rule has been altered by 32 Hen. VIII. c. 34, in aU cases where the lease is under seal ; so now all such covenants run with the reversion as well as with the land, provided the lease is under seal. Of course the lessee's rights to the benefit of such a covenant pass at his death to his executor or administrator together with the leasehold interest. Covenants which run with the land or reversion may be divided into two classes — (1) Covenants which relate to something to be done to the land itself, or to a thing in esse parcel of the land : e. g., cove- nants for quiet enjoyment of the land, or to repair buildings already existing on the land. Such covenants pass to the heir or devisee although they may not have been named in the covenant, and even where the covenant was expressly made with the covenantee and "his executors and administrators." "If a man leases for years, and the lessee covenants with the lessor, his executors and administrators, to repair and leave in good repair at the end of the term, and the lessor dies, his heir may have an action upon this covenant ; for this is a covenant that runs with the land {q) and shall go to the heir though he is not named" (>•). (2) Covenants which relate to something not in existence at the time the covenant is entered into, but which, when it does come into existence, will be annexed to the land, e.g., a covenant to build a wall or a house. {q) The reversion ia evidently (r) Bacon's Abr. CoTenant intended. (E. 2) WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 67 But in order that these covenants may run with the land or reversion, the heirs and assigns of the covenantee must he expressly included in the covenant (s) unless the covenant ■was made on or after January 1st, 1882. As to covenants made on or after that date, the Oonveyanciug and Law of Property Act, 1881 (i!), provides (m) that they "shall be deemed to he made with the covenantee, his heirs and assigns, and shall have effect as if heirs and assigns were expressed." It must be observed that the mere expression of " heirs and assigns " in a covenant does not make it run with the land or reversion. If the covenant does not "touch or concern" the land itself {i.e., if it does not relate to the land itself or to something annexed or to be annexed to the land), but relates to something which is merely collateral, the real representa- tives will (subject to the foUowiag exception) acquire no right under the covenant, though it purports to be made with the " heirs and assigns " of the covenantee. Thus, a covenant by a lessee to pay a sum of money to the lessor, his heirs and assigns, would confer no right on the real representatives, and only the personal representatives could sue on the covenant. An exception has been introduced by courts of equity in certain cases («) of collateral covenants entered into for the purpose of improving the value, or preventing the deprecia- tion in value of the land of one person by restraining an adjoining land owner from using his land in a particular manner, e.g., to restrain him from building a public house on it. Such covenants are merely collateral, for they do not "touch or concern" the land benefited; they merely confer an indirect benefit by means of a restraint placed on the user of other land. At common law they did not run with the land to be benefited, and equity does not profess to make {«) But if onlyheirswere named, («) 44 & 45 Vict. c. 41. the heir would be entitled to the {u) Sect. 58 (1). benefit of the covenant. (as) See 'post, p. 74. f2 68 EIGHTS AND OBLIGATIONS them so run, but practically gives them that effect hy con- ferring on the heirs and assigns of the covenantee an eqmtahle right to enforce the covenant. " Anyhody entitled to have the benefit of the restricting covenant may come to a court of equity to restrain the defendant, not on the ground that he is breaking a covenant which runs with the land, but on the ground that he is dealing with the land inequit- ably" (y). If, however, the covenantoi' has assigned his interest in the land, his assignee will not be bound by the covenant Mwfess he had notice of it. This subject will be fur- ther dealt with when we come to consider the obhgations which pass to the heir, II. Rights under Covenants the performance of which would confer a Freehold Interest. In addition to covenants running with the land or the reversion, it seems that the benefit of any covenant, the per- formance of which would confer an interest in freehold pro- perty upon the covenantee, will be regarded as a covenant real (s), so that the rights arising under it pass to the heir or devisee of the covenantee. Thus, a covenant by A. to enfeoff B. and his heirs, if not performed during the lifetime of B., would enable the heir of B. to sue A. on the covenant ; and so where three coparceners purchased land in fee, and mutually covenanted " for them and their heirs," with "them and every of them and their heirs," that the survivors should convey to the heirs of such as should die first an equal part with such survivors, it was resolved that this was a real covenant, and went to the heir of the covenantee (a). {y) Per Cotton, L. J., Fair- sentatives can enforce. dough V. Marshall, 4 Ex. D. 37. (a) Wooton v. Oooke, Jenk. 241 ; (a) Covenants real are merely 1 Wms. Bxors. p. 809, Sth ed. covenants which, the real repre- WHICH PASS BY SUCCESSION, AND THEIE DIVISIONS. 69 III. Bights arising from hreaehes of Covenants real (i. e., the Covenants contained in I. and II. It may happen that a breaoli of a covenant real has occurred during the lifetime of the deceased, but damages for the breach have not been recovered before his death. In these cases it is sometimes difficult to decide whether the real or the personal representatives have the right to sue for damages for the breach, but the general rules of law on the subject seem to be as follows : — Where the covenant is of such a kind that damages for breach of it may be recovered from time to time (as in the case of a covenant by a lessee to repair buildings, &o.), the personal representatives, and they alone, will be entitled to sue upon the covenant for damages which have accrued duriug the hfetime of the covenantee ; although it may often be difficult to apportion the damages, i. e., to separate those which accrued before, from those which accrued after, the death (6) . Where the covenant is of such a kiad that damages for its breach must be recovered once for all, or, in other words, where an action haviag once been brought upon the breach, and damages recovered, no fui-ther action will lie against the covenantor (as in the case of a covenant for title), the rules established by the cases may be thus summarized : — (1) Where a formal breach has been committed during the lifetime of the deceased, but the ultimate damage resulting from it does not accrue until after the death of the deceased, the heir or devisee alone has the right to sue. Thus, in King v. Jones (c), Gr. and his wife conveyed lands to K., and covenanted that they would do all reasonable acts for the further assurance of K.'s title. At that period it was (i) Kingdon v. Nottle, 1 M. & (c) 5 Taunt. 418; affirmed, 4 M. S. 355, 365. & S. 188., 70 EIGHTS AND OBLIGATIONS necessary, in addition to the conveyance, that a fine should be levied {d),m order to give K. a good title against persons claiming imder Gr.'s wiEe. The levying of a fine was an act of further assurance to which K. was reasonably entitled under the covenant, and he requested that it might be levied; Gr. and his wife failed to comply with this request, and thus committed a breach, duiing the life of K. On K.'s death his heir took possession of the land, but was subsequently ejected by a person claimiug tmder Gr.'s wife. It was held that the heir of K. was alone entitled to sue on the breach. Heath, J., in delivering the judgment of the Court, said (e) : " It appears that John King, the ancestor, was a willing purchaser ; he paid his purchase-money, relying on the vendor's covenant ; he required him to perform it, but gave him time, and did not sue him instantaneously for his neglect, but waited for the event. It was wise so to do until the ultimate damage was sustained; for otherwise he could not have recovered the whole value : the ultimate damage, then, not having been sustained in the time of the ancestor, the action remained to the heir (who represents the ancestor in respect of land, as the executor does in respect of personalty) in preference to the executor." So, in Kingdon v. Nottle (/), N. conveyed land to K., and covenanted that he had a good title ; it turned out that N. had not a good title, and therefore K. had a right to sue him for breach of covenant ; K., however, died without haviug done so, and his executrix brought an action against N. to recover damages for the breach. It was held that she had no right to sue N. The reason was thus given by Bayley, J. {g), " The testator [». e., K.] might have sued in his lifetime ; but having forborne to sue, the covenant real, (d) See, as to a. fine, Wms. Eeal (/) 1 M. & S. 355. Prop. pp. 66, 270, 13th ed. {g) At p. 365. (e) 5 Taunt, at p. 427. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 71 and the right to sue thereon, devolved with the estate upon the heir. If this were not so, and the executrix was per- mitted to take advantage of this breach of covenant, she would he recovering damages to he afterwards distributed as personal assets, for that which is reaUy a damage to the heir alone; and yet such recovery would be a complete bar to any action which the heir might bring." The same judge, how- ever, said, during the argument of the case, " If it had been alleged that the testator was prevented from selHng, perhaps the executor might have maintained the action" {h). (2) "Where the ultimate damage, as well as the breach, has occurred during the lifetime of the deceased, the personal representatives alone are entitled to sue on the breach. Thus, in Lucy v. Levington (i), L. covenanted with J. S. to levy a fine and for quiet enjoyment of certain lands. J. S. was evicted from the lands and then died. His executor sued L. on the covenants, and it was held that he was entitled to recover damages for the breach. IV. Bights arising under simple Contract. At common law the rights arising imder simple contract pass to the personal representatives alone. "In all cases where the heir has sued, the action has been on a covenant, but he can have no right of action on a mere agreement to seU" {k). But where the contract is for the purchase of real property by the deceased, the heir or devisee will have a right to en- force performance of it in equity [I). This occurs in every case where the contract was a binding one, as against the other party to the contract, before the death of the deceased contractor, (A) 1 M. & S. at p. 362. 533, 539. (i) Ventris, p. 175. [l) 'Sty, Specific Performance, (ft) Orme V. ^j-OMjAtow, lOBing. p. 84, 72 , EIGHTS AND OBLIGATIONS OHAPTEE III. THE MANNER IN WHICH THE OBLIGATIONS OF DECEASED PER- SONS ARE DIVIDED BETWEEN THEIR REAL AND PERSONAL REPRESENTATIVES, In the first place it must he otserved that the question which we have to determine is this : — Suppose A. incurs an obhga- tion to B., and dies hefore he has performed it, can B. enforce the obligation onli/. against the real representatives, or only against the personal representatives, or can he enforce it against either at his own discretion? We shall see later on («) that, in some cases where an obligation has been en- forced against one set of representatives, they will be entitled to be reimbursed by the other set, but with these questions of conflicting rights and obligations as between the real and personal representatives themselves, we are not here con- cerned. The general rule is, that all obligations of a deceased person pass to and become binding upon his personal repre- sentatives onli/; so that they alone can be sued upon such obligations. To this rule there are the following exceptions : — I. Obligations to pay Money charged upon the Beal Property of the Deceased. For example, the payment of portions to younger children, or an annuity charged upon the real property of the deceased. Obligations of this kind bind only the real representatives when the obligation is intended to be satisfied entirely out of (m) Post, p. 140. WHICH PASS BY SUCCESSION, AND THEIE DIVISIONS. 73 tlie real property (which often happens in cases of merely voluntary charges, such as portions). But where this is not the iatention — for instance, where the charge is merely a secu- rity for payment of money, or where, in addition to the charge upon the land, there is a covenant for payment — the obligation will hind both real and personal representatives. II. Obligations arising tinder covenants which run with the Land or Reversion. When such covenants have been entered into between a lessor and lessee the burdens which they impose run with the land or the reversion in the same manner as the benefits they confer. Thus the heir or devisee of the lessor is bound by all covenants which " touch and concern the land demised," and were entered into by the lessor for the benefit of the lessee ; while the administrator or executor of the lessee is bound by all such covenants of the lessee as were entered into by him for the benefit of the lessor. As we have seen (o), m order that a covenant may run with the reversion, the lease must have been made by deed [p), and this applies as well to the burden as to the benefit of a covenant. But this rule only applies where the parties to the covenant stand in the relation of lessor and lessee. In all other eases, as, for instance, covenants entered into between vendor and purchaser, a covenant which restricts the covenantor's enjoy- ment of his land does not run with the land unless the restric- tion he one of a certain class, known and recognised by the com- mon law as easements and profits (q). The principle upon which the common law courts acted was that "great detri- ment would arise and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying {o) Supra, p. 66. ^ (j) See Anson, Contracts, p. 243, Ip) 32 Hen. VIII. c. 34. 5th ed.; Pollock, Contracts, p. 227, 4th ed. 74 EIGHTS AND OBLIGATIONS real property, and to impress upon their lands and tenements a pecnliar character, whicli should follow them into aU hands however remote " (r). An exception to the common law rule has, however, been introduced by the courts of equity ia the case of covenants entered into between adjoiniag landowners for the purpose of restraining one or both of them from using their land ia a particular maimer, although the restraint creates a kind of easement unknown to the common law, e.g., a covenant not to build a public house on the land. The exception seems only to have been applied in eases where the covenantor pur- chased his land from or sold it to the covenantee, and entered into the covenant at the time the conveyance was executed ; but the principle upon which the exception is founded would seem to be applicable to other cases. This principle is ex- plained in the leading case of Tulk v. Moxhay (s). In that case A. had sold land in Leicester Square to B., and B. had covenanted not to use the land for building purposes; A. was the owner of houses ia the square ; B. sold the land to C, who had notice of the restrictive covenant. It was held that the covenant was binding on G., and the law was laid down as follows : — "It is said that, the covenant being one which does not run with the land, this Court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased That the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this Court would enforce it against a party purchasing with notice of it ; for if an equity is attached to the property by the owner, no one purchasing (r) Keppell v. Bail&j, 2 My. & E. 517. (s) 2 Ph. 774. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 75 ■witi. notice of that equity can stand in a different situation from tke party from whom he pioxchased." (t). But this principle only applies to restrictive covenants, and not to covenants to do something to the land. In London and South Western Railway Co. v. Gomm {u), Jessel, M. E., referring to Tulk v. Moxhay, said {x) the case " was yery much considered by the Court of Appeal at Westminster in Haywood V. The Brunswick Permanent Benefit Building Society (y), and the Court there decided that they would hot extend the doctrine of Tulk v. Moxhay to affirmative covenants compelling a man to lay out money or do any other act of what I may call an active character, hut that it was to be confined to restrictive covenants. Of course that authority would be binding upon us if we did not agree to it, but I most cordially accede to it." Constructive notice (s) of the covenant will be sufficient to bind a subsequent purchaser of the land, and an omission on his part to satisfy himself as to the nature of his vendor's title may render hiTn liable for an unconscious breach of the covenant (a). The result is that restrictive covenants of this kind, although they do not run with the land at common law, now have practically the effect of covenants running with the land. If, therefore, a man purchases land with notice of a restrictive covenant of this kind, and dies, the covenant will be binding upon his heir or devisee ; so, if a man enters into a covenant of this kind at the time of purchasing land, and dies, the covenant will be binding upon his heir or devisee. (*) Tulk V. Moxhay, 2 Ph. 774, containing tlie covenant, he wiU at p. 777. ^® hB[A. to have had notice of it, (a) 20 Ch. D. 563. although, as a fact, he has not (k) At p. 582. read it. \y) 8 a B. D. 403. («) Dart, V. & P., vol. ii. p. 769, (z) I. e., where a man has the 5th ed. opportunity of inspecting the deed 76 EIGHTS AND OBLIGATIONS III. Obligations arising from certain other Contracts under Seal. In addition to the cases just mentioned of covenants run- niag witli the land or reversion, the heir of the deceased was always liahle, to the extent of the freehold property to which he had succeeded, to pay any deht or fulfil any contract, in case the deceased had hy any deed or writiug under seal expressly bound his heirs as well as himself to pay the deht or fulfil the contract (a) ; hut the heir was not liahle ia case he only succeeded to copyJiold property. But until the reign of William and Mary the devisee was not bound by the deed of the deceased, although such deed would have bound the heirs. In that reign, however, an Act was passed which made the devisee also liable in cases where the deceased had bound his heirs by deed (h). It will be observed that the real representatives were not bound unless the deceased person had expressly made the deed binding on his heirs. But by the Conveyancing and Law of Property Act, 1881, it is now provided that ia the case of contracts under seal entered into on or after January 1st, 1882, such contracts, though not expressed to bind the heir, shall operate in law to bind the heirs and real estate, as well as the executors and personal estate, of the person mating the same as if heirs had been expressed (c). The heir or devisee may be sued personally {d) for debts payable under deeds in which the heir is expressly bound, or, if the deed be executed on or after January 1st, 1882, under o«y contract under seal, and judgment given against him to the extent of the real property to which he has succeeded. (a) Wms. Eeal Prop. p. 100, amending its provisions, by 11 16tli ed. Geo. IV. & 1 WiU. IV. o. 47. (6) 3 & 4 Will. & M. 0. 14, s. 2, (c) 44 & 45 Vict. c. 41, s. 59. made perpetual, 6 & 7 WiU. III. (d) 11 Geo. IV. & 1 Will. IV. c. 14, repealed, but only for the c. 47, ss. 6 and 8. purpose of consolidating and WHICH PASS BY SUCCESSION, AND THEIE DIVISIONS. 77 Where the heir or devisee is not bound by deed, he is only liable for debts after the personal estate has been exhausted and has proved insufficient to satisfy them, and this is the only case where he is liable, whether the debt be payable under a deed or not, if the property be copyhold (e). Contracts under seal which bind the real representatives are equally binding upon the personal representatives, so that ia these cases either set of representatives may be sued on the contract at the discretion of the party entitled to enforce it. IV. Obligations arising under Simple Contracts for the Sale of Eeal Property. Where the owner of real property has entered into a eon- tract to sell, and dies before the contract has been completed, the real representatives of the deceased owner will be under an equitable obligation to convey the land to the purchaser, provided at least the contract was one which could have been enforced against the deceased had he lived (/). This is the only kind of obligation arising from simple contract which will bind the real representatives, except under the circumstances mentioned ia Exception 'Yll., post. V. Obligations arising from judgments, decrees, or orders of a Court. 1. Where a judgment, order, or decree, has been obtained, in an action respecting real property, against the owner of the property during his lifetime, it will be binding upon his heir or devisee after his death. And if such an action be depending at the time of his death, his heir or devisee wiU be bound by the result {g). 2. Where judgment has been obtained by a creditor against a debtor, and the debtor dies before he has satisfied (e) See post, p. 79. tives to convey freehold property. (/) Fry, Specific Performance, {g) Wms. Eeal Prop. p. 113, p. 84 ; see su-pra, p. 65, as to the 16th ed. power of the personal representa- 78 EiaHTS AND OBLIGATIONS the judgment debt, his real property which has passed to his heir or devisee may he taken in execution by the creditor so long as it remains the property of the heir or devisee. But if (before it has been taken in execution) the heir or devisee seU. or mortgage it, he will not be liable for the debt (except in the case mentioned in Exception YII., post) ; and, by a number of statutes of the present reign (A), the purchaser, if a bona fide purchaser for value, or mortgagee, will in most cases be protected from liability in respect of the debt. Copyhold lands were not liable to be taken in execution for judgment debts untillSSS («■). The judgment creditor may also enforce his judgment against the personal representatives. YI. Obligations to pay Grown debts. Debts due, or which might have become due, to the Crown from persons who were accountants to the Crown, and debts of record, or by bond or specialty due from other persons to the Crown, are binding upon the freehold property of such debtors which has passed to their ieirs or devisees (^). But if the heir or devisee sell or mortgage the property, he will not be liable to pay the debt (except_in the case mentioned in the next exception) ; and, by a number of statutes of the present reign (/), the purchaser, if a bont. fide purchaser for valuable consideration, or mortgagee, wiU in most cases be protected against any liability in respect of the debt. The personal representatives are also Hable to pay these debts. (A) 1 & 2 Vict. 0. 110 ; 3 & 4 leth ed. Vict. 0. 82, s. 2; 18 & 19 Vict. (0 12 & 13 Vict, c- 89; 2 & 3 0.15, ss. 4, 5; 23 & 24 Vict. c. 38, Vict. c. 11, ss. 8, 10; 16 & 17 s. 1; 27 & 28 Vict. c. 112, s. 1. Vict. o. 107, ss. 195—197; 22 & See Wms. Eeal Prop. pp. 106— 23 Vict. c. 35, s. 22 ; 23 & 24 108, lett ed. Vict. c. 115, s. 1; 28 & 29 Vict. {i) 1 & 2 Vict. c. 110, s. 11. c. 104, s. 4. See Wms. EealProp. {h) Wms. Eeal Prop. p. Ill, pp. 111—112, lathed. WHICH PASS BY SUCCESSION, AND THEIR DIVISIONS. 79 YII. Obligations to pay simple contract and other general debts which remain unpaid after the personal estate has been exhausted. The heir or devisee is under no liability in respect of the debts of the deceased (except in the cases and to the extent already mentioned ia Exceptions III., V., and VI., supra), unless the personal estate prove iasuffioient to satisfy them. In this event he is liable to pay the debts which remain unpaid, but his liability is limited to the value of the real property which has passed to him. If he has sold or other- wise disposed of the real property or any part, he still remains liable to the creditors for the value of such property. Even this contiugent liability of the real representatives for the general debts of the deceased has only been intro- duced by quite recent legislation. Before 1807 they were not under any circumstances liable for simple contract debts, and, as we have seen (m), were only liable for specialty debts where the heir was expressly bound by the deed. In that year the heirs or devisees of deceased traders were made liable for simple contract debts and specialty debts where the heir was not expressly bound («) (provided the property was freehold) ; but it was not until 1833 (o), that the heirs or devisees of all persons, whether traders or not, were made Hable for such debts. This Act applied to customary and copyhold as well as freehold property. But in order to obtain payment from the real repre- sentatives, the creditor must get the estate administered in the Chancery Division of the High Court {p): i. e. he cannot sue the heir or devisee and get judgment for his debt so as to gaia a priority over other creditors; he must bring an action for the administration of the estate by the Court ; and aU other creditors will be entitled to prove their claims, and share equally in proportion to the amount of their claims ia case there be not sufficient to satisfy their claims in fuU. (m) Supra, p. 76. (both real and personal) does not \n) 47 Geo III. c. 74. exceed 500Z. in value. 51 & 52 (o) 3 & 4 WiU. IV. c. 104. Vict. c. 43, s. 67, 1. This Act (p) The County Courts have consolidates the former Acts on jurisdiction where the whole estate the sTihjeot. ( 80 ) Pakt III. THE LAW OF IITTESTATE SUCCESSIOST. When a person dies intestate — ^that is, when he dies Tvithout having made a will at all, or where he has made a will which turns out to be invalid, and so fails to take effect — his heir-at- law win he his real representative, and vdll accordingly succeed to all his real estate, and to the obligations which we have seen are binding upon real representatives ; an adminis- trator, who will be appointed by the Probate Division of the High Court of Justice, will be his personal representative, and so wUl succeed to all his personal estate, and to the obh- gations which bind personal representatives. Accordingly, the subject of intestate succession is divisible into two main branches — (1) the succession of the heir, and (2) the suc- cession of the administrator. We will, in the first place, deal with each branch separately, and will then discuss shortly certain important rights and obligations of the heir and administrator inter se which are the consequence of the deceased's estate being divided between two successors whose interests are conflicting. And afterwards we must explain how the succession to rights and obligations which were vested in or binding on a deceased person in his capacity of executor, administrator, or trustee, differs from the succession to his own rights and obligations. Accordingly we will divide the subject of intestate succes- sion as follows : — 1. The succession of the administrator, 2. The succession of the heir. 3. Eights and obligations of the heir and administrator inter se. 4. The succession to deceased executors, administrators, and trustees. ( 81 ) CHAPTER I. THE SUCCESSION OF THE ADMINISTRATOR. The succession of the administrator -will be dealt Tvith under the following heads : — 1. The different kinds of administrators. 2. The .persons who are entitled, to he appointed adminis- trators. 3. The appointment of the administrator. 4. The rights and ohligations of the administrator. Section I. — The different kinds of Administrators. Administrators may be divided into two chief classes: — (1) those appointed to administer the estate of a person who dies testate, and (2) those appointed to administer the estate of a person who dies intestate. The former class are called administrators cum testamento annexo. They are appointed hy the Probate Division of the High Court in certain cases where, from some cause or other, there is no executor to administer the testator's estate, and they are bound, like executors, to administer the estate in accordance with the directions contained in the will. In fact they seem to differ from executors merely in the manner of their appointment — they are appointed by the Court, exe- cutors by the testator. At present, therefore, we are not further concerned with them. Administrators appointed to administer the estate of an intestate may also be divided into two classes. 1. Administrators who are appointed to administer the- whole personal estate of the intestate without any restriction- 82 THE LAW OF INTESTATE SUCCESSION. as to the time during wHcli they are to act. When the term " admiaistrators " is used without any qnalifyiag words, administrators of this class are always intended. 2. Special administrators, that is, administrators appointed either to administer only a certain portion of the personal estate, or else to administer the whole personal estate during only a specified time. They are appointed in the following cases : — (1) Where a person has died partly testate and partly intestate. (2) Where an administrator dies before he has fuUy administered the estate. In this case a special administrator is appointed to complete the administration, and is called an administrator de bonis non administratis, or shortly de bonis nan. (3) Where the person entitled to be appointed administra- tor is under the age of twenty-one, a special administrator may be appointed to act during the minority, and is on that account called an administrator durante minore cetate. (4) Where a law suit, brought to determine some question relating to the succession, is pending, a special administrator maybe appointed to administer the whole or some part of the estate until the dispute is settled ; he is therefore called an administrator pendente lite. (5) Where the person entitled to be appointed adminis- trator is out of the realm, a special administrator may be appointed to act during his absence, and is therefore called an administrator durante absentia. (6) Where it may be necessary to appoint a person other than the administrator to carry out some specific object, as to bring an action to recover certain property of the intestate, a special administrator may be appointed for the purpose. (7) Where the administrator duly appointed is incapable of legal acts, as where he is a lunatic, a special administrator may be appointed to aot during such incapacity. THE SUCCESSION OF THE ADMINISTRATOR. 83 Subject to these limitations or restrictions, the legal position of special administrators is the same as that of adminis- trators. Section II. — The Persons entitled to he appointed Administrators. "We have seen (a) that it is provided by the Statute 31 Edw. III., st. 1, c. 11, that "the ordinaries shall depute of the next and most lawful friends of the dead person iates- tate to administer his goods." A statute of the reign of Henry VIII. {b) provides that the ordinary shall grant ad- ministration " to the vddow of the deceased, or to the next of his kin, or to both, as by the discretion of the same ordinary shall be thought good " ; and that, " where divers persons claim, the administration as next of kin, which be equal in degree of kindred to the . . . person deceased, and where any person only desireth the administration as next of kin, when indeed divers persons be in equality of kindred as is aforesaid, that in every such ease the ordinary to be at his election and liberty to accept any one or more making request when divers do require the administration " (c). The "next and most lawful friends," and "the .next of kin," have been defined as " the next of blood who are not attainted of treason, felony, or have any other lawful dis- ability " {d). Infants, lunatics and idiots, and bankrupts, cannot be appointed (e). Blood relationship, or consanguinity, has been defined as " vinculum personarum ab eodem, stipite descendentium " (/), i.e., the relationship of persons who are descended from the same common ancestor. It is thus opposed to relationship through (a) Swpra, p. 17. {d) Kmslois Case, 8 Eep. 39. (J) 21 Hen. Vm. c. 5, s. 3. (e) 1 Wins.Exors.p.455, 8thed. (c) Ilid. if) 2 Bl. Com. p. 203. g2 84 ' THE LAW OF INTESTATE SUCCESSION. tnarriage. If A. has two sons, B. and C, and C. marries D., D. cannot be next of kin of her brother-in-law B., as they are not descended from a common ancestor ; but children of the marriage may be next of km of their uncle B., for A. is the common ancestor of both B. and the children of C. Consanguinity may be lineal or collateral. Lineal consanguinity is the relationship between ascendants and descendants, as between son and father, grandson and grandfather, great-grandson and great-grandfather, &c. Collateral consanguinity is the relationship between descen- dants of a common ancestor, as between ■uncle and nephew, first cousins, second cousins, &c. In ascertaining which degree of kindred is nearest or "next" to the deceased person, the ordinaries followed the civil law method of calculation ; and as no alteration in this respect was made when the jurisdiction of the ordinaries was transferred to the Court of Probate, this mode of calculation is still the law. The practice is to count upwards, from the deceased person to the common ancestor, and then downwards from the common ancestor to the person claimiag as next of kin, reckoning a degree for each person through whom rela- ,tionship is claimed both in the ascending and descending line. For instance, suppose A. dies intestate, and his only relations are a nephew and a cousin ; in order to find out whether the nephew or cousin is the next of kin to A., we must commence with A. and reckon one degree in the ascending line to A.'s father, who is the common ancestor, a second degree in the descending line to A.'s brother, and a third degree to A.'s nephew ; thus we find the nephew is related to A. in the third degree. In the case of the cousin, we must reckon in the ascending line one degree to A.'s father and a second degree to A.'s grandfather (the common Ancestor), and, in the descending Hne, a third degree to A.'s uncle, and a fourth degree to A.'s cousin ; thus we find the THE SUCCESSION OP THE ADMINISTRATOE. 85 cousin is related to A. in the fourth degree, and consequently the nephew, and not the cousin, is A.'s next of kin. Grandfather (3). Uncle (3). Father (1). Cousin (4). Brother (3). A. Nephew (3). It would appear from the statutes above referred to (g), that the ordinary was bound to grant administration either to the widow or to one or more of the persons who were ascertained to be the next of kin according to the rule of computation just explained. As a general rule this was the case, but to this general rule certain exceptions were intro- duced by the establishment of the principle that the grant of administration ought to follow the beneficial interest in the estate. This principle appears to have been derived from the con- struction put upon the statutes just referred to [h), by both the common law and Ecclesiastical Courts («). Its effect seems to be (/c) that, as a general rule, only those persons are entitled to administration who are also entitled under the Statutes of Distribution to a share in the residue of the estate after payment of debts Q). The general rule, therefore, that the next of kin {i. e. the persons in the nearest degree of kindred) are entitled to administration, is subject to the following exceptions : — , (1) The children of the deceased intestate and their descendants to the remotest degree are preferred to his parents (m), although both parents and children 'being in the first degree are equally his next of kin, and parents are obviously in a nearer degree than grandchildren. {g) Supra, p. 83. {h) Ihid. p. 424. Ih) Ibid. (I) See post, Tp. 108. (i) 1 Wms. Exqrs. pp. 424, 442j (m) 1 Wms. Exors. p. 430; 2 8th ed. Bl. Com: p. 504. , 86 THE LAW OF INTESTATE SUCCESSION. (2) Grandchildren of the deceased by a child who died in the liEetime of the deceased, are entitled equally with children, although children are in the first and grandchildren in the second degree. (3) The brothers and sisters of the deceased intestate (but not their descendants), are preferred to his grandfather and grandmother («), although both classes being in the second degree are equally his next of Mn. (4) Where the father of the deceased intestate pre-deeeased him, the brothers and sisters of the deceased intestate are equally entitled with their mother, although they are ia the second and she in the first degree. We shaU, see presently (o), that in all these cases the persons entitled to administration are entitled to the residue of the estate of the deceased, in preference to other relations. (5) In case the deceased was a married woman, her next of kin are entirely excluded, and administration is granted to her husband. " The foundation of this claim has been yariously stated. By some it is said to be derived from the Statute of 31 Edw. III. {p), on the ground of the husband's being ' the next and most lawful friend' of his wife; while there are other authorities, which insist that the husband is entitled at common law, jure mariti, and independently of the statutes. But the right, however founded; is now unquestionable, and is expressly confirmed by the statute 29 Car. II. c. 3 " {q). The order, therefore, in which (as a general rule) a man's relations are entitled to administration, is as follows : — I. Descendants. 1. Children, and grandchildren by a deceased child. 2. Grandchildren. 3. Great-grandchildren, &c. (n) lWms.Exors.p.430,8ihed, (?) 1 Wms. Exors. p. 416, (o) Post, pp. 108, et sej. Sth ed. See, as to 29 Car. 11. (p) jSt^pro, p. 83. c. 3, ^osi, p. 118. THE SUCCESSION OF THE ADMINISTEATOE. 87 II. Ascendants and collaterals. 1. The father. 2. The mother, brothers and sisters. 3. Paternal and maternal grandfather and grand- mother. 4. All paternal and maternal ascendants and col- laterals in the third degree, i. e. great-grandfather and mother, uncles, aunts, nephews and nieces. 5. All paternal and maternal ascendants and col- laterals in the fourth degree, i. e. _ great great- grandfather and mother, great uncles and aunts, cousins german. 6. All paternal and maternal ascendants and col- laterals in the fifth degree, e. g. great great uncle. And so on, in case there are any relations in a more remote degree. In case the intestate leaves a widow, she will have the same right to a grant of administration as the relations in any of the classes . ahove enumerated — in fact the Court generally gives her claim the preference. In the Table of Kindred given upon the following page the numbers iadicate the degrees in which the different rela- tions stand to the intestate. It will be observed that the Table includes only the chief classes of relations. 88 . THE LAW OP INTESTATE SUCCESSION. A a M o n s 1 -«g— *1 «4 i5 -«a-*S I I I I *^'* i I I 1 i "S bo -I'd— WS-Wg i i-l 18 , at , intestate, were granted by her Majesty's High Court of Justice at the Principal Eegistry of the Probate Divi- sion thereof, to 0. D., the lawful widow and relict [or as the case may {b} 21 Hen. VIII. c. 5, s. 3. {d) Sect. 81. (c) 20 & 21 Vict. 0. 77, s. 80. (e) Sect. 82. THE SUCCESSION OF THE ADMINISTRATOR. 97 said intestate, si 3ter the same. Dated tlie day of 6c] of the said intestate, she having been first sworn well and f aithfuUy to administer the same. (Signed) E. F., Registrar. Special administration is obtained in the same manner, except that the grant specifies that the administration is granted for a certain time, or is to relate only to a certain portion of the personal estate, as the case may he, and the affidavit and grant will be modified so as to be in accordance with the facts of the case. Thus, in the case of administra- tion de bonis non, the grant is made " of the personal estate of A. B., late of , in the county of , deceased, who died on the day of , 18 , at , intestate, kft unadministered by C. D.," &c. Some special provisions have been made by various statutes m cases where the deceased intestate was a seaman or marine, or a soldier. By 11 Geo. IV. & 1 WOl. IV. c. 20, s. 56, the wages, prize-money, &c., of a petty officer, seaman, non- commissioned officer of marines, or marine, who dies intestate are to be paid to his representatives only upon administration being obtained in the manner prescribed in that Act, and the Act makes some special regulations with respect to the granting of administration in such cases ; the object being to prevent fraud ; and where a sum not exceeding 50/. is due to the deceased in respect of prize-money or pensions, 11 Geo. IV. & 1 "Will. IV. c. 41, provides that such sum may be paid to the representatives of the deceased, although no administration has been obtained by them. Where the deceased was a soldier, prize-money due to him, not exceeding 50/., is, by 3 & 4 WiU. IV. c. 53, s. 25, made payable to his representatives without administration being obtained, and by sect. 26 a similar provision is made in the case of foreigners in the pay of the English Crown ; and 36 & 37 Vict. o. 57, p. H 98 . THE LAW OF INTESTATE SUCCESSION. s. 15, makes grant of administration unnecessary before pay- ment of the residue of the estates of officers and soldiers to their representatiTes, in case such residue does not exceed 100^. Section IV. — The Rights and Obligations of the Adminis- trator. The rights and obligations of the administrator may he conveniently discussed under two heads — (A) Eights and obligations vested in or binding upon the administrator by reason of his being regarded by law as the representative of the intestate ; and (B) rights and obligations vested in or binding upon the administrator by reason of his being regarded by law as a trustee of the personal estate of the intestate for the benefit of the creditors and next of kin of the intestate. A. Rights and Obligations of the Administrator as Repre- sentative of the Intestate. The Court of Probate Act, 1858, provides (e) that " from and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in the judge of the Court of Probate for the time being, in the same manner and to the Same extent as heretofore they vested in the ordinary." We have seen (/), that only the goods and chattels which were ia the possession of the deceased at his death vested in the ordinary: all choses in action were, and still seem to be, in abeyance until the appointment of an administrator. The jurisdiction of the Court of Probate has been transferred to the Probate Division of the High Court, and such personal . (e) 21 & 22 Vict. o. 95, s. 19. (/) Supra, p. 18. THE SUCCESSION OF THE ADMINISTEATOK. 99 estate as formerly vested in the judge of the Court of Probate prohably now vests in the President of the Probate Division (g). After 31 Edw. III. st. 1, c. 11, the ordinary had no jurisdiction to administer the estate himself, he merely had the power of appointing an administrator; he did not, therefore, succeed to the rights of the deceased over the goods and chattels, but seems rather to have occupied the position of a guardian or custodian of them until such time as letters of administration could be granted ; and this seems to be the position of the President of the Probate Division, or other judge iu whom the property now vests (h). But, although the rights of the intestate do not vest in the administrator until the grant of administration, yet, for some particular purposes, the grant is deemed to relate back to the death of the intestate, so as to enable the admiaistrator to bring actions in respect of, or otherwise to acquire the benefit of, transactions relating to the personal estate which may have occurred between the date of the death and that of the grant of administration (i). Thus, the administrator may bring an action against a person who has taken possession of and carried away the goods of the intestate after the death, although he has restored them and ceased to hold them before ihe grant of administration, so that there would have been no ground of action if "the grant had not related back to the death of the intestate (k) ; so he may sue on a contract made by a person on behalf of the estate during the interval between the death and the grant of administration (l). Upon letters of administration being granted, all the rights which constitute the personal estate {m) of the deceased become (^) 36 & 37 Vict. c. 66, ss. 16, 34. (i) lWms.Exors.p.638,8tlied. {h) There seems some doubt as (h) Foster v. Bates, 12 M. & W. to tlie judge of tte Higii Court in 226. ■whom the property vests. See {!) Bodger v. Areh, 10 Ex. 333. Wms. Personal Prop. p. 463, (m) See«Mj)ra, Pt. n.,Ch.ap. II. 13th ed. h2 100 THE LAW OF INTESTATE SUCCESSION. vested in the administrator, and all the obligations which bind the personal representatives (n) of the deceased become binding upon the administrator. To the extent of these rights and obligations the administrator becomes clothed with the legal persona of the deceased, or, in the language of English law, becomes the representative of the deceased. Accordingly, as a general rule the administrator has the same power of dealing with the personal estate as if he were both legal and beneficial owner (o) . Thus, at common law, it has been laid down that a sale of part of the goods by the administrator for the purpose of paying his own private debts, would be vahd ; that is, the sale could not be impeached as agaiast the pur- chaser (o), although (as we shall presently see) the adminis- trator would be personally liable to the creditors or next of kin of the deceased for the money so misapplied. The only exception to this general rule seems to be that dealings with the personal estate for an improper purpose, where not only the administrator but also the person with whom he deals is aware of the improper object of the transaction, are invahd as against the creditors or next of kin of the deceased, and in case of a sale the goods can be followed into the hands of the purchaser (p). As regards the obligations to which the administrator becomes subject, he is, prima facie, bound to discharge them ; but in case the personal estate be insufficient for the purpose he does not become liable to make good the deficiency out of his own private estate. It seems always to have been an established rule of English law that the administrator is bound by the obligations of the deceased only so far as the personal estate will enable him to satisfy them. In other words, the legal persona of the administrator as representative of the deceased is always kept distinct from his own private legal (n) Sees«f)ra,Pt.n.,C}iap.IlL (p) 2Wms.Exors.p.939,8thed. (o) 2Wms.Exors.p.936,8thed. THJi SUCCESSION OF THE ADMINISTEATOE. 101 persona; tlie goods of the deceased in the hands of the administrator cannot be seized by private creditors of the administrator, nor can the administrator's own goods he seized by creditors of the deceased (except in some cases where the goods have been mixed and those of the deceased cannot be identified) ; so, before the Act for the abolition of forfeiture for treason and felony {q), if an ad- ministrator were attainted of treason or felony his own goods would be forfeited, but not those which he held as administra- tor ; and although, by reason of the attainder, he would have been disabled from suing propria jure, yet he could still have maintained an action as administrator (r). Where two or more administrators are appointed they are regarded in law as but one person, and in consequence the acts of any one of them, in respect of the administration of the efEects, are deemed to be the acts of all. Hence a release of a debt by one is valid and binds the others ; so, the sale or gift by one of the goods and chattels is the sale or gift of them all (s). But all co-administrators must join in bringing actions, and all must be joined as defendants where an action is brought against them (t). B. Bights and Obligations of the Administrator as Trustee for the Creditors and Next of Kin of the Intestate. Although the administrator, as representative of the de- ceased, has vested in him an almost unlimited power of dealing with the personal estate as he pleases, yet he is accountable, as trustee, to the creditors and next of Mn of the deceased for the manner in which he exercises that power. He ought to exercise it only for the purpose of duly administering the estate, i.e., (1) realizing the estate, (2) dis- (g) 33 & 34 Yict. c. 23. (s) 2 Wms. Exors. p. 950, Sth ed. (r) lWms.Exors.p.643,8tlied. («) Hid. 102 THE LAW OF INTESTATE SUCCESSION. eharging obligations, and (3) distributing the residue of the estate amongst tbe next of kin of the deceased. We will deal with each of these heads separately. I. Realization of the estate. The administrator must coUect the effects of the deceased, and as soon as possible sell aU such property as may be of a wasting or perishable nature ; he must call in debts and enforce other rights in personam, that is, he must turn all choses in action into cJioses in possession. Generally speaking, he must sell all the goods and chattels which come into his possession, in order to pay debts and distribute the residue, but this is not necessary, as regards the residue, if the next bf kiu agree among themselves to take it in specie with the consent of the administrator. The money and other choses in possession which come into the hands of the administrator directly, or as the result of the realization, together with the value of such as would have come into his possession if he had used reasonable diligence, constitute what are called the personal assets of the intestate, that is, the whole of the pro- perty available for the discharge of debts or other obligations of the intestate. In realiziag the estate, the administrator is only personally liable to make good losses caused by his own negligence or other default, e. g., if through unnecessary delay in bringing an action a debt becomes barred by the Statute of Limitations {ii), and so is lost to the estate, he must make good the loss ; but he is not liable for losses ■«Fhich he could not, with reasonable care and diligence, have prevented, as when a debtor to the estate becomes bankrupt, and so only a small percentage of the debt is paid over to the administrator. After the estate is realized, he is personally liable to the extent of the assets ; so if any of them be lost through his (m) 2 Wms. Exors. p. 1804, 8tli ed. THE SUCCESSION OP THE ADMINISTRATOR, 103 negligence or maladministration, or if he misapplies or wastes them in any manner, he wiR be boimd to make good the loss. . In all such cases, where an administrator causes loss to the estate he is administering, he is, in technical language, said to be guilty of a devastavit. II. Discharge of obligations. Before discharging any obligation the administrator must require reasonable proof of its existence, and, if such proof be not produced, he must refuse to discharge the obligation. In such a case he wiU be entitled to pay, out of the assets, the expenses of defending an action brought to establish the obligation, although it may happen that the action is decided against him. On the other hand, if he discharges a supposed obligation without requiring reasonable proof, and it subse- quently -appears that the obligation did not exist, he will be guilty of a devastant (w), and therefore personally liable to make good any loss thereby occasioned to the personal estate. It has, however, been decided that an administrator is jus- tified in paying a debt barred by the Statute of Limitations, although it is discretionary with him whether he pays it or not (»). The discharge of an obligation may require the expenditure of money by the administrator, or it may merely require the doing of some act, as the dehvery of goods sold by the intes- tate, or bailed with him. Of course, the administrator must duly discharge all obligations of the latter class, but 'prima facie he is only bound to discharge those of the former class, so far as the personal assets will enable him to do so. When the discharge of an obligation requires the payment of a certain liquidated sum of money, the obligation is called a debt, and some special rules have been established respecting the discharge of this kind of obligation to which we must now briefly refer. {w) 2 Wms, Exors. p. 1809, (a;) Lowia v. Rvmney, L. E. 4 8th ed. Eq. Oa. 45]. 104 . THE LAW OF INTESTATE SUCCESSION. In paying the deMs of the deceased the administrator must ohserve the rules of priority established by law. In case the assets are not sufficient to pay all the debts of the deceased, certain creditors are entitled to be paid in pre- ference to other creditors, and it may, therefore, happen that some will be paid in full, while others receive nothing. Now, provided the administrator observes the rules of priority in paying debts, he will, in such a case, be under no personal liability to the unpaid creditors, after the assets are exhausted in paying the creditors who have priority. And if the un- paid creditors sue him he merely has to prove that he has fully administered the estate, i.e., that he has disposed of aU the assets in paying debts entitled to priority — called a plea of pkne adminktravit ; and upon this plea the creditors are only entitled to a judgment that they shall be paid out of any future assets that may come into the administrator's hands; which judgment is called a judgment of assets in futwo or quando acoiderint. But if, on the other hand, the administrator neglects to observe the rules of priority, and, after the assets are exhausted, a creditor who is entitled to be paid in priority to the others remains unpaid, the adminis- trator will be liable to pay such creditor out of his private estate, for the plea plene administramt will be of no avail unless debts have been paid in due order of priority. The following is the order of priority to be observed by the administrator in paying debts (y) : — (1) Necessary funeral expenses. (2) Expenses incurred in taking out letters of adminiBtra- tion, and other expenses of administration. (3) Debts due to the Crown by record or specialty. (4) Debts to which particular statutes give priority. The principal seem to be, money due from a deceased over- seer which he had received by virtue of his ofSee (17 Geo. II.: (y) See 2 Wms. Exors. pp. 992 et'seq., 8th ed. THP SUCCESSION OF THE ADMINISTRATOR. 105 0. 38, s. 3) ; money due from a deceased person whicli he had received as officer of a friendly society (33 Geo. III. c. 54, s. 10 ; 38 & 39 Vict. c. 60, s. 15, suh-s. 7) ; regimental debts of deceased officers and soldiers (26 & 27 Viet. c. 57). . (5) Debts of record. These have priority inter se as follows : — (i) Judgments of courts of record, including registered decrees, orders of a court of equity or bankruptcy, and other orders having the operation of a final judg- ment (s) . (ii) Eecognizances, and, at one time statutes Merchant and Staple; but statutes Merchant and Staple are now obsolete. (6) Debts due to the Crown on simple contract (a). (7) All other debts, whether by simple contract or by specialty {i.e. secured by deed), are payable in equal degree. This has been the law since 32 & 33 Vict. c. 46 ; before that Act specialty debts had priority over those by simple con- tract. If, however, a debt was due from the deceased to the ad- ministrator, the administrator has the right to pay himself before he pays other debts in the same degree as his own. Amongst creditors in equal degree, he who first obtains judgment for his debt wiU be entitled to be paid first, and the administrator cannot resist the action on the ground that there will be nothing left for the other creditors in that degree ; but he may resist it on the ground that there is not enough to pay a creditor of higher degree. And this defence he is bound to make if he have notice that a higher debt is outstanding; otherwise, on deficiency of assets, he must answer for such debt out of his own estate {b), for in such cases the law treats the omission to resist the action as an (z) 23 & 24 Viot. 0. 38, S..5. (b) 2 Steph. Com. p. 218, lOth, .(o) ,2 Wms. Exors. p. 997, Stlied. ed. 106 THE LAW OF INTESTATE SUCCESSION. admisdon by tlie administrator that lie has sufficient assets to satisfy both debts, and this presumption the administrator ■will not be allowed to rebut by proving that in fact he had only sufficient to pay the inferior debt (c). In other cases, also, the administrator may become per- sonally liable to satisfy debts, when the assets are insufficient to pay them, by an admission of assets m. excess of those which actually came into his hands. It seems that any words or conduct of the administrator, which would reasonably have the effect of leading creditors to presume that he had sufficient assets to satisfy their debts, wall amount to an admission of assets [d). We have seen that the admiaistrator is personally liable for the discharge of the obligations to the extent of the personal assets. If therefore, after paying all debts of which he had notice, he distributes the residue of the assets amongst the next of kin, and subsequently a creditor, of whose claim he was ignorant, demands payment of a debt, the administrator will be liable to pay it out of his own estate, although in this Case he will have a right to compel the next of kin to refund the amoxmt which he has been obliged to [pay to the credi- tor (e). But by a statute of the present reign (/) it is provided that where an administrator shall have given notice, such as would have formerly been given by the Court of Chancery (and now by the Chancery Division) in an adminis- tration action, for creditors to send in their claims, he shall, after the expiration of the time named in such notice for the sendiag in of claims, be at liberty to distribute the residue, and shall not be liable, as to the assets so distributed, to any person of whose claim he had no notice at the time of distri- bution. But any creditor or claimant may follow the assets (c) 2 Wms. Exors. p. 2058, (e) March v. Russell, 3 My. & 8tli ed. Or. 31. {d) Ibid. p. 2059. (/) 22 & 23 Vict. c. 35, s. 29. THE SUCCESSION OF THE ADMINISTEATOE. 107- into the hands of the persons to whom they have been dis- tributed. The Court of Chancery usually required such notice to be given by advertisement in the London Gazette, and generally in the Times newspaper, or, where the deceased had been resident in the country, in some newspaper circulat- ing in that neighbourhood {g), but if there be any reasonable ground for supposing that any persons having claims upon the estate are residing in a foreign country or in one of the colonies, the notice should also be advertised ia such foreign country or colony {Ji). The statute last referred to (i) also protects admiaistrators from aU. liability in respect of the rents or covenants in a lease or agreement for a lease granted or assigned to or made with the iatestate, and in respect of rent or covenants contained in any conveyance on chief rent or rent-charge, or agreement for such conveyance, granted to or made with the intestate, after such lease, or agreement, or the property contained in the conveyance, shall have been assigned, or conveyed to a purchaser ; provided the administrator has satisfied all liabili- ties which accrued due up to the time of such assignment or conveyance, and has set apart a sufficient sum to answer any future claims which may be made in respect of any " fixed and ascertaiaed sum " covenanted or agreed to be laid out on the leasehold or other property, although the time for laying out the same may not have arrived [k) . The administrator will of course become personally liable if he chooses to promise to " answer damages out of his own estate " provided such promise and the consideration for it be m writing, signed by the administrator or his agent (/). In case the intestate dies insolvent, any creditor, whose {g) Wood V. WeigUman, L. E. (i) 22 & 23 Viot. c. 35. 13 Eq. 434. {K) Sects. 27, 28. {h) Newton v. Sherry, 1 C. P. D. {I) 29 Oar. II. c. 3, s. 4; Anson, 246. Contracts, p. 60, 6th ed. 108 , THE LAW OP INTESTATE SUCCESSION. debt would have been suflBcient to support a bankruptcy peti- tion against tbe intestate had he lived, may present a petition for the administration of the estate according to the law of bankruptcy («) ; and unless the Court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts, an order for the administration ia bankruptcy may be made (w). After notice of the presenta- tion of the petition no payment or transfer of property made by the administrator will operate as a discharge to him " as between him and the official receiver," but any payment made or act done in good faith by the administrator before notice of the petition is valid (o). Upon the order being made for the administration of the estate in bankruptcy, all the property of the intestate will vest in the " official receiver of the Court, as trustee thereof) and he shall forthwith proceed to realize and distribute the same in accordance with provision of " the Bankruptcy Act [p). III. Distribution of the Residue. After paying the debts and discharging the other obh- gations which are binding upon biTn as administrator, and after deducting any expenses which he may have paid out of his own pocket {q) in administering the estate, the admi- nistrator is required by the Statutes of Distribution (passed in the reigns of Charles II. and James II. (r)), to distribute the residue of the assets amongst the children or other next of kin of the intestate in the manner provided by those statutes. We must, therefore, attempt to explain the provisions of (to) Bankruptcy Act, 1883 (46 & allowed to make any profit for 47 Vict. c. 52), s. 125, sub-s. 1. Mmself out of the estate, there- (n) Sub-sect. 2. fore be cannot cbarge for bis time (o) Sub-sect. 9. and work in administering. [■p) Sub-sect. 5. (r) 22 & 23 Car, 11. c. 10, and (g) The administrator is not 1 Jac. 11. c. 17. THE SUCCESSION OF THE ADMINISTRATOR. 109 these statutes, so far as they relate to the distrihution of the residue, and, in order to do so with as much clearness as possible, it mil he better to give the effect of these provisions in the form of rules, than to take each section in order and •write a commentary upon it. The section of the statutes, or the decision of the Courts in construing the statutes, upon which each rule is founded, will be referred to in the notes. A. Where the intestate teas a male. 1. If the intestate leave a widow and children or other descendants, the widow will be entitled to one third of the residue, and the children or other descendants to the remain- iug two thirds (s). It may happen, however, that the widow's right to her third has been taken from her, or as it is said, barred, by a provision in her marriage settlement (t), or otherwise, and in this case the children or descendants will be entitled to the whole of the residue. The share of the residue to which the children or other descendants are entitled is divisible amongst them in the following manner, no distinction being made between males and females : — (1) If the intestate leave children living, and there be no issue living of children who died in his lifetime, the children will aU. be entitled to equal shares («). Or, as it is said, they take per capita, that is, they are entitled to equal shares in their own right, and not as representing another person. But the statute expressly provides (x) that if any child shall have any estate by the settlement of the intestate, or shall have been advanced by him by a portion or portions during his life, such child shall only receive so much of the (s) Car. n. s. 5. (m) Car. 11. s. 5. («) Buckingham Y.Brury,^^^. {x) Ibid. P. C. 492. lid THE LAW OF INTESTATE SUCCESSION. residue as will, when added to the value of the estate oi" portion abeady received, make his or her actual share of the intestate's property equal (as nearly as can he estimated) to the share of each of the other children. This is called, hring- ing the share of such child into " hotchpot." This provision, however, expressly excepts the case of the heir-at-law ac- quiring any land of the intestate hy descent or otherwise ; under such circumstances, therefore, the heir-at-law is entitled to an equal share of the residue with the other children, in addition to the land so acquired. (2) If the intestate leave children Kving, and there be ako issue living of children who died in his lifetime, the issue of each deceased child will he entitled to the share which their parent would have taken had he (or she) lived (z). In this case the issue are said to take per stirpes, that is, they do not take in their own right as next of kin of the intestate, hut as representing their deceased parent. E.g., A. has three children, B., C, and D., of whom B. and C. die iu the lifetime of A., B. leaving two children and C. four. A. dies intestate, and the residue divisible amongst his descendants is 600^. : the 600/. must be divided iato three equal parts of 200/. each, one of which must be given to D., one to B.'s children, and one to C's children. Thus B.'s children get 100/. each, and C's 60/. each. (3) If at the death of the intestate there be no children living, but only issue of deceased children, such issue will be entitled to take^er stirpes (a). JE.g., A. has three children, B., C, and D., who all die in his lifetime, B. leaving one child, C. leaving two children, and D. leaving four. A. dies iutestate, and his residue divisible (z) Car. II. s. 5. where it is laid down that if all the (a) Car. II. s. 5, as construed issue claim in their own right, e. jr., in Ee Boss's Trusts, L. E. 13 Eq. aU are grandchildren, they taie 286 ; and Me Natt, 37 Oh. D. 517. per capita, appears to be no longer The contrary construction given law. in 2 Wms. Exors. p. 1503, 8th ed., THE SUCCESSION OP THE ADMINISTRATOR. Ill amongst descendants is 600^. The 600^. must be divided into three equal shares, and B.'s child will be entitled to one, O.'s two children to another, and D.'s four children to the third; thus O.'s children get 100^. each, and D.'s children 501 each. Again, suppose B.'s child, whom we will call X., had also died before A. leaving two cMldren; ia this case X.'s children would be entitled to their parents' share, and each would get 100^. (c). 2. If the intestate leave children or other descendants but no widow, the children or other descendants wUl be entitled to the whole residue (d), and it will be divisible amongst them in the manner already explained. 3. If the intestate leave a widow, but no children or other descendants, the widow will be entitled to one half of the residue, and the next of kin will be entitled to the other half (e) ; but if the intestate leave no next of kin the Crown wiU be entitled to the other half (/). The order in which the next of kin are entitled will be explained in the next rule. 4. If the intestate leave neither widow nor descendants his kindred in the ascending and collateral lines will be entitled to the whole of the residue {g) in the following order, iio distinction being made heticeen males and females or between the whole blood and half blood {h) , except in the one case of the father being preferred to the mother. (1) The father of the intestate, if living, will be entitled to the whole residue. This is the only exception to the rule that males are not to be preferred to females. (2) If the father of the intestate be dead and his mother be living, then (c) According to the construe- children would have taken one tion adopted in- 2 Wms. Exors. p. each, and X.'s two children would 1503, 8th ed. (see note (a) on the have divided the remaiaing share preceding page), the 600?. would between them, have been divided into seven equal (d) Oar. II. s. 5. shares, and, in the first example, (e) Ibid. s. 6. each of A.'s grandchildren would (/) Cave v. Boherts, 8 Sim. 214. have taken one ; in the second {§) Car, II. s. 7. example, the six surviving grand- {h) Smith v. Tracy, 1 Mod. 209 112 THE LAW OF INTESTATE SUCCESSION. (a) If the intestate leave no brothers or sisters, or children of brothers or sisters, the mother mil be entitled to the whole residue. (b) If the intestate leave brothers or sisters, but no children of brothers or sisters who died in his lifetime, the mother and brothers or sisters are entitled to equal shares of the residue («). ^.g., A. dies intestate, leaving his mother, two brothers and a sister, but no nearer relations surviving. The residue must be divided into four equal shares, and the mother, two brothers, and sister each take one. (c) If the intestate leave brothers or sisters and also children of brothers or sisters who died during his lifetime, the children of each of the deceased brothers or sisters will be entitled to the share which their deceased parent would have taken had he (or she) lived (?). JS.ff., A. dies intestate, leaving his mother, a brother, a sister, and two children of a deceased brother, but no nearer relations, surviving. The residue must be divided into four equal shares ; the mother takes one, the brother another, the sister another, and the two children of the deceased brother the remaining share, which wiU. be divided between them equally. (d) If the intestate leave neither brothers nor sisters, but children of brothers or sisters who died during his lifetime, the mother will be entitled to the same share as she would have taken had there been brothers or sisters living {k). Thus, where an intestate left a widow and a mother and several nephews and nieces, the children of a deceased brother, it was held that the residue was divisible into four equal parts, two of which were to be given to the widow (being her half share of the residue) {I), one to the mother, (i) Jac. n. s. 7. 455. {k) Stanley v. Stanley, 1 Atk. (I) Supra, p. 111. THE SUCCESSIOK OF THE ADMINISTRATOR. 113 and one to the nephews and nieces, to be divided amongst them in equal shares {m). N.B. The rule that the issue shall represent their deceased ancestor only applies, amongst collateral relations, in the case of children of a deceased brother or sister («) ; for instance, grandchildren of a brother or sister would not be entitled to represent the brother or sister. (3) If the intestate leave neither father nor mother, but either brothers or sisters only, or brothers or sisters and also children of brothers or sisters who died in his lifetime, then, (a) The brothers or sisters will be entitled to the whole residue ra equal shares (o) if there be no children of deceased brothers or sisters ; (b) If there be children of deceased brothers or sisters, the children of each deceased brother or sister will be 'entitled to the share to which their parent would have been entitled had he (or she) lived (jo). N.B. If there be neither brother nor sister living at the death of the intestate, the children of a deceased brother or sister («'. e., the nephews and nieces of the intestate) are only entitled to a share in the residue imder the next rule. (4) If the intestate leave neither father, mother, sister, nor brother, then all persons who are in the nearest degree of kindred to the intestate, whether they be ascendants or col- laterals, and whether in the paternal or maternal line, will be entitled to the whole residue per capita ; but if there be only one person in the nearest degree he or she will take the whole residue {q). (m) Stanley v. Stanley, 1 Atk. and grandmothers, althougt both 465. classes are in the same degree; (m) Car. 11. s. 7. Evehjn v. Evelyn, 3 Atk. 762, and (o) It -was decided as early cases there cited, as 1686 that brothers and sisters {p) Car. IT. ss. 6, 7. are preferred to grandfathers {g) Hid. P. 1 114 THE LAW OF INTESTATE SUCCESSION. The manner of calculating the degrees of relationship has already been explained (r). The application of this rule may be illustrated thus : — ^A. dies intestate, and his only surviving relations are (1) a maternal great-grandfather, (2) a paternal great-grand- mother, (3) a paternal uncle, .(4) a maternal aimt, (5) a nephew, and (6) a niece. It will be seen by reference to the table given on p. 88, supra, that all these six persons are in the third degree of kiadred to the intestate, and, there being no surviving relations in either the first or second degree, the third degree is, under the circumstances, the nearest degree. The whole residue of A.'s estate must therefore be divided into six equal parts by A.'s administrator, and one part must be given to each of these six persons. A curious point arises where the only relations of an in- testate are his grandfather or grandmother and nephews or nieces. The grandfather being in the second degree and nephews and nieces in the third, it is obvious that, if rule (4) applies to this case, the grandfather will be entitled to the whole residue, to the total exclusion of the nephews and nieces, although, as we have seen (E. (2) (d)), nephews and nieces are entitled to share the residue with the mother of the intestate. It is clearly inconsistent with the policy of the law governing distribution that the nephews and nieces should thus be entirely excluded by the more remote, and entitled to share with the nearer, relation of the intestate ; and the inconsistency becomes still more glaring when we remember that, if the mother be living, the grandfather or grandmother wiU be entirely excluded from a share in the residue. The point seems never to have arisen in practice, nor to have been discussed by the text books (s), and must therefore be treated as doubtful ; it seems probable, however, (r) Supra, p. 84. (s) See note to Ohitty's Statutes, vol. ii. p. 858, 4tli ed. THE SUCCESSION OF THE ADMINISTRATOR. 115 that, if it should arise, it wiU be decided in favour of the nephews and nieces sharing the residue with the grandfather or grandmother. N.B. The rule that the issue of a deceased person shall represent their parent has no application amongst ascendants and collaterals, except in the cases already mentioned (RE. (2) (c), (3) (b)), where the children of a deceased brother or sister have the right to represent their parent (^). Thus, if A. die intestate leaving no relations except an uncle and the children of a deceased uncle, the uncle, being in a nearer degree than such children, will be entitled to the whole residue. (5) If the intestate leave no next of kin at all, the Crown win be entitled to the whole residue. The order in which ascendants and collaterals are entitled to distribution may be briefly summarized as follows : — 1. The father. 2. The mother, together with brothers and sisters and children of deceased brothers or sisters. 3. Brothers and sisters, or brothers and sisters together with children of deceased brothers or sisters. 4. Paternal or maternal grandfathers or grandmothers, [probably together with nephews and nieces, although in the third degree]. 5. All relations in the third degree, i. e., great-grandfather or great-grandmother, uncles and aunts, nephews and nieces. 6. AU relations in the fourth degree, i. e., great great grandfathers, great great grandmothers, great uncles, great aunts, great nephews, great nieces, and couslqs german. 7. All relations in the fifth degree, and so on. (<) Oar. n. s. 7. i2 116 THE LAW OF INTESTATE SUCCESSION. B. Where the Intestate was a Female. 1. If the intestate had never been married, her next of kin in the ascending and collateral Hnes will be entitled to the whole residue, in the same manner as the next of kin of a male who dies without leaving a widow or descendants sur- viving are entitled to his residue. 2. If the intestate had been married, the rules which regu- late the distribution of the residue depend upon the question whether she was a widow at the time of her death, or whether at that time she had a husband living. (1) If the iatestate was a widow, then, subject to the following exception, the same rules apply which have already been stated respecting the distribution of the residue of a male, who dies without leaving a widow surviving. Exception. — A child who has been advanced [y) by the intestate in her lifetime is not bound to bring the value of such advancement into hotchpot (s). Thus, where a widow settled 1,000^. upon her daughter and afterwards died intestate, leaving the daughter and two sons surviving, it was held that the daughter was entitled to an equal share of the residue with the two sons notwithstand- ing that she had already received 1,000/. {a). (2) If the intestate leave a husband surviving, the husband will be entitled to the whole residue (b). The husband is entitled to the residue jure niariti and not under the Statutes of Distribution. Where the marriage took place before the 1st January, 1883, aU. the choses in possession of the wife vested in the husband {y) See supra, p. 109. [a) Hid. (z) Holt V. Frederick, 2 P. Wms. (i) 29 Car. 11. c. 3, s. 25. 356. THE SUCCESSION OF THE ADMINISTEATOE. 117 immediately the marriage was solemnized, unless, by statute or settlement, they were her separate property {c). If they were her separate property, the separate use was extinguished by the death of the wife and the right to the property imme- diately vested in the husband jure mariti (subject, of course, to the terms of any settlement), without the necessity of taking out administration to his wife's estate {d). It is con- ceived that the Married Women's Property Act, 1882 (e), has not altered the law in this respect. As regards choses in action which were not separate estate, unless the husband had reduced them into possession before the death of his wife, he had no legal claim to them until he had taken out administration ; and of course administration was necessary when they were her separate estate. Conse- quently, if a husband died before he had taken out adminis- tration, the old practice in the Ecclesiastical Courts was to grant administration to the next of kin of the wife, the Courts considering themselves bound to do so by the words of 31 Edw. III. St. 1, c. 11 (/). But the courts of equity seem always to have regarded the husband as having a kind of vested interest in the choses in action of his wife from thei moment of her death, and accordingly they treated the next of kin of the wife to whom administration had been granted as merely trustees of the residue for the personal representa- tives of the deceased husband (g). And it now appears to be the established rule to grant administration, in such cases, to the personal representatives of the husband (A), upon the prin- ciple, already stated, that the grant of administration ought to" follow the beneficial interest in the estate. (c) As to separate property, see proYisions will be found at pp. 170, post, p. 167. 171, post. {d) Moloney Y.Kennedy, 10 Sim. (/) Supra, p. 83. 254; and see Cooper y.Macdonald, (g) Cart v. Bees, cited in Sguib 1 Oh. D. 288, 296. v. Wyn, 1 P. Wms. 381. (e) 45 & 46 Vict. c. 75 ; its chief {h) 1 "Wms. Exors. p. 417, 8tlied. 118 THE XAW OF INTESTATE SUCCESSIOX. After the Statutes of Distribution came into force a doubt ■was felt whether, under those statutes, the husband who had taken out administration to his deceased wife's estate could not be compelled to make distribution of the residue amongst her next of kin. This doubt was removed by 29 Oar. II. c. 3, s. 25, which expressly aiSrmed the husband's common law right to the whole residue for his own benefit. The statute 22 & 23 Car. II. expressly provides that no distribution of the residue shall be made until the expiration of one year from the death of the intestate («'). The object of this provision was to give the creditors time to send iu their claims, and to give the administrator time to realize the estate and pay debts, &c., before the next of kin could demand distri- bution. But it must be observed that the right to share in the distribution, in case there be any residue, is a right which vests in the next of kin at the instant the death takes place (/c). For example, A. dies intestate, his sole next of kin being two imcles, B. and C. — ^the right to a share of the residue vests immediately in B. and C; and accordingly, if B. dies the next day, this right win pass, as part of his personal estate, to his personal representatives, who at the expiration of a year from A.'s death win be entitled to demand payment of B.'s share. The admiuistrator must, with some exceptions, pay a certain duty in respect of each share of the residue handed over to the next of kin, such duty being deducted .from the share m respect of which it is payable (1). It must be observed that the Statutes of Distribution did not affect certain customs, regulating the distribution of the residue, which prevailed in London and York (m) . However, a statute of the present reign (w) provides that, " The special customs concerning the distribution of the personal estate of (i) Sect. 8. (m) 22 & 23 Oar. n. c. 10, s. 4. [k) Srmvne v. Shore, 1 Show. 25. (n) 19 & 20 Vict. c. 94. (Z) See Appendix. THE SUCCESSION OF THE ADMINISTRATOR, 119 intestates observed in the city of London, or in relation to the citizens and freemen of such city, and in the province of York, and certain other places, shall, with reference to all persons dying on or after the 1st day of January, 1857, wholly cease and determine, and the distribution of the personal estate of all persons so dying shall take place as if such cus- toms had never existed, and as if the rules for the distribution of the personal estate of intestates generally prevalent in the province of Canterbury had prevailed throughout England and Wales, any law or statute to the contrary notwith- standing "(o). We must now consider by what law the distribution will be regulated in case the intestate dies domiciled in England leaving personal property in some other part of the United Kingdom or abroad, or in case he dies domiciled abroad or in some part of the United Kingdom other than England, leaving personal property in England. In such cases the established rule is that the distribution of the personal estate is to be regulated by the law of the country where the intes- tate was domiciled at the time of bis death, without any regard whatsoever to the situation of the property at that time {p) . Thus, if A. dies intestate domiciled in England leaving personal property in Ireland, Scotland, and France, the distribution of such property wiU be regulated by the rules of English law which we have just been considering ; but if A. dies domiciled in Scotland, or France, leaving per- sonal property in England, the distribution of such property will be regulated by the rules laid down by the law of Scot- land, or France, as the case may be. As to the consequences of a person intermeddling with the estate of the deceased without having taken out letters of administration, see^os^, p. 227. (o) Ihid. s. 1. Stlied.; citing ySoTneruiHe v. /Some?-- (p) 2 Wms. Exors. p. 1521, mile, 5 Yes, 786, 120 THE LAW OF INTESTATE SUCCESSION. CHAPTEE II. THE SUCCESSION OF THE HEIR. The succession of the heir "wiU be dealt with under the two f oUowiag heads : — 1. The rules of descent, i.e., the rules for ascertaining the person or persons entitled to succeed to the real estate as heir of the deceased (a). 2. The rights and obligations of the heir. Section I. — The Rules of Descent. The rules of descent may be conveniently divided into two classes, namely — I. The rules of descent established by the general law. II. The rules of descent established by local customary law. The former rules apply in all parts of England and Wales, except in those particular districts or places where the latter rules are proved, to exist. I. The Utiles of Descent established hy the General Late. In 1833 the " Act to amend the law of inheritance " (S) — usually called "the Inheritance Act" — was passed, and effected some most important alterations in those old rules of descent which we have already had occasion to discuss (c). {a) When two or more persons p. 133. are entitled to succeed together, (6) 3 & 4 Will. IV. c. 106. they constitute but one heir in (c) Supra, p. 27. contemplation of law. See post. • THE SUCCESSION OP THE HEIE. 121 The rules of descent, as amended by the Inheritance Act, apply in every case where the intestate died on or after the 1st January/, 1834. The old rules apply in every case where the intestate died before that date. The following are the rules of descent as amended by the Inheritance Act, together with a new rule introduced by a statute of the present reign {d) ; the alterations in the old law are indicated by dark type. 1. "The descent shall be traced from the purchaser (e)." This rule supersedes the old rule, which required that the descent should be traced from the person last seised (/). The Inheritance Act defines (g) the purchaser as " the per- son who last acquired the land otherwise than by descent, or than by any escheat, partition, or enclosure, by the effect of which the land (h) shall have become part of or descendible in the same manner as other land acquired by descent." But it also provides that " the person last entitled to the land" {i.e., " the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof" («)) shall " be considered to have been the pur- chaser thereof, unless it shall be proved that he inherited the same, in which case the person from whom he inherited the same shall be considered. to have been the purchaser, unless it be proved that he inherited the same ; and in like manner the last person from whom the land shall be proved to have been inherited shall, in every case, be considered to have been the purchaser, unless it be proved that he inherited the same" {k). The Act also provides that where a person acqiiires land by (d) 22 & 23 Vict. c. 35, s. 19. (h) " Land " is used in the Act (e) 3 & 4 Will. IV. c. 106, s. 2. as meaning all kinds of real pro- (/) Supra, p. 27. pertt/. See sect. 2. (g) Sect. 1. (0 Sect. 1. {k) Sect. 2. 122 THE LAW OF INTESTATE SUCCESSION. purchase under a limitation to " the heirs " or " the heirs of the hody " of any ancestor, contained in a deed executed after the 31st December, 1833, or under the same limitation, or a limitation having the same effect contained in a will of any testator who dies after the 31st December, 1833, such land shall descend, and the descent be traced, as if the ancestor named in the limitation had been the purchaser thereof {I) ; e.g., limitation to A. for Ufe and after his death to the heirs of B. A. dies ; X. is the heir of B. ; if X. dies intestate and without issue, the descent must be traced from B., as if he had been the purchaser. Under limitations of this kind, the words " heirs "or " heirs of the body " are words of purchase, and the heir gets an estate in fee simple or in tail, without any further words of limitation. The Act further provides that a conveyance or devise of an estate of inheiitance to the heir of the person who conveys or devises the estate, shall, if it takes effect on or after the 1st January, 1834, make the heir the purchaser (m), thus re- versing the old rule («) ; e.g., A. conveys land to B. on or before the 31st December, 1883 ; on A.'s death B. proves to be A.'s heir-at-law ; B. dies intestate. In this case the descent must be traced from A. according to the old rule. But supposing the conveyance had been made on or after the 1st January, 1834, B. would have been the purchaser, and the descent must have been traced from him under the new rule. So, if A. had devised the land to B., and A. had died on or before the 31st December, 1833, and then B. had died intestate, the descent must have been traced from A. ; but if A. had died on or after the 1st January, 1834, B. would have been the purchaser, and descent must have been traced from him. 2. " Inheritance shall lineally descend to the issue of the" purchaser " in infinitum." {I) Sect. 4. (m) Sect. 3. (n) Supra, p. 29. THE SUCCESSION OF THE HEIE. 123 The Act makes no new provisions as to the succession of the issue, it merely alters the root from which the succession is traced ; therefore, the old rule holds good as to the issue, except that ^^ purchaser" must now be substituted for the "person last seised" ip). 3. " The male issue shall be admitted before the female " {p) . 4. " Where there are two or more males ia equal degree the eldest only shall inherit, but the females aU together " {q). 5. " The lineal descendants, in infinitum, of any person deceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been living" (r); 6. "Where there shall be no issue of the purchaser his nearest lineal ancestor shall be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in conseq[uence of there being no descendants of such lineal ancestor" (s). This simply abolishes the old rule that inheritances could not ascend {t) . For instance, the father of the purchaser is entitled in preference to the brothers and sisters of the purchaser, or to the uncle or aunt of the purchaser — formerly the uncle or aunt would have been entitled if there had been no descendants of the father. Of cotirse, if the nearest ancestor be dead, his descendants will succeed by force of r. 5 before the next nearest ancestor becomes entitled; e.g. the descendants of the father are entitled in preference to the grandfather. 7. None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their ]dndred(M), shall be capable of inheriting until aU his paternal (o) Supra, p. 27. (s) 3 & 4 Will. IV. c. 106, s. 6. (p) Supra, p. 28. (<) Supra, p. 25. (2) Supra, p. 28. («) I- e., blood relations, (r) Supra, p. 28. 124 THE LAW OP INTESTATE SUCCESSION. ancestors and their descendants shall have failed; and no female paternal ancestor of such person, nor any of her kindred, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have faUed ; and no female maternal ancestor of such person, nor any of her kindred, shall be capable of inheriting until his mother and all his male maternal ancestors and their descendants shall have failed (5). The only alteration in the old law is that the ancestors of the person from whom the descent is traced are included amongst the persons entitled to inherit, in accordance with the last rule. The male stock was under the old rules preferred to the female (r) . The effect of this rule may be summarised thus — First, the father and male paternal ancestors, and their descendants, are entitled; Secondly, female paternal ancestors and their kindred ; Thirdly, the mother and male maternal ancestors, and their descendants ; Fourthly, female maternal ancestors and their kindred (s). The order in which female paternal and maternal ancestors succeed inter se, is dealt with by the next rule. 8. Where female paternal ancestors are entitled to succeed, the mother of a more remote male paternal ancestor and her kindred will be preferred to the mother of a less remote male paternal ancestor and her kindred ; likewise where female maternal ancestors are entitled to succeed, the mother of a more remote male maternal ancestor and her kindred will he preferred to the mother of a less remote male maternal ancestor and her kindred {t). {q) 3 & 4 Will. IV. 0. 106, s. 7, kindred of all other female an- combined with definition of de- cestors, will be seen by a glance scendants, sect. 1. at the table of Descent on p. 128, (r) Supra, p. 31. post. (s) Tbe reason why we speak of (f) 3 & 4 WiU. IV. c. 106, s. 8 ; tbe descendants of the mother and and see 1 Steph. Com. p. 417, 10th all male ancestors, and of the ed. THE SUCCESSION OF THE HEIR. 125 For example : A., the purchaser, dies intestate, and his only surviving next of kin are— B., his paternal grandmother, and her descendants ; C, his paternal grandfather's mother, and her descendants ;. D., his maternal grandfather's mother, and her descendants; E., his maternal great grandfather's mother, and her descendants. First. C. and her descendants will he entitled; if all die intestate without issue, then, Secondly. B. and her descendants will he entitled; if all die intestate without issue, then. Thirdly. E. and her descendants wiE. be entitled ; if they all die intestate without issue, then, Lastly. D. and her descendants will he entitled. The effect of this rule is to settle the doubt which formerly existed respectiag the order in. which the relations of female paternal and maternal ancestors were entitled to succeed {t ) ; the new rule afErms the opinion which seems to have found most favour with the old authorities {t). 9. "Any person related to the person from whom the de- scent is to be traced by the half blood shall be capable of being Ms heir," and the half blood is entitled to succeed — (1) " next after any relation in the same degree of the whole blood, and his issue where the common ancestor shall be a male ; and (2) "next after the common ancestor where such common ancestor shall be a female" {u). For example : A. has two sons, B. and C, and a daughter, D., by his first vnfe ; and a son, E., and a daughter, F., by his second wife. B. purchases land and dies intestate vdthout issue, and then his father, A., who would in this case have succeeded to the land (E. 6), dies intestate ; C, D., E., and F. are all in. the same degree of kindred to B., the purchaser, and A., their common ancestor, is a male, and therefore E; («) Supra, p. 32. («) 3 & 4 WiU. IV. c. 106, s. 9. 126 THE LAW OF INTESTATE SUCCESSION. and F., teing of the half Wood, will be entitled to succeed next after 0. and D. and their issue, heing the relations in the same degree of the whole blood and their issue ; and so the order of succession will be — (1) C. and his issue, (2) D. and her issue, (3) B. and his issue, and (4) F. and her issue. Now let us suppose that A., the common ancestor, is the mother instead of the father of B., C, D., E., and P. At B.'s death intestate without issue his father will succeed (E. 6), and upon his father's death intestate C. will next succeed, and upon his death intestate and without issue D. will next succeed ; if D. die intestate and without issue B.'s paternal ancestors will be next entitled successively (E. 7), and if they all die intestate and without issue B.'s mother, A. (R. 7), will succeed, and at her death intestate E. and his issue, and if he die intestate without issue F. and her issue will be entitled to succeed. Thus E. and F. succeed " next after the common ancestor." It must be observed that the rule relates only to the half blood of " the person from whom the descent is to be traced," i. e., from the purchaser ; in all other cases the half blood suc- ceeds in just the same manner as the whole blood, e. g., A., the purchaser of an inheritance, has a son, B., and a daughter, C, by his first wife, and a son, D., and a daughter, B., by his second wife ; A. dies intestate. In this case B. will suc- ceed to the inheritance. Now suppose B. dies intestate without issue, D. will succeed to the inheritance; for as B. was not purchaser of the inheritance we must trace the descent from A., the purchaser, and D., being male issue of A., will be preferred to his daughter, C. So if D. die intestate without issue, C. and B. will succeed as co-parceners, both being female issue of A., the purchaser. 10. " Where there shall be a total failure of the heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a THE SUCCESSION OF THE HEIE. 127 total failure of the heirs of such ancestor, then and in every such case the land shall descend, and the descent shall thence- forth be traced, from the person last entitled to the land, as if he had been the purchaser thereof" [x). For example : A. pureliases land and dies intestate, leaving an only child, B., and no ancestors, nor descendants of ances- tors, surviving ; B. dies intestate and without issue. In this case the land woiild formerly have escheated, for as B.'s maternal kindred could not trace their descent from the purchaser, they would not be entitled to succeed. But in accordance with Rule 10, the descent can be traced from B. " as if he had been the purchaser," and accordingly his mother, or other maternal ancestors or their issue, will be entitled to succeed. In the Table of Descent given upon the following page the numbers (1), (2), &c., indicate the order in which the different groups of ascendants and descendants are entitled to succeed : e. g. (2) indicates that the father and his de- scendants by the mother and stepmother form the second group ; while (9) indicates that the mother and her de- scendants by the stepfather form the ninth group. The plain figures indicate the order in which the persons in each group are entitled to succeed inter se. Every person to whom no plain figure is affixed is excluded from the succession — except of course in cases where Eule 10 applies. (a;) 22 & 23 Vict. c. 35, s. 19. 128 THE LAW OF INTESTATE SUCCESSION. ■3 1 IS »|l I H "^ H ^ 1 W "^ iS fi fe Ph § o ^ H 1: h) 8 P § < .« H ■§ t -2I ii II 51 S| 11 S h M . — Kig§-a| t — »| 1 e^i d ■ THE SUCCESSION OF THE HEIR, 129 Where a person dies without an heir, and intestate, in respect of any legal estate in real property, the lord of whom it is held, or if there be no such lord, the Crown, will he entitled to such property by escheat. But, formerly, where a legal estate in fee simple was vested in trustees in trust for a person in fee simple, and such person died without an heir and intestate, the trustees were beneficially entitled to the property ; for an equitable estate did not escheat {y) . However, by the Intestates Estates Act, 1884 (z), it is provided that when, after the 14th of August, 1884, " a person dies without an heir and intestate in respect of any real estate consisting of any estate or interest, whether legal or equitable, in any incorporeal hereditaments, or of any equitable estate or interest in any corporeal hereditaments, whether devised or not devised to trustees by the will of suoh person (a), the law of escheat shall apply in the same manner as if the estate or interest above mentioned were a legal estate in corporeal hereditaments." II. The Rules of Descent established by Local Customary Law, The Inheritance Act did not affect the customary rules of descent which, as we have seen [b), prevailed in certain localities, except that, according to some high authorities (c), the purchaser must now form the root of descent {d) ; in other words, the rule that " the descent shaU be traced from the purchaser" will determine the person whose heir will be entitled to succeed ; but in ascertaining which of his relations {y) Wms. Eeal Prop. p. 193, (d) MuggUion v. Barnett (1 H. 16th ed. & N. 282; 2 H. & N. 653) is (z) 47 & 48 Vict. c. 71, s. 4. opposed to this view of the effect (a) Post, p. 244. of the Inheritance Act, but Mr, (J) Supra, p. 34. Joshua Williams' reasons for (c) Mr. Joshua Williams and fhinkiag that decision erroneous Lord St. Leonards. would seem to be decisive. See Appendix A., Wms. Eeal Prop. P. K 130 THE LAW OP INTESTATE SUCCESSION. is his heir, we must apply the customary rules of intestate succession which prevail in the particular locality where the land is situated. The rules of descent established hy the general law apply in every case (except where the land is situated in the county of Kent) unless a particular local custom he proved to exist ; and accordingly the person who claims to he heir under a local custom must in every case estahHsh his claim by bringing sufficient evidence of the custom, otherwise the person who is heir by the general law will be entitled to succeed to the property. But, where the land of the intestate is situated in the county of Kent, it seems to be the rule, that the persons who are entitled to succeed by the custom of gavelkind will in every case be the heirs, unless it be proved that the land of the intestate was not subject to the custom of gavelkind (e) ; by this custom all the sons, or, failing issue, all brothers or other collaterals, succeed to equal shares. Again, in all cases where local customary rules of descent apply, the rules of intestate succession established by the general law are merely excluded so far as may be necessary to give due effect to the local lules. " Tou must first ascertain what the custom is, and then apply all the rules of descent to the custom so ascertained " (/). The two foUowing cases wUl serve as illustrations. In Clements v. Scudamore (g) the facts were that J. S. purchased copyhold lands which were held subject to the custom of borough English (consequently at the death of J. S. intestate his youngest son would be entitled to succeed). J. S. had five sons, the youngest of whom died, leaving issue a daughter, before J. S. purchased the copyhold lands. At the death of J. S. intestate the youngest of the four surviving sons entered upon the lands. The question was, whether he or the daughter of the deceased (e) 1 Mod. 98. at p. 47. (/) Sook v. SooTc, 1 Hem. & M. {g) 1 P. Wms. 63. THE SUCCESSION OE THE HEIR. 131 son was entitled to succeed to the lands, and it was decided in favour of the daughter. In giving judgment Lord Holt said : " "Wherever this custom has obtained, the youngest son is there placed in the room of the eldest, who inherits by the common law ; and there is no difference in the course of descents, but that the custom prefers the youngest son, and the common law the eldest ; and therefore, as by the common law the issue of the eldest son, female as well as male, do, jure represenfationis, inherit before the other brothers, so by the same reason, when this custom has transferred the right of descent from the eldest to the youngest son, it [i.e., the common law] shall also, by like representation, carry it to the daughter of the youngest son ; and there is no ground to make any difference betwixt a descent by this custom and by the common law." In Sook V. Sook (A) the facts were as follows : W. H. died intestate as to certain lands of gavelkind tenure. He left no issue, but a nephew S. H. and two sons of another nephew who died in his ("W. H.'s) hfetime. S. H. and the deceased nephew were both sons of W. H.'s only brother. The ques- tion was, whether S. H. was entitled to the whole of the land, or whether the sons of the deceased nephew were entitled to represent their father and so take a moiety, and it was held that the sons were entitled to represent their father. Sir "W. Page-Wood, Y.-C, said, in the course of his judgment: " The canon of descent applicable to the point is laid down in Clements v. Scudamore, which was a case on borough English lands, where Chief Justice Holt said : ' The custom alters ,the descent by the common law to the eldest son, and carries it to the youngest son generally, and must have aU the consequences of a descent.'' Accordingly, the right of repre- sentation was admitted as a general incident of descent to operate upon the customary rule of preferring the younger (70 1 Hem. & M. 43. k2 133 THE LAW OF INTESTATE SUCCESSION. son, exactly as it operated on the common law rule of pre-' ferring the eldest. The same principle must be applied, whether the custom be that of gaTeUdnd or borough English." It would be impossible in the present treatise to attempt an enumeration of the yarious rules of descent which have been proved to exist in particular districts. In conclusion, we must observe that the succession to real estate is not, like the succession to personal estate, aifected by the domicil of the deceased ; the lex loci rei sitce governs the succession, no matter where the deceased owner may have been domiciled (A). Thus, if A. die intestate domiciled in Scotland, leaving real estate and personal estate in England, the succession to the former will be governed by the English law, while the succession to the latter will be regulated by the law of Scotland. It seems that, in all countries except England, the law of the domicil decides aU questions of legitimacy relating to the succession to real estate ; but English law requires that the heir shall be legitimate according to both English law and the law of bis domicil. The case which settled this point was Birtwhistle v. Vardill (l) ; the facts were shortly as follows : — ^A. died in 1825, intestate and without issue, seised of real estate in England. A. had several brothers who all died before him, and none of them left issue except B., who had an only son. 0. It appeared that in 1790 B. had gone to Scotland, and became domiciled there; that C was bom in 1799 of a woman with whom B. had cohabited, and that B. subse- quently married her. This subsequent marriage made C. the legitimate son of B. according to Scotch law, and on B.'s death Q. had succeeded to his real estate in Scotland. The .question, therefore, was whether C, being legitimate by the {k) Foote, Private Int. Juris, {I) 1 01. & F. 895. 160. . THE SUCCESSION OF THE HEIE, 133 law of .Scotland, was legitimate also for the purpose of succeeding to A.'s real estate in England, and it was held that he was not entitled to succeed ; for the law of England required that a person's heir should he " ex Justis procreatus." Section II, — The Mights and Obligations of the Heir. Where a person dies leaving two or more relations who are entitled to succeed together to his real estate— if, for instance, he leave two daughters and no son, or two sons who hy local custom are both entitled to succeed— such persons are called coparceners, or, shortly, parceners, and they are regarded in law as constituting but one heir ; that is, they are regarded as representing the deceased m. their collective, and not in their individual, capacity — "jus de- scendit quasi uni hceredi propter Jttris unitatem Where- upon it followeth that, albeit where there bee two parceners they have moities in the lands descended to them, yet are they but one heire ; and one of them is not the moity of an heire, but both of them are but unus hceres " (m) . We will, therefore, in the first place, use the term heir as including coparceners as weU as a single heir, and afterwards explain shortly the difference between the interest of a single here and that of a coparcener. We have already attempted to point out the rights and obligations of a deceased person which pass to his real representatives («) . At the death of a person intestate, all such rights and obligations immediately vest in or become binding upon his heir— even against the wiU of the heir. No formality is necessary; the mere fact of death at once pperates to pass these rights and obligations to the heir, and, to the extent of these rights and obligations, he is placed, in almost every respect, exactly in the legal position (m) Co. Litt. Ub. 3, 163 b. (n) Supra, Pt. II., Chaps. II., Ill, 134 THE LAW OF INTESTATE SUCCESSION. occupied hy the intestate, or, in otlier words, becomes, to that extent, clothed with the legal persona of the intestate. In respect of obligations, however, the legal persona of the intestate is kept distinct from that of the heir to this extent, that the heir only becomes personally liable to discharge the obligations of the intestate so far as the real estate will enable him to do so. Besides the obligations which pass immediately to the heir — and upon which accordingly he may be sued — obligations to pay the simple contract debts of the intestate are, as we have seen (p), ijidirectly and contingently binding upon him — they bind him indirectly because the administrator succeeds to such obligations, and is prima facie bound to satisfy them ; they bind him only contingently, because he is not liable upon them until the personal estate has proved insufficient to discharge them ; even when this happens an unpaid creditor cannot sue the heir for the debt in an ordinary action, but he must institute proceedings for the administration of the estate of the intestate [q). The heir is also, generally, liable to pay succession duty in respect of the real estate to which he succeeds (r) . Where the heir succeeds to freehold or copyhold estates, and the intestate, if a male, leaves a widow, or, if a female, a husband surviving, the rights of the heir will in some cases be restricted by the right of the vsddow to dower or freehench, or of the husband to mrtesy. Dower was the right of the widow to have allotted to her, and to enjoy in severalty during her life, one third part of the lands in which her husband had been solely seised of any freehold estate of inheritance in possession during the cover- ture, and to which any issue of the mdow might by possi- bility have succeeded (s). But if the land were subject to {p) Supra, -p. 19. (s) See Wms. Eeal Prop. p. 273, (2) Supra, p. 19. 16tli ed. (r) See Appendix. THE SUCCESSION OF THE HEIE. 135 the custom of gavelkind, the widow's right extended to a moiety of the land, and contiaued only so long as she remained unmarried and chaste. The right to dower was barred altogether by a jointure agreed to be accepted by the intended wife previously to the marriage in lieu of dower; but if the jointure were made after the marriage, the widow might elect between her dower and her jointure (^). The right to dower has been considerably modified by an Act passed in 1833 (t*) "for the amendment of the law relating to dower." This Act gives the widow a right to dower in any lands in respect of which her husband had a right of entry or action, although the husband had not re- covered possession, provided the dower were sued for or obtained within the period during which such right of entry or action might be enforced (»), and it extends the right to dower to any equitable estate of inheritance in possession (other than an estate in joint tenancy) to which the husband was beneficially entitled at his death («). But the Act also provides that a widow shall not be entitled to dower out of any land of her husband, when in the deed by wjiich such land was conveyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land {y). It must be observed that the Act does not extend to the dower of any woman married on or before the 1st January, 1834, and does not give to any wOl, deed, contract, engagement, or charge executed, entered into, or created before that date the effect of defeating or pre- judicing any right of dower (z), Freebench is the right of the widow to an iaterest in the copyhold lands of her husband, and it generally consists in a (<) Wms. Eeal Prop. p. 276, 16tli (a;) Sect. 2. ed. , (2/) Sect. 6. (m) 3 & 4 Will. IV. 0. 105. («) Sect. 14. {v) Sect. 3. 138 THE LAW OF INTESTATE SUCCESSION. life interest in one di-vided third part of suoL. landSj or some- times in the entirety (a). But right to freehench only arises where it is sanctioned hy a special custom of the manor, and the right does not extend to equitahle interests of the hushand in copyhold land. The Act for the amendment of the law relating to dower does not extend to freebench {b). Curtesy is the right of the husband to a life estate in the lands and tenements of which his deceased wife was solely seised in fee simple or fee tail in possession, provided he has had issue of her born alive who might by possibility inherit the estate as her heLr(c). The right to curtesy extends to equitable estates of inheritance {d). In the case of lands subject to the custom of gavelkind, it is not necessary that the husband should have had issue, but he is only entitled to a moiety of his wife's lands, and his interest ceases if he marries again (e). In the case of copyhold land, it seems that the husband is not entitled to curtesy except by a special custom of the manor (/) . "When the heir succeeds to a freehold estate in respect of which a rent is payable — called a quit rent — a relief of one year's quit rent will be payable by the heir ; for this species of relief was not affected by the statute 12 Oar. II. c. 24, which abolished other kinds of relief formerly payable on the succession of the heir to lands of freehold tenure (g). Where the heir succeeds to a copyhold estate he has the right to be admitted tenant by the lord of the manor, and, on admittance, he is bound to pay to the lord the customary (a) Wms. Eeal Prop. p. 438, (c) Wms. Real Prop. p. 266, lath ed. letli ed. (J) 3 & 4 Will. IV. 0. 105; {d) Ibid. Smith V. Adams, 18 Beav. 499 ; 5 (e) Ibid. p. 267. De Gex, M. & G. V12. (/) Ibid. p. 438. (g) Ibid. p. 149. THE SUCCESSION OP THE HEIR. 137 fine. The legal position of the heir in respect of the copy- hold estate before admittance has been thus explained : — " The heir is tenant by copy immediately upon the death of his ancestor : not indeed to all intents and purposes, for he cannot he sworn on the homage, that is, as one of the tenants present at the lord's court, as tenant; but to most intents the law taketh notice of biTn as a perfect tenant of the land, instantly upon the death of his ancestor. He may enter into the lands before admittance ; may take the profits; may punish any trespass done upon the land ; may devise the land descended on him ; may, upon satisfying the lord for his fine due upon the descent, surrender iato the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine ; and not so much necessary for the strengthening and completing of the heir's title" {h). But in case the heir does not apply for admittance, the lord, after making due proclamation at three consecutive courts of the manor for any person having right to the property to claim it and be admitted, is entitled to seize the lands into his own hands quousque, as it is called, i. e., until some person claims admittance ; and, by the special custom of some manors, if after due proclamation no one claims admittance, the lord is entitled to the lands absolutely («). However, in order to prevent the rights of infants, married women, lunatics and idiots, who may be entitled to ad- niittance, from being lost or prejudiced in consequence of their inability to appear and claim admittance, it has been provided by statute {Ic), that such persons may appear either in person or by their guardian, attorney, or committee, as (A) lStepli.Oom.p.639,10t]ied. {h) U Geo. IV. & 1 WUl. IV. (j) Wms. Eeal Prop. p. 431, c. 65; 16 & 17 Vict. c. 70, ss. 108 letli ed. f* ««2- 138 THE LAW OP INTESTATE SUCCESSION. the ease may be (/) ; and in default of such appearance the lord or his steward is empowered to appoint any fit person to he attorney for that purpose only, and by such attorney to admit every such infant, married woman, lunatic or idiot, and to impose the proper fine {m). If the fine be not paid, the lord may enter and receive the rents until it be satisfied out of them (m), and if the guardian of any infant, the husband of any married woman, or the committee of any lunatic or idiot, should pay the fine, he will be entitled to a like privilege (o). But no forfeiture of the lands is to be incurred by the neglect or refusal of any infant, married woman, lunatic or idiot to come in and be admitted, or for their omission, denial, or refusal to pay the fine imposed on their admittance {p). We v/iU now consider the diEEerence between the interest of a single heir and that of a coparcener. If the heir be a single person he alone will be entitled to the whole of the real estate both in his representative and individual capacity ; if several persons be entitled to succeed as heirs, they con- stitute in their representative capacity but one person, but in their individual capacity each is entitled to a distinct though undivided share in the estate {q). In order that coparceners may obtain interests in severalty, it is necessary that a partition of the estate should be effected, and this may be accomplished — (1) By agreement between the coparceners (but the partition wiU be ineffectual unless made by deed (r) ). {I) 11 Geo. IV. & 1 WiU. IV. (o) 11 Geo. IV. & 1 WiU. IV. c. 65, ss. 3, 4 ; 16 & lY Viot. o. 70, c. 65, s. 8 ; 16 «& 17 Vict. c. 70, s. 108. s. 111. (m) 11 Geo. IV. & 1 WiU. IV. {p) 11 Geo. IV. & 1 WiU. tV. c. 65, s. 5; 16 & 17 Viot. c. 70, c. 65, s. 9; 16 & 17 Viot. c. 70, ss. 108, 109. s. 112; Wms. Eeal Prop. p. 443, (n) 11 Geo. IV. & 1 WiU. IV. 15tli ed. c. 65, ss. 6, 7 ; 16 & 17 Vict. c. 70, (5) Co. Litt. 163, 164. s. 110. (V) 8 & 9 Viot. c. 106, s. 3. THE SUCCESSION OF THE HBIE. 139 (2) By an action for partition in the Chancery Division of the High Court. (3) By application to the Land Com- missioners for England, who are empowered by recents Acts of Parliament to make orders under their hands and seal for the partition and exchange of lands and other hereditaments, which orders are effectual without aiiy further conveyance or release (s). But a coparcener may, before severance, devise his share by will, or sell it, and in case he dies intestate, it will pass to his heir. Until recently the heir succeeded to all real property which was vested ia the intestate by way of mortgage {t) just as he succeeded to all other real estate, while the right to receive payment of the mortgage debt passed, like the right to other debts, to the admiaistrator. Accordingly, when the mort- gage debt was paid off, the heir was the only person who could re-convey the property to the mortgagor, and, although he could of course be compelled to do so, yet much incon- venience was often occasioned and expense incurred before a re-conveyance could be obtained — e. g., the heir might have gone to a foreign country, and it might be uncertain whether he was dead or alive. However, by a recent Act, it has been provided («) that in all cases of death after the 31st De- cember, 1881, the personal representatives of a sole mortgagee of real property shall succeed to it " as if the same were a chattel real," i. e., just as if it had been personal property. (s) Wms, Eeal Prop. p. 163, (<) As to the nature of a mort- IQ^ g^_ gage, see ihid., Pt. IV., Chap. 11. (m) 44 & 45 Vict. c. 41, s. 30. ,140 THE LAW OF INTESTATK SUCCESSION. CHAPTEE III. EIGHTS AND OBLIGATIONS OF THE HEIR AND ADMINISTRATOR INTER SE. The fact that the heir succeeds to the real estate and to some ohligations, while the administrator succeeds to the personal estate and to other ohligations, gives rise to certain rights and ohligations of the heir and administrator inter se, the more important of which we will now briefly consider. They relate to (1) contracts for the purchase or sale of real estate, (2) the payment of debts, (3) the apportionment of rent, and (4) the light to emblements, 1. Contracts for the Purchase or Sale of Real Estate, (1) Contracts for the purchase of real estate. When a binding contract for the purchase of real estate has been entered into, we have 'seen that it operates as an equit- able couTersion of the purchase-money into real estate. Accordingly, if the purchaser died intestate before the con- tract had been completed by payment of the purchase-money and conveyance of the estate, his heir was formerly entitled to have the estate paid for by the administrator out of the personal estate. And if the heir had paid the purchase- money out of his own pocket, he was entitled to call upon the administrator to reimburse him {a). But a recent statute provides (J) that the heir must pay the purchase-money out of his own pocket in case the intestate has died since the Zlst December, 1877 ; if, therefore, the administrator has paid for the land, he can compel the heir to reimburse him. (a) 2 Wms. Exors. p. 1769, (6) 40 & 41 Vict. c. 34. 8tli ed. EIGHTSjETC. OF THE HEIR AND ADMINISTRATOR. l4l' (2) Contracts for the sale of real estate. A binding contract for the sale of real estate produces, as we have seen, an equitable conversion of the real estate into money (c). Accordingly, if the vendor die intestate before the completion of the contract, his administrator will be entitled to receive the purchase-money, and the heir, to whom the legal estate in the property will have descended, can be required to execute a proper conveyance to the purchaseri As to the conveyance, it is now provided by the Conveyancing and Law of Property Act, 1881 (d), that "Where at the death of any person there is subsisting a contract enforceable against heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general in any lands, his personal representatives shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in bim at his death, in any manner proper for giving effect to the contract " ; but such a conveyance " shall not affect the beneficial rights of any person claiming under any testamentary disposition or as heir or next of kin of a testator or intestate " (e). The Act only applies where the death occurred after the 31st December, 1881 (/). 2. The payment of Debts. — It is " a well-known rule, that, as between the real and personal representatives of all persons deceased, the personal estate in the hands of the executor or administrator is the primary and natural fund which must be resorted to in the first instance for the payment of debts of every description contracted by the testator or intestate " (g). In the case of simple contract debts, the creditor, as we have seen, is boimd in the first place to demand payment from the personal representatives, and, until all the personal estate be exhausted, he has no remedy against the real representatives ; (c) IWms. Exors. p. 665, Sthed. (/) Sect. 4 (3). (d) 44 & 45 Vict. c. 41, s. 4(1). (ff) 2 Wms. Exors. p. 1699, (e) Sect. 4 (2). 8th ed. 142 THE liAW OF INTESTATE SUCCESSION. consequently, as regards the payment of simple contract detts, there is no difierence between the obligations of the real and personal representatives inter se and their obliga- tions to the creditors. But in those oases where, as we have seen, the real representatives are bound by the specialty debts of the deceased, the creditor may sue either the heir or the administrator of the intestate for payment of the debt, and the heir, if sued, will be bound to pay, although there may be sufficient personal assets to satisfy the debt. To such cases the rule just stated applies, and accordingly the heii will be entitled to have the amount of the debt repaid to biTin by the administrator. Formerly the same rule also applied in all cases where the deceased had mortgaged his land, or there was a lien upon it for unpaid purchase-money. Accordingly, where the heir of the -deceased had been forced to pay the mortgage debt, or to pay off the lien, by the mortgagor or vendor, he was entitled to be reimbursed the amount out of the personal estate. But in order that the heir might acquire this right the debt must have been the proper debt of the deceased, that is, it must have been incurred by him or adopted by him ; thus, if the deceased bought land subject to an existiag mortgage, or if he succeeded to land subject to a mortgage as heir-at-law or devise6, and died leaving the debt unpaid, in either case the debt must be paid out of the land, and not out of the personal estate of the deceased {h), unless the deceased had adopted the debt as his own (i). The old law still holds good in all cases of mortgages and liens which do not fall within the foUowing statutes. By Locke King's Act (/) it is provided {h) that " when any person shall, after the 31st of December, 1854, die seised Qi) 2 Wms. Exors. p, 1703, to Duke of Ancaster v. Mayer, 1 8tli ed. L. 0. Eq. 712, 5tli ed. (i) As to acts -whioli amount to (j) 17 & 18 Vict. o. 113. an adoption of a debt, see notes (k) Sect. 1. EIGHTS, ETC. OF THE HEIR AND ADMINISTRATOR. 143 of or entitled to any estate or interest in any land or other ■hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will, deed, or other document, have signified any contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised, shall not be entitled to have the mort- gage debt discharged or satisfied out of the personal estate, or any other real estate of such person, but the land or heredita- ments so charged shall, as between the different persons claim- ing through or under the deceased person, be pidmarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof ; " but it is provided that nothing in the Act shall affect or diminish the rights of the mortgagee to obtain payment out of the personal estate of the deceased ; and it is further provided that nothing in the Act shaE affect the rights of any person claiming under or by virtue of any will, deed, or document then already made or to be made before the 1st January, 1856. By 30 & 31 Yict. c. 69, s. 2, the word " mortgage " in Locke King's Act was to be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator. Accordingly a lien on lands purchased by a person who died intestate was not within the Act, and the heir could require it to be paid off out of the personal estate. It was held, too, that the Acts did not affect leaseholds for years (/c) . However, a recent Act {I) has provided that these Acts shall, in the case of any testator or intestate dying after the 31st December, 1877, be held to extend to a testator or intestate dying seised or possessed of or entitled toany land or other hereditaments of whatever tenure {m) which {k) And so a legatee of lease- estate, seBpost, p. 246. holds, subject to a mortgage, was (;) 40 & 41 Vict. 0. 34. entitled to have the mortgage („) This included leaseholds, paid off out of the other personal '' '' 144 THE LAW OF INTESTATE SUCCESSION. shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage or any other equitable charge, including any lien for unpaid purchase- money; and the devisee, or legatee, or heir, shall not be entitled to have such sum or sums discharged or satisfied out of any other estate of the testator or intestate, unless (in the case of a testator) he shall, within the meaning of the said Acts, have signified a contrary intention (m). 3. Apportionment of Rent. — At common law there, was no apportionment of rent, for rent was held not to accrue due, like interest, de die in diem, but only to become payable after the full period had elapsed on the expiration of which it was made payable (w). If, therefore, a lessor died during the interval between two rent days, his personal representatives would not be entitled to a proportion of the rent up to the time of his death, but the whole of the rent which accrued during the whole of such interval went to the real representa- tives, or (if the lessor's interest terminated with his Hf e) to the remainderman. The statute 4 & 5 WOl. lY. c. 22, provided that the personal representatives of the lessor should be entitled to a proportionate part of the rent up to the time of the lessor's death (provided the lease was in writing) ; but it was held that this statute did not apply as between the real and personal representatives of a lessor whose interest did not terminate loith his death; if, therefore, the lessor had a fee simple estate in the land leased, and died intestate, his heir would have been entitled to the whole rent (o). However, the Apportionment Act, 1870 {p), now provides that after the pass- ing of that Act {i. e., 1st August, 1870) all rents shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time aecord- (m) See post, p. 249. (o) Brown v. Amyot, 3 Hare, (»i) Glun's Case, 10 Co. 26 a; 173. Tudor's L. C. 284, 3rd ed. {p) 33 & 34 Vict. c. 35. RIGHTS, ETC. OF THE HEIE AND ADMINISTEATOE. 145 "igly (?)• It also proTides that the whole of the rent shall he reoovered and received by the heir, or other person who •would have been entitled to it, if it had not been apportion- able ; and the apportioned part shall be recoverable from such heir, &c. (r). 4. Emblements. — "The vegetable chattels so named are the com and other growth of the earth, which are produced annually, not spontaneously, but by labour and industry, and therefore are called fructus industriales. When the occupier of the land, whether he be the owner of the inheritance or of an estate determining with his own hf e, has sown or planted the soil with the intention of raising a crop of such a nature, and dies before harvest time, the law gives to his executors or administrators the profits of the crops, Emhlavence de hied, or emblements, to compensate for the labour and expense of tilling, manuring, and sowing the land. . . . The doctrine of emblements extends not only to corn and grain of all kinds, but to everything of an artificial and annual profit, that is produced by labour and manurance ; as hemp, flax, saffron, and the like, and melons of all kinds ; and hops also, although they spring from old roots, because they are annually manured and require cultivation "(s). But neither trees, nor fruit growing upon trees, are emblements, although the deceased planted the trees, " for the general rule is quidquid plantatur solo, solo cedit; and when a man plants a tree he cannot be presumed to plant it in contemplation of any present profit, but merely with a prospect of its being useful to him in future, and to future successions of tenants" {t). The only exception seems to be the case of trees and shrubs being planted by gardeners and nurserymen with an express view to sale, for these belong to their personal representatives as emblements {t) . (2) Sect. 2. («) IWms.Exors.p.Yie.Stlied. (r) Sect. 4. (<) ^bi^- V- "^H. ' P. ^ 146 THE LAW OP INTESTATE SUCCESSION. Again, a crop of growing grass, althougli the produce of seed sown by the deceased, cannot he taken as emhlements, because it cannot be distinguished from the natural produce of the soil (x) i but it seems that crops of artificial grasses, as clover and saint-foin, would be considered emblements («). When the administrator has a right to emblements, he has a right also to enter upon the land for the purpose of cutting and carrying them away (y). (a;) 1 Wms. Exors. p. 718, Sth ed. {y) Ibid., p. 725. ( 147 ) CHAPTEE IV. THE SUCCESSION TO DECEASED EXECUTORS, ADMINISTRATOKS, AND TRUSTEES WHO DIE INTESTATE. 1. Where the Deceased was an Executor or Administrator. 1. "Where two or more persons are co-executors or co-admi- nistrators, and one dies, the survivor or survivors will become by survivorship entitled to carry on the whole administration, just as if the survivor had been appointed sole executor or administrator, or the survivors alone had been appointed co- executors or co-administrators. 2. "Where a person is sole executor or administrator and dies intestate, his rights and obligations as executor or ad- miaistrator will devolve, in the case of an executor, upon an administrator cum testamento annexo de bonis non administra- tis (a), and in the case of an administrator upon an adminis- trator de bonis non administratis, which admiaistrators, as we have seen, will be appointed by the Probate Division lb). II. Where the Deceased was a Trustee. In the first place it will be necessary to state very briefly the manner in which trusts may be created. Trusts may be divided into two classes : (1) express trusts, and (2) implied trusts (c). (1) Express trusts, as the name imports, are trusts which (ffl) Post, p. 230. ration of law," appear from the (J) Sivpra, p. 82. authorities to be almost synony- (c) "Implied trusts," "con- mous terms. See Lewin, Trusts, structive trusts," "trusts by ope- p. 108, n., 8th ed. l2 148 THE LAW OF INTESTATE SUCCESSION. are created by express declaration of intention to create a trust, whether such declaration be made in a deed, or wiU, or other writing, or sometimes simply by word of mouth. Thus if A. conveys or assigns property to B. by deed, and declares, either in the deed, or by a separate document, or, in the case of chattels personal, by parol {d), that B. shall hold the property in trust for C, an express trust for the benefit of 0. will be thereby created. (2) Implied trusts are trusts which arise where there is no express declaration of trust, but an iutention to create a trust can be implied by the Courts from the words used with reference to the holding, or acquisition, or transfer of property, whether inter vims or by will, or from the cir- cumstances under which property is acquired or transferred,; or from both, or where ia the opiaion of the Court it would be inequitable or contrary to public policy that a person who has acquired the legal right to property should be allowed to enjoy the beneficial interest. E. g., where a testator devises an estate to A. "not doubting" . he win thereout pay an annuity of 20 J. to B. for Ufe, A. wiU be a trustee for B. to the extent of the annuity (e), an inten-, tion to create a trust being implied from the words " not doubting." So, where an estate is devised to A. and his heirs upon trust to sell and pay the testator's debts, A. will be a trustee of any surplus which remains after paying the debts for the heir of the testator (e) ; for the object of the devise is the pay- ment of the testator's debts, and not the benefit of A. So, where A. sells and conveys land to B., but the pur- chase-money is advanced by C, B. will hold the lands as trustee for 0. until he has repaid the purchase-money to c. (/). {d) Snell'sEquity,p.53, Sthod. (/) See Dyet v. Dyer, 2 CoX, («) Lewin, Trusts, p. 108, n., 29; 1 L. 0. Eq., p. 223, 5th ed. 8th ed. SUCCESSION TO DECEASED TRUSTEES, ETC. 149 , So, where a trustee of leasehold property oMains a renewal of the lease for his own benefit, he wiU. be regarded as merely a trustee of the renewed lease for the benefit of the persons who are interested in the old lease {g), it being contrary to public policy that a trustee should be allowed to make any profit or advantage for himself out of the trust property. In dealing with the succession to the rights and obligations of trustees, it is important to distinguish between the office of the trustee and his legal rights in rem over the trust property. At law he is regarded as the absolute owner of the property, the office of trustee is merely a creation of equity. The rules governing succession to the office of trustee and the trust property may be summarised as follows : — A. Mispress Trusts. 1. Where the deceased was one of several trustees. (1) Trust Property. — Trustees are in law joint tenants of the trust property ; therefore, on the death of one trustee, the legal right to the property becomes vested in the survivor or survivors. As the survivor already had a right to the property, he cannot take by succession ; he is said to take by survivorship. (2) The Office of Trustee.— The office of trustee vests by survivorship in the surviving trustee or trustees, who will have the right to carry on the trust and exercise aU such powers as may be necessary for the purpose. But to this rule there is an exception in case a contrary intention was expressed when the trust was created. If, for instance, it was intended that the trust should only be exerr cised by three trustees, and one dies, the trust cannot be carried on until a new trustee has been appointed, who in this case maybe said to succeed to the office of the deceased trustee {h). [g) Keech v. Sand/ord, Sel. Oh. {h) See, as to appointment of Ca. 61 ; 1 L. 0. Eq., p. 46, 5th ed. new trustees, Wms. Eeal Prop. pp. 199 et seq., 16th ed. 150 THE LAW OF INTESTATE SUCCESSION. Wtere the trust was personal to the trustees taken col- lectively, the death of one of course extinguishes the trust ; e. g. a conveyance of land to A., B., and 0. in trust to sell, with an express declaration that the trust shall not be exercised by the sttrvivor or survivors {i). In these cases the surviving trustee or trustees will hold the property on an implied trust for the persons who may be able to prove their title to the . beneficial interest in the property. Thixs, the original express trust is extinguished and a new trust is implied from the cir- cumstanoes of the case. 2. Where the deceased was sole taistee, or sole surviviag trustee. (1) Trust Property. (a) In case of death he/ore January 1st, 1882, the heir suc- ceeds to real property ; the admiuistrator to personal property. (b) In case of death on or after January 1st, 1882, the Conveyancing and Law of Property Act, 1881 (/<•), provides that the personal representatives shall succeed to all trust property, whether real or personal . If the trust was extinguished by the death of the trustee, his heir, or devisee, or personal representatives will hold the property on an implied trust for the persons beneficially entitled to it ; and in case the office of trustee does not pass with the property, the heir or devisee, &c. will hold in trust to convey or assign the property to the new trustee. (2.) The Office of Trustee. — The succession, to the office of trustee depends upon the intention expressed when the trust was created ; it may be that the personal representatives or heir of the deceased trustee was intended to succeed him, or, as often happens, a new trustee must be appointed by a person to whom the right of appointing a new trustee is given ; for instance, if property be vested in A. in trust for a (i) Levin, Trusts, p. 395, 7tli ed. {k) 44 & 45 Vict. c. 41, s. 30. SUCCESSION TO DECEASED TRUSTEES, ETC. 151 husband and wife for life, and after their death in trust for their children, the right of appointiag new trustees may be given to the husband and wife and to the survivor of them. And by a recent Act (l), it is provided that where no person is authorized by the instrument creating the trust to appoint new trustees, or where a person has been authorized but is unwilling or incapable of acting, the personal representatives of the last surviving or continuing trustee may by writing appoint a new trustee or trustees. The provisions of this Act are expressly made subject to the terms of the instru- ment creating the trust. B. Implied Trusts. 1. Where the deceased was one of several trustees. The smviving trustee or trustees are entitled by survivorship to the whole trust property and the office of trustee. 2. Where the deceased was sole trustee or sole surviving trustee. In all cases of implied trusts the office of trustee passes with the legal interest in the trust property. In case of death before the 1st January, 1882, the heir of the deceased trustee succeeds to real property, the administrator to personal property ; but in case of death on or after that date, the administrator will, it seems, succeed in every case, whether the property be real or personal (m). It must be observed that an administrator, or executor, or trustee, incurs no personal liability so long as he discharges the duties of his office with due care and dOigence, but he is personally responsible for any loss resulting from his negli- gence or from his misapplication of the trust property, or from any other improper conduct relating to the trust. Any such wrongful act or omission is called a " devastamt," when {I) 44 & 45 Viot. c. 41, s. 31. Prop. pp. 201 et seq., 16tli ed. The earUer statutes on the subject (m) 44 & 45 Vict. c. 41, s. 30. are referred to in Wms. Eeal 152 . THE LAW OF INTESTATE SUCCESSION. the guilty party is an executor or administrator, a " breach of trust" when he is a trustee; and the obligation to make good the loss to the persons beneficially entitled to the trust pro^ perty is binding upon the real and personal representatives, of the person who has committed the breach of trust or devastaYit (w), in the same manner as his simple contract obligations incurred in his private capacity (o). {») As to trustees, Movmtford administrators, 4 WUl. & M. c. 24, V. Cadogan, 17 Ves. 485 ; as to s. 12. representatives of executors and (o) Supra, p. 79. ( 153 ) Part IV. THE LAW OF TESTAMENTARY STJCCESSION. Where a person dies testate, that is, wlien lie has made a valid wOl and dies without having revoked it, the devisee or devisees will succeed to all the real estate devised by the will, and also to the obligations which are binding upon real representatives (a) ; the executor or administrator cum testa- mento annexo will succeed to all the personal estate bequeathed by the will, even though such personal estate be given speci- fically to the legatees, and to all the obligations which are blading upon personal representatives {b). The heir-at-law wUl succeed to all real estate which is not devised by the will, or the devise of which has failed to take effect, for as to that portion of the real estate the testator will have died intestate ; so an administrator, appointed as in eases of total intestacy, will succeed to all personal estate which has not been bequeathed by the will so as to pass to the executor (c). The succession of the heir and administrator in these cases is of course governed by the law of intestate succession which we have just been discussing, and we are not, therefore, further concerned with them here. • In dealing with the subject of testamentary succession it is obvious that we must, in the first place, inquire what are the (a) See supra, Pt. 11., Chap. HI. executor, imless his authority be (b) Hid. expressly limited by the mil to a (c) The rule is, however, that certain portion only, all personal estate passes to the 154 THE LAW OF TESTAMENTARY SUCCESSION. essentials of a yalid mil. "We must next deal separately ■with the two main branches into which the suhjeot, as we have seen, naturally falls, namely, the succession of the exe- cutor or administrator mm testamento annexo, and the succes- sion of the devisee or devisees. It wiU then be convenient to discuss shortly certain rights and obligations of the devisee and executor, or devisee, heir, and executor, inter se, which arise from the conflictiag interests of these representatives of the testator ; and afterwards we shall refer to the succession to deceased executors, administrators, and trustees who have died testate. Accordingly the whole subject of the law of testamentary succession wiU be dealt with under the followiag heads : — 1. The essentials of a valid will. 2. The succession of the executor. 3. The succession of the administrator cum testamento annexo. 4. The succession of the devisee. 5. Eights and obligations of the devisee and executor, or devisee, heir, and executor inter se. 6. The succession to deceased executors, administrators, and trustees who have died testate. ( 155 ) OHAPTEE I. THE ESSENTIALS OF A VALID WILL. The essentials of a valid will may be stated as follows : — 1. The will must be expressed in the form rec[uired by law. 2. The testator (a) must have capacity to make a will. 3. The will expressedin the form required by law must be the genuine will of the testator. 4. The provisions contained in the will must not be con- trary to law. 5. The persons to whom interests are given under the will must be capable of acquiring such interests by will. 6. The wUl must remain unrevoked at the time of the tes- tator's death. It must be observed that 1, 2, and 6, go to the root of the whole will, i.e., if the will be not in the form required by law, or i£ the testator have not capacity to make a will, or if at the time of his death the will be revoked, the will is absolutely void and the testator dies intestate. But the other essentials do not always go to the root of the whole wiU, e.g., if a will contain one or two provisions which are contrary to law, and others which are perfectly lawful, the former provisions wiH alone be void, and the latter will take effect. (a) We ■will use "testator" as tlie context shows that it is limited including a "testatrix," unless to a male. 156 THE LAW OF TESTAMENTAEY SUCCESSION. Section I. — The Will must he expressed in the Form required hy Law. The common law never seems to have required that wills should be made in any particular form : if a will were made by word of mouth — ^in which case it was called a nuncupative testament — it was, of course, necessary that it should be made in the presence of witnesses, otherwise there would have been no means of proving that a will had been made ; but if made in writing no witnesses were necessary, nor was it even neces- sary that the testator should have signed the writing, pro- vided it could be shown that he intended it to take effect as his will. The Statute 32 Hen. YIJI. o. 1, which enabled persons to dispose of all their land held by socage tenure, and of two-thirds of that held by knight's service, by will, re- quired such will to be made " in writing," but neither attest- ing witnesses nor signature were necessary. Important alterations were subsequently effected by the Statute of Frauds («) . As to wills of real property, it pro- vided (b) that they should be utterly void and of no effect unless they were (1) in writing; (2) signed by the testator or by some other person in his presence and by his express directions ; and (3) attested and subscribed in the presence of the testator by " three or four credible witnesses " ; as to wills of personal property, it provided (c) that no nuncupative wiU should be good, in case the estate thereby bequeathed should exceed the value of 30^., unless it were proved by the oaths of three witnesses, and unless certain other conditions were fulfilled ; and after the lapse of six months from the time the will was made no testimony was to be received to prove any nuncupative will, unless such testimony or the substance thereof had been committed to writing within six days after (a) 29 Oar. II. c. 3, -wHoli came (J) Sect. 5. into force on June 20tli, IQIl. (c) Sect. 19. THE ESSENTIALS OF A VALID WILL. 157 the making of the will {d). But the Act did not apply to ■wills of personal estate made by soldiers ia actual military service, or mariners or seamen being at sea (e). This Act, it will be observed, had the effect of giving additional importance to the distinction between real and per- sonal property ; if, for instance, a man attempted to dispose of all his property by a will in writing which he had not signed, or which was only attested by two witnesses, it would be valid as to his personal property and absolutely void as to his real property. The law respecting the form of wills remained unaltered until the 1st January, 1838, on which day the " Act for the amendment of the laws with respect to wills" (/), usually called the Wills Act, came into operation. This Act pro- vides ig) that, " No will shall be valid unless it' shall be in writing and executed in manner hereinafter mentioned ; that is to say, it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses pre- sent at the same time, and such witnesses shall attest and shall subscribe the wlU in the presence of the testator, but no form of attestation shall be necessary." It must be observed that no special form nor technical expressions are necessary, in making a will ; all that is required is that the will shall be in ivriting, and executed {i.e. signed and 'attested) in the manner provided by the Act. The foUbwiag is an example' of a wlU of the simplest kind (A). I, John Smith, of No. , Bloomsbury Square, liondon, Merchant,, declare this* to be my last will, and I hereby devise and bequeath all my real and personal estate unto my wife, Ann Smith, absolutely, and- (i) Sect. 20. (3)Sect._9. (e) Sect. 23. (^) Davidson's Concise Prece- (/) 7 Will. IV. & 1 Viot. c. 26. dents, p. 437, 11th ed. 158 THE LAW OF TESTAMENTAEY SUCCESSION. I appoint her sole executrix of this my will. In mtness [h) whereof I, the said John Smith, have to this my will set my hand this first day of May, 1887. Signed and acknowledged by the above-named John"\ Smith as his will in the presence of us, present at the same time, who in his presence and in the 1- John Smith. presence of each other have hereunto subscribed our names as witnesses (i), J James Jones, of No. , Liucoln's Inn Fields, London, Sohoitor. Thomas Eobinson, of No. , Harley Street, London, Surgeon. The provision in the Wills Act that the vrill "shall be signed at the foot or end thereof " gave rise to a considerable amount of litigation^ and in 1852 an Act {k) was passed to explain that provision. By this Act it is enacted {I) that "every will shall, so far as regards the position of the signature of the testator, or of the person signing for hi-m as aforesaid, be deemed to be vaHd within the said enactment (m), as explained by this Act, if the signature shall be so placed at or after, or f oUowiag, or under, or beside or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his vnll, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the wOl and the signature, or by the circumstance that the signature shall be placed amongst the words of the testimonium clause or of the clause of attesta- tion, or shall follow or be after or under the clause of attes- tation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names (A) This is called the toWmojMMTO (4) 15 & 16 Vict. c. 24. clause. (0 Sect. 1. (t) This is called the aiiks^ation (m) I, e., the WUls Act. clause. THE ESSENTIALS OF A VALID WILL. 159 or one of tlie names of the subscribing witnesses, or by the cironmstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the- same paper on which the will is written to contain the signa- ture ; and the enumeration of the above circumstances shall not restrict the generality of the above enactment ; but no signature under the said Act (w) or this Act shall be operative to give effect to any disposition or direction which is under- neath or which follows it, nor shall it give effect to any disposi- tion or direction inserted after the signature shall be made." The Wills Act further provides that,, "no obliteration, interlineation, or other alteration made iu any wiU after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereiubef ore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memo- randum referring to such alteration, and written at the end or some other part of the will" (o). Alterations in a wiU are, however, usually effected by the execution of a codicil to the will, and by the Wills Act all codicils are required to be executed in the same manner as wills (p). For instance, suppose John Smith a few days after (ji) J. e., tte Wills Act. {p) Sect. 1 provides tliat " will" (o) 7 Will. IV. & 1 Vict. c. 26, shall extend to " a codioili" 8.21. 160 THE LAW OF TESTAMENTARY SUCCESSION. executing tlie will given on p. 157, supra, wished to leave a legacy of 50^. to his brother WiUiam Smith, he could carry- out his wish by supplementing his will with a clause to that effect, signed by him and witnessed just in the same manner as if he were executing a new will. The WiUs Act expressly provides that " any soldier being in actual military service, or any mariner or seaman heing at sea may dispose of his personal estate as he might have done before the making " of the Act (^). But the wills of mariners and seamen are in some cases required to be executed in a particular manner by special statutes. By 28 & 29 Vict, c. 72 (r), the wills of petty officers and seamen in the Royal Navy, and of marines and non-commissioned officers of marines, so far as relates to any wages, pay, prize-money, or other moneys payable hy the Admiralty, are required^ to be in writing and executed with the formalities required by the law of England in the case of persons not being soldiers in actual mihtary service or mariners or seamen at sea ; and when the will is made on board one of her Majesty's ships, one of the two attesting witnesses must be a commissioned officer, chap- lain, or warrant or subordinate officer belonging to her Majesty's naval or marine or military forces. When the will is made elsewhere, one of the two witnesses must be such an officer, &c., as aforesaid, or the governor, agent, physician, surgeon, assistant surgeon, or chaplain of a naval hospital at home or abroad, or a justice of the peace, or the incumbent,' curate, or minister of a church or place of worship in. the parish where the wiLL is executed, or a British consular officer, or an officer of customs, or a notary public (s) . But in case a seaman or marine is a prisoner of war, his will will be vahd- to pass wages, &c., if it be in writing, signed by him in the presence of and attested by one witness, being either a com- (2) Sect. 11. 1 Wm. IV. c. 20. (r) Superseding 11 Geo. IV. & (s) Sect. 5. ■ THE ESSENTIALS OF A VALID WILL. 161 missioned officer, or chaplain belonging to her Majesty's naval or marine or military force, or a warrant or subordinate officer of her Majesty's navy, or the agent of a naval hospital, or a notary public (if) ; or if it be executed in accordance with the formalities required by the law of England in the case of other persons not being soldiers in military service, &c. If this Act be not complied with, it is discretionary with the Admiralty whether they pay the wages, &c. to persons claiming under the will (u). And by the Merchant Shipping Act, 1864 («), it is pro- vided that the Board of Trade may, in its discretion, refuse to pay or deliver the wages or effects of any deceased merchant seaman to any person claiming to be entitled thereto under any wiU made on board ship, unless such will be in writing and signed ,or acknowledged by the testator in the presence of the master or first or only mate of the ship, and be attested by such master or mate. And the Board may, in its discre- tion, refuse to pay or deliver any such wages or effects to any person, not being related to the testator by blood or marriage, who claims to be entitled thereto under a will made elsewhere than on board ship, unless such will be in writing, signed or acknowledged by the testator in the presence of two witnesses, one of whom is some shipping master appointed under the Act, or some minister, or officiating minister or curate, of the place in which the same is made, or, in a place where there are no such persons, some justice of the peace, or some British consular officer, or some officer of customs, and be attested by such witnesses. Formerly a will of personal estate was in no case valid unless it had been made in the form required by the law of the country where the testator was domiciled at the time of his death. A person's domicil is the place which he makes («) 28 & 29 Vict. c. 72, s. 6. {v) 17 & 18 Viot. c. 104, s. 200. (m) Sect. 7. P. ^ 162 THE LAW OF TESTAMENTARY SUCCESSION. his home; but if it does not appear that he has made any par- ticular place his home, then the country where he was horn, or which was the domicil of his parents, will he his domicil(a!). If, then, A. had acquired a domicil in France, and while on a visit to England made his will and died in England, the question whether the will was valid or not would have' been determined according to the law of France. But this rule only applied to wills of personal property ; real property can only pass under a will which is made in accordance with the law of the country where the property is situated {y) — the lex loci rei sttce ; so, in the above case, if A. had real property in England, such property would not pass by his will unless the will were made in accordance with the law of England. The law has been altered, as to wills of personalty made by British, subjects, by an Act (z) of the present reign, which provides (a) that " Every will and other testamentary instru- ment made out of the United Kingdom by a British subject {whatever may he the domicil of such person at the time of making the same or at the time of his or her death) shall as regards personal estate be held to be well executed for the purpose of being admitted in England and Ireland to probate (b), and in Scotland to confirmation, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of her Majesty's dominions where he had his domicil of origin"; and that "Every will and other testamen- tary instrument made within the United Kingdom by any (a;) Foote, Private Int. Juris- {y) Ibid. p. 155. prudence, p. 9 ; 2 Wms. Exors. (z) 24 & 25 Vict. c. 114. p. 1523, 8th. ed., where the rules (a) Sect. 1. for ascertaining the domicil are (b) See, as to probate, poit, fuUy stated. p. 207. THE ESSENTIALS OF A VALID WILL, 163 British subject {whatever may he the domicil of such person at the time of making the same or at the time of his or her death) shall as regards personal estate be held to he well executed, and shall he admitted in England or Ireland to prohate, and in Scotland to confirmation, if the same be exe- cuted according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made" (c). And it is proYided that " no win or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered by reason of any subsequent change of domicil of the person making the same" {d). The Act only applies to wills of persons who die after the 6th August, 1861 (e). We have seen that the Statute of Frauds required three or four "credible" witnesses, and as the law "had so great a dread of the evil influence of the love of money that it wotdd not even listen to any witness who had the smallest pecimiary interest in the result of his own testimony" (/), it followed that a bequest to a witness, or to the wife or husband of a witness, would render a will void ; for the testimony not being admissible, there would not be the requisite number of witnesses required by law ; 25 Geo. II. c. 6, made gifts to witnesses void and rendered the witnesses credible, but that Act did not apply to gifts to husbands and wives of witnesses. The law on this point has been altered by the WiUs Act, which provides : — 1. That the incompetency of a witness at the time of the execution of the wiU, or at any time after, shall not render the wiU void {g). 2. That a witness to whom, or to whose wife or husband, (c) 24 & 25 Yict. 0. 114, s. 2. (/) Wms. Eeal Prop. p. 240, (d) Sect. 3. 16th ed. (e) Sect. 6. (9) Sect. 14. M 2 164 THE LAW OP TESTAMENTARY SUCCESSIOK. a beneficial interest is given by the will stall be a competent ■witness, but the gift of such beneficial iaterest (except charges or directions for the payment of any debt or debts), shall be utterly nuU and void {h). 3. That a creditor, or the husband or "wife of a creditor, ■whose debt is charged by the "will upon any real or personal estate, shall be a competent witness («"). 4. The person appoiated executor of a wiU is a competent witness {k). Formerly, when a testator wished to devise copyholds, it was necessary that he should first make a surrender of the property to the use of his will, and the will then formed part of the surrender, and was not required to be executed or attested in any particular form ; but by an Act {I) passed in 1815, a devise of copyholds without any surrender to the use of the will was made as valid as if a surrender had been made. WiUs of copyholds must now be executed and attested in the same manner as other wills {m). And a surrender to the use of the will is still unnecessary. Section II. — The Testator must have Capacity to make a Will Every person is capable of making a wUl, unless specially incapacitated by reason of (1) immaturity of age ; (2) cover- ture ; (3) unsoundness of mind ; or (4) civil death. We must, therefore, inquire how far the capacity to make a will is restricted on each of these different grounds. I. Immaturity of age. — Until a person attained a certain age the common law always treated him as too deficient in ' (h) Sect. 15. (Z) 55 Geo. III. c. 192. (0 Sect. 16. (m) 1 Will. IV. & 1 Vict. c. 26, (k) Sect. 17. s. 3. THE ESSENTIALS OF A VALID WILL. 165 mental capacity to make a -will. The age at which this incapacity was presumed to cease appears to have heen twelve years in the case of females, and fourteen in the case of males (w) ; but even after that age, it seems that a person could not make a valid will unless it appeared that he had capacity to understand the act he did (o). As to wills of real property, it was provided by 34 & 35 Hen. VIII. c. 5, s. 14, that they should not be " taken to be good or effectual in the law" if made by persons within the age of twenty-one years. And this is the limit now fixed by the Wills Act (p), whether the property be real or personal. That Act expressly provides that no will made hy any person under the age of twenty-one years shall he valid. Accordingly, there is now only one case in which an infant, i. e., a person under the age of twenty-one, can make a valid will, namely the case of an infant being a soldier in actual service, or a mariner or seaman at sea; for we have seen [q) that the Wills Act expressly provides (r) that these persons may dispose of personal estate as they might have done before the passing of the Act, and so in these cases the common law limit as to age still applies (s). II. Coverture. — In dealing with the incapacity of cover- ture, we must divide married women into two classes — A. Women married before the 1st January, 1883. B. Women married on or after the 1st January, 1883. This classification is rendered necessary in consequence of the important alterations in the status of married women effected by the Married Women's Property Act, 1882. [n) 2 Bl. Com. 497. (?) ^«P»'«. P- 1^0. [o) Ihid. : Arnold v. Barl, 2 (r) Sect. 11. Lgg 529. («) -^« McMurdo, L. E. 1 P. & (p) 7 Will. IV. & 1 Viot. c. 26, M. 340. s. 7. 166 THE LAW OF TESTAMENTAEY SUCCESSION. A. Testamentary Capacity of Married Women whose Marriage took place before the 1st January, 1883. A married woman, during the time the coverture lasts, is, by common law, totally incapahle of making a valid wiU of personal property without the licence of her husband, and, even if she does so with his consent, he may withdraw his consent during her lifetime, or at any time before probate of the will, and thereupon the will becomes absolutely void. As to real estate, 34 & 35 Hen. VIII. c. 5, s. 14, provided that the will of any woman covert should not be taken to be good or effectual in the law, and thus removed the doubt as to whether 32 Hen. VIII. c. 1, which permitted land to be devised by will (t), enabled married women to make wiUs of real estate. The incapacity to make wiUs of personal estate was the consequence of the common law doctrine that husband and wife were one person in the eye of the law; from which it followed that the husband acquired an absolute right to all his wife's choses in possession, and to all choses ia action which he reduced into possession during her lifetime, and that, ia case he survived her, he was entitled as her adminis- trator to' such of her choses in action as he had not already reduced into possession (m). The common law would not allow these marital rights of the husband to be defeated without his consent; hence the rule that the will of a married woman is void unless made with the consent of her husband. The Wills Act made no alteration in the law on this sub- ject ; it provides " that no will made by any married woman shall be valid except such a will as might have been made by a married woman before the passing of this Act " (c). Accordingly the general rule is that a married woman cannot make a valid will without the hcenoe of her husband. To this general rule there are certain exceptions, some of which seem to have always been recognised by the common law, while the others owe their origia to equity or statute. (<) Supra, p. 38. («) Supra, p. 116. [v) Sect. 8. THE ESSENTIALS OF A VALID WILL. 167 1. Exceptions at Common Lmv. (1) The queen consort can make a valid will. (2) The wife of a person convicted of treason or felony can make a valid will of property which she has acquired since the date of the conviction («?). (3) A married woman who is an executrix can make a vaUd will of property to which she is entitled as executrix ; but only choses in action passed by such a will before the Married Women's Property Act, 1882, came into opera- tion (x). Probably a married woman who has become execu- trix since the 1st January, 1883, can by will transfer all property which she holds or is entitled to as executrix (y). (4) A married woman in whom a power of appointment (exeroiseable by will) over property is vested, can make a valid will in exercise of such power without the consent of her husband (s). The reason is, that the person who exercises a power is merely regarded as the agent of the person who conferred the power (a). 2. Exception created by Equity. A married woman can make a valid will of all property, whether real or personal, which belongs to her as her separate estate {h), except, of course, when by deed or will she is expressly restrained from alienating it. As to personal property, the law seems to have been settled since 1789 (c) ; but some doubt seems to have existed with regard to real estate until 1865, when the law was laid down {v) In the goods of Martin, 2 (o) See Sug. Powers, 153, Stlied. Eobert. 405 ; and see Re Coward, [h] As to what property is sepa- 24 L. J. (N. S.) P. M. & A. 120. rate property, independently of {x) 1 Wms. Exors. p. 54, 8tli ed. statute, see Snell's Equity, p. 424, {y) Of. Wolstenholme's Conv. 8tli ed. Acts, p. 161, 3rd ed. (c) Fettiplace v. Gorges, 1 Yes. (z) 1 Wms. Exors. p. 56, 8th ed. jun. 46, 168 THE LAW OF TESTAMENTARY SUCCESSION. by Lord ■Westbuiy in the case of Taylor v. Meads (d) as follows : — " When the courts of eqtdty established the doctrine of the separate use of a married woman, and applied it to both real and personal estate, it became necessary to give the married woman, with respect to such separate property, an indepen- dent personal status, and to make her in equity a feme sole. It is of the essence of the separate use that the married woman shall be independent of, and free from the control and inter- ference of, her husband. With respect to separate property the feme covert is, by the form of trust, released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui juris. To every estate and interest held by a person who is sui juris, the common law attaches a right of alienation ; and accordingly the right of a, feme covert to dispose of her. separate estate was recog- nised and admitted from the beginniag, until Lord Thurlow devised the clause against anticipation" (e). He then explains that the courts of equity considered 34 & 35 Hen. VIII. c. 5 (which made wills of real estate by married women void (/).), " as not applicable to separate estate, which was unknown at the time of the passing of the statute " (gr) ; and after referriag to earlier authorities, finally comes to the conclusion that " &feme covert, not restrained from alienation, has, as incident to her separate estate, and without any express power, a complete right of alienation by instrument inter vivos or by will '^ {g). 3. Exceptions created hy Statute. (1) The Divorce and Matrimonial Causes Act, 1857 (h). (a) A woman divorced from her husband ceases to be a married woman, and her incapacity to make a will ceases also. {d) 34 L. J. Oh. 203, 207. (/) Supra, p. 166. (e) See Parhes v. White, 11 Ves. [g) Taylor v. Meads, at p. 208. 209, 221. (7i) 20 & 21 Vict. c. 85. THE ESSENTIALS OF A VALID WILL. 169 (h) A woman judicially separated from her husband may dispose as a feme sole of all property which she may acquire after the date of the sentence of judicial separation, and i£ she renews cohabitation all such property "shall be held to her separate use " («'), so that she may stiU. dispose of it by will. (c) A woman who has been deserted by her husband and has obtained a protection order is entitled to her earnings and other property acquired since the commencement of the desertion " as ii she were a feme sole," and during the con- tinuance of the desertion is in the like position as a woman who has been judicially separated [k). (2) 41 Yict. c. 19, s. 4. A separation order made in cases where a husband has been convicted of aggravated assault has the effect of a judicial separation. (3) The Married Women's Property Act, 1870 (l). This Act provided that certain, property of a married woman should be deemed to be her separate property. Thus, by creating statutory separate estate, the Act indirectly extended the power of married women to dispose of their property by win without the consent of their husbands ; for, as we have seen, a married woman could make a valid will of separate estate without her husband's licence. The Married Women's Property Act, 1870, made the following kinds of property separate estate : (a) Where the marriage took place either before or after the passing of the Act {m) — (i) The wages and eamiags, money or property, of a married woman acquired or gained by her after the 9th August, 1870, in any employment, occupation, or trade in which she was engaged, or which she carried on separately from her husband, or through the exercise (i) Sect. 25. (Z) 33 & 34 Viot. c. 93. (V) Sect. 21. (m) 9th August, 1870. 170 THE LAW OF TESTAMENTARY SUCCESSION. of any literary, artistic, or scientific skiQ, and all iavest- ments of such wages, money, earnings, and property (w). (ii) On the application of a married woman or a woman about to marry, public stock or funds (of not less than 20/. in value) (o), fully paid up shares, debentures or stock in incorporated or joint stock companies {p), shares, benefits, or debentures (to which no liability attached), or rights or claims to or upon the funds of any iadustrial, provident, or friendly society [q), might be entered or registered, &c. in the name of such woman, and there- upon such stock, &G. was to be deemed to be her sepa- rate estate. (b) Where the marriage took place after the passing of the Act (r) — (i) AH personal property to which a married woman be- came entitled as next of kin of an intestate («) ; (ii) Any sum of money not exceeding 200/. to which a married woman became entitled under a deed or will (s) ; (iii) The rents and profits of any freehold, copyhold, or customaryhold property which descended upon a mar- ried woman as heiress {t). These provisions were to be without prejudice to the trusts of any settlement affecting the property (w). The Married "Women's Property Act, 1870, was repealed by the Married Women's Property Act, 1882 (a-), except as to rights acquired before the 1st January, 1883. (4) The Married Women's Property Act, 1882 {y). Every woman married before the 1st January, 1883, shall be {n) Sect. 1. (s) Sect. 7. (o) Sect. 3. («) Sect. 8. Ip) Sect. 4. (m) Sects. 7, 8. (g) Sect. 5. [x) 45 & 46 Vict. c. 75, s. 22. (r) 9tli August, 1870. {y) 45 & 46 Vict. c. 75. THE ESSENTIALS OP A VALID "WILL. 171 entitled to liave and to hold, and to dispose of, " hy will or otherwise," as her separate property, " all real and personal property her title to which, whether vested or contiagent, and whether in possession, reyersion, or remainder, shall accrue " after the \st of January, 1883 (s), including " any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill" (a). These provisions are subject to the terms of any agreement for a settlement, settlement, will, or other instrument affecting the property (5). B. Testamentary Capacity of Married Women wJiose Marriage took place on or after the 1st January, 1883. The Married "Women's Property Act, 1882 (c), provides that every woman who marries on or after the 1st January, 1883, " shaU be entitled to have and to hold as her separate property," and to dispose of, " ly mil or otherwise," all real and personal property which, (1) " ShaU belong to her at the time of marriage " ; or (2) "ShaU be acquired by or devolve upon her after marriage, including any wages, earnings, money, and pro- perty gained or acquired by her in any employment, trade, or occupation ia which she is engaged, or which she carries on separately from her husband, or by the exercise of any Uterary, artistic, or scientific skUl" {d). These provisions are subject to the terms of any settlement, agreement for a settlement, will, of other instrument affecting the property (e) . (z) Beid V. Reid, 31 Ch. D. 402. (c) 45 & 46 Vict. c. Y5. (a) Sects. 1, 2, 5. [d] Sects. 1, 2. (J) Sect. 19. (e) Sect. 19. 172 THE LAW OF TESTAMENTARY SUCCESSION. The Act practically confers complete testamentary capacity upon all women wlio have been married since the commence- ment of the Act. III. Unsoundness of Mind. — In order that a will may he valid, the law requires that the testator, at the time of malting the will, shall be of sound mind. And first of all it is im- portant to explain what these words " a sound mind " do not mean. " They do not mean a perfectly balanced miad. If so, which of us would be competent to make a will ? Such a mind would be free from all iafluence of prejudice, passion, and pride. But the law does not say that a man is incapaci- tated from making a will if he propose to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. We do not sit here to correct iajustice in this respect" {g). But although it is not essential that a testator should have a perfectly balanced mind, yet it is essential that he should have " what old lawyers have called a disposing mind " (A) ; that is, he must not only be able to understand that he is by his will giving his property to the objects of his regard, but must also have capacity to comprehend the extent of his property, and the nature of the claims of others whom-, hy his will, he is excluding from all piarticipation in that property («'). In other words, it seems essential that the mind of the testator shall be capable of exercising — (1) the faculty of remembering what property he has, all material facts relating to it, the persons who have claims upon his bounty, and the nature of their claims; (2) the faculty of reasoning and forming a judgment respecting such facts, and the claims of such persons. [g) Per Sir J. Hannen, Boughton 1 Post. & F. 578. V. Knight, L. E. 3 P. & D. 64, 66. (i) Harwood r. Baker, 3 Moo. (A) Barl of Se/ton v. Hopwood, P. 0. C. 282, 290. THE ESSENTIALS OF A VALID WILL. 173 -' When a person has not a disposing mind he is said to be of unsound mind for the purpose of mating a will, and this may arise from three chief causes — (1) the mental disease which we call insanity ; (2) the decay or loss of the mental faculties, which is often the consequence of old age or bodily infirmity; and (3) intoxication. 1. Insanity. — Persons suffering from mental disease we call lunatics or idiots ; the distinction seems to be that an idiot is " a fool or madman from his nativity who never has any lucid intervals " {k); a lunatic is " a person usually mad, but having intervals of reason " (l). Adopting this distiaction, it is clear that an idiot is totally incapable of making a vahd will ; but a lunatic is capable in two cases. (a) He can make a vahd will duriag a lucid interval. The law on this point is perfectly well estabhshed, and the only question in each case is whether a lucid interval has been proved — a mere question of fact, but one which is sometimes exceedingly difficult to determine. It is always more difficult when the insanity is of a permanent nature than where it takes the form of delirium, i.e., a fluctuating state of mind created by temporary excitement, in the absence of which the patient is, most commonly, really sane (m). In the case of a lunatic so found by inquisition, it is a presumption of law that the commission of lunacy was well founded, and, if it remains unsuspended, that the lunatic remained a lunatic until his death ; and this presumption can only be rebutted by positive proof of a lucid interval or entire recovery at the time the will was executed (w). (b) Where a person is suffering from partial insanity, or, as {k) 1 Wms. Bxors. p. 17, 8tli ed. wright r. Oartwright, 1 Phillim. (I) Ihid. p. 19. 90. ^iilly '^^^^ 1 Wms. Exors, (m) Brogden v. Brown, 2 Add. p. 23, 8tli ed. 445; a good instance of a lucid (n) 1 Wms. Exors. p. 38, 8tli interval will be found in Cart- ed. 174 THE LAW OF TESTAMENTARY SUCCESSION. it is called, monomania — i.e., he is perfectly sane on all points save one or two — he can make a valid will provided it he satisfactorily proved that the insanity did not affect the general faculties of the mind, and can have had no effect upon the will (o). Thus, where a testator, at the time he made his will, was suffering from two delusions, — one that he was pursued hy spirits, the other that a man, long since dead, came personally to molest him, — but in all other respects was perfectly sane, it was held that, as neither of these delusions — the dead man not having been in any way connected with him — had, or would have had any influence upon him in disposing of his property, the will was perfectly valid (p). 2. Decay or loss of the mental faculties in consequence of old age or bodily infirmity. Where a testator was of great age at the time he made his will, and the will is disputed, the fact of great age " raises some doubt of capacity, but only so far as to excite the vigi- lance of the Court ; for the law allows a person at any age to make a will, provided he retains the disposing faculties of his mind" [q). But "i£ a man in his old age becomes a very child again in his understanding, or rather in the want thereof, or by reason of extreme old age or other infirmity has become so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, or a child, or lunatic person " (r). So in the case of bodily infirmity, the fact that the in- firmity affects the mind wiU. not render the mind imsound for the purpose of making a valid will, unless it be shown that the effect upon the mind was such as to deprive it of its disposing faculties (s). (o) Banks v. Qoodfellow, L. E. (g) Kindleside v. Harruon, 2 6 Q. B. 549 ; overruling on tliis PMUim. at p. 461. point Waring v. Waring, 6 Moo. {r) Swin. Pt. 2, s. 5, pi. 1, P. 0. 341. («) Earwood v. Baker, 3 Moo.- ( p) Banks v. Goodfellow, supra. P. C. 0. 282. THE ESSENTIALS OF A VALID WILL. 175 3. Intoxication. — " He that is overcome by drink, during the time of his drunkenness is compared to a madman, and therefore, if he make his testament at that time, it is void in law; which is to be understood, when he is so excessively drunk that he is utterly deprived of the use of reason and understanding ; otherwise, albeit his understanding is obscured and his memory troubled, yet he may make his testament, being in that case " {t). Drunkenness differs from insanity in this respect, that drunkenness can scarcely be latent, and therefore, in order that a will may be valid, it is only necessary to prove that at the time of its execution there was an absence of such excite- ment or confusion of ideas as would indicate that the mind was reaUy affected {u). ly. Civil Death. — " Civil death occurs where a man is attainted of treason or felony; for immediately upon such attainder he loses (subject indeed to some exceptions) his civil rights and capacities ; and becomes, as it were, dead in law " («). All real and personal property of such persons was forfeited to the Crown, or, as to real property, sometimes to the lord (subject to the Crown's right of possession for a year and a day {y)), and accordingly they had no property to dis- pose of by will (a) ; but it seems that the AviU was good except against the Crown or lord (a). By a recent Act (5) it has been provided that, after the 4th July, 1870, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony shaD. cause any forfeiture or escheat (c) ; but nothing in that Act is to " affect the law of forfeiture consequent upon outlawry" (o). Accordingly, where civil death has occurred («) Swin. Pt. 2, s. 4, pi. 3. 16tli ed. (u) Ayrey v. Hill, 2 Add. 206, (a) Swin. Pt. 2, §§ xii, xiii. 210. [a) Bac. Abr. WiUs, B. 17. (x) 3 Inst. 213; 4 Bl. Com. 880. (5) 33 & 34 Vict. c. 23. {y) Wms. Eeal Prop., p. 151, (c) Sect. 1. 176 THE LAW OF TESTAMENTARY SUCCESSION. since the 4th July, 1870, it does not incapacitate a person from making a Yalid will unless su-ch person be an outlaw. A person is liable to be adjudged an outlaw when he fails to appear to answer to an indictment, and keeps out of the way so that he cannot be found and apprehended. The effect of a person being adjudged an outlaw is that he is put out of the protection of the laio, and so is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise, and his property is forfeited to the Crown (e). Section III. — The Will expressed in the Form required hy Law must be the genuine Will of the Testator. "When a will is expressed in the form required by law, the presumption, in the absence of suspicious circumstances, is, that the document expresses the testator's genuine will. For the fact of the testator having signed the will is, in the absence of such circumstances, sufficient proof that he knew and ap- proved of the contents (/). But this presumption may be rebutted by clear evidence that the will fails to express the genuine intention of the testator in. consequence of : — 1. Mistake on the part of the testator ; 2. Fraud practised upon the testator ; or 3. Undue influence exercised over the testator. 1. Mistake. — ^A testator may, by mistake, — (1) Execute as his will an instrument which he never in- tended to be his will ; or (2) Execute as his will an instrument which — (e) 4Steph.Coin. p.395,10tlied. (/) Guardhouse v. Blachhum, L. E. 1 P. & D. 109, 116. THE ESSENTIALS OF A VALID WILL. 177 (a) Contains certain provisions which he never intended should be contained in it ; or (b) Fails to contain certain provisions which he intended should be contained it. These seem to be the only cases where mistake may in- validate a duly executed wiU. Mistakes of expression, such as misdescriptions of property or of legatees, do not invalidate the instrument in which they are contained, for they do not prevent it from being an expression of a genuine will ; they merely create a difficulty in ascertaining what the genuine will really was ; e. g., where a legacy is given to " my name- sake Thomas, the second son of my brother," and the testator's brother has no son named Thomas, but his second son is "William, the description " second son " shows the testator's intention notwithstanding the mistake of the name, and William will be entitled to the legacy {g). (1 ) Where a testator inadvertently executes as his will an instrument which he never intended to execute as his will, it is obvious that there is no expression of a genuine will, and the instrument is void : e.g., Two sisters, A. and B., were living together, and agreed to make their wills, chiefly for the purpose of giving a life interest to the survivor in the pro- perty of the one who died first ; the provisions of the wills were almost identical, and were drawn up by A. A. died first, and it was then discovered that by mistake A. had signed B.'s will, and B. had signed A.'s. Sir J. Hannen refused to grant probate of A.'s will ; A. "did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the con- tents she would not have signed it " (A). But in such cases there must be " proof establishing beyond {g) BtocMale v. Bushly, cited 2 {h) In the goods of Hunt, L. E. Wms. Exors. p. 1156, 8tli ed. 3 P. & D. 250. P. N 178 THE LAW OP TESTAMENTARY SUCCESSION. all possibility of mistake " that the testator did not intend the document to operate as his ■will (i). (2) — (a) Where a testator inadvertently executes as his wlQ an instrument which contains certain words or provisions which he never intended should be contained in it, there is no expression of a genuine will as regards such words or provisions, and accordingly, to that extent, the will is invahd : e.g., A. gave instructions that a will should be drawn up bequeathing all his personal property to his wife. The will was drawn up by filling in a printed form of will, and by inadvertence a clause in the printed form, making a provision for children, was not struck out. A. duly executed the will, without observing or being aware of this clause. It was held that the win constituted a valid bequest of all the property to the wife, and the provision in favour of the children was in- operative (k) Of course there must be clear evidence that the testator did not intend such words or provisions to operate as part of his wiU(0. It seems possible that cases might arise where the rejection of certain words or provisions would so alter the meaning of the remainder of the wiU that it would fail to express the genuine intention of the testator. And it seems probable that in such cases the whole will would be held to be invalid. The subject was touched upon in a recent case as follows : — "A more difficult question arises where the rejection of words alters the sense of those which remain. For even though the Court is convinced that the words were improperly intro- duced, so that if the instrument was infer vivos it would reform the instrument and order one in different words to be (i) Guardhouse v. BlacJcburn, Morrell, 7 P. Div. 68. L. E. 1 P. & D. 109, 116. {I) Guardhouse v. Blackburn, (k) In the goods of Duane, 2 Sw. supra. & T. 690. See also Morrell v. THE ESSENTIALS OF A VALID WILL. 179 executed, it cannot make the dead man execute a new instru- ment ; and there seems much difSculty in treating the will after its sense is thus altered as valid within the 9th section of the 7 Win. lY. & 1 Yict. c. 26, the signature at the end of the wiU required by that enactment having been attached to what bore quite a different meaning. It has never, so far as their lordships are aware, been necessary to decide as to this, though the judgment of Sir James Hannen in Sarter V. Harter {m) has some bearing on it. And their lordships think it imnecessary, and therefore improper, now to express any opinion on this question, for the evidence does not raise it" (re). (b) Where a testator executes as his will an instrument which fails to contain certain words or provisions which he intended should be contained in it, there is no expression of a genuine will so far as the instrument is affected by the omitted provisions. It is perfectly obvious that, since the WiUs Act (o), the Court cannot give effect to the genuine win by ordering the omitted words or provisions to be added to, and read as part of, the document which the testator has executed ; for this wotdd be giving effect to a will which had not been expressed in the form required by law {p) ; but it seems that so far as the meaning of the wiU has been altered by the omission the will is invalid {q). Of course in this, as in other cases of mistake, the party impeaching the wiU- must prove his case by the clearest evidence. 2. Fraud. — Where a will is made in consequence of im- pressions created in the mind of the testator by fraudulent (m) L. E. 3 P. & D. 11. {p) See Guardhouse v. Black'- {n) Rhodes v. Rhodes, 1 App. turn, L. E. 1 P. & D. 109, 114. Cas. 192, 198, per Lord Black- (?) See 1 Jarm. WiUs, 412, 4tli burn. ed., citing Earl of Newhwrgh v. (o) 7 Will. rV. & 1 Vict. c. 26, Gounfess of Newlwgh, 5 Mad. 364. B. 9. n2 180 THE LAW OF TESTAMENTARY SUCCESSION. misrepresentations, there oan be no expression of a genuine will (r). For instance, suppose A. is about to make a will in favour of B. ; X., knowing of such intention, makes representations to A. respecting the character or conduct of B., which he (X.) knows or believes to be false, for the purpose of inducing A. to alter his mind ; A. believes these false representations, and is induced by them to leave all his property to X., instead of to B. (s) : it is clear that such a will is not the genuine wiU of A. ; his wiH was to benefit B., and this he would have done had it not been for the false impressions created in his mind by the fraud of X. Where the whole wiU is made in consequence of fraud practised upon the testator, the will is completely void ; but where only some part of the will is the result of fraud, such part only is void and the remainder valid {t). Of course fraudulent misrepresentations have no effect upon a will unless they actually deceive the testator at the time of making the will, and also lead him to make it (m), or, in other words, unless the particular will is the consequence of the fraud ; for example, in the case above given, if A. had altered his mind respecting the gift to B. from some other cause than the false representations of X., the will would have been valid, notwithstanding that A. at the time believed such representations to be true, for in this case they would not have affected his will at all. 3. Undue influence. — The distinction between influence which is legitimate and that which is undue has been ex- plained in a modem case (») as follows : — "All influences are (r) Boyse v. Bosshorough, 6 H. (m) Of. Longford v. Purdon, 1 L. Oas. at p. 44. Ir. Oh. D. 75. (a) Of. ibid. p. 53. (x) Hall v. Sail, L. E. 1 P. & ' [t] Allen V. M'Pherson, 1 H. L. D. 481, 482. Cas. at p. 209. THE ESSENTIALS OF A VALID WILL. ISt riot unlawful. Persuasion, appeals to the afCeotions or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like-these are aU legitimate and may he fairly pressed on a testator. On the other hand- pressure of whatever kind, whether acting on the fears bv the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no vaM will can he made. Importunity or threats, such as the testator has not the courage to resist, moral commands asserted and yielded to for the sake of peace and quiet, or of ^ escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven, and his will must be the offspring of his own volition and not the record of some one else's." The distinguishing mark, then, of undue influence is coercion {y). Whenever influence has the effect of coercing a testator it is undue. It may take the form of actual physical restraint or violence exercised upon the person of the testator or those closely connected with him, or of threats of such violence or restraint — ^in this form it is sometimes called duress ; or it may take the form of persuasion used to a testator on his death-bed, when even a word distracts him, so that in fact the persuasion amounts to force (2). We cannot, therefore, predicate " undue " of any particular kind of influence in the a,bstraot, but must, in each case where undue influence is alleged, ascertaia, from the facts of the case, whether the instrument in question expressed the genuine will of the testator, or merely a will created in his mind by coercion {a). (y) Parfltt v. Lawless, L. Ei 2 (a) Boyse v. Rossborough, 6 H, P. & D. 462, 470. L. Cas. at p. 45, (2) Swin. Pt. 1, s. 4, pi. 1. 182 THE LAW OF TESTAMENTARY SUCCESSION. ■; It may be here observed that there is a most important difference between wills and transactions inter vivos as regards proof of undue influence. " In equity persons standing in certain relations to one another — such as parent and child, man and wife, doctor and patient, attorney and client, confessor and penitent, guardian and ward — are subject to certain presumptions when transactions between them are brought in question ; and i£ a gift or contract made in favour of him who holds the position of influence is im- peached by him who is subject to that influence, the courts of equity cast upon the former the burthen of proving that the transaction was fairly conducted as i£ between strangers; that the weaker was not unduly impressed by the natural influ- ence of the stronger, or the inexperienced overreached by him of more mature intelligence" (6). In such cases the pre- sumption is that undue influence was exercised, and the trans- action is invalid unless evidence be brought which rebuts the presumption (c). But this "has never been, and is not the law" regarding wills (c). The existence of parental and confidential relations, &o., between the testator and legatee, or devisee, will arouse the suspicion of the Court, and be ground for the strictest investigation of all facts and circum- stances connected with the making of the will ; but it raises no presumption of undue influence, and accordingly the will' must be held to be valid unless evidence be brought before the Court proving that undue influence was exercised over the testator. Thus, in Parfitt v. Lawless (d), a. testatrix gave the residue of her estate to a Roman Catholic priest, who had for many years resided as chaplain with the testatrix and her husband, and for part of that time, and at the time the AviU was made, had acted as her confessor. There was no evi- (b) Parfitt V. Lawless, L. E. 2 (c) Pollock, Contracts, pp. 557 P. & D. 462, 468. et seq., 4tli ed. [d) L. E. 2 P. & D. 462. THE ESSENTIALS OF A VALID WILL. 183 dence that the priest had interfered in the making of the will, or had procured the gift of the residue to himself, or had brought about such gift by coercion or dominion exer- cised over the testatrix against her wiU, or by importunity not to be resisted. It was not even shown that in the common afiairs of Hfe the testatrix was under the priest's control or dominion. Under these circumstances it was held that there was no evidence of undue iofluence to go to the jury, and that the wiU must be declared valid. Section IY. — The Provisions of the Will must not he contrary to Law. So far as the provisions of a vsdll are contrary to law, the will is of course void. It would be out of place here to attempt an enumeration of the possible ways in which a will might be rendered invalid on this ground ; but provisions in wills have so often been invaKd through being (1) contrary to the law restricting the creation of future estates and interests in real and personal property, or (2) contrary to the law restricting dispositions of property for what are called "charitable" purposes and superstitious uses, that it seems necessary to refer briefly to the law on these subjects. I. Eestriotions upon the creation of future estates or inte- rests in real or personal property. The law on this subject relates to : — 1. The creation of contingent remainders ; 2. The creation of executory interests (e) ; 3. The accumulation of the income of property in favour of future owners. (e) As to the distinctioii be- executory interests, see Wms.Eeal tween contingent remainders and Prop. p. 354, 16tli ed. 184 THE LAW OP TESTAMENTARY SUCCESSION. 1. Contingent Remainders. — The rule is tliat : — " An estate cannot be given to an unborn person for life, followed by any estate to any cMd of such, unborn per- son"(^). Accordingly a provision in a will giving an estate to the child of such unborn person is absolutely void. Thus, in a devise of real property to A. (an unmarried person) for life, remainder to A.'s eldest son for Hfe, remainder to the sons of A.'s eldest son successively according to seniority in tail, the limitation of the estate tail to the sons of the eldest son is absolutely void {h). 2. Executory Interests. — The rule is that : — An executory interest must commence within the period of a definite Hfe or definite lives in being, and twenty-one years after the determination of such life or lives ; and every executory interest which might, in any event, transgress this limit is absolutely void («). Thus, a gift to the fijst son of A., a living person, who shall attain the age of twenty-one, is valid, for A.'s son must attain twenty-one either in A.'s lifetime or at any rate within twenty- one years of his death — allowing for the period of gestation, which is always done in these cases where the child is born after its parent's death. But a gift to the first son of A., a living person, who shall attain the age of twenty-four, would be absolutely void, for i£ A. died leaving a son who was not three years old, the son's interest would commence at a time exceeding twenty-one years from A.'s death. To the general rule there is, however, one exception ; " if the executory limitation should be in defeasance of, or ioune- diately preceded by an estate tail, then, as the estate tail and {g) Wms. Eeal Prop. p. 314, (i) Wms. Eeal Prop. p. 359, 16tli ed. 16tli ed. ; Personal Prop. p. 350, Qi) As to tlie cy pres doctrine 13th ed. in such cases, see post, p. 238. THE ESSENTIALS OF A VALID WILL. 18S all subsequent estates may be barred by the tenant in tail, the remoteness of the event on which the executory limitation is to arise will not affect its validity" (/c). This exception can, of course, only apply to gifts of real estate : the general rule applies to both real and personal estate. 3. Accumulation of the Income of Property. — Before 1800 there was no restriction imposed by law upon provisions in deeds or wills for the accumulation of income in favour of future owners, unless, at least, such provisions were contrary to the rule just mentioned for limiting the creation of execu- tory interests. But ia 1799 it was found necessary to alter the law on this subject in consequence of Mr. Peter Thellus- son's extraordinary will being held valid by the Courts. Thellusson devised real estate (of which the annual income was nearly 5,000/.), and also other estates directed to be pur- chased with the residue of his personal estate amounting to about 600,000/., to trustees, in trust to accumulate the income duriug the lives of his sons A., B., and C, and of his grand- son D., and during the lives of such issue of A., B., C, and D., as might he living at the time of his {Thellusson's) death'. The accumulations were to be invested by the trustees in real estate, and after the death of A., B., 0., and D., and of such of their issue as were living at TheUusson's death, the pro- perty was given to certain of their liueal descendants in tail(/). It wiU be observed that by limiting the accumula- tion to the lives of persons living at his death, Thellusson kept within the limits of the rule as to the creation of execu- tory iaterests, and the Court was obliged to hold the wiH valid. In consequence of this decision an Act was passed in 1800 (m) (sometimes called the "Thellusson Act"), which {k} Wms. Eeal Prop. p. 360, (1) Thellusson v. Woodford, 4 letli ed. ; Heasman v. Pearse, L. E. Ves. 227. 1 Ch. 275. (w) 39 & 40 Geo. III. c. 98. 186 THE LAW OF TESTAMENTARY SUCCESSION. provides that no income of real or personal property shall he accumulated for any longer period than — (1) The life of the grantor or settlor ; or (2) Twenty-one years from the death of the grantor, settlor, or testator ; or (3) During the minority of any person living, or in ventre sa mhre at the death of the grantor, settlor, or testator ; or (4) During the minority only of any person who, under the settlement or will, would for the time being, if of fuU age, be entitled to the income so directed to be accumulated. " Or " is to be read in its ordinary disjunctive sense, and accordingly an accumulation can only take place during one of the specified periods. For instance, a direction ia a will to accumulate the interest of trust funds for twenty-one years after the testator's death, and, at the expiration of that time, during the minorities of the persons who wiU ultimately be entitled under the trusts, vrill only be vaHd for the period of twenty-one years after the testator's death (w). The Act expressly provides that the restrictions imposed by it shall not apply to any provision — (1) for payment of debts ; or (2) for raisiag portions for children ; or (3) respect- ing the produce of timber or wood (o). A provision for accumulation of income during a period ia excess of the time limited by the Act, is (1) valid to the extent of the time allowed by the Act, but (2) void so far as the period is in excess of the time allowed hy the Act i^p). It must be observed that any provision for accumulation which exceeds the time allowed by law for the creation of executory interests, is absolutely void independently of the TheUusson Act(g'). [n) Wilson v. Wilson, 1 Sim. Be Lady Sosslyn's Triisi, 16 Sim. N. S. 288. 391. (o) Sect. 3. (q) Lord SouihamptonY. Marquis Ip) 1 Jarm. Wills, 306, 4t]i ed. ; of Hertford, 2 Ves. & Bea. 5h THE ESSENTIALS OP A VALID WILL. 187 II. Eestrictions upon dispositions of property for oharitable purposes, and superstitious uses. 1. Charitable Purposes.— The meaning of the word " charitable " was explained by Sir W. Ghrant, M. E., in Morioe v. Bishop of Durham (r), as foUows : — " That word in its widest sense denotes all the good affections men ought to bear towards each other ; in its most restricted and common sense, relief of the poor. In neither of these senses is it em- ployed in this Court. Here its signification is derived chiefly from the Statute of ELi2iabeth(s). Those purposes are con- sidered charitable which that statute enumerates, or which by analogies are deemed within its spirit and intendment." In the preamble of the statute thus referred to, the following objects were specified as charitable : — Eehef of aged, impotent, and poor people, maintenance of sick and maimed soldiers and mariners, schools of leamiag, free schools, scholars in universities, repair of bridges, ports, havens, causeways, churches, sea-banks and highways, educa- tion and preferment of orphans, relief, stock or niaintenance for houses of correction, marriages of poor maids, supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed, relief or redemption of prisoners or captives, for aid or ease of any poor inhabitants concerning payments of fif- teens, setting out of soldiers, and other taxes. As instances of purposes analogous to these, and therefore held to be charitable purposes within the " spirit and iatend- ment " — or as it is also called " the equity " — of the statute, may be mentioned, gifts for the erection of water-works for the use of the inhabitants of a town (^),, for "charities and other public purposes " in a parish (m), and for foimding prizes for essays (®). (r) 9 Ves. at p. 405. («) Dolan v. Macdermot, L. E. (s) 43 EUz. c. 4. 5 Eq. 60. [t) Jones y. Williams, Amb. 651. (v) Farrer v. St. Catherine's 188 THE LAW OF TESTAMENTARY SUCCESSION. The Mortmain and Charita'ble Uses Act, 1888 (r), whicli came into operation on tlie 13tli August, 1888, repeals the Statute of Elizaheth, but does not affect any right, ohKgation, or liability acquired, accrued, or incurred under it («), and' makes the following provision as to the preamble — "Whereas in divers enactments and documents reference is made to charities within the meaning, purview, and interpretation of the said Act [i. e., the Statute of Elizabeth] : be it therefore enacted, that references to such charities shall be construed as references to charities within the meaniag, purview, and interpretation of the said preamble (t). Accordingly, subject to these exceptions, the Statute of Elizabeth will not in future affect the construction of gifts for charitable purposes. The pohoy of early times strongly favoured gifts, even of land, to charitable purposes. At the commencement of the 18th cen- tury, however, the tide of public opiaion appears to have flowed in an opposite direction, and the legislature deemed it necessary to impose further restrictions on such gifts ; from the nature of which it may be presumed that the practice of disposing by will of land to charity had antecedently prevailed to such an extent as to threaten public iaconvenience. It appears to have been considered that this tendency would be sufficiently counteracted by preventing persons from aliening more of their lands for these objects than they chose to part with in their own lifetime ; the supposition evidently being, that men were in little danger of being perniciously generous at the sacrifice of their own personal enjoyment, and when un- influenced by the near approach of death (u). This change of opinion resulted iu the passing of the statute 9 Geo. II. e. 36, Coll., Gamh., L. E. 10 Eq. 19; (s) Sect. 13(1). numerous other similar cases are (t) Ibid. (2). quoted, 1 Jarm. Wills, p. 209, (u) 1 Jarm. Wills, pp. 218, 219, 4th ed. 4th ed. (r) 51 & 52 Vict. c. 42. THE ESSENTIALS OF A VALID WILL. 189 commonly called the "Mortmain Act." It provided that, (1) " no lands or hereditaments, nor (2) any money, stock, or other personal estate, to he laid out in the purchase of any lands or hereditaments, shall he conveyed or settled for any charitable uses, unless such lands or hereditaments, or money or personal estate (other than stock in the puhlic funds) be conveyed by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of the donor or grantor, including the days of the execution and death, and enrolled in the High Court of Chancery within six calendar months next after the execution thereof, and unless such stock be transferred six calendar months at least before the death of the donor or grantor, including the days of the transfer and death " {x). And " aU gifts, conveyances, and settlements for any charitable use whatsoever, made in any other manner or form " than by the Act directed, are declared to be " absolutely and to all intents and purposes null and void" (y). This statute was repealed by the Mortmain and Charitable Uses Act, 1888 (2), which came into operation on the 13th August, 1888, but the provisions above mentioned were prac- tically re-enacted, with some few alterations which are imma- terial for our present purpose. Consequently all such gifts, if made by will, whether before or after the 13th August, 1888, are null and void (for a will could not be made so as to satisfy the requirements of the statutes) unless they fall within some of the exceptions which wiU be mentioned later on {a). The Mortmain Act of 9 Greo. II. speaks of " lands or here- ditaments " ; the Mortmain and Charitable Uses Act, 1888, ppeaks of "land" (6), but defines land as including " tene- {x) Sect. 1 ; Wms. Eeal Prop. (z) 51 & 52 Vict. 0. 42, s. 13. p. 88, 16tli ed. (a) Post, p. 192. iy) Sect. 4. {b) Sect. 4 (1). 190 THE LAW OP TESTAMENTARY SUCCESSION. ments and hereditaments, corporeal or incorporeal, of whatso- ever tenure, and any estate and interest in land " (z). With- out speculating as to the construction which may be placed upon this new Act, it may be useful to explain yery briefly . how the old Act was interpreted by the Courts. The Mortmain Act of 9 Geo. II. was very strictly con- strued, and bequests for charitable purposes of personal estate which in any degree " savoured of the realty," as it was called, were held to be void (a). Thus it was held that bequests of leasehold property (b), money secured by mort- gage (c), and shares in a canal navigation (d), for charitable purposes, were void ; for in such cases the bequest gave an interest, though indirectly, in land, and thus savoured of the realty. Bequests of shares in companies whose funds were invested in land or the objects of which necessitated the holding of land have been the most fruitful source of litiga- tion on the point ; but the " current of modem decisions is against the older cases," and " while there is to be found an inclination formerly to carry the provisions of the Act beyond the intention of the legislature, the tendency of modem decisions has been the other way " (e). Thus, bequests for charitable purposes of money secured by policies of assurance, although the assurance company invested its funds in real estate ( /), of shares in a banking company authorized to invest money on mortgage of real estate (g), of shares in a mining company (h), and of shares in a land (z) Sect. 10 (iii). (e) Per Lord St. Leonards, ilfj^ers (a) Wms. Personal Prop. p. 543, v. Perigal, 2 De G. M. & G. 619. lathed. (/) MarchY.AU.-Gm., 5Bea.Y. (5) Att.-Gm, v. Graves, Amb. 433. 155. (g) Myers v. Perigal, 2 De G. (c) Att.-Oen. v. Meyrich, 2 Yes. M. & G. 899. Ben. 44. {h) Eayter v. Tucker, 4 Kay & {d) Howse V. Chapman, 4 Yes. J. 243. 542. THE ESSENTIALS OF A VALID WILL. 191 company («), have been held valid. The test in such cases seems to have been, "not whether the holder of the shares can in some sense be said to be interested in land, but whether the share is such a share as, under any ordinary state of circum- stances, can result to him in the shape of land. In other ■words, is the right of the shareholder merely a right to call for his share of the profits, and not for a specific share of the land itself" (k) ? A distinction has been drawn between bequests of shares in a company and bequests of debentures whereby the under- taking of a company with the rents and tolls have been mortgaged, and the latter kind of bequests have been held to be invalid (l). But it has been decided in more recent cases that debentures made by a railway company do not give the debenture holder a specific charge upon the property, but only upon the net profits and earnings of the company, and accord- ingly a bequest of such debentures to a charity is vaHd (m). The principle of these decisions is applicable to the debentures of all other public bodies with parliamentary powers and duties to be exercised for the public benefit, as harbour, dock, canal, and waterworks companies, and public bodies con- stituted for the improvement of towns (n) ; and therefore it appears to have been settled law that bequests of such deben- tm-es to charities were valid. Bequests of money to charities for the express purpose of beiag laid out in the purchase of land are, of course, void ; and, even where there was no express direction that land should be purchased, a bequest was, as a general rule, void i£ the charitable object for which the money was given was of (i) Entwistle v. Bavis, L. E. 4 ham's Trusts, 10 Hare, 446 ; Bq. 274. Thornton v. Kempson, Kay, 592. (k) Ibid. W ■4W»'ee v. Hawe, 9 Oh, D. (l) Ashton V. Lord Langdah, 4 351 ; and oases there cited. De a. & Sm. 402 ; In re Lang- (w) 1 Jarin. WiUs, 225, 4th ed. 192 THE LAW OP TESTAMENTARY SUCCESSION. such a kind as to involve the acquisition of land. Thus, a bequest of money to he laid out in huilding a hospital (o) or school [p) was void, for land must be acquired before a buUd- ing can he erected ; so a bequest of money to enable trustees to complete a contract they had already entered into for the purchase of land for a charity, or to pay off an encumbrance on real estate which already belonged to a charity, was void {q). But bequests of money for the erection, repair, or improvement of buildings upon land which u-as already in mortmain, were valid (r), provided, at least, the terms of the will precluded the application of the legacy to the acquisition of fresh land for the purpose of the building or improve- ments, for, otherwise, the mere fact that the charity possessed land, on which the building might be erected, did not render the bequest valid (s). It was also decided that a bequest of money to be employed in building was valid where the build- ing was made conditional upon land being given for the pur- pose at some limited future time, and no part of the legacy was to be applied to the purchase of land {t). The following charitable objects have been excepted from the operation of the Mortmain Acts, either by those Acts themselves or by other statutes, and therefore devises of land, or bequests of personal estate to be invested in land, for these objects are valid : — 1. Exceptions created by the Mortmaia Act of 9 Greo. II. (m). Grifts for the benefit of the University of Oxford or Cam- bridge, or any college or house of learning within either University, or the colleges of Eton, Winchester, or West- (o) PeZAom V. .4nderson, 2 Eden, 180. 296. (s) Qillett v. Hobaon, 5 Sim. 651. ■ {p) Att.-Qen. v. Nash, 3 Bro. («) Att.-Oen. v. PUlpott, 6 H. C. 0. 688. L. Oas. 338 ; overruling Trye v. {q) Corbyn v. French, 4 Ves. Corporation of CHoucesUr,l'i.'B&a,T. 431 ; Tudor's L. C. 519, 3rd ed. 173. (r) Att.-Oen. v. Parsons, 8 Ves. (a) Sect. 4. THE ESSENTIALS OF A VALID WILL. 193 minster. But the giit must have heen made for some academical or collegiate purpose («) . 2. Exceptions created by the Mortmain and Charitable Uses Act, 1888. (1) All the exceptions created by the Mortmain Act of 9 Geo. II. {w). (2) Grifts for the benefit of the Universities of London and Durham, and the Victoria University, or any of the colleges or houses of learning within any of those Universities, or Keble College, Oxford («•). (3) A devise of land for a pubHp park, for a public museum, or for a school house for an elementary school; provided the quantity of land does not exceed hoenty acres for any one park, two acres for any one museum, or one acre for any one school house {x) . (4) A bequest of personal estate to be applied in or towards the purchase of land for any. of the purposes men- tioned in (3) [x). But N.B. the will iu (3) and (4) must be executed not less than twelve months before the death of the testator, or must be a reproduction in substance of a devise in a previous will in force at the time of such reproduction and executed twelve months before the death of the testator ; and such will must be enrolled ia the books of the Charity Commissioners within six months after the death of the testator {y) . 3. Exceptions created by other statutes. The Mortmain and Charitable Uses Act, 1888, expressly provides that any statute now in force which either wholly or partially excluded the operation of the Mortmain Act, 9 Geo. II. shall to the same extent exclude the operation pf the new Act(s). The chief exceptions created by such (v) Whorwoody. University Coll., Act, Oxford, 1 Yes. 53. _ . (») Sect. 6 (1), (3). {w) Sect. 7 (i). This coUege did M Sect. 6 (2). not come under the exceptions (z) Sect. 8, contained in the former Mortmain P. 194 THE LAW OF TESTAMENTARY SUCCESSION. Acts are gifts to (1) the Foundling Hospital (a), (2) the British Museum (6), (3) the Marine Society (c), (4) the Bath Infirmary (d), (5) Queen Anne's Bounty (e), (6) The Eoyal Navy Asylum (/), (7) Commissioners of Gb-eenwich Hos- pital (^), (8) St. George's Hospital (^), (9) The Seamen's Hospital Society («'), (10) Museums of Art and Science (/). There are also some other exceptions {k). 2. Superstitious Uses. A superstitious use has been defined as " one which has for its object the propagation of the rites of a religion not tole- . rated by the law" (l). Accordingly, all gifts of property for the propagation of the religions of Roman Catholics, Protes- tant Dissenters, and Jews, were formerly regarded as gifts for superstitious uses ; and such gifts were invalid, for although only certain of them, when made for the support of the rites and ceremonies of the Church of Rome, were expressly declared void by statute (m), yet all the rest were held to be invalid as beiiig contrary to the policy of the law (w). However, by the Toleration Act (o), passed in 1688, Protestant Dissenters, except Unitarians, and by a later Act (p) Unitarians, were relieved from the operation of the various penal and disabling statutes whereby the legislature had attempted to suppress their tenets, and consequently (a) 17 Geo. II. c. 29. {k) See Cliroii. Index to the (6) 26 Geo. II. c. 22, s. 14, and statutes, p. 659, 4tli ed. 5 Geo. IV. 0. 39. (1) Boyle, 242, quoted Tudor's (c) 12 Geo. III. c. 67. L. Gas. 541, 3rd ed. (d) 19 Geo. in. c. 23. (m) 23 Hen. TTTT. c. 10; 1 (e) 43 Geo. III. c. 107. Edw. VI. c. 14. (/) 51 Geo. III. c. 105. (n) Hex v. Partington, 1 Salk. [g) 10 Geo. IV. c. 25, s. 37. 162 ; De Costa v. De Pas, 1 Amb. (A) 4 Will. IV. 0. 38 (local and 228 ; Att.-Gen. v. Baxter, 1 Vem. personal Acts). 248. (i) 3 & 4 Will. IV. c. 9, ss. 1, 2. (o) 1 WiU. & Mary, c. 18. (J) 13 & 14 Vict. o. 65, repeal- (p) 63 Geo. III. c. 160. ing 8 & 9 Vict. c. 43. THE ESSENTIALS OF A VALID WILL. 195 gifts for the propagation of their religion ceased to; be for superstitious uses, and became valid. In 1832 an Act {q) was also passed in favour of Eoman Catholics ; it provides that they, " in respect of their schools, places for religious worship, education, and charitable pur- poses in Great Britain, and the property held therewith, and the persons employed in or about the same, shall, in respect thereof, be subject to the same laws as the Protestant Dis- senters are subject to in England in respect to their schools, places for religious worship, education, and charitable pur- poses, and not further or otherwise." It seems that gifts for other than these specified objects, when made in favour of the Roman Catholic religion, will still be invalid, at least in England. Thus, a bequest to procure masses for the dead has been held to be a gift for a superstitious use, and accordingly invalid (r). By a still later statute (s) passed iu 1846, the Jews, " in respect of their schools, places of religious worship, education, and charitable purposes, and the property held therewith," were made subject to the same laws as Protestant Dissenters are subject to, " and not further or otherwise" {t). Where a disposition of property by will is for a charitable., as well as a superstitious use, the Crown will be entitled to the property, and will devote it to a charitable object which is not superstitious (m) ; but where it is for a superstitious use alone, the representatives of the testator will be entitled to it {v). Thiis, a bequest of the residue of the testator's estate for the piirpose of educating and bringing up poor orphan children in the Eoman Catholic religion was held void (before 2 & 3 WiU. IV. c. 115 was passed), as being a superstitious (^) 2 & 3 Will. IV. c. 115. («) Sect. 2. (r) West V. Shuttleworth, 2 My. (m) Be Oosta v. De Pas, Axah. & Keen, 684. 228. (s) 9 & 10 Vict. 0. 59. (v) West v. Shuttleworth, supra. o2 196 THE LAW OF TESTAMENTARY SUCCESSION. Tise so far as regarded the direction that the children were to he educated in the Roman Catholic religion, hut, being for the heneflt of pom' orphan children, it was also a charitable use («), and accordiagly it was also held that the property should be disposed of for such purposes as the King should direct (y). But when a bequest of residue was made to Roman Catholic priests and chapels in order that the testatrix might have the benefit of prayers and masses, it was held that the next of kin were entitled to the property (s), for in this case there was no charitable as well as superstitious use. Section V. — The persons to whom interests are given under a ioiU must he capable of acquiring such interests by will. Every person, whether natural or artificial {i. e., a corpora- tion), is capable of acquiring an interest under a will, imless specially incapacitated by law. We must therefore inquire to what extent (1) natural, and (2) artificial persons, i. e., corporations, are incapacitated by law. I. Natural Persons. 1. A witness, or the wife or husband of a witness, to the will. It is expressly provided by the Wills Act (a), that the gift of any beneficial interest to a witness, or to the wife or husband of a witness, to the will (except charges or directions for the payment of any debt or debts due from the testator to such witness, &c.) shall be utterly null and void. .{x) See supra, p. 187. & Keeti, 684. ly) Cary v. Allot, 1 Ves. 490. (o) 7 Will. IV. & 1 Vict. c. 26, (z) West V. Shuttlmorth, 2 My. s. 15. THE ESSENTIALS OF A VALID WILL. 197 2. Aliens. (1) Alien friends, i. e., the subjects of a foreign state wMch is at peace with England. Gifts of personal chattels to alien friends seem always to have been valid (6). But as an alien was incapable of acquir- ing real estate or chattels real (except a term not exceeding twenty-one years for the residence or occupation of himself or his servants, or for the purpose of any trade, business, or manufacture) (c), he could not acquire real estate or chattels real by will, and any such gift was forfeited to the Crown. This incapacity has, however, been taken away by the Naturalization Act, 1870 {d), which provides that real and personal estate of every description may be taken, acquired, held, and disposed of by an alien in the same manner as by a natural-bom British subject. (2) Alien enemies, i.e., subjects of a foreign state which is at war with England. The general rule seems to be that real or personal property devised or bequeathed to alien enemies is forfeited to the Crown (e). But when war is declared in modern times it is usual, in the proclamation of war, for the Crown to permit the subjects of the enemy resident in this country to continue here so long as they peaceably demean themselves, and such persons would be deemed alien friends in effect ; and an alien enemy would be in the same position who might come here after the war commenced, if resident here by licence from the Crown (/) . II. Artificial Persons. Corporations are capable of acquiring personal property, (J) Calvin's Case, 1 Co. 17. of personal property, but tlie prin- (c) Wms. Eeal Prop. p. 83, oiple of the decision seems appli- leth ed. cable to all gifts by will. {d) 33 Vict. 0. 14, s. 2. (/) See Wms. Exors. vol. i. (e) Att.-Gen. v. Weedon, Parker, p. 234, vol. ii. p. 1056, Sth ed. 267. Tbia was tbe case of a legacy 198 THE LAW OF TESTAMENTARY SUCCESSION. but are, as a general rule, incapable of acquiring real property by will. The incapacity of corporations to bold real estate seems originally to have been created for the benefit of the feudal lords, who would have been deprived of their escheats and other feudal profits had the tenant been permitted to aliene his land to corporations — ^for corporations do not die. The earliest statute on the subject was the re-issue of Magna Carta in 1217 by Henry III., which prohibited the alienation of land to religious houses; but in the reign of Edward I. the prohibition was extended to alienations to any corporation, whether ecclesiastical or lay, sole or aggre- gate {g) ; i.e., to any alienation of lands "^er quod ad manum mortuam deveniant." The restriction on holding lands by corporations {i.e., holding in mortmain) might have been dispensed with by obtaining a licence from the Crown and the mesne lords, if any ; but if no such licence were obtained the efEect of the alienation was that the corporation took the land but could not hold it, and it was forfeited to the Crown or mesne lord (A). The statute 32 Hen YIII. c. 1 (which, as we have seen (*), enabled persons to dispose by will of all land held by socage, and two-thirds of that held by military tenure) was silent on the subject of devises to corporations, but such devises were excepted by section 4 of 34 & 35 Hen. YIII. c. 5 (which was passed in order to explain 33 Hen. VIII. c. 1) and were accordingly void. A corporation could not, therefore, even take under such a devise. The Wills Act (y) repealed 34 & 35 Hen. YIII. c. 5, without reserving the prohibition against devises to corporations, and so the effect of such a devise would be the same as that of an {g) 1 Edw. I., stat. 2, c. 13 ; repealed by 51 & 52 Vict. c. 42, 13 Edw. I. c. 32 ; 18 Edw. I. c. 3 ; s. 13. anc^ see 16 Eioh. II. c. 5. All (h) 1 Jarm. Wills,- 66, 4th ed. these statutes will be found in (i) Supra, p. 38. Digby's Eeal Prop. ; they were (j) 7 Will. IV. & 1 Vict. o. 26. THE ESSENTIALS OP A VALID WILL. 199 alienation inter vivos to a corporation, i.e., the corporation can take but cannot hold real estate devised to it, and accordiagly sucli real estate is forfeited to the Crown or mesne lord, unless by licence from the Crown (k) or by Act of Parliament, the corporation is authorized to hold real estate (l). The law relating to mortmain has been consolidated and amended by the Mortmain and Charitable Uses Act, 1888 (m), but without making any change in the law as above stated. Section VI. — The Will must remain unrevoked at the Death of the Testator. A testator may revoke his will, and afterwards change his mind and revive it, in which case it wUl be as valid as if it had never been revoked, and thus may remain unrevoked at his death. We must therefore inquire (A) how wUls may be revoked, and (B) how revoked wills may be revived. A. The different Ways in which a Will may he revoked. A will may be revoked in the following different ways : — 1. By marriage of the testator. The Wills Act {n) provides that " Every will made by a man or woman shall be revoked by his or her marriage (except a will made in. exercise of a power of appointment when the real or personal estate thereby appointed would not, in default of such appointment pass to his or her heir, customary heir-, executor or administrator, or the persons entitled as his or her next of kin under the Statute of Distributions " (o). {k) A licence from the mesne (m) 51 & 52 Vict. c. 42, Part I. lord is now unnecessary. 7 & 8 (w) 7 Will. IV. & 1 Vict. c. 26, WiU. ni. c. 37. s. 18. (?) See Jarm. Wills, p. 66, (o) Supra, p. 108. 4th ed. 20O THE LAW OF TESTAMENTARY SUCCESSION. The reason for this exception is, that in cases where tlie heir or next of kin are not entitled in default of appointment, the revocation of the will could not be of any benefit to the issue of the marriage. The law as to revocation by marriage, before the Wills Act came into operation, was as follows {p) — If a woman made a will, and afterwards married, the mar- riage alone was a revocation of the wiU. And although the wife should survive the husband, yet the will would not sur- vive after the husband's death without a re-publication. But marriage did not affect a will made by the woman before marriage in exercise of a power of appointment. If a man made a will, and afterwards married, the marriage alone was not a revocation of the will, but the Courts adopted the rule that if he had issue, and died leaving his wife and issue unprovided for, this should be considered as an impHed revocation of the will. The rule, however, is not found in ancient authorities, and was the result of modem deci- sions (§■). 2. By the execution of a subsequent valid will, or codicil (r). But unless the subsequent will, or codicil, expressly revokes the will, the will is only revoked so far as it is inconsistent with the subsequent will, or codicil (s) . 3. By " some writing " declaring an intention to revoke the wUl, and executed in the same manner in which a wiU. is required to be executed {t). For instance, where a testator wrote a memorandum, at the {p) See 1 Wms. Exors. pp. 195, {r) 1 WiU. IV. & 1 Viet. c. 26, 196, 8th ed. s. 20. (2) The first case on the point (s) Lemage v. Qoodban, L. E. 1 seems to he that of Overhury v. P. & D. 57 ; Be Howard, ibid. 636. Overhury (2 Show. 242), decided («) 1 Will. IV. & 1 Vict. c. 26, in 1682. s. 20. . THE ESSENTIALS OF A VALID WILL. 201 foot of his will, to this effect—" This will was cancelled this day ; " and such memorandum was duly signed by the testa- tor in the presence of two witnesses, it revoked the wiU although it did not itself constitute a will or codicil (««). 4. By "the burning, tearing, or otherwise destroying" the will, "by the testator, or by some person in his presence and by his direction, witTi the intention of revoking the same " (v). Mere accidental destruction of the will does not revoke it, and the will must be carried out, provided, of course, it is possible to prove its terms from other sources ix). 5. Where specific property is devised or bequeathed by the will, and the testator in his lifetime sells or otherwise dis- poses of such property, the will is, of course, revoked with respect to such property. "With reference to this point it must be observed that, by the Wills Act («/), " no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate .therein comprised, except an act by which such will shall be revoked as aforesaid (s), shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death" (a). Under the old law, if a testator aliened land which he had disposed of by will, and subsequently re-acquired the same lands and held them at the time of his death, they would not have passed to the devisee (b). But now any intermediate dealing with the property, between the execution of the will and the (m) Intfie goods of Fraser,'L.U. (z) I.e. 1, 2, 3, and 4, supra, 2 P. & D. 40. PP- 199 e* s^g. {v) 7 WiU. IV. & 1 Vict. c. 26, (a) Moor v. Baialeck, 12 Sim. g_ 20. 139 ; Ford v. De Pontes, 30 Beav. (x) See Sugden v. Lord St. Leo- 593. nards, L. E. 1 P. D. 154. (6) See Jarm.WiUs, 147,4tlied. {y) Sect. 23. 202 THE LAW OP TESTAMENTARY SUCCESSION. deatli, will not operate as a revocation, provided the testator had power to dispose of it by will at the latter date. The Wills Act expressly provides that " no wiU shall be revoked by any presumption of intention on the ground of an alteration in circumstances" (c). Under the old law the Courts (at least the Ecclesiastical Courts) seem to have con- sidered that a change in the condition of the testator, other than his marriage, might have been a groiind for presuming an intention to revoke his will (d). 6. By change of the testator's domicil. The general rule is, that the validity of a will of personal estate depends upon the law of the testator's domicil at the time of his death. If, therefore, a testator domiciled in France should make a valid will according to French law, and afterwards should come over to England and die domiciled here, the validity of his will would depend upon whether it conforiped to the require- ments of English law, and if it did not the will would be void. The change of domicil would thus operate as a revo- cation of the will. In case, however, of British subjects who die after the 6th August, 1861, it has been provided by a recent Act (e) that their wills "shall not be held to be revoked or to have become invalid" by reason of any subsequent change of domiciL(/). B. The different Ways in which a revoked Will can he revived. A revoked will can only be revived in two ways {g) ; — 1. By the re-exeoution of the will in the manner required by the Wills Act for the execution of wills {h). (e) 7 WiU. IV. & 1 Vict. c. 26, (/) Sect. 3; Re Beid, L. E. 1 s. 19. P. & M. 74. (d) lWms.Exors.p.205,8tlied. {g) 7 WiU. IV. & 1 Vict. c. 26, (e) 24 & 25 Vict. c. 114. b. 22. {h) Supra, p. 157. THE ESSENTIALS OF A VALID WILL. 203 2. By a codicil, executed in tlie manner required by the Wills Act for the execution of codicils («'), and showing an intention to revive the will. Before the WiUs Act (/<;) came iato operation, a will of real estate could only be revived by re-execution of the will, in the manner provided by the Statute of Frauds for the execu- tion of wiUs of land (1) . But vdUs of personalty could be revived, not only by an attested codicil or other writing, but also by a mere parol declaration of intention, or by words or acts from which an intention could be implied (m). (i) Supra, Tp. 159. expressly provided by the Stli sec- {k) 1 WiU. IV. & 1 Viot. c. 26. tion. {l) Supra, p. 156. This was (m) lWms.Exors.p.209,8thed. 204 THE LAW OF TESTAMENTARY SUCCESSION. CHAPTEE II. THE SUCCESSION OF THE EXECDTOE. The succession of the executor ■will be dealt with under the following heads : — I. The appointment of the executor. II. The persons who are capable of acting as executors. III. Probate of the will. IV. The rights and obligations of the executor. Section I. — The appointment of the Executor. The appointment of the executor may be either express or constructive. Express, where a person is expressly named as executor, e.g., "I appoint John Smith to be the executor of this my wiU." Constructive, where no person is expressly named as exe- cutor, "yet, if by any word or circumlocution the testator recommend, or commit to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors " {a), e.g., a. declaration in the will that John Smith shall have the testator's goods after his death " to pay his debts, and otherwise to dispose at his pleasure"; so if the testator says, " I commit all my goods to the administration of John Smith," or " to the disposition of John Smith," ia (a) 1 Wms. Exoi's. p. 243, 8th ed. THE SUCCESSION OP THE EXECUTOR. 205 all sucli cases Jolin Smith is made executor. An executor so appointed is usually called " executor according to the tenor" (b). The appointment of the executor is generally a6so^«) 1 Wms. Exors. p. 258, 8th ed. 256 THE LAW OF TESTAMENTARY SUCCESSION. II. Where the Deceased was a Trustee. Wliat has already been said respecting the succession to deceased trustees who die intestate, applies equally to eases where they die testate — devisee being substituted for heir, and executor for administrator — except that, in cases to which the Conveyancing and Law of Property Act, 1881, does not apply {i. e., in case of the death having occurred before 1st January, 1881), real property held in trust devolved upon the heir unless it had been specially devised to some other person. ( 257 ) Part V. DONATIOIfES MORTIS CAXTS^. Bonationes mortis causd are derived from the civil law(fl!). They are gifts made at a time when the donor is in expecta- tion of death, and are suhjeet to an express or implied con- dition that the gift shall only become absolute in the event of his death actually taking place, and that in the meantime he shall be at liberty to revoke the gift. The state of mind of the donor is well expressed in Justiaian's Institutes: — "M in summd mortis causd donatio est, cum magis se quis velit habere qiiam eum cui donat, magisque eum cui donat quam heredem suum" (b). If the donor should recover from his iUness, or i£ before his death he should revoke the gift, it becomes void. In order to constitute a valid donatio mortis causd the following conditions must be fulfilled (c) : — 1. The gift must be made in contemplation of death. A gift wUl, of coiorse, be made in contemplation of death when the donor, at the time of making it, reaUy expects that he is about to die ; and where the donor is at the time "in his last sickness," or "languishing on his death bed," it seems that the gift will be presumed to be made in con- templation of death. (a) Prarciv.rwner,2Ves.431; Twr>£T, L. C. Equity, pp. 1003 L. 0. Equity, 5t]i ed. 983, 996. et seq., 5tli ed., from wlaicli the (6) Lib. n. tit. VII. 1. following conditions are summa- (c) See the notes to Ward v. rized. P. ^ 258 DONATIONES MORTIS CAUSA. 2. The gift must he intended to take effect only in the event of the donor's death. It is not, however, necessary that at the time of making the gift there should be an express declaration of intention by the donor ; for if the gift be made in the extremity of sickness, or in contemplation of death, the law implies a con- dition that the gift was to take effect only in the event of the donor's death — unless the circumstances of the trans- action show that the donor intended to make an imme- diate and irrevocable gift. 3. There must he a delivery of the possession of the subject- matter of the gift to the donee (either for his own use, or upon trust for another person, or for some particular object), with the intention of parting with all rights of ownership over the same. Thus, in Hawkins v. Blewitt {d), a person in his last illness ordered a box containing money and wearing apparel to be carried to the house of his aunt, and to be delivered to her. The next day the key was brought to him, and he desired it to be taken back, saying that he should want some articles of clothing out of the box. The Court held that this did not constitute a valid donatio mortis causa. Lord Kenyon, C. J., said — " In the case of a donatio mortis causa possession must be immediately given ; that has been done here ; a delivery has taken place : but it is also necessary that by parting with the possession, the deceased should also part with the dominion over it ; that has not been done here. The bringing back the key by her, the next moriung, to the intestate, and his declaration that he should want one of the articles of his apparel contained in it, are sufficient to show that he had no intention of making any gift or disposition of the box. It seems rather to have been left in the defendant's [i.e., the aunt's] care for safe custody, and was so considered by herself." (d) 2 Esp. 663. DONATIONES MORTIS CAUSA. 259 Again, iQ Bunn v. Markham (e), a person, supposing Hrnself to be in extremis, caused Indian bonds, bank notes, and guineas to be brought out of Ms iron chest, and laid on his bed ; he then had them sealed up in three parcels with the amount and contents written on them, and also the words "for Mrs. and Miss C. ;" they were then, by his direction, replaced in the chest and locked up, and the keys were sealed up and directed " to be delivered to J." (his solicitor) and one of his executors after his decease, and replaced in his own custody near his bed. He afterwards spoke of this property as given to Mrs. and Miss 0. It was held not to be a valid donatio mortis causa (1) for want of sufficient delivery, and (2) on accoimt of the donor remaining in possession. The subject-matter of the gift cannot be delivered, so as to be a valid donatio mortis causa, by the delivery of any- thing Sy way of symbol; — e.g., the delivery of receipts for the purchase-money of South Sea annuities (/), and scrip- certificates of railway stock (gf). Delivery of mere symbols of property must, however, be carefuUy distinguished from the delivery of the key of a place where property has been locked up: ia this case the delivery of the key has been allowed as delivery of the possession of the property " because it is the way of coming at the possession, or to make use of the thing; and therefore the key is not a symbol, which would not do" ih). Thus, in Jones v. Selby {i), it was held that the delivery of the key of a trunk, with words of gift of the trunk and its contents, was a good delivery of a tally upon government for 500^. contained in the trunk. And it seems that the delivery of any document which would entitle the (e) 7 Taunt. 224. (?) ^oore v. Moore, L. E. 18 (/) Ward v. Turner, L. 0. Eq. 474. Equity, p. 999. W Ward v. Turner, aupra. [i) Free. Ch. 300. s2 260 DONATIONES MORTIS CAUSA. donee to demand payment of money {e.g., bank-notes, and notes and bills payable to bearer), or the possession of wbich by the donee -woTLLd prevent the representatiTes of the deceased donor from enforcing payment of money due to the deceased {e.g., the mortgage deeds of real estate), mil constitute valid donationes mortis causa {J). 4. The intention to create a donatio mortis causa must be proved hy clear and satisfactory evidence. " The civil law required five -witnesses to establish such a gift ; a will requires two with us. It is difficult to suppose that it was not by an oversight that the legislature made no provision respecting gifts of this sort; but though our law does not define the number of witnesses required, it is laid down in all the cases where judges have commented on the evidence necessary to support a donatio mortis causa, that it must be established by clear evidence. The proof must be more than is required merely to turn the scale ia favour of one of two equally probable conclusions. It must establish to the satisfaction of the Court that the claimant's case is not only probable, but reasonably free from doubt " {k). There is no absolute rule that the evidence of the claimant alone may not be sufficient, but "there is, of course, aU the suspicion always attaching to an iaterested witness as regards candour and truthfulness" {k). We wOl now summarize the poiats of resemblance and difference between donationes mortis causa and legacies. 1. Points of resemblance. A donatio mortis causa, like a legacy, — (1) Is incomplete during the hfe of the donor, and may be revoked at any time before his death. (y.) See the cases cited L. 0. {k) M'Oonnell v. Murray, I. E. Equity, pp. 1008—1010. '3 Eq. 465. DONATIONES MOKTIS CAUSA. 261 (3) Is liatle to be taken by the creditors for the payment «f debts in case the other assets are insufficient. (3) Is subject to legacy duty, and is included in the valuation of the personal estate upon which the duty pay- able on applications for probate and letters of administration is assessed (l). 2. Points of difEerence. A donatio mortis causa, unUke a legacy, — (1) Must be in the possession of the donee duriag the Hfe- time of the donor. (2) It cannot be revoked by mil, for a wiU. is inoperative until the death of the testator, and so at the same instant that the will takes effect the gift becomes absolute (m) ; but it seems that the gift may be satisfied by a legacy (m). (3) It is quite independent of the wiU of the donor, and so does not require probate. (4) If its subject-matter be such that the property in it passes by delivery {e.g., a piece of plate), it becomes the absolute property of the donee the instant the donor dies ; if the property in it does not pass by delivery {e.g., a bond) the donee can compel the representatives of the donor to do what may be necessary to give effect to the gift. Thus, in the case -of a bond, only the personal representatives of the donor can sue upon the bond, for, being a contract under seal, it is clear that no other person can acquire rights under it by merely having the document handed to him; but the personal representatives must allow the donee to sue on the bond in their names, upon being indemnified by him iu respect of any liability which they may thereby incur («). {I) 36 Geo. III. c. 52, s. 7; [m] Jones v. Sdhy, Prec. Oli. 8 & 9 Vict. c. 76, 8. 4. Probate, 300. &c., duty, 44 Vict. c. 12, s. 38. (n) Gardner v. Parker, 3 Madd. 184. 262 DONATIONES MOETIS CAUSA. Donationes mortis camd were not affected by the Wills Act (o) ; any doubt which there might have been on the subject was removed by 8 & 9 Vict. c. 76, s. 4, which expressly recognised them by making them subject to legacy duty. They have again been recognised by 44 Vict. c. 12, s. 38, which, as we have seen, made them subject to duty on probate and letters of administration. (o) 1 Wm. IV. & 1 Vict. c. 26. APPENDIX. THE DUTIES PAYABLE IN RESPECT OF TESTAMEN- TARY AND INTESTATE SUCCESSION. I. Succession Duty. " Stjccbssion duty " is the name given to a duty payable by all persons wlio become entitled to real property or leasehold pro- perty by testamentary or intestate succession. The duty is imposed by the statute 16 & 17 Vict. c. 51, passed on the 4th of August, 1853, but which is to be taken to have commenced on the 19th of May in that year (a). The value of the interest in real or leasehold property to which any person may be entitled by will or intestacy is to be ascer- tained in the manner provided by the Act (S), and the duty consists of a percentage on the value of such interest, varying in amount, according to the degree of relationship between the heir, or devisee, or (as to leaseholds) legatee and the deceased, in the following manner : — 1. All lineal descendants and ancestors pay one per cent. 2. Brothers or sisters, or their descendants, pay three per cent. 3. Paternal or maternal uncles or aunts, or their descendants, ■^a.j Jive per cent. 4. Paternal or maternal great-uncles or great-aunts, or their descendants, pay six per cent. 5. Persons in any other degree of collateral consanguinity pay ten per cent. 6. All strangers in blood to the deceased pay ten per cent. (c). But in case the person entitled be married to a person in a nearer degree of consanguinity to the deceased, he, or she, is only liable to pay the same duty as would have been payable by the person to whom he, or she, is married had such person been entitled {d). In case the money value of the whole property of the deceased does not exceed lOOZ., no succession duty is payable (e). As to certain cases where leaseholds are exempt from succes- sion duty, see^os^, p. 265. (a) Sect. 54. {d) Sect. 11. (J) Sect. 21. (e) Sect. 21. (c) Sect. 10. 264 APPENDIX. Sucoession duty is a first charge upon tlie interest in respect of which it is payable, and the Act provides that it shall be paid " by eight equal half-yearly instalments, the first to be paid at the end of twelve months after the successor shall have become entitled to the beneficial enjoyment of the property; and the seven following instalments are to be paid at half-yearly intervals of six months each, to be computed from the day on which the first instalment shall have become due. But if the successor shall die before all such instalments shall have become due, then any instalments not due at his death shall cease to be payable ; except in the case of a successor who shall have been competent to dispose by will of a continuing interest in' such property, in which case the instalments unpaid shall be a continuing charge on such interest in exoneration of his other property, and shaU. be payable by the owner for the time being of such inte- rest "(/). II. Duty on applying for Prolate or Letters of Administration. The person applying for probate of a will or letters of admi- nistration to the estate of an intestate must pay a duty varying according to the value of the personal estate {g). For the pur- pose of ascertaining the amount of duty in any particular case it will be convenient to divide estates into the two following classes : — 1. Estates exceeding the value q/SOOZ. after deducting reasonable funeral expenses and all debts, except voluntary debts and debts primarily payable out of real estate. But these deductions are only allowed where the deceased was domiciled in the United Kingdom (A). 2. Estates not exceeding the value of 300Z. without deducting funeral expenses or debts. 1. Estates exceeding the value of 300J. (i). Value of Estate. Duty. (1) Not exceeding 500/ 1/. for every full sum of 50Z., and for any frac- tional part of 50Z. (2) Not exceeding 1,000Z \l. 5s. Od. for every full sum of 501., and for any fractional part of 501. (3) Above the value of 1,000/ 31. for every full sum of 100/., and for any frac- tional part of lOOZ. f /) Sect. 21. (A) Sect. 28. (g) These duties are lated by 44 Vict. c. 12. These duties are now regu- (i) Sect. 32. APPENDIX. 265 2. Estates not exceeding 300^. {k). Value of Estate. Duty (1) Not exceeding 100? No duty, but the sum of 15*. for fees of Court and ex- (2) Exceeding 100? A fixed duty of 11. 10s. Od., and 15s. for fees of Court and No duty is payable where the deceased was a common seaman, marine, or soldier, and was slain or died in the service of the Crown (?). III. Legacy Duty. " Legacy duty "_ is the name given to a duty payable not only in respect of legacies, but also in respect of the share of residue to_ which any person may become entitled under the Statutes of Distribution (m), and of donationes mortis causa {n). The duty consists of a percentage on the value of the legacy, or share of residue, or donatio mortis causd, varying in amount, according to the degree of relationship between the legatee or next of kin and the deceased, exactly in the same manner as suc- cession duty; and the fact of the person entitled being married to a person in a nearer degree of relationship to the deceased has precisely the same effect. Leasehold property is exempt from legacy duty (o), being sub- ject, as we have seen, to succession duty. It is provided that where the duty on applications for probate or letters of administration has been duly paid, legacy duty at one per cent., and succession duty at one per cent, on leaseholds, shall not be payable (p). The effect of this provision is that ancestors and descendants of deceased persons are practically exempted from the payment of legacy duty. No legacy duty is payable in respect of a legacy, or share of residue, to which the husband or wife of the deceased is entitled (§■). No legacy duty or (in the case of leasehold property) succes- sion duty is payable where the value of the estate is less than 300?., and the fixed duty of 30s. has been paid on application for probate or letters of administration (r). No legacy duty is payable where the whole personal estate does not exceed the value of 1001. (s). (h) Sect. 33. {p) 44 Vict. c. 12, s. 41. h) 55 Geo. III. c. 184. (q) 55 Geo. III. c. 184. (m) 55 Geo. III. o. 184. (r) 44 Viot. o. 12, s. 36. (ra) 8 & 9 Viot. c. 76, s. 4. (s) 43 Vict. c. 14, s. 13. (o) 16 & 17 Vict. c. 51, 8. 19. INDEX. ACCUMULATION OP INCOME, formerly no special restrictions on, 18S. directions in TheUusson's will for, 185. present restrictions on, 186. ACTIO PEMS0NAL18 MOEITUR CUM FBRSONA, ■when applied to actions for breaoh of contract, 53, 58. tort, 54, 68. ADMINISTIIATION, action, 79. ■bond, 95, 96. letters of, 18, 96. ADMINISTRATOR, origin of, 18. difEerent kinds of, 81. special, 82. de bonis nou administratis, 82. dtirante minors atats, 82. pendente lite, 82. persons entitled to be, 83, 91. by ■whom appointed, 93. how appointed, 95. rights and obligations of, as representative, 98. rights of, vest from date of appointment, except in some special oases, 99. rights and obligations of, as trustee, 101. must realize the estate, 102. discharge the obligations, 103. distribute the residue, 108. not bound to distribute for a year after the intestate's death, 118. may retain his own debt, 105. when personally liable, 102 — 107. devastavit by, 103. protection of, by statute, 106, 107. 268 INDEX. ADMINISTRATOR— (!o»««M«(?. now succeeds to real property held by the intestate as sole trustee, ISO. mortgaged to the deceased, 139. at death of, a new administrator is appointed, 147, 255. his representative is liable for his devastavit, 152. and heir, rights and obligations of, inter ««,. relating to — purchase and sale of real estate, 140. payment of debts, 141. apportionment of rent, 144. emblements, 145. ADMINISTRATOR CUM TESTAMENTO ANNEXO, when appointed, 228. persons entitled to be, 229. how appointed, 230. de bonis non administratis, 230. ADMISSION 01' ASSETS, effect of, by administrator, 105, 106. or executor, 216. ADVANCE TO CHILDREN, when it must be brought into hotchpot, 109, 116. ademption of legacy by, 221. ALIEN, friends can take under a will, 197. enemies cannot usually take under a will, 197. ANGLO-SAXON LAW, early rules of succession, 7, 8. testamentary succession to laud, 10. movea,ble3, 11. intestate succession to land, 1 1 . moveables, 11. APPORTIONMENT OF RENT, 144. ARTIFICIAL PERSON. See Cobpoeation. ASSETS, 102. BANKRUPTCY, insolvent estates may be administered according to rules of, 107, 216. and the estate vests in the official receiver, 108. INDEX. 269 BANKRUPT, cannot be administrator, 83. nor, as a iiile, act as executor, 206. BLOOD-RELATIONSHIP, definition of, 83. example of, 29. BOO-LAND, 8, 9. BONA NOTABILIA, 94. BOROUGH-ENaLISH, 26, 34, 130. CHARITABLE PURPOSES, meaning of, 187. gifts for, formerly favoured, 188. restrained by the "Mortmain Act," 9 Geo. II., 189, 190. present Mortmain Act, 189. gifts for certain, expressly excepted from tlie Mortmain Acts, 192.' CHOSE IN ACTION, meaning of, 15. right of husband to his deceased ■wife's, 117. CHOSE IN POSSESSION, meaning of, 15. right of husband to his deceased wife's, 116. CHURCH, THE, probably origin of wiUs in Britain is due to, 7. early jurisdiction of, in matters of wills and intestacy, 12. CIVIL DEATH, meaning of, 175. efEeot of, on testamentary capacity, 176. CIVIL INJURY, meaning of, 51. CO-ADMINISTRATOES, are regarded as one person, 101. aU must join in suing, and be joined when sued, 101. the survivor is sole administrator, 147. CO-EXECUTORS, are regarded as one person, 213. aU must join in suing, and be joined when sued, 213. the survivor is sole executor, 147. 270 INDEX. CONSTRUCTION OP WILLS, general principle, 237. vrhy different from oonstruotion of deeds, 236. teohmoal -words in wiUs, 237. cy prh dootrine, 238. special rules of, under "WiUs Act, all wills speak from death, 238. no lapse in certain cases, 218, 234. lapsed or void devise falls into residuary devise, 239. no wordB of limitation necessary to pass testator's ■whole interest in real estate, 240. dietoithoutissue,§c., doesnotmeanindefinitefailure of issue, 240. general devise passes leaseholds as well as realty, 241. a power to appoint in any way A. thinks proper by wiU is executed by a general devise or bequest of all A.'s pro- perty, 242. wiUs in execution of powers of appointment must conform to Wills Act, and are then sufficient without any other formality, 243. CONTINGENT REMAINDER, rule as to creation of, 184. application of cy pres doctrine to, 238. CONTRACT, rights under, when extinguished by death, 51. obligations under, when extinguished by death, 57. right of action for breach of, when extinguished by death, 53, 68. for purchase or sale of real estate effects conversion, 63. liability of heir or devisee under, 64, 77, 141. rights of heir or devisee under, 64, 71, 140. under seal, now always binds heir or devisee, 76. CONVERSION, equitable doctrine of, 63. COPARCENERS, meaning of term, 28, 133. regarded in law as one heir, 133. their interest in the estate, 138. COPXHOLDS, origin of, 34. descent of, 36, 129. curtesy in, 136. freebenoh in, 136. interest of heir in, before admittance, 137. devisee in, before admittance, 233. effect of not claiming admittance to, 137. INDEX. 271 OO'PY'B.OTJDS— continued. right of lord to seize quousque, 137. will of, formerly required surrender, 164. heir or devisee of, when liable for debts, 77, 79. CORPORATION, general incapacity to acquire real property, 198. cannot acquire real estate by will except by licence from the Crown, or by special provision in a statute, 199. COVENANT, running with the land or reversion at common law, 65. which has eiiect of running with the land, &o., in equity, 67, 74. to confer a freehold interest, 68. rights arising from breach of, which pass to heir or devisee, 69. COVERTURE. See Maebied "Women. CREDITOR, when entitled to be administrator, 91, 230. legacy to, when satisfaction of the debt, 219. right of, when personal estate not sufficient to pay all debts, 79. deceased died insolvent, 107, 216. may be a witness of debtor's will, 164. remedy of, where administrator is abroad, 92. CRIME, meaning of term, 51. liability for, extinguished by death, 59. CROWN, THE, nominee of, when entitled to be administrator, 91. when entitled to residue of intestate estates, 115. share residue with widow, 111. residue as against the executor, 226. real estate by escheat, 129. forfeiture, 175, 197, 199. debts due to, when heir or devisee liable for, 78. priority of, 104, 105. CURTESY, a life interest, 45. when right to, arises, 136. CUSTOMARY LAW. See LooAi Custom. OY FBES DOCTRINE, 238. 272 INDEX. DEBTS, distinction between simple contract and specialty, abolished, 79, 105. KabUity of heir or devisee for, 76, 79. mortgage, how far personal estate is liable for, 142, 250. personal estate primarily liable for, 141. rules of priority in paying, 103. to Crown, 78, 104, 105. of record, judgment, 77, 105. recognizance, 106. Statutes Merchant and Staple, 105. when satisfied by legacies, 219. DESCENT, rules of, settled temp. Edw. I., 27. before Inheritance Act, 27. after Inheritance Act, 120. eflfeot of local custom on, 129. DEVASTAVIT, meaning of term, 52. instances of, 103. representatives of person guilty of, are liable for, 152. DEVISEE, meaning of term, 3. his interest depends on the terms of the will, 235. lapses if he dies before testator, except in two cases, 234. time when interest of, vests, 231. may disclaim his interest, 232. is not tenant of copyholds until admitted, 233. effect of not claiming admittance to copyholds, 233. when interest of, is subject to dower or freebenoh, 232. or curtesy, 136, 232. obligations, binding on, 232. heir and executor, rights and obligations of, inter se, relating to — purchase and sale of real estate, 249. payment of debts, 250. apportionment of rent, 253. emblements, 253. DISTRIBUTION OP RESIDUE, rules where intestate was a male, 109. female, 116. undisposed of by the deceased's wUl, 226. governed by law of deceased's domioil, 119. DOMAIN LANDS, 34. INDEX. 273 DOMIOIL, meamng of term, 161. change of testator's, does not now revoke wills of British subieots, 202. "' ' law of deceased's, governs grant of admlmstration, 92. probate, 210. distribution of residue, 119. in general, form of wiU of personalty, 161. does not govern succession to real estate, 132. form of wiUsof real estate, 162. governs construction of wills of personal estate, 226. DONATIO MORTIS CAUSl, meaning of term, 257. condition of a valid, 257 — 260. how far it resembles a legacy, 260. how it differs from a legacy, 261. not afleected by the Wills Act, 262. DOUBLE PORTIONS, meaning of, and attitude of Equity towards, 220, 221. DOWEE, is a life interest, 45. when right to, arises, 134, 232. DEUNKENNESS, efiect of, on testamentary capacity, 175. DTJEESS, 181. DUTY, distinction between, and obligation, 65. succession, 263. legacy, 265. on application for probate or letters of administration, 95, 208, 264. ECCLESIASTICAL COUETS, jurisdiction of, in respect of wills, &c. now vested in Probate Division of High Court, 19, 93. EMBLEMENTS, what are, 145. are personal estate, 61. when devisee entitled to, 263. P. "^ 274 INDEX. EQUITABLE ESTATE, did not formerly escheat, but does now, 129. is now subject to dower, 135. is not subject to freebenob, 136. has always been subject to curtesy, 136. subject to the same rules of descent as legal estate, 63. EQUITY, created separate estate of married women, 167. disapproves of double portions, 220, 221. does not favour joint tenancies, 46, 48. gives certain covenants the effect of running with the land, 67, 74. generally recognises Ufe interests in personal estate, 47. office of trustee is a creation of, 149. rule of, as to satisfaction of debts by legacies, 219. ESCHEAT, meaning of, and oases where it occurs, 129. ESTATE, meaning of, in connection with succession, 2. real, 2, 60. personal, 2, 60. pur autre vie, 62. EXECUTOR, meaning of term, 3. express appointment of, 204. constructive appointment of, 204. absolute, conditional, or limited appointment of, 205. "according to the tenor," 205. de son tort, 227. persons who cannot act as, 206. may renounce office, but not after intermeddling with the estate, 213. rights and obligations of , as representative, 212. vest at moment of tes- tator's death, 213. now succeeds to real property mortgaged to the deceased, 248. cannot, as a rule, sue before proving the will, 214. rights and obligations of, as trustee, 214. must realiiie estate, 215. power of, to sell or mortgage real estate, 253. must discharge obligations, 215. pay legacies, 216. distribute residue, if no residuary legatee, 225. not obliged to pay legacies or distribute residue for a year after the death, 218. INDEX. 275 EKEGJITOB.— continued. may retain his own dett, 216. •when personally liable, 215, 216. protection of, by statute, 215, 216. representative of, liable for Ms devastavit, 152. now succeeds to real as well as personal property held by the deceased as sole trustee, 256. at death of, his of&ce passes to his executor but not to his admi- nistrator, 147, 255. devisee and heir, rights and obligations of, inter se relating to — purchase and sale of real estate, 249. payment of debts, 250. apportionment of rent, 253. emblements, 253. EXBCUTOET INTEEEST, rule as to creation of, 184. feudalism:, introduction of, and its effect, 15, 16. PINE, on admittance to copyholds, 137. POLO-LAND, 8. PEANKALMOIGN, 22. FRAUD, effect of, on validity of a will, 179. FE.EEBENOH, is a life interest, 45. when right to, arises, 135. FREEHOLD, origin of term, 23. mxrcTus indvstriales, another term for emblements, 145. FUNERAL EXPENSES, priority of, 104. GAVELKIND, 26, 34, 130, 136. GRAND SBRJEANTY, 22. t2 276 INDEX. HAIiF-BLOOD, meaning of term, 30. early law as to, 27. exclusion of, from succession, 30. now admitted to succession, 125. HEIE, meaning of term,' 21. rules for ascertaining, i. e. rules of descent, 120. must be legitimate by law of England, and also by law of his domicil, 132. cannot refuse the inheritance, 133. eflfeot of oouTeyanoe or devise to, by deceased, 29, 122. wbeu liable to pay relief in respect of freeholds, 136. right of, in copyholds before admittance, 137. effect of, not applying for admittance, 137. interest of, when subject to curtesy, 136. dower, 134. freebench, 135. administrator, or executor, rights and obligations of, inter se re- lating to — purchase and sale of real estate, 140, 249. payment of debts, 141, 250. apportionment of rent, 144, 253. emblements, 145, 253. HEIR-LAND, 9. HEIR-LOOM, 62. HERIOT, 20. HOTCHPOT, meaning of term, 110. when advance to a child of an intestate must be brought into, 110, 116. HUSBAND, entitled to be administrator to his deceased wife, 86. when not necessary for, to take out administration, 117. takes lesidxiejure mariti, 116. when right of, to curtesy arises, 136. when consent of, is essential to validity of his wife's will, 166. IDIOT, meaning of term ; cannot make a valid will, 173. cannot be appointed administrator, 83. act as executor, 206. protected against lord's right to seize copyholds, 137, 233. INDEX. 277 INFANT, cannot make a vaHd wiU unless he be a soldier or sailor, 165. be appointed administrator, 83. act as executor, 206. is protected against lord's right to seize copyholds, 137, 233. INSANITY, effect of, on testamentary capacity, 173. INTESTATE SUCCESSION, meaning of, 2, 80. early rules of, 8. to land, before Conquest, 11. to moveables, before Conquest, 11. to land, after Conquest, 20. to moveables, after Conquest, 16. local customary rules of, to land, 34. INTOXICATION, effect of, on testamentary capacity, 175. JOINT CONTEACT, rights and obligations under, pass to survivor, except where the contract is connected with trade, 51, 57. JOINT OWNERSHIP, right of survivorship is incident to, 48. of partners, no right of survivorship attaches, 48. equity disfavours, 48. JOINT TENANCY, right of survivorship is incident to, 45. of partners, no right of survivorship attaches, 46. equity disfavours, 46. JOINT TENANTS, effect of legacy to, 219. JDDaMENT, when binding on heir or devisee, 77^. debts, priority of, 105. KENT, land in, presumed to be of gavelkind tenure, 130. KNIGHT-SERVICE, tenure by, 22. abolished, 39. 278 INDEX, LJEN-LAND, 9. LEGACY, Tested, 217. contingent, 217. general, 221. specific, 222. demonstrative, 222. need not be paid for a year after the death, 218. satisfaction of a debt by, 219. portion by, 220. ademption of, by a portion, 221. lapse of a, 218. to joint legatees, 219. abatement of a, 223. duty, 218, 265. LETTERS OE ADMIlSriSTKATION, meaning of, 18. form of, 96. the rights, &c., which pass under, vest from date of grant, 99. in some cases relate back to date of death, 99. ad colligendum bona defuneti, 91. de bonis non, 97. cum testamento cmnexo, 230. de bonis non, 230. ZHX LOCI MEI SIT^, governs succession to real estate, 134. LIEN, on real property is not, as a rule, to be paid off out of personal estate, 140, 143, 250. LOCAL CUSTOM, effect of rules established by, on general rules of descent, 34, 36, 129. LORD OF MANOE, right of, to fine on admittance, and to seize quousque when no one applies for admittance, 137. LUNATIC, cannot, as a rule, make a valid wiU, 173. can make a valid wUl during a lucid interval, 173. in some cases of monomania, 173. cannot be appointed administrator, 83. act as executor, 206. protected against lord's right to seize copyholds, 137. INDEX. 279 MANORS, origin of, 34. MARINER. See Seaman. MARRIAGE, revokes -will, except in some special cases, 199 former law as to revocation by, 200. MARRIED "WOMAN, testamentary incapacity of, at common law, 166. married before 1883, cannot make a valid will (except of separate estate) without husband's consent, unless — (1) she be the queen consort, or wife of a convict, 167 ; (2) she be divorced, or judicially separated from, or deserted by husband, 168, 169 ; (3) she make the wUl as executrix, or in exercise of a power, 167. married before 1883, can make valid will of separate estate, 167. statutory separate estate of a, 169, 170, 171. married since 31st December, 1882, has fuU testamentary capa- city, 171. protected against lord's right to seize copyholds, 137, 233. MISTAKE, by the testator, as to the document executed being his will, 177. provisions inserted in the vrill, 178. omitted from the will, 179. MONOMAlSriA, effect of, on testamentary capacity, 174. MORTaAGE DEBT, is not, as a rule, to be paid off out of the personal estate, 142, 250. NEXT OF KIN, definition of, 83. method of ascertaining, 84. entitled to admiuistration, 83. rules for selecting administrator from, 85, .89. entitled to share residue, 19, 108, 225. distribution of residue amongst, 109. NORMAN CONQUEST, efEect of, on Anglo-Saxon law, 15. OBLIGATION, meaning of the term, 55. domestic, 56. 280 INDEX. OBLIGATION— continued. quasi-contractual, 66. between trustee and cestui que trust, &c., 66. official, 66. arising from contract, 57. breach of contract, 58. trust, 57. tort, 58. OFFICIAL RECBIVEE. See BANKEUPicrr. OLD AGE, effect of, on testamentary capacity, 174:. OEDnSTART, meaning of term, 13, n. his early right of administering intestate estates, 1 3. ■was made liable for debts of deceased, 17. his power of administering taken away, 17. his jimsdiotion as to grants of probate and administration trans- ferred to Court of Probate, 19. OUTLAWRY, effect of, on testamentary capacity, 175. FASS BATIONABILIS, of widows and children, 11, 19. PARTITION, how effected between co-paroeners, 138. PARTNERS, no right of survivorship between, 46, 48, 51, 57. PERSON LAST SEISED, formerly descent traced from, 27, 123. PERSONAL ESTATE, meaning of term, 3, 60. PERSONAL PROPERTY, meaning of term, 60, 61. life interest in, 46. PERSONAL REPRESENTATIVES, meaning of term, 3, 80, 153. PETIT SERJEANTY, 22. INDEX. 281 FZENE ADMimSTRAVIT, effect of plea of, 104. POETION", Batisfaotiou of, by legacy, 220. ademption of legacy by, 221. PEEEOGATIVE COUIITS, 94. PEIMOaENITUEE, 23, 123. PBOBATE DIVISION, meamng of term, 94. has exclusive jurisdiction in granting probate and letters of ad- ministration, 19, 94. PBOBATE OF A WILL, former jurisdiction of ecclesiastical courts as to, 207. now granted by Probate Division — on application to tbe principal registry, 207. district registries, 208. in common form, 208. in solemn form, 209. vrhere testator was not domiciled in England, or property is not in England, 210. not granted unless tbe will be vaKd by the law of testator's domicil, except in a few cases, 211. is mere evidence of validity of the will, and confers no new right on the executor, 213. of real estate is not necessary, 244. how fai heir or devisee is bound by, 245. duty on application for, 264. PURCHASER, former meaning of, 29. present meaning of, 121. QUASI-PIIECHASEK, 122, 127. REAL ESTATE, meaning of term, 3, 60. REAL PEOPERTT, meaning of term, 60, 61. life interests in, 43. 282 INDEX. REAL EEPEESENTATIVES, meaning of term, 3, 80, 153. EEALIZATION, of tlie estate, intestate, 102. testate, 215. EECOaNIZANCE, priority of debt due under, 105. EECORD, priority of debts of, 105. EEGISTEATION, of wills, -when necessary, and effect of, 246. EELIEP, is payable when tbere is a quit rent, 136. EENT, apportionment of, 144, 253. EEVIVAL OF A EEVOKED WILL, by re-exeoution, 202. by oodioU, 203. EEVOCATION OF A WILL, how it may be effected, 199—202. EIGHTS, antecedent, 42, 48. remedial, 51. in rem, 42, 60. in personam, 42, 48, 6S. domestic, 49. quasi-contractual, 49. between trustee and cestui que trust, &c., 49. ofEoial, 60. arising from contract, 51. breach of contract, 52. trust, 62. tort, 53. SAILOE, SEAMAN, administration to deceased, 97. form of wiU of, 157, 160. can make will of personalty when an infant, if at sea, 168. SEISmA FAGIT STIFITMM, explanation of maxim, 28, 30. INDEX. 283 SEPARATE ESTATE. created by equity, 168. statute, 169—171. married women may dispose of, by will, 167, 169, 171. SOCAaE TENURE, antiquum divisum and non antiquitus diviaum, 24, 26 tenure by knight-service changed into, 39. SOLDIERS, administration to deceased, 97. form of will of, 157, 160. can make will of personalty when an infant, if on actual service, 165. SPECIALTY DEBT, when heir or devisee may be sued for, 76, 79. now no priority over simple contract debts except as to remedy against the real estate, 79, 105, 134. SUCCESSION, meaning of, 1. intestate, 2. testamentary, 2. duty, 134, 232, 263. SUPERSTITIOUS USES. meaning of term, 194. gifts in favour of, void, 194. alterations in the old law relating to, 194. effect of gift being for charitable purposes as weU as to, 195. TENANTS IN COMMON, effect of legacy to, 219. TMEBA DOMINICA, 34. TESTAMENTARY SUCCESSION, meaning of term, 2, 153. unknown in early times, 5, 6. Introduction into England of, 7. to land, before the Conquest, 8. abolished after the Conquest, 36. indirectly reintroduced by means of uses, 37. again abolished but finally re-established, 38. to moveables before the Conquest, 1 1 . after the Conquest, 19. THELLUSSON'S WILL, 185. 284 INDEX. TORT, meaning of term, 63. rights arising from, extinguislied by death, wittafew exceptions, 54. obligations arising from, extinguished by death, with a few exceptions, 68. TRUST, how created, 147. express, 147. implied, 147. TRUSTEE, office of, created by equity, 149. at death of one, whole trust property held by the surviving trus- tee, 149, 151, 266. at death of one, office of trustee may generally be exercised by surviving trustee, 149, 161, 266. at death hefore 1882 of sole, trust property, if real, passed to heir, 150. devisee,' 256. if personal, to administrator, 150. executor, 256. at death after December, 1881, of sole, both real and personal trust property passes to administrator, 150. executor, 256. at death of sole, office devolves according to the terms of an express trust, 150. and in same manner as trust property if the trust be implied, 161. representatives of, Uable for his breaches of trust, 52, 162. effect of devise to a, on a trust which fails, 244. UNDUE INFLUENCE, what amounts to, 181. is never implied, and must be proved in order to make a will void, 182. UNSOUNDNESS OP MIND, meaning of, in connection with wills, 172. arises from insanity, 173. decay of mental faculties through old age, &o., 174. intoxication, 175. riLlANI, 35. riLLBNAGIUM, 35. WIDOW, pm'a rationaillis of, 11, 19. when entitled to dower, 134, 233. INDEX. 285 WID OW—contimed. when entitled to freetenoh, 135, 233. takes third of residue when there are descendants, 109. takes half of residue when there are no descendants. 111. entitled to be administratrix, 18, 83, 87. WILL, A, essentials of, 155. form of, before 1838, .156. nuncupative, 156. present form of, 157. example of, 157. testimonium clause of, 168. attestation clause of, 158. place of signature to, 158. alterations in, 159. efieot of domicU on form of, 161. witnesses of, 163. of copyholds, 164. incapacity of infants to make, 164. limited capacity of women married before 1883 to make, 165. capacity of women married after 1882 to make, 171, 172. efEeot of vmsounduess of mind on capacity to make, 172. civil death on capacity to make, 175. mistake of testator on, 176. fraud on, 179. undue influence on, 180. future estates and interests which cannot be created by, 184, 185. gifts by, for charitable purposes, 187. for superstitious uses, 194. persons who cannot take under, 196, 197. ways of revoking, 199. revival of, after revocation, 202. probate of, 207. of real estate only does not need probate, 244. construction of. See Consietjotios-. "WITNESSES, were not formerly necessary to wiUs of personal estate, 156. " three or four," were formerly necessary to a will of real estate, 166. now two, necessary, 167. persons incapable of being, 163. cannot take as beneficiaries under the wiU, 196. PEINIED BY 0. F. BOWOETH, GEBAT NEW STEEET, FEIIEE LAM), E.C. November, 1888. OF LAW WORKS PTTBLISHED ET STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. {And at 14, Bell Yard, Lincoln's Inn). Telegraphic Addiess— "BHODBONS, Loudon." A Catalogue of Modern Law Works (1888), together with a complete Chronological List of all the English, Irish, and Scotch Reports, Abbreviations used in reference to Laio Reports and Text Books, and an Index of Subjects. Demy 8vo. (100 pages), cloth lettered. Sent free on receipt of two penny stamps. 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By William Beuoe, Esq., Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 1886. II. lis. U. Mews' Digest of Cases relating to Criminal Law from 1756 to 1883, inclusive, — By John Mews, assisted by C. M. Chapman, Haeet H. W. Spaeham, and A, H. Todd, Barristers-at-Law. Royal 8vo. 1884. 1^. Is. Napier and Stephenson,— Fj* "Examination Guides." Roscoe's Digest of the Law of Evidence in Criminal Cases, — Tenth Edition. By Hobaoe Smith, Esq., Barrister-at-Law, Recorder of Lincoln. Royal 12mo. 1884. II. lis. 6d. " "We have looked for a considerable number of the recent cases, and have found thsn all correotlv steAei.."— Solicitors' Journal. Russell's Treatise on Crimes and Misdemeanors, — Fifth Edi- tion. By Samdul Peentice, Esq., one of Her Majesty's Cotmsel, 3 vols. Royal 8vo. 1877. 5?. 16s. M. " "What better Digest of Criminal Law could we possibly hope for than ' Bussell on Grimes ' ?" — Sir James Fitzjames Stephen's Speech on Godijication. Shirley's Sketch of the Criminal Law, — ByW. S. Shielet, assisted by 0. M. Atkinson, Esqrs., Barristers-at-Law. 8vo. 1880. 7s. 6d.. " As a primary introduction to Criminal Law, it -will be found very acceptable to aiaievis."— Law Student^ Journal. Shirley, — Vide " Leading Cases." Thring, — Vide "Navy." * * All standa/rd Law Worhsare kept in Stock, in law calf and other bimdingi.' * B 10 STEVENS A2.t presented in a tabular form, showmg at a glance how, where, and by what judges they have been considered. The second portion of the book comprises the Digest itself, and bears marks of the great labour and research bestowed upon it by the compilers. Their plan is to give passages from the judgments in which the cases overruled or otherwise dealt with are considered, the extracts being digested and arranged according to their subject-matter This makes a valuable work of reference." — Law Journal, June 4, 1887. Fisher's Digest of the Reported Decisions of the Courts of Common Law, Bankruptcy, Probate, Admiralty, and Divorce, togetherwith a Selection from those of the Court of Chancery and Irish Courts froml756 to 1883inolusive. Pounded on Fisher's Digest. By John Mews, assisted by C. M. Chapman, Habet H. W. Spaeham, and A. H. Todd, Barristers-at-Law. 7 vols. Royal 8vo. 1884. . 12Z. 12s. *-* Annual Supplements (in continuation of Fisher's Digest and Chitty's Equity Index) for 1884, 12s. 6d. ; 1885, los. ; 1886, 16s.; 1887, 15s. " To the common lawyer it is, in our opinion, the most useful work he can possess." — Law Times. * * All standard Law Works are kept in Stock, in law calf and other iindinffs, * b2 12 STEVENS AND SONS' LAW PUBLICATIONS. D I G E ST S— continued. Notanda Digest in Law, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases,— By E. W. D. Manson, Esq., Barrister-at- Law. Sixth Series, for 1885, 1886 and 1887, with Index. ^ach, net, 11. Is. Ditto, ditto, for 1888. Plain Copy and Two Indexes, or Adhesive Copy for insertion in Text-Books (without Index). Annual Suh- soription, payable in advance. N'et, 21». *,„* The numbers are issued every alternate month. Each number contains a concise analysis of every case reported in the Law Reports, Law Journal, Weekly Reporter, Law Times, and the Jrish Law Reports, up to and including the cases contained in the parts for the current month, with references to Text-books, Statutes, and the Law Re- ports Consolidated Dipjest. DISCOVERY.— Hare's Treatise on the Discovery of Evidence.— Second Edition. By Sheelook Haee, Barrister-at-Law. Post 8vo. 1877. 12». Sichel and Chance's Discovery,— The Law relating to Interroga- tories, Production, Inspection of Documents, and Discovery, as well in the Superior as in the Inferior Courts, together with an Appendix of the Acts, Forms and Orders. By Waltee S. Sichel, and Whiiam CsANOE, Esqrs., Barristers-at-Law. Demy Svo. 1883. 12». " Of material assistance to those -who are much engaged in judges' chambers or in the county courts," — Law Magazine. DISTRESS,— Oldham and Foster on the Law of Distress,— A Treatise on the Law of Distress, with an Appendix of Forms, Table of Statutes, &o. Second Edition. By AETHtra Oldham and A. La Teobe Foster, Esqrs., Barristers-at-Law. Demy 8vo. {In the press.) " A careful and accurate digest of the Law of Distress, and one which will be especially useful to country solicitors." — Law Times, February 20, 1886. DISTRIC*r REGISTRIES,— Archibald,— Fitfo " Chamber Practice." DIVORCE,— Browne's Treatise on the Principles and Practice of the Court for Divorce and Matrimonial Causes: With the Statutes, Rules, Fees and Forms relating thereto. Fourth Edition. By Geoege Bkowne, Esq., Barrister-at-Law. Demy Svo. 1880. \l.is. " The book is a clear, practical, and, so far as we have been able to test it, accurate exposition of divorce law and procedure." — Solicitors* Journal, DOGS. — Lupton's Law relating to Dogs,— By Feedbeiok Lxtpton, Solicitor. Royal 12mo. 1888. 5«. " "Within the pages of this work the reader will find every subject connected with the law relating to dogs touched upon, and the information given appears to be both e^austive and correct." — Law Times, June 23, 1888. *' This little book will be found useful by country gentlemen and other owners of dogs; it seems to contain a sirfficient account of the law of practical utility on the subject. — Law Quarterly Review, July 1888. DOMICIL,— Dicey's Le Statut Personnel anglais ou la Loi du Domicile, — Ouvrage traduit et complete d'aprfes les demiers arrets des Cours de Justice de Londres, et par la oomparaison aveo le Code Napoleon et les Diverses Legislations du Continent. Par Euile Stooquaet, Avocat a la Cour d'Appel de BruxeUes. Tome I. Demy 8vo. 1887. 12«. EASEMENTS.— Goddard's Treatise on the Law of Easements, — By Johit Letbouen Goddaed, Esq., Barrister-at-Law. Third Edition. Demy 8vo. 1884. U. Is. " An indispensable part of the lawyer's library." — Solicitors' Journal. " The book is invaluable : where the cases are silent the author has taken pains to ascertain what the law would be if brought into question." — Law Journal. "Nowhere has the subject been treated so exhaustively, and, we may add, so scientifically, as by Mr. Goddord. We recommend it to the most careful study of the law student, as well as to the hbrary of the practitioner." — Law Times. %* All stmidaird Law Works are kept in Stock, in law calf and other bindings. 119, CHA NCERY LANE, LONDON, W.C. 13 EAS E M ENTS— continued. Innes' Digest of the English Law of Easements. Third Edition. By Mr. Justice Innes, lately one of the Judges of Her Majesty's High Court of Judicature, Madras. Eoyal 12mo. 1884. 6s. ECCLESIASTICAL LAW.— Phillimore's Ecclesiastical Law of the Church of England. With Supplement. By the Bight. Hon. Sir EoBEET Phillimobe, D.C.L. 2 vols. 8vo. 1873-76. (Published at 31. 7s. 6d.) Reduced to net, \l. 10s. ELECTIONS. — Loader's The Candidate's and Election Agent's Guide; for Parliamentary and Municipal Elections, with an Ap- pendix of Forms and Statutes. By John Loaheb, Esq., Barrister- at-Law. Demy 12mo. 1885. 7s. ^d. " The book is a thoroughly practical one." — SoUciiors' Journal. Rogers on Elections. — Parliamentary and Municipal, with an Appendix of Statutes and Forms. In two parts. Part I. Registeation, including the Practice in Registration Appeals. Fourteenth Edition. ByJoHN Cobbie Cabteb, of thelnnerTemple and MidlandCircuit, Esq., Recorder of Stamford. Royall2mo. 1885. l?.ls. Part II. Elections and Petitions. Fifteenth Edition. Incorporating all the Decisions of the Election Judges, with Statutes to June, 1886, and a new and exhaustive Index. By John Cobkte Caetee, and J. S. Sandaes, Esqrs., Barristers-at-Law. Royal 12mo. 1886. 11. Is. " An admirable storehouse of information." — Law Journal. '* A very satisfactory treatise on election law .... his chapters on election expenses and illegal practices are well arranged, and tersely expressed. The com- pleteness and general character of the book as regards the old law are too well known to need description." — Solicitors^ Journal. ELECTRIC LIGHTING.— Bazalgette and Humphreys. — F«« " Local and Municipal Grovernment." Cunynghame's Treatise on the Law of Electric Lighting, with the Acts of Parliament, and Rules and Orders of the Board of 'Trade, a Model Provisional Order, and a set of Forms, to which is added a Description of the Principal Apparatus used in Electric Lighting, with Illustrations. By Henet Cunynohahe, Barrister-at-Law. Royal Svo. 1883. 12s. 6rf. EQUITY, and Vide CHANCERY. Chitty's Index.— Firfe "Digests." Seton's Forms of Decrees, Judgments, and Orders in the High Court of Justice and Courts of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fourth Edition. By R. H. Leach, Senior Registrar of the Chancery Division ; F. G-. A. Williams and the late H. W. Mat ; suooeeded by Jakes East- wiOK, Esqrs., Barristers-at-Law. 2 vols, in 3. Eoyal Svo. 1877 —1879 il. 10s. Shearwood's Introduction to the Principles of Equity. By Joseph A. Sheabwood, Author of "A Concise Abridgment of Real and Personal Property," &o., assisted by Clement Skelbs Mooee, of the Middle Temple, Esqrs., Barristers-at-Law. 8vo. 1885. 6s. Smith's Manual of Equity Jurisprudence. — A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other writers, and on more than a thousand subsequent cases, comprising the Fundamental Principles and the points of Equity usually occurring in General Practice. By Josiah W. Smith, ft.C. Thirteenth Edition. 12mo. 1880. _ 12s. 6d. *' There is no disguising the truth ; the proper mode to use this book is to learn its pages by heart." — Law Magazine and Heuiew. " It will be found as useful to the practitioner as to the s.tniicnt.'" —Solicitors^ Journal. *»* All standard Law Works are kept in Stock, in law calf and other bindings. U STEVENS AND SONS' LAW PUBLI CATIONS. EQU ITY — continued. Smith's Practical Exposition of tlie Principles of Equity, illus- trated by the Leading Decisions thereon. For the use of Students and Practitioners. Second Edition. By H. Abthtje Smith, M.A., LL.B., Esq., Barrister-at-Law. Demy 8vo. 1888. 21». " This excellent practical exposition of the principles of equity is a work one can ■weU recommend to students either for the bar or the examinations of the Incorporated Law Bociety. It -will also be found equally valuable to the busy practitioner. _ It con- tains a mass of information well arranged, and is illustrated by all the leading deci- sions. All the legislative changes that have occurred since the publication of the first edition have been duly incorporated in the present issue." — Law Times, July 28, 1683. " Students have found that in his book are contained the doctrines of Equity as they exist in practice at the present day, clearly stated and conveniently arranged ; and it has won itself a recognized position among text-books of its class. . . . Mr. Smith's book bids fair to be one of increasing usefuhiess to students." — Law Quarterly lievieWf Oct. 1888. ESTOPPEL, — Everest and Strode's Law of Estoppel. By Lancelot EiELDiNQ Everest, and Edmottd Strode, Esqrs., Barristers-at-Law. Demy 8vo. 1884. 18*. " A useful repository of the case law on the subject." — Law Journal. EXAMINATION GUIDES,— Bedford's Digest of the Preliminary Examination Questions in Latin Grammar, Arithmetic, French Grammar, History and Geography, -with the Answers. Second Edition. Demy 8vo. 1882. 18«. Bedford's Student's Guide to the Ninth Edition of Stephen's New Commentaries on the Laws of England. — Third Edition. Demy 8vo. 1884. 7«. 6d. Haynes and Nelham's Honours Examination Digest, comprising all the Questions in Conveyancing, Equity, Common Law, Bank- ruptcy, Prohate, Diroroe, Admiralty, and Ecclesiastical Law and Practice asked at the SoUcitors' Honours Examinations, with Answers thereto. By John F. Haynes, LL.D., and Thomas A. Nelham, Solicitor (Honours). Demy 8vo. 1883. 15s. " Students going in for honours will iind this one to their advantage." — Law Times. Napier's IVlodern Digest of the Final Examinations; a Modem Digest of the Law necessary to be known for the Final Examination of the Incorporated Law Society, done into Questions and Answers ; and a Guide to a Course of Study for that Examination. By T. Bateman Napiee, LL.D., London, of the Inner Temple, Barrister- at-Law. Demy 8vo. 1887. 18s. *' As far as we have tested them we have found the questions very well framed, and the answers to them clear, concise and accurate. If used in the manner that Dr. Napier recommends that it should be used, that is, together with the text-books, there can be little doubt that it will prove of considerable value to students."— TAs Jurist, March, 1887. Napier & Stephenson's Digest of the Subjects of Probate, Divorce, Bankruptcy, Admiralty, Ecclesiastical and Criminal Law necessary to be known for the Final Examination, dune into Questions and Answers. With a Preliminary Chapter on a Course of Study for the above Subjects. By T. Bateman Napier and Richard M. Stephenson, Esqrs., Barristers-at-Law. Demy 8vo. 1888. 12s. " It is concise and clear in its answers, and the questions are based on points, for the most part, material to be known." — Pump Court, Aug ust 4, 1888. Napier & Stephenson's Digest of the Leading Points in the Sub- ject of Criminal Law necessary to be known for Bar and University Law Examinations. Done into Questions and Answers. By T. Bateman Napier and Eichahd M. Stephenson, Esqrs., Barristers- at-Law. Demy 8vo. 1888. 5s. " "We commend the book to candidates for the Bar and TTniversity Legal Examina- tions."— Pum^ Court, August, 16, 1888. *,* All standard Law Works are kept in Stock, in law calf and other bindings: 119, CHA KOERY LAKE, LONDON, "W.C. 15 EXAMINATION GU\DES-contimted. Shearwood's Guide for Candidates for the Professions of Barrister and Solicitor.— Second Edition. By Joseph A. Sheab- ■wooD, Esq., Barrister-at-La-w. Demy 8vo. 1887. 6«. " A practical little book for students."— £aw Quarterly Review. EXECUTIONS. — Edwards' Law of Execution upon Judgments and Orders of the Chancery and Queen's Bench Divisions of the High Court of Justice.— By C.Johnston- Bdwaeds, of Lin- coln's Inn, Esq., Barrister-at-Law. Demy 8vo. 1888. 16s. " 'Will be found very useful, especially to solicitors. ... In addition to the other good points in this book, it contains a copious collection of forms and a good index." — SoUcitnra' Journal, August 4, 1888. " Mr. Edwards writes briefly and pointedly, and has the merit of beginning in each ease at the beginning, Trithout assuming that the reader knows anything. He explains who the sheriff is ; what the Q,ueen, in a writ Elegit, for example, orders him to do ; how he does it; and what consequences ensue. The result is to make the whole treatise satisfactorily dear and easy to apprehend. If the index is good — as it appears to be^ practitioners will probably find the book a thoroughly useful one." — Law Quarterly Memew, October, 1888. EXECUTORS, — Macaskie's Treatise on the Law of Executors and Administrators, and of the Administration of the Estates of Deceased Persons. With an Appendix of Statutes and Forms. By S. C. Maoaseie, Esq., Barrister-at-Law. 8vo. 1881. 10s. 6d. Williams' Law of Executors and Administrators. — Eighth Edition. By Wai-tee Vatjqhan Williams and Roland Vattqhan Williams, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1879. 31. 16s. EXTRADITION.— Kirchner's L'Extradition,— RecueURenfermantiu Extenso tons les Traites conclus jusqu'au ler Janvier, 1883, entre les Nations civilisees, et donnant la solution precise des difficultes qui peuvent surgir dans leur application. Aveo une Preface de Me GrEOEQES Lachatji), Avooat k la Cour d'Appel de Paris. PubMe sous les auspices de M. C. E. Howabd Vincent, Directeur des Affaires Criminelles de la Police MetropoHtaine de Londres. Par P. J. KiBOKNEE, Attache k la Direction des Affaires GrimineUes. In 1 vol. (1150 pp.). Royal 8vo. 1883. 2?. 2s. FACTORS ACTS.— Boyd and Pearson's Factors Acts (1823 to 1877). With an Introduction and Explanatory Notes. By HuoH Eenwiok Boyd and A:ETHnE Beilby Peaeson, Barristers-at-Law. Royal 12mo. 1884. 6s. FACTORY ACTS,— Notoutt's Law relating to Factories and Work- shops. Second Edition. 12mo. 1879. 9s. FARM, LAW OF. — Dixon's Law of the Farm.— A Digest of Cases connected with the Law of the Farm, and including the Agricultural Customs of England and Wales. Fourth Edition. By Henet Peekins, Esq., Barrister-at-Law. 8vo. 1879. 11. 6s. " It is impossible not to be struck with the extraordinary research that must have been used in the compilation of such a book as this." — Law Journal. FIXTURES.— Amos and Ferard on the Law of Fixtures and other Property partaking both of a Real and Personal Nature. Third Edition. Revised and adapted to the present state of the Law by C. A. Feeaed and W. Howland Robebts, Esqrs., Barristers-at-Law. DemySvo. 1883. ' 18». "An accurate and well written work." — Saturday Seview. *»* All standard La/U) Wor/csare kept in Sloeic, in law calf and other bindings. 16 STEVENS AND SONS' LAW PUBLICATIONS. FORMS,— Allen.— F«« "Pleading." Archibald. — Vide "Chamber Practice." Bullen and Leake. — Fi* " Pleading." Chitty's Forms of Practical Proceedings in the Queen's Bench Division ofthe High Court of Justice. Twelfth Edition. ByT. "W. Chittt, Esq., Barrister-at-Law. Demy 8vo. 1883. II. 18«. " The forms themselves are brief and clear, and the notes accurate and to the point. — Law Journal. Daniell's Forms and Precedents of Proceedings in the Chan- cery Division of the High Court of Justice and on Appeal therefrom. — Fourth Edition, -with Summaries of the Bules of the Supreme Court, Practical Notes and References to the Sixth Edition of "DanieU'sChancery Practice." ByCHAKLEsBtrENET, B.A. (Oxon.), a Chief Clerk of the Hon. Mr. Justice Chitty. Royal Svo. 1885. 2Z. 10s. " Mr. Burney appears to have performed the laborious task before him Tvith great success." — Law Journal. *' This new edition of the standard work on CHiancery Procedure has been brought down to the most recent date." — Law Quarterly BevieWf July, t885. GOLD COAST.— Smith's Analytical Index to the Ordinances Re- gulating the Civil and Criminal Procedure of the Gold Coast Colony and of the Colony of Lagos. By Smaiman Smith, Esq., Barrister-at-Law, Judge of the Supreme Court of the Colony of Lagos. Royal Svo. -1888. N'et. 10«. HIGHWAYS.— Baker's Law of Highways in England and Wales, including Bridges and LooomotiTes. Comprising a succinct Code of the several Provisions under each Head, the Statutes at length in an Appendix ; with Notes of Cases, Eorms, and copious Index. By Thomas Ba£eb, Esq., Barrister-at-Law. Royal 12mo. 1880. 15s. Bazalgette and Humphreys. — Vide "Local and Municipal Govemi- ment." Chambers' Law relating to Highways and Bridges, being the Statutes in full and brief Notes of 700 Leading Cases. By Gteoege E. Chambebb, Esq., Barrister-at-Law. 1878. 7«. 6d. HOUSE TAX,— Ellis' Guide to the House Tax Acts, for the use of the Payer of Inhabited House Duty in England. — ByAETHua M. Ellis, LL.B. (Lond.), SoKoitor, Author of "A Guide to the Income Tax Acts." Royal 12mo. 1885. 6«. " "We have found the information accurate, complete and very clearly expressed." — Solicitors* Journal. HUSBAND AND WIFE,— Lush's Law of Husband and Wife; within the Jurisdiction of the Queen's Bench and Chancery Divisions. By 0. Montague Lhsh, Esq., Barrister-at-Law. Svo. 1SS4. 20s. " Mr. Lush has one thing to recommend him most strong-ly, and that is his accuracy ; therefore his book is one "which everyone may consult with the assurance that all the' leading recent authorities are quoted, and that the statements of law are supported by actual decisions." — Law Magazine. INCOME TAX,— Ellis' Guide to the Income Tax Acts.— Eor the use of the English Income Tax Payer. Second Edition. By Aethtte M. Ellis, LL.B. (Loud.), Solicitor. Royal 12mo. 1886. 7s. 6d. " Contains in a convenient form the law bearing upon the Income Tax." — Law Times. " "With Mr. Ellis' book in their hands the taxpayers are not so completely at the mercy of assessors and collectoiB as they otherwise might be." INLAND REVENUE CASES.— HIghmore's Summary Proceed- ings in Inland Revenue Cases In England and Wales. — Second Edition. By Nathaniel Joseph Highmobe, Esq., Barrister-at-Law, and of the Solicitors' Department, Inland Revenue. Royal 12mo. 1887. • 7s. 6d. " Is very complete. Every possible information is given as to Summary Proceedings in Inland Revenue cases." — Law Times, January 14, 1888. **»* All standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERT LANE, LONDON, W-C. 17 INSURANCE. — Arnould on the Law of Marine Insurance.— Sixth Edition. By David Maclachlan, Esq., Barrister-at-La-w. 2 vols. Royal 8vo. 1887. 31. "Abel text book, ' Amould ' is now all the practitioner can want." — Law Times. Lowndes' Practical Treatise on the Law of Marine Insurance. — By RiOHAED Lowndes. Author of " The Law of General Average," &o. Second Edition. Demy 8vo. 1885. 12«. 6(i. Lowndes' Insurable Interest and Valuations. — By Riohakd Lowndes. Demy 8vo. 1884. 5s. McArthur on the Contract of Marine Insurance. — By Charles MoAETHirii, Average Adjuster. Demy 8vo. 1885. lis. INTERNATIONAL LAW.— Kent's International Law.— Kent's Com- mentary on International Law. Edited by J. T. Abdy, LL.D., Judge of County Courts. Second Edition. Crown 8vo. 1878. 10s. Sd. Wheaton's Elements of International Law; Third English Edition. Edited with Notes and Appendix of Statutes and 'Treaties. By A. C. BoTD, Esq., Barrister-at-Law. Demy 8vo. {In the Tress.) INTERROGATORIES,— Sichel and Chance— Vide "Discovery." JOINT STOCKS.— Palmer,— riject, and is indispensable to prao- titioners who have to deal -with this branch of law." — Solicitors* Journal. " Mr. Sebastian has written the fullest and most methodical book on trade marks which has appeared in England since the passing of the Trade Harks ^Registration Acts." — Trade Marks. TRAMWAYS. — Bazalgette and Humphreys. — r«fe "Local and Municipal Government." Sutton's Tramway Acts of the United Kingdom ; with Notes on the Law and Practice, an Introduction, including the Proceedings before the Committees, Decisions of the Referees with respect to Locus Standi, and a Summary of the Principles of Tramway Bating, and an Appendix containing the Standing Orders of Parliament, Rules of the Board of Trade relating to Tramways, &c. Second Edition. By Henet Sutton, assisted by Roeeet A. Bejojett, Bar- risters-at-Law. Demy Svo. 1883. ].5s. " The book is exceedingly well done, and eamiot fail not only to be the standard work on its own subject, but to take a high place among legal text-books." — Law Journal. TRUST FUNDS. — Geare's Investment of Trust Funds. — By Edwaed Aetxnuei, Geaee, Esq., Barrister-at-Law. Royal 12mo. 1886. 7«. 6d. •' The work is written in an easy style, it can very well be read by all trustees, whether they are lawyers or not ; and if they will faie our advice, and invest their money here before they invest other people's elsewhere, they may be spared macb trouble in the future." — The Jurist. January, 18S7. TRUSTS AND TRUSTEES.— Godefroi's Digest of the Principles of the Law of Trusts and Trustees. — By Henet Godefeoi, of Lincoln's Inn, Esq., Barrister-at-Law. Demy Svo. 1879. 1/. 1*. VENDORS AND PURCHASERS.— Dart's Vendors and Pur- chasers. — A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late J. Henet Daet, Esq., one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Sixth Edition. By William Baebee, Esq., one of Her Majesty's Counsel, Richabd Buedon Haldane, and William RoBEET Sheldon, both of Xincolu's Inn, Esqrs., Barristers-at-Law. 2 vols. Royal Svo. 1888. 31. 15s. " The new edition of Dart is far ahead of all competitors in Gie breadth of its range, the deamess of its exposition, and the soundness of its law." — Law Times. ** The extensive changes and numerous improvements which have been introduced are the result of assiduous labour, combined with critical acumen, sound knowledge, and practical experience." — Law Quarterly Review^ April, 18SS. " "The new edition of this valuable work will be welcomed by all conveyancers. Some idea of the labour of editing such a compendious work may be formed from the fact that the Tables of Cases and Statutes referred to in the text occupy no less than three hundred pages. References are conveniently given to all the Reports, and by means of the addenda the cases have been brought down to the present time. The Index, by no means the least important part of such a book, is entirely new, and appears to have been very carefully compiled. The editors may fairly claim to have discharged a responsible duty, by making the new edition worthy of the name and reputation of its learned and lamented author." — Law Journal, Majch 17, 18SS. " For the copious and excellent index we have nothing but praise. We have been informed that an authority of the highest eminence has pronounced it to be the best in any existing law book, and we humbly concur in that opinion." — Law Quarterlu Eeview, October, 1888. %* All standard law Works are kept in Stock, in law calf and other Undinga. 119, CHANCEEY LANE, LONDON, W.C. 31 VENDORS AND PURCHASERS— continued. Turner's Duties of Solioitor to Client as to Sales, Purchases, and Mortgages of Land.— By Edwaed F. Ttjenee, Solicitor, Lecturer on Eeal Property and Conveyancing', and one of the Assistant Examiners for Honours to the Incorporated Law Society for 1882-3. Demy 8to. 1883. 10s. Gd. See also Conveyancing. — " Turner," " His lectures are full of thought and accuracy, they are lucid in exposition, and what is more, though unfortunately rare in law works, attracHve in their style and composition." — Law Magazine. *• A careful perusal of these lectures cannot fail to be of great advantage to students, and more particularly, we think, to young practising solicitors."— iaw Times. WILLS. — Theobald's Concise Treatise on the Law of Wills. — Third Edition. By H. S. Theobau), Esq., Barrister-at-Law. Eoyal 8vo. 188.5. II. 10». "A book of great ability and value. It bears on every page traces of care and sound judgment. It is certaia to prove of great practical usefulness." — Solicitors' Journal. Weaver's Precedents of Wills. — A Collection of Concise Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By Chables Weaveb, B.A. Post 8vo. 1882. 5«. WINDING UP.— Palmer's Winding-up Forms.— A Collection of 580 Forms of Summonses, Affidavits, Orders, Notices and other Forms relating to the "Winding-up of Companies. With Notes on the Law and Practice, and an Appendix containing the Acts and Eules. By Feakcis Beattfobt Paimee, Esq., Barrister-at-Law, Author of " Company Precedents," &c. 8vo. 1885. lis. WRECK INQUIRIES.— Murton's Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships' Officers. With an Introduction. By Waxtee MtrETON, Solicitor to the Board of Trade. Demy 8vo. 1884. U.is. WRONGS.— Addison, Pollock, Shearwood.— Ft* "Torts." Ball.— "Leading Cases," vide "Torts." REPORTS. — A large Stock, New and Second-hand. Prices on application. BINDING. — Executed in the best manner at moderate prices and with dispatch. 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