Tenants in common. Bequest to a class. Legacies to children. two or more as joint tenants, and one of them die in the lifetime of the testator, his share will not lapse but will survive to the others (c). But if the bequest be to two or more in common, and one of them die in the testator's lifetime, his share will lapse (d); unless the bequest be made to a class, as to the children of A. in equal shares, in which case all who answer that description at the testator's decease (e), and also (if the period of distribution be postponed by the will) all who come into being before such period (ƒ), will be entitled to divide the bequest amongst them. It is, however, provided by the recent act for the amendment of the laws with respect to wills, that where any person, being a child or other issue of the testator, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such issue shall be living at the death of the testator, such bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (g). The effect of this provision is curious. If the legatee had died immediately after the testator, leaving a will, it is evident that the estate bequeathed to him would have passed under his will. It has been decided therefore that the will of the legatee shall, after his death, operate on the estate bequeathed to him in the same manner as if he had been living (h). But this provision has been held not to apply to a testamentary appointment (i). (c) Morley v. Bird, 3 Ves. 631. J 628, (e) Viner v. Francis 2 Cox, Pain, 4 Hare, 250. (ƒ) Ayton v. Ayton, 1 Cox, 327; 2 Jarm. Wills, 75. (g) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 33. (h) Johnson v. Johnson, 3 Hare, 157. (i) Griffiths v. Gale, 12 Sim. 354. executor to the residue. If there were no residuary legatee, the residue of the Former right of testator's personal estate, after payment of debts and legacies, formerly belonged to the executor for his own benefit, unless a contrary intention appeared from his being left executor in trust (k), or from his having a legacy left him for his trouble (1), or from other circumstances (m). But by a recent statute (n), it is now Recent statute. enacted that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will or any codicil thereto (o), that the person so appointed executor was intended to take such residue beneficially. The Statute of Distributions is that under which the personal estate of any one dying intestate is distributed between his widow and next of kin. An account of this statute will be found in the next chapter. (k) Pring v. Pring, 2 Vern. 99; Bagwell v. Dry, 1 P. Wms. 700. (1) Rachfield v. Careless, 2 P. Wms. 158. (m) Mullen v. Bowman, 1 Coll, 197. (n) Stat. 11 Geo. IV. & 1 (0) Lane v. Gaze, 8 Beav. CHAPTER IV. ecclesiastical courts over tate persons. OF INTESTACY. Jurisdiction of THE ecclesiastical courts have jurisdiction not only over the wills of testators, but also over the goods of persons goods of intes dying intestate. This jurisdiction, though of long standing, appears to have been at first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, every man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church (a). If, however, a man should have died intestate, without opportunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lord first having taken his heriot (b). The wife and the children were entitled to their shares; and that part of the goods which the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios usus. This application to pious uses appears to have been as follows: in the first place, the bequest, which it was to be presumed the intestate would have made to the church, was retained, and the residue was then disposed of in paying the debts of the deceased, and distributed amongst his wife and children, his parents and their relatives. That this was the case appears from the complaints which were made by the clergy of those days, of the interference of the temporal lords in cases of intestacy, whereby the distribution of the effects in the manner pointed out was pre Pious uses. (a) Glanville, lib. 7,c. 5; Bract. 60 a; Fleta, lib. 2, c. 57. (b) Bract. 60 b.; Fleta, ubi supra. vented (c). The clergy themselves, however, do not appear to have been always free from blame; for they are accused of having frequently taken the whole of the intestate's portion to themselves, making no distribution, or at least an undue one, amongst the creditors and relatives of the deceased (d); and, in order to remedy this evil, it was enacted in the reign of Edward I., by one of the very few statutes then passed relating to personal estate (e), that the ordinary should be bound to answer the debts of an intestate, so far as his goods would extend, in the same manner as the executors would have been bounden if he had made a testament. The right of the creditor was thus clothed with a remedy; for, under this statute, an action at law might be brought by the creditor against the ordinary for the payment of his debt (ƒ); but the right of the relatives to the surplus still remained undefined. The duty of administering intestate's effects was not, Administrator. as may be supposed, usually performed by the bishops. in person. For this purpose they usually appointed an administrator; but, as personal property rose in importance, it became desirable that this administrator should not be considered as the mere agent of the bishop, but should himself have a locus standi in the king's courts. It was accordingly enacted by a statute of the reign of Edward III. (g) that where a man died intestate the ordinaries should depute the next and most lawful friends of the deceased to administer his goods, which persons (c) Matthew Paris, 951, Additamenta, 201, 204, 209 (Wats's ed. London, 1640); Constitutions of Boniface, Constitutiones Provinciales, 20, at the end of Lyndewode's Provinciale (Oxon. 1679), recited also in a Constitution of Archbishop Stratford (Lynd. Prov. lib. 3, tit. 13). See Gent. Mag. New Series, vol. ii. (d) Fleta, lib. 2, c. 57. (g) 31 Edw. III. c. 11. S Rights and powers of administrator. so deputed should have action to demand and recover, as executors, the debts due to the deceased, to administer and dispend for the soul of the dead; and should answer also, in the king's courts, to others to whom the deceased was holden and bound, in the same manner as executors should answer. By a subsequent statute (h) administration may be granted to the widow of the deceased, or to the next of his kin, or to both, as by the discretion of the ordinary shall be thought good. The widow is usually preferred to the next of kin in the grant of administration (i); and a joint grant is seldom made, so seldom, indeed, that the powers of co-administrators appear to be still a matter of doubt (k). In granting administration to the next of kin, the ecclesiastical courts are guided by the right to the property to be administered (1). This right will be hereafter explained. If none of the next of kin will take out administration, a creditor may, by custom, do so, on the ground that he cannot be paid his debt until representation is made to the deceased (m); and for want of creditors, administration may be granted to any person at the discretion of the court (n). The administrator, when appointed, has, from the time of his appointment, the same right to, and power over, all the personal estate of the intestate as his executors would have had if he had made a will (o), and the same duty also devolves upon the administrator of paying the debts in the first place. He has also the same privilege as an executor of retaining his own debt (h) 21 Hen. VIII. c. 5. (k) Shep. Touch. 485, 486; (1) In the goods of Gill, 1 Hagg. 342. (m) Webb v. Needham, 1 Addams, 494. (n) Williams on Executors, pt. 1, bk. 5, c. 2, s. 1. (0) Ibid. pt. 2, bk. 1, ch. 1. |