this custom shall be from henceforth null and void. This in York, Wales, custom appears also to have prevailed in the province of Abolished also 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 per c. 19. E. & I. ment of debts. 31 Edw. 3. st. 1. And to grant administration of intestate. 28 Hen. 8. c. 1S. Ir. sonal estates by will. In cases of intestacy the 13 Edw. 1, 13 Edw. 1.st.1. 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 payner as executors. And by the 31 Edw. 3. st. 1. c. 11. E. & I. in case a man dieth intestate, the ordinary shall c. 11. E. & L. depute the next and most lawful friends of the intestate, to administer his goods; who shall have an action to recover, as executors, the debts due to such intestate, in the king's court (to administer for the soul of the deceased) to next friends 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. s. 3. Eng. 3. 3. Eng. further provides, that in case any person die intestate, or the executors refuse to prove the testament, the ordinary shall grant administration to the widow or Administration next of kin, or to both, at his discretion, taking surety 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.2. s. 1. Eng. all ordinaries and ecclesiastical judges shall, upon granting administration of the goods of persons Bond to be dying intestate, take sufficient bonds with 2 or more sureties, 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 exhibit the same into the registry of, &c. at or before, &c.; and such of them as shall come 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 administration The precise words of the condition are contained in the act. to widow or next of kin. c. 10. s. I. Eng. taken conditioned for due &c. 8. 5, Surplus after distributed. court. 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 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 distribution of what remaineth 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 by this act enabled to make distribution, shall distribute debis, &c. how the surplusage, one third to the wife of the intestate, the 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, nor 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 s. 6. S. 7. $ 8. bands excepted. child, to the next of kin to the intestate in equal degree, and their representatives, And by s. 8. no such distribution shall be made till one year after the intestate's death; and every one to whom any thing shall be allotted, 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. where 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 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 s. 7. Eng. or children, in the life time of the mother, every brother Brothers and and sister, and their representatives, shall have an equal sisters to share 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 unless in behalf of a minor, or creditor, or next of kin; to accoun how compellable 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 the 22 & 23 Car. 2. c. 10. 29 Car. 2. c. 3. s. 25. and 1 Jac. 2. c. 17. and followed these statutes in these respects without deviation. equally with lr. s. 6. s. 2. & 3. Eng. s. 4. 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 e 5. frustratory delay. And by s. 4. enacts, that the executors, or such persons to whom administration shall be committed, taking to them 2 at least, to whom the person erect dying was indebted, or made any legacy, and upon their tors and ad absence 2 other persons being next of kin to the person VOL. I. 2 U 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. Inventories how nistrators. Copies of wills and inventories to be given. dying, and in their absence 2 other honest persons, shall make a true inventory of all goods, as well moveable as not moveable, that were of the person deceased; and the same shall cause to be indented, whereof the one part shall be by the executors or administrators, upon oath to be taken before the bishops or ordinaries, their officials or commissaries, or other persons having power to take probate of testaments, delivered unto the keeping of said bishops, &c. and the other part to remain with the executors or administrators; and no bishop, &c. shall refuse to take any such inventory. And by s. 5. if the person deceased will any lands to be sold, the money thereof, or the profits of the lands, shall not be accounted as any of the goods of the person deceased: and the bishop, &c. upon delivery of the seal, and sign of the testator, shall cause the same to be defaced, and re-deliver the same to the executors: and in case any person require a copy of the testaments so proved, or of the inventory, the ordinary, &c. shall with convenient speed deliver a copy: And a fee is hereby limited for the search and copy: But it is provided (s. 6.) that where any have used to take less, for probates, &c. or other cause concerning the same, they shall take such sums of money as they have used to take, and not above. By s. 7. every bishop, &c. that shall do or attempt any thing against this act, shall forfeit to the party grieved so much as any such person shall take contrary to this act; and also forfeit £10, whereof one moiety shall be to the king, and the other moiety to the party grieved that will sue by action of debt, &c. in any of the king's courts. Provided (s. 8.) that this act be not prejudicial to any ordinary, &c. but that every of them may convent before them executors, to prove or refuse the testament, and to 23Hen. 8. c.19. bring in inventories, &c. as before. The 28 Hen. 8. c. 18. Ir. contains similar clauses: and further provides, (s. 7.) that no ordinary, &c. shall compel the husband or friend of any woman covert to prove any testament of to be granted to her husband's goods, or shall take any thing for the prohusband of feme bation of testament of any any woman covert, or administration of her goods, unless the said woman covert be an Ir. s. 6. S. 7. s. 8. Administration covert exеси trix, &c. executor executor or administrator, or otherwise have cause of action whereof her husband after her death have no remedy by the common law. ex- Special adminis tration where The 38 Geo. 3. c. 87. Eng. provides, that, at the piration of 12 calendar months from the death of testator, if the executor to whom probate shall have been the kingdom, any executor out of &c. granted, is then residing out of the jurisdiction of his 38 Geo.3.c.87. majesty's courts of law or equity, it shall be lawful for s, 1. & 2. Eng. the ecclesiastical court which hath granted such probate, upon the application of any creditor, next of kin, or legatee, to grant a special administration; (the form of which is prescribed by s. 3.) for which administration a stamp duty of 5s. shall be paid: And by s. 2. the party applying to the spiritual court to grant such administration, shall make such affidavit as herein mentioned, (stating the nature and amount of the debt due by the deceased, that the only executor capable of acting is out of the kingdom, &c. and that the deponent is desirous of exhibiting a bill in equity, specifying the court, for the purpose of being paid his demand out of the assets of the testator.) By s. 4. it shall be lawful for the court of equity in which such suit shall be depending, to appoint (if needful) any person to collect any outstanding debts or effects due to the estate, and to give discharges for the same, such person giving security in the usual manner duly to account for the same. And by s. 5. it shall be lawful for the accountant general of the court of chancery, or for the secretary, or deputy secretary, of the bank of England, to transfer any stock belonging to such deceased person, into the name of the accountant general, in trust for such purposes as the court shall direct, in any suit in which the person to whom administration hath been granted, shall be, or may have been, a party: provided, that if the executor capable of acting as such, shall return to and reside within the jurisdiction of any of said courts, pending such suit, he shall be made a party to such suit; and the costs incurred by granting such administration, and by proceeding in such suit against such administrator, shall be paid by such person, or out of such fund as said court shall direct. S. 4. S. 5. |