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expressing any matter contained in the said acts, or shewing forth the commission authorizing such act; and the plaintiff shall be admitted to reply, that the defendant did the fact supposed in the declaration of his own wrong, without any such cause alleged by the said defendant, whereupon issue shall be joined ; [*and if verdict pass for the defendant, he shall have his costs.] By the 2 Jac. 1. c. 15. s. 17. Eng. and 11 & 12 Geo. 3. 2 Jac. 1. c. 15.

s. 17. Eng. c. 8. 9. 17. Ir. if [tafter any commission of bankrupt sued forth and dealt in by the commissioners, the offender] happen to die before the commissioners shall distribute the goods, lands, and debts, the commissioners shall proceed in execution of the commission, as if he were living. And by the 5 Geo. 2. c. 30. s. 45. 5 Geo. 2. C. 39. Eng. and 11 & 12 Geo. 3. c. 8. s. 16. Ir. no com-118 19 Geo 3. mission of bankrupt shall abate by the death of the c.$.$. 16. & 17, king: and if it shall be necessary to renew any commission by reason of the death of the commission-No commissiun,

" to abate by death ers, or any other cause, such commission shall be re-of the king er

bankrupi. newed, and but half the fees usually paid upon granting commissions shall be paid for such renewed commission. By the 46 Geo. 3. c. 135. s. 5. U. K. no 46 Geo... commission of bankrupt shall be avoided by reason of c. 135. s. 5.

U. K. any act of bankruptcy having been committed, by any person against whom such commission shall have issued, Commission

valid though you prior to the contracting the debt of the creditor upon titioning credo whose petition such commission shall have issued; if on such petitioning creditor had not any notice of such act bankruptcy. of bankruptcy, when the debt to him was contracted. And lastly by the 21. Jac. 1. c. 19. s. 1. Eng. the statutes 21 Jac. 1. c.19. against bankrupts shall be in all things beneficially con- ' de strued for relief of the creditors. Which clause is pe-Statules on le

liberally con culiar to this English statute.

strued for credia



* « The person for whom the verdict shall pass, shall have his costs" in 11 & 12 Gen. 3. c. S. s. 17. Ir.

*" Any bankrupu iu 11 & 12 Geo. 3. c. S. 1r.


Of Title by Testament and Administration.

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Ancient right of I HE ancient right of the wife and children of a dewife and child ren to their ceased person, to their reasonable parts of his personal Teasona of the property P

property was declared by the great charter 9 Hen. 3. of a deceased c. 18. E. & I. which enacted, that if any man that holdperson.

neeth of the king die, and the sheriff shew letters patent E. & I. of summons for the debt which the deceased did owe the

king, it sliall be lawful for the sheriff to attach and inroll all the goods of the deceased, being found in the fee, to the value of the debt, by the sight and testimony of lawful men; so that nothing be taken away till the king be paid the debt; and the residue shall remain to the executors to perform the will of the deceased. And if it be found that he owe nothing to the king, all the goods shall go to the use of the deceased, saving to his wife and

children their reasonable parts. This ancient custom was 7. W. 3. c. 6.

abolished in Ireland by the 7 W. 3. c. 6. s. 10. Ir, which s. 10. Ir.

recites, that if any person died possessed of any personal Abolished in estate, and having at his death a wife, or child or children, Ireland,

that in such case all said estate was to be divided into 3 equal parts, whereof one-third part belonged to the wife, another to the child or children, and the other third only was subject to the disposition of the party deceased by his last will, in case he made any, or to go in a course of administration in case he died intestate; and if he left a wife only, and no child or children, then the estate was to be divided into 2 parts, whereof one moiety was to go to the wife, and the other only to be subject to his dis position by will, or to go in a course of administration in case he died intestate; and so in like manner if be left a child or children, and no wife; and declares that

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this custom shall be from henceforth null and void. This custom appears also to have prevailed in the province of Abolished also.

" in York, Wales, York, the principality of Wales, and city of London, and London till by the 4 & 5 W. & M. c. 2. explained by the 2 & 3 Ann. c. 5. Eng. 7 & 8 W. 3. c. 38. Eng. and 11 Geo. 1. c. 18. Eng. persons within those districts, and liable to those customs, were enabled to dispose of all their personal estates by will. In cases of intestacy the 13 Edw. 1. 13 Edw. 1.

C, 19. E. & I. st. 1. c. 19. E. & I. first provided, that the ordinary should". be bound to answer the debts of the person dying intes- Ordinaries com

pelled to apply tate, so far forth as his goods would extend, in like man- assets in ner as executors. And by the 31 Edw. 3. st. 1. c. 11.

Tico 11.31 Edw.3. st. 1. E. & I. in case a man dieth intestate, the ordinary shall c. 11. E. & I. depute the next and most lawful friends of the intestate, to administer his goods; who shall have an action to re

in And to grant cover, as executors, the debts due to such intestate, in

aeg 11 administration the king's court (to administer for the soul of the deceased) to next friends

of intestale. and shall answer also in the king's court to those to whom the deceased was bound, in like manner as executors : And they shall be accountable to the ordinaries, as executors in the case of testaments. The 21 Hen. 8. c. 5. 21 Hen. 8. c 5.

. $. 3. Eng. s. 3. Eng. further provides, that in case any person die 23 Hen. S. intestate, or the executors refuse to prove the testament, c. 18. Ir. the ordinary shall grant administration to the widow or Administi next of kin, or tu both, at his discretion, taking surety to wido:2 ur next for true administration. And where divers persons be in equality of kindred, the ordinary may accept one or more at his election. And the 28 Hen. 8. c. 18. Ir, contains the same provision. By the 22 & 23 Car. 2. c. 10. 22 & 23 Car...

wuc. 10. s. 1. Eng. s. 1. Eng. all ordinaries and ecclesiastical judges shall, C. 10. upon granting administration of the goods of persons Bond to be dying intestate, take sufficient bonds with 2 or more sure when come ties, in the name of the ordinary, with condition to the administration, following effect :* that the administrator shall make a true and perfect inventory, of all the goods, chattels, and credits of the deceased, and exlubit the same into the registry of, &c. at or before, &c.; and such of them as shall coine to his hands or the possession of any other person for him, shall well and truly administer according to law; and make a just and true account of his adminis

tration • The precise words of the condition are contained in the act.



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tration at or before, &c.; and the rest of the goods which shall be found remaining upon the account, the same being first examined and allowed by the court, shall deliver and pay to such person, as the judge by his decree or sentence, pursuant to the intent of this act, shall appoint: And if it after appears that any will was made, and the executor therein named exhibits the same in court, requesting that it should be allowed and approved, that the administrator, being thereunto required, do render and deliver the said letters of administration, (approbation of such testament being first had) in the said court. And by s. 3. such bonds shall be pleadable in any courts of justice: And such ordinaries, &c. may call such administrators to account, and order distribu. tion of what remainęth after all debts, funerals, and just expenses of all sorts allowed, saving to persons aggrieved

their right of appeal. By s. 5. all ordinaries, and others Surplus after by this aet enabled to make distribution, shall distribute debis, &c. hww the surplusage, one third to the wife of the intestate, the distributed.

residue by equal portions amongst his children, and such as legally represent them, if any be dead, other than such children, (not heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his life-time by portion equal to the share which shall by such distribution be allotted to the other children; and if not equal, then so much of the surplusage of the estate of the intestate shall be distributed to such child or children so advanced, &c. as shall make the estate of all the children to be equal as near as can be: But the heir at law shall have an equal part in the distribution with the other children, without any consideration of the value of the land which he hath by descent, or otherwise, from the intestate. But by s. 6. if there be no children, por legal representatives of them, one moiety shall be allotted to the wife, the residue equally to the next of kin of the intestate in equal degree, and those who represent them: Provided (s. 7.) that no representation shall be admitted amongst collaterals, after brothers and sisters children: and if there be no wife, all shall be distributed amongst the children, and if no

3. 6.

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to share

child, to the next of kin to the intestate in equal degree,
and their representatives, And by s. 8. no such distri. $
bution shall be made till one year after the intestate's.
death; and every one to whom any thing shall be allot-,
ted, shall give bond with sureties in the said courts, that:
if debts afterwards appear, he shall refund his rateable.
part thereof, and of the costs of suit, and charges of the
administrator by reason of such debt. By s. 9. wherex

So I. the ordinary hath used to grant administration cum testamento annexo, he shall continue so to do.* The statute of Frauds (29 Car. 2. c. 3. Eng.) provides (s. 25.) that 29 Car. 2. C. 3.

s. 25. Eng. the 22 & 23 Car. 2. c. 10. shall not extend to the estates of feme coverts that die intestate; but that their husbands Right of hus,

bands excepted. may have administration of their personal estates, and recover and enjoy the same as before said act. And by the 1 Jac. 2. c. 17. s. 7. Eng. if after the death of a fa- 1 Jac. 2. c. 17. ther any of his children shall die intestate, without wife 5. To Eug. or children, in the life time of the mother, every brother Brothers and and sister, and their representatives, shall have an equal sist

eqrally with share with her. By s. 6. no administrator shall be cited mother. into court to render an account of the personal estate of his intestate, otherwise than by an inventory thereof, Administrator

het compelable unless in behalf of a minor, or creditor, or next of kin ; to accoun, nor shall be compellable to account before any ordinary or judge empowered by 22 & 23 Car. 2. c. 10. supra, otherwise than as aforesaid. The 7 W. 3. c. 6. Ir, has 7 W. 3. c. 6. incorporated these several provisions of tbe 22 & 23 Car. 2.'s. c. 10. 29 Car. 2. c. 3. s. 25. and 1 Jac. 2. c. 17. and fol. lowed these statutes in these respects without deviation.

The 21 Hen. 8. c. 5. s. 2. & 3. Eng. regulates the fees upon probates, and commissions of administration ; and Fees of probates, requires them to be sealed and delivered without any 21 Hen. 8 c 5. frustratory delay. And by s. 4. enacts, that the executors, s. or such persons to whom administration shall be committed, taking to them 2 at least, to whom the person Inventories

!" made by executa dying was indebted, or made any legacy, and upon their jors and admin absence 2 other persons being next of kin to the person ni VOL. I. 2 U

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dying, * This act (s. 4.) contains a saving for the customs of the city of London, and province of York: But by the 1 Jac. 2. c. 17, s. 8. Eng. such part of any intestates estate as any administrator by reason of such custom only may claim to have exempt from distribution, shall be subject to distribution as in other cases within the 22 & 23 Car. 2.c.10.


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