trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa." Residuary Legatee.] 7. When all the debts and particular legacies are discharged, the surplus, or residuum, must be paid to the residuary legatee, if any be appointed by the will; and if there be none, it seems now to be understood, that although when the executor has no legacy at all, the residuum shall, in general, be his own; yet, whenever there is sufficient on the face of a will (by means of a competent legacy, or otherwise), to imply that the testator intended his executor should not have the residuum, the undevised surplus of the estate shall go to the next of kin, the executor then standing upon exactly the same footing as an administrator" (82). "By the statute 22 and 23 Car. II., c. 10, explained by 29 Car. II., c. 30, it is enacted, that the surplusage of intestate's estates (except of femmes covert, which are left as at common law), shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: one third shall go to the widow of the intestate, and the residue in equal proportions to his children; or if dead, to their representatives, that is, their lineal descendants; if there are no children, or legal representatives subsisting, then a moiety shall go to the widow, and amoiety to the next of kindred, in equal degree, and their representatives; if no widow, the whole shall go to the children; if neither widow or children, the whole shall be distributed among the next of kin in equal degree, and their representatives; but no representatives are admitted among collaterals, farther than the children of the intestate's brothers and sisters. The next of kindred here referred to, are to be investigated by the same rules of consanguinity, as those who are entitled to letters of administration. And by this statute, the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate, and without wife or issue, in exclusion of other sons and daughters, the brothers and sisters of the deceased. But by statute 1 Jac. II., c. 17, if the father be dead, and any of the children die intestate, without wife or issue, in the life time of the mother, she and each of the remaining children, or their representatives, shall divide his effects in equal portions" (83). 22. (82) Blackstone, vol. ii, p. 514. Mr. Christian adds, “ Courts of equity now construe executors to be trustees for the next of kin, in all cases where a fair inference can be collected from the expressions and circumstances of the will, that such was the testator's intention. Where a legacy is given to a sole executor, it affords a reasonable conclusion, that the testator intended to give him this alone as a satisfaction and recompense for his trouble; for it would be absurd to give him expressly a part, if it were intended that he should have the whole." (83) Blackstone, vol. ii, p. 515. Mr. Christian observes, "The next of kin, who are to have the benefit of the statute of distributions, must be ascertained according to the computation of the civil law, including the relations both on the paternal and maternal sides. And when the relations are thus found, who are distant from the intestate by an equal number of degrees, they will share the personal property equally, although they are relations to the intestate of very different denominations, and per2 P3 hape 22. Ecclesiastical Jurisdiction of Supreme Court.] Letters patent, dated 26th March 1774, sec. xxii, give to the Supreme Court, at Ft. Wm., in Bengal, as a court of ecclesiastical jurisdiction, "full power and authority to administer and execute, within and throughout the said provinces, districts, or countries, called Bengal, Behar, and Orissa (84), and toward and upon our British subjects there residing, the ecclesiastial law, as the same is now used and exercised in the diocese of London, in Great Britain, so far as the circumstances and occasions of the said provinces and people shall admit and require;" and "to commit letters of administration under the same seal, of the goods, chattels, credits, and all other effects whatsoever, of such British subjects as aforesaid, as shall die intestate, within the said provinces, countries, or districts, or who shall not have named an executor, resident in such districts, or where the executor, being duly cited, according to the form now used for that purpose, in the said diocese of London, shall not appear, and sue forth such probate, annexing the will to the said letters of administration, where such person shall have left a will, without naming any executor, or any person for executor, who shall then be alive, and resident within the said three provinces, countries, or districts, and who, being duly cited thereunto, will appear, and sue forth a probate thereof; and to sequester the goods, chattels, credits, and other effects whatsoever, of such persons so dying, in cases allowed by law, as the same is, and may now be used in the said diocese of London; and to demand, require, take, hear, examine, and allow; and, if occasion require, to disallow and reject the account of them, in such manner and form as is now used, or may be used in the said diocese of London; and to do all other things whatsoever, needful and necessary in that behalf; provided always, and we do hereby authorize and require the said Supreme Court, &c. in such cases as aforesaid, where letters of administration shall be committed, with the will annexed, for want of an executor appearing in due time to sue the probate, to reserve in such letters of administration full power and authority to revoke the same, and to grant probate of the said will, to such executor, whenever he shall duly appear, and sue for the same; and we do thereby further authorize and require the said Supreme Court, &c. to grant and commit such letters of administration, according to the course now used, or which lawfully may be used, in the said dio cese haps not relations to each other. As, if the next of kin of the intestate are great uncles or aunts. first cousins, and great nephews or neices, these being all related to the intestate in the fourth degree, will be admittud to an equal distributive share of his personal property. There is only one exception to this rule, viz., where the nearest relations are a grandfather or grandmother, and brothers or sisters, although all these are related in the second degree, yet the former shall not participate with the latter (3 Atk., 762). No difference is made between the whole and half-blood, in the distribution of intestate personal property." (84) These three provinces, at the above period, comprised the whole of the H. E. I. Co.'s possessions. cese of London, to the lawful next of kin of such person so dying as aforesaid; and in case no such person then be residing within the jurisdiction of the said Supreme Court, &c., or, being duly cited, shall not appear, and pray the same, to the principal creditor of such person, or such other creditor as shall be willing or desirous to obtain the same (85); and for want of any creditor appearing, then to such other person or persons, who shall be thought proper by the said Supreme Court, &c." Sec. xxiii requires administrators to give security, by bond, to the junior justice of the court, to the value of the estate. Registrar general Administrator to Estates of Intestates, and his Duties.] By an order of the Supreme Court Fort Wm., &c. lxxiv, dated Aug 1, 1803 (in conformity with 39 and 40 Geo. III. cap. 79, granting administration of the estates of intestates to the registrar of the court), it is ordered, that in all cases in which the registrar shall be appointed administrator under the abovementioned act of Parliament (sec. xxi), besides filing an inventory and account current, according to the tenor of the administration bond, and usual course of the Ecclesiastical Court, he shall enter into a book, to be by him kept for that purpose, separate and distinct accounts of each estate, and of all such sums of money, bonds, and other securities, for money, goods, effects, and things as shall come to his hands, or to the hands of any person employed by him, or in trust for him, by virtue of any letters ad colligenda, or of administration granted to him by virtue or under the authority of the said act, and likewise of all payments made by him for or on account of the said estates, and of all debts due by or to the same; which said book shall be kept in the registrar's office, and shall be open for the inspection of all such persons, practitioners of the said court, or others, as may have occasion to inspect the same, at the office hours, paying the usual fee and no more. And it is further ordered that, upon the 1st day of March and the 22d day of Oct. in every year, the said registrar shall make out a true and perfect schedule of all such sums of money, bonds, or other securities belonging to each estate committed to his charge, together with the balance appearing on the same, in order that the said court be at all times fully informed of the state of every intestate's estate, and shall deliver the same in open court upon such respective days in each year, and that the same shall be there filed of record, and if upon his passing his account at the end of the year, according to the usual course of the ecclesiaastical court, (85) But to prevent letters of administration being obtained by improper persons and various frauds, it is ordered by the court (lxx, 7th March, 1796), "That all applications for letters of administration to the estates of persons dying intestate, shall be advertised three successive times in the Gazette;" by a proctor of the court. And by an order of the court, dated 8th Jan. 1817, it is ordered, "That the registrar of this court do not issue any citation to the next of kin, or to the creditors of an intestate's estate, unless by an order of court, or of one of the Judges thereof, at chambers." court, it shall appear that there is any balance of cash in his hands belonging to any estate, which cannot be paid immediately over to the persons entitled to the same, either for want of proper authority or from uncertainty who are the persons entitled thereto, or for any other cause, the registrar is hereby directed to lay out and invest the same, on the account of each separate estate, in the purchase of securities of the U. E. I. Co. bearing interest, and shall hold the same, together with the interest accruing, for the benefit of such person or persons as may be entitled to the residue of such estate; and it is hereby ordered, that so often as any further sum shall be received by him as aforesaid, or that the cash in his hands, belonging to any one estate shall amount to 500 rupees, that the same shall be laid out and invested as aforesaid. And it is further ordered that the said schedule, and also a schedule containing a list of all such administrations, the accounts of which have been settled, and the balance paid over to the person entitled, with the amount of the said balance, be printed in the Calcutta (govt.) Gazette, and in the London Gazette, for the information of all persons concerned; with a memorandum that the administrator's accounts are annually transmitted to the E. I. House in London, and there to be inspected. "And whereas it is by the said act directed, that the registrar, when appointed administrator as aforesaid, shall pass his accounts according to the course of the court of chancery; it is ordered, that as soon as the registrar is enabled to close the accounts of any intestate's estate, or at any time, when he may be so ordered by the court, either officially, or on the application of any person interested in the said estate, he do file his said account, in the office of the master of this court, and proceed to pass the same as receiver's accounts are now passed, and if the same shall be allowed, the said account of each estate, and all the papers, receipts, and vouchers of and concerning the same, together with a true and perfect list of the same, shall be delivered over to the keeper of the records, to be by him kept for the benefit of all concerned. "And whereas it is of importance that the residue of the estates of persons dying intestate be paid or remitted to those entitled as expeditiously as possible; it is ordered that the registrar do, with all convenient speed, inform himself who are the persons entitled to the residue of any intestate's estate, and shall, as soon as possible, imform such persons of all such circumstances and particulars relative to the said estate, as it may be necessary for them to know, in order that they may apply at the time prescribed by law (86) for the administrator's filing (86) By rule lxv, it is directed that the registrar do, "on the first day of every term, give in a report in writing to the court, to be read and marked in court, and afterwards to be delivered to the keeper of the records and muniments, of all causes wherein one year hath elapsed, without either party having proceeded therein; and of all petitions for administrations, wills, inventories, security bonds, and accounts current, filed from the first day of the receding term, to the date of the report." filing his account; and in case the said registrar shall not be able to discover who are the next of kin of any person dying intestate, or shall see reason to doubt concerning the same, he shall cause advertisements to be inserted in the Calcutta Gazette, calling the next of kin to appear for their interest, and shall also cause a similar advertisement in the London Gazette, if the intestate was a native of England; in one of the Edinburgh newspapers, if he was a native of Scotland; or in one of the Dublin newspapers, if he was a native of Ireland. And, whereas it is expedient that persons resident in Europe should receive as much information as possible, relative to the estates of intestates dying in this country, it is hereby ordered that the registrar do, once in every year, transmit to the E. I. House, two copies, signed by himself, of every schedule or report so filed by him in court, as herein directed, in order that the parties may have access to the same, and the same shall be certified in such manner as copies of wills and administrators' accounts, now are annually certified to England. And whereas great mischiefs, have arisen from granting administrations to persons claiming to be creditors on affidavits, stating themselves to be such, without stating how they are so, whereby it has frequently happened that administrations have been granted to persons who had only open accounts with the deceased, which if disputed and fairly settled, would have shewn a balance in favour of the deceased, and the estates of intestates have been wasted and lost by administrations being granted to such persons, who have thereby had the means of settling their own accounts, in the absence of those entitled to the residue; in order to prevent the same in future, and that all open and unsettled accounts may be fairly settled with the estates of intestates, the said court doth hereby order, that all affidavits sworn by any person for the purpose of obtaining administration as a creditor, shall state how the debt arose; and that no administrations shall in future be granted to any person claiming as a creditor, when the debt arises from the balance, or the supposed balance, of any open or unsettled account." CASE 1.] The case of the estate of Mr. Assist. Surg. T., late of H. M.'s 47th regt., Bombay, amounting to Rs. 21,450. Maj. B. C. M., 47th regt., drew the amount out of the hands of Messrs. Boyce, Kempt, and Co., by a draft in favour of Messrs. Forbes and Co., of Bombay, who sent the same to Greenwood, Cox, and Co., by order of Maj. M., conveyed through the paymaster of the regt., Mr. R. Mitton (Ann. M. A. 1824, sec. cxxxvi). The registrar of the recorder's court, Bombay, demanded the amount, and the case was brought before the recorder's court. The registrar agreed to stay the proceedings, till proof was brought of the amount having been paid, to the legal representatives of the deceased. After hearing Mr. Judge Advocate for the defendant (Maj. M.), the court gave judgment for the plaintiff (the registrar), with interest at 9 per |