| Editions: | 1763 sub | | | 1797 | | | > 1842 |
Ecclesiastical Law
by Richard Burn LL.D.
Chancellor of the Diocese of Carlisle, and vicar of Orton, in the County of Westmoreland;
author of "The Office and Duty of a Justice of the Peace."
Ninth edition (1842), corrected; with considerable additions,
including the statutes and cases to the present time; by Robert Phillimore,
Advocate in Doctors' Commons, Barrister of the Middle Temple,
Official to the Archdeaconries of London and Middlesex, and late student of Christ Church, Oxford.
Volume IV (extract): Wills
[Title page] [Index]
I
Who may make a will.
Difference between wills and testaments 53
Infant 53
Idiot 55
Lunatic 56
Partial Insanity 59
Persons of a weak Understanding 59
Person in Liquor 60
Married Woman 61
Wife may by consent of her Husband make a Will 63
Choses in Action 64
Pin-money 64
Power of Appointment to the Feme Covert 64
Will of Wife after the death of Husband 67
Feme covert Executrix to some other Person 68
Person under fear or restraint 69
Importunity 69
Influence 70
Persuasion on a Death-bed 70
Fraud or Force 71
Person circumvented by Fraud 72
Court of Equity cannot relieve from a Will fraudulently gained 73
Person deaf and dumb 74
Blind 74
Traitor 74
Felon 75
Felo de se (suicide) 75
Outlaw 75
Excommunicate 76
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IIOf what things a will may be made. [And of Republication.]
Lands 76
Lands to charitable uses 79
Estate pur auter vie (life interest for the life of another person) 80
Mortgage 82
Advowson 82
Next Presentation to a Church 83
30th section of 1 Victoria, c. 26 83
Lapse where Advowson is litigated 83
Lord Stowell's Opinion 83
Lands contracted for, but not conveyed 84
Contingent Remainders and future Interests 84
Lease 85
Term for Years 85
Debts or things in Action 86
Things which the Testator has not of his own 86
Things in joint Tenancy 87
Things in Common 87
Corn growing 88
Things not yet in Rerum Natura (in existence) 88
Things belonging to the Freehold 88
Things in Executorship 89
Things in Administration 90
Wife's goods by the Husband 90
Things obtained after the Will made 90
May pass by Republication 91
Republication: 1. Express; 2. Constructive 91
Of specific Devises 91
By 1 Victoria, c. 26, s. 3, Will speaks from Time of Death 93
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IIIForm and Manner of making a will, and therein of appointing Guardians and Executors, and of lapsed Legacies, &c.
1 Statute of Frauds
Contingent Wills 93
Copyholds 93
Signature 94
Sealing 95
Attestation and Subscription 96
May be at different Times 96
Will may be made at different Times, and the whole authenticated at one Time 98
Attesting the Execution of the Will 99
Witnesses may be perfectly ignorant of Contents of Will 102
What is sufficient Attestation 103
In the presence of Devisor 103
Three or Four credible Witnesses 104
Credible Witnesses 104
Who shall be legal Witnesses by 25 Geo. II, c. 6 107
The case of Wyndham v. Chetwynd. Who are credible Witnesses 109
Lord Mansfield's Judgement as to who are credible Witnesses 111
Case of Hindson v. Kersey, Lord Camden's Judgement 116
Lord Camden's Declaration against the Opinion of Lord Mansfield, in Wyndham v. Chetwynd 117
Period of Credibility 119
Criterion of Credibility by Statute 119
Of Personalty 122
Witnesses 122
A Will disposing both Real and Personal property, with a Clause of Attestation, but no Witnesses, established as to the Personal Property 123
Attestation Clause not signed by Testator 124
Paper written but not signed by Testator 124
A Will by Interrogatories 126
Instructions for a Will 126
Language 126
Unexecuted paper 126
Distinction between unexecuted and imperfect Papers 127
Cases of unexecuted Papers established as Wills 127
A Letter to Attorney, containing Instructions for drawing a Will, established as a Will 127
An unfinished Testamentary Paper of no effect, the Party having lived eight Days afterwards 129
An unexecuted Paper established as a Will by the Prerogative Court, Sentence affirmed by the Court of Delegates: a Commission of Review afterwards granted, and the Sentence reversed 129
What makes a valid Testament 131
Testamentary Instruments 132
When parol Evidence is admissible 132
Declarations of Trust 132
Nuncupative Will 132
Rogatio Testium 136
Codicil 137
2 Donatio causâ mortis
Donatio causâ mortis (gift in prospect of death) 139
Need not be proved 142
A Legacy under 142
3 Appointing of Guardians
Appointing Guardians 142
Guardians by Statute 143
Several Kinds of Guardians 144
Guardians in Chivalry 144
Appointed by Spiritual Court 145
Where an Infant is sole Executor, Administration to be granted to the Guardians, &c. who shall have the same Power as where Administration is granted durante minore aetate of the Next of Kin 145
By Custom of York 145
By Statute 146
By last Will 147
Duty of Guardians 148
Guardians to Natural Children 152
4 Appointing of Executors
Appointing of Executors 152
Infant Executor 153
Where an Infant is sole Executor, Administration to be granted to the Guardian, &c. 153
Feme covert Executrix 154
Executor bankrupt or non compos 156
Form and manner of appointing 157
The Crown 157
Corporation 157
Supervisors 158
5 Construction of Wills
Wills to be construed favourably 158
Bastards, when shall take and not take as Children 158
Construction of Wills according to the intention of Testator 159
Lowfield v. Stoneham 161
Parol Evidence contradictory of plain Words of Will not allowed 161
Construction, Ulrich v. Litchfield 162
Lord Hardwicke in Ulrich v. Litchfield 162
Other cases of Construction. Letters and Oral Declarations of Testator rejected 164
How far Parol Evidence is admissible 164
Will against Reason and Policy of Common Law 165
Wills referring to Deeds 165
Clause of perfect Mind and Memory 165
6 What will pass Fee Simple
What words will pass a fee simple, or a Life Estate only 166
Hogan's Case 169
Meaning of "Effects" 170
Lord Mansfield in Loveacres v. Blight 171
Result of cases 172
Doctrine of Restraint by Association 173
7 Other Devises
Devise to a Feme covert (married woman), to her separate use 174
Devise to Heirs Female 174
Devise to one's Relations 174
Kindred 176
Half-blood 176
Next of Kin 176
Devise to younger Children 176
Grandchildren 177
Younger Children 177
Natural Children 178
Estate equally to be divided 178
Rigden v. Valier 178
Goodtitle v. Stoakes 182
Residue to be equally divided 183
Disposition of the Residue when gift to a Class. Barber v. Barber 184
A Legacy "jointly and between" two Persons 187
Devise of Mortgages passeth the lands 187
Advowson, Tithes, Fee Farm rents 187
Lands to be sold 187
Resulting Trust as to the Surplus for the Heir 189
Doctrine of all the Cases 189
Chattel interest undisposed of 190
Exceptions 190
Lands devised for Payment of Debts, &c. 190
When the Surplus goes to the Devisee 191
Devise upon condition 191
Meaning of "Executory Devisee," and of "Contingent Remainder" 191
Devise tending to perpetuity 194
True Limits of the Rule against Perpetuities 195
Personal Chattels 196
Real Chattels 196
Money 197
Devise of the Use of the Chattels personal 198
Devise to Children yet unborn 199
In what case Maintenance shall be implied 201
8 Household Goods, &c.
Household Stuff 201
Household Goods and Furniture 201
[All his goods, what it implies]
[Chattels does not imply things which go to the heir]
Chattels 204
9 Lands
Lands, implies the Corn growing thereon 204
10 Restraints of Testamentary Powers - Marriage, &c.
Devise in restraint of Marriage 206
Ecclesiastical Law borrows its Provisions on this Subject from the Roman Law 207
Where Marriage with Consent is restricted to Minority 213
Result of all the Cases 213
11 Legacies - Lapse
Condition not to give Trouble to the Executor 213
Thing devised twice 214
Distinction between cumulative and repeated Legacies 214
Extrinsic Evidence 216
Things which a Person has jointly with another 216
Lapsed Legacy 217
Gifts to Children or other Issue who leave Issue living at the Testator's Death, shall not lapse 217
In what cases a Legacy shall be said to lapse 217
Criterion of a lapsed or vested Legacy 218
Where the Surplus is bequeathed, and one of the residuary Legatees dies in the Life of Testator 218
A Debt considered as a Legacy 219
When a Legacy is devised over 219
Effect of general residuary Clause in case of Lapse 220
Conditional Legacy 221
Legatee in trust 222
General rule. Distinctions as to whether the Time be joined to the Substance or to the Payment of the Legacy 222
Interim Interest 222
Where the Legacy is to arise out of Real Estate 223
Concurrent Jurisdiction of Chancery and Ecclesiastical Courts in personal Legacies 223
Legacy from Land 223
Legacy from Mixed Fund 225
Distinction between Legacies from Real and Personal Estates and out of Mixed Fund 226
12 Residue, &c.
Surplus, how far Executor entitled to, when not appointed, in express Words, Residuary Legatee 227
Effect of making a Will, and Executor in Residuum 229
Bequest of Specific Things excludes a Person from Residue 231
Executor entitled to Residuum 232
11 George IV & 1 William IV, c. 40. After 1st Sep 1839, Executors deemed to be Trustees for Persons entitled to any Residue under the Statute of Distributions, unless otherwise Directed by Will 232
Not to affect Rights of Executors where no Person entitled to the Residue 232
This Act does not extend to Scotland 233
Bastard 233
13 Revocation of Wills
Revocation of Wills 233
Will of Real not revoked by Will of Personal Estate 238
Implied Revocation of a Will 239
Marriage 240
Intention must be reduced into writing 242
Presumptive proof of 242
Revocation by Codicil 242
[14 Law of Domicil
Realty and Personalty 243
[15 Wills of Seamen and Marines
11 George IV & 1 William IV, c. 20. Mode of executing Letters of Attorney and Wills 243
Exception as to Wills made by Prisoners of War 246
Wills, &c. to be noted in the Muster Book 246
Letters of Attorney and Wills to be examined by the Inspector 246
No Letter of Attorney to be passed until a Certificate be produced 247
As to Wages claimed under Powers of Attorney and Indentures 247
Assignment of Pay by Commission and Warrant Officers 247
Mode by which Executors are to obtain Probate 248
Mode of obtaining Administration to Intestate's Effects 249
Minister or Curate rejecting Petition to state his Reasons Mode of obtaining Administration to Intestate's Effects 250
2 & 3 William IV, c. 40. Punishment for sending false Petitions to obtain the Inspector's Certificate 250
11 George IV & 1 William IV, c. 20. Minister to procure Execution of Commission 251
Check to be issued by Inspector 251
No Proctor to deliver out Probate or Letters of Administration to any other than the Treasurer 251
Limiting the Expense of Probate 252
2 & 3 William IV, c. 40. Fees on Probates, &c. contained in the Schedule to this Act to be taken in lieu of those specified in 11 George IV, c. 20 252
Proctors and others indemnified for receiving greater Fees than allowed by Act 11 George IV, c. 20 252
11 George IV & 1 William IV, c. 20. Penalty on Proctors, &c. offending against this Act 253
Sums not exceeding 20l. due to deceased Petty Officers to be paid on Certificate 253
2 & 3 William IV, c. 40. Inspectors' Duty with regard to Claims under certain Sums 254
Inspector may administer Oaths 254
4 & 5 William IV, c. 25. Inspector's Duty as to Monies due to deceased Persons extended 254
11 George IV & 1 William IV, c. 20. Letters to and from certain other Officers to go free 255
Regulation as to such Letters 255
Penalty for infringing such Regulations 255
Act to extend to the Royal Marines 256
Punishment for Personating any Officer, &c. 256
Punishment for taking a false Oath in order to obtain Probate, &c. 256
Punishment for subscribing false Petition 256
Punishment for forging Certificates, &c. or uttering false Vouchers 257
As to Principles in the second Degree, and Accessaries 257
Schedule of Table of Fees to be taken for Probates of Wills, Letters of Administration,
and Letters of Administration with the Will annexed, of Warrant and Petty Officers,
and Non-commissioned Officers of Marines, and also of Common Seamen and Marines,
in pursuance of this Act 258
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IV[After Jan. 1, 1838 - 1 Victoria, c. 26, and Decisions thereon.
[1 Victoria, c. 26. An Act for the Amendment of the Laws with respect to Wills 260
[Definitions
Section 1
Meaning of certain Words in this Act 261
Of "Wills" 261
12 Charles II, c. 24 261
14 & 15 Charles II, (Ireland) 261
"Real Estate;" 261
"Personal Estate;" 261
Number 261
Gender 262
[Acts repealed.
Section 2
Repeal of the Statutes of Wills, 32 Henry VIII, c. 1, and 34 & 35 Henry VIII, c. 5 262
10 Charles I, sess. 2, c. 2, (Ireland) 262
Sections 5, 6, 12, 19, 20, 21, & 22 of the Statute of Frauds 262
29 Charles II, c. 3 262
7 William III, c. 12, (Ireland) 262
Section 14 of 4 & 5 Anne, c. 16 262
6 Anne, c 10, (Ireland) 262
Section 9 of 14 George II, c. 20 262
25 George II, c. 6, (except as to Colonies) 262
25 George II. c. 11, (Ireland) 262
55 George III, c. 192 263
[Enabling Clause.
Section 3
All Property may be disposed of by Will, 263
comprising Customary Freeholds and Copyholds without Surrender and before Admittance, and also such of them as cannot now be devised; 263
Estates pur autre vie; 263
contingent Interests; 264
Rights of Entry; and Property acquired after Execution of the Will. 264
[Copyhold and Customary Estates.
Section 4
As to the Fees and Fines payable by Devisees of Customary and Copyhold Estates 264
Section 5
Wills or Extracts of Wills of Customary Freeholds and Copyholds to be entered on the Court Rolls; 264
And the Lord to be entitled to the same Fine, &c.
when such Estates are not now devisable as he would have been from the Heir in case of Descent 265
[Estates pur autre vie.
Section 6
Estates pur autre vie 265
[Who may make.
Section 7
No Will of a person under Age valid; 265
Section 8
nor of a Feme Covert, except such as might now be made. 266
[Form and Manner.
Section 9
Every Will shall be in Writing, and signed by the Testator in the Presence of Two Witnesses at one Time 266
Section 10
Appointments by Will to be executed like other Wills, and to be valid, although other required Solemnities are not observed 266
[Soldiers and Mariners.
Section 11
Soldiers' and Mariners' Wills excepted 266
Section 12
Act not to affect certain Provisions of 11 George IV & 1 William IV, c. 20, with respect to Wills of Petty
Officers and Seamen and Marines 266
[No publication.
Section 13
Publication not to be requisite 267
[Witnesses.
Section 14
Will not to be void on account of Incompetency of attesting Witness 267
Section 15
Gifts to attesting Witness to be void 267
Section 16
Creditor attesting to be admitted a Witness 267
Section 17
Executor to be admitted a Witness 267
[Revocation.
Section 18
Will to be revoked by Marriage 267
Section 19
No Will to be revoked by Presumption 268
Section 20
No Will to be revoked but by another Will or Codicil, or by a Writing executed like a Will, or by Destruction 268
[Alterations.
Section 21
No Alteration in a Will shall have any effect unless executed as a Will 268
[Revival.
Section 22
No Will revoked to be revived otherwise than by Re-execution or a Codicil to revive it 268
[Subsequent Conveyance.
Section 23
A Devise not to be rendered inoperative by any subsequent Conveyance or Act 268
[Will to speak from Death of Testator.
Section 24
A Will shall be construed to speak from the Death of the Testator 269
[Residuary Devise.
Section 25
A Residuary Devise shall include Estates comprised in lapsed and void Devises 269
[Construction.
Section 26
A general Devise of the Testator's Lands shall include Copyhold and Leasehold as well as Freehold Lands 269
Section 27
A general Gift shall include Estates over which the Testator has a general Power of Appointment 269
Section 28
A Devise without any Words of Limitation shall be construed to pass the Fee 270
Section 29
The Words "die without Issue," or "die without leaving Issue," shall be construed to mean die without Issue living at the Death 270
[Estate of Trustees.
Section 30
No Devise of Trustees or Executors, except for a Term or a Presentation to a Church shall pass a Chattel Interest 270
Section 31
Trustees under an unlimited Devise, where the Trust may endure beyond
the Life of a Person beneficially entitled for Life, to take the Fee 270
[Lapse as to Realty.
Section 32
Devises of Estates Tail shall not lapse 271
[Lapse of Gifts to Children.
Section 33
Gifts to Children or other Issue who leave Issue living at the Testator's Death shall not lapse 271
[Estates pur autre vie.
Section 34
Act not to extend to Wills made before 1838, nor to Estates pur autre Vie of Persons who die before 1838 271
[Scotland.
Section 35
Act not to extend to Scotland 271
[Cases decided by the Judge of the Prerogative Court of Canterbury, under:
Section 8 271
Section 9 272
Section 11 282
Section 12 282
Section 17 283
Sections 18 & 19 284
Section 20 284
Section 21 287
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VOf the Probate of Wills, and Administration of Intestates' Effects.
1 Of the probate of wills
1.1 Origin of jurisdiction 291
Bishop 292
Archdeacons 293
Peculiar 293
1.2 Where Probate must be taken out 293
Bona notabilia 293
Wages due in King's Dockyards 294
Debts where bona notabilia 295
Judgements and Mortgages 295
Simple contract Debts 295
Bills of Exchange 295
Lands for payment of Debts are not 295
What are Bona notabilia 295
Where a Prerogative Probate is necessary 296
Canon 92 297
Canon 93 299
Probate of Bishop's Goods 300
Wills in the British Colonies 300
Wills of Lands not subject to the Ecclesiastical Jurisdiction 301
Will of Goods not effectual before Probate 302
1.3 Refusal of an executorship 303
An Executor may renounce after he has sworn 305
1.4 What Acts amount to an Administration: First 306
Secondly 307
Executor of his own wrong 307
Executor de son tort 307
Co-executors, some of them do refuse 310
Where one Executor excludes the other 311
Where all refuse, Administration to be committed 312
Within what time the Will shall be Proved 312
1.5 What the Executor may do before Probate 312
1.6 Ordinary to cite the Executor to prove the Will 314
Mandamus (writ) to compel the Ordinary 315
Two Manners of proving the Will 315
I. Probate in Common Form 315
II. Probate in Solemn Form 318
How it differs from Probate in Common Form 318
Rights of next of Kin 319
Intervener 321
Creditor 321
1.7 Miscellaneous Points.
Executor dying 322
Executor's oath to render a just account 617
Apertura Testamenti of the Civil Law 323
Will lost and Copy proved 324
7 & 8 George IV, c. 29. The stealing, &c. of Wills 325
Probate of Part of a Will 325
1.8 Executor's Oath to render a just Account 326
1.9 Bond to the like purpose 327
Probate, making out 331
Register of Wills in particular Places 331
1.10 Probate of a Will of Lands, not Evidence 332
Probate of a Will of Goods and Chattels, how far Evidence 332
1.11 Fee for Probate 335
1.12 Stamp Duties: 55 George III, c. 184 340
Ecclesiastical Courts not to grant Probates or Letters of Administration, without Affidavit of Value of Effects 346
Affidavit before whom made 347
Commissioners of Stamps may cancel useless Probates of Wills and Letters of Administration, and allow such Stamps 347
To prevent the double Payment of Duties, the Stamp Office shall provide a Stamp for marking Probates of Wills or Letters
of Administration, relating to any Estate in respect whereof any Probates, &c. shall have been before taken out,
and the Duties then payable discharged 347
Probates of Wills and Letters of Administration valid as to Trust Property, although the value thereof be not covered by the Stamp Duty 348
Where Executors, &c. allege that any property was vested in the deceased, as a Trustee, a special affidavit thereof may be required
in the several Instances specified 348
Particulars to be stated in such Affidavits by Executors, &c. respecting Trust Property 349
Penalty of Perjury for false Oath 350
Depositor dying leaving any Sum exceeding 50l. the same not to be paid until after Administration 350
No Duty to be paid on Probate where the Estate is under 50l. 350
Certificate of Amount and Value of Depositor's Interest to be produced on claiming Probate, &c. 350
[Form of Probate. 351
2 Of the Administration of Intestates Effects.
2.1 Power of the Ordinary 353
How far abridged by 13 Edward I, st. 1, c. 19 354
2.2 Ordinary may be compelled by Mandamus 357
What is not a good Return to a Mandamus 357
What is a good Return to a Mandamus 357
The King v. Bettesworth 358
2.3 31 Edward III, st. 1, c. 11. To be granted to the Widow or next of Kin 358
21 Henry VIII, c. 5 359
To the Father or Mother, of their Children's Effects 360
To the Grandmother before Uncles and Aunts 360
To the Son before the Father 360
Half-blood 360
In general, to the next of Kindred 360
Residuary Legatee 360
Court prefers a sole Administration 361
What are good Excuses for excluding the Widow 361
Grant to Widow where Will was lost 362
2.4 To the Husband of the Wife's Effects 362
Husband and Wife 362
Elliot v. Collier 363
Where convicted of Bigamy 364
Husband's Representatives 364
What may be a Bar to his Right 364
Et caeterorum Grant 364
Wife Executrix to another 365
2.5 Feme covert (married woman) Administratrix 365
Court will not grant Administration to a Married Woman, without or against consent of her 365
Husband in a case where he might possibly be damnified by such Proceeding 366
2.6 Creditor
Practice before Grant to 366
Two Persons equally entitled 367
Creditor's Right to Administration 367
When those first entitled are Abroad 368
Guardian of a Minor Residuary Legatee preferred to Attorney of Assignee of Creditor 368
Justifying Security, &c. 368
Who is a Creditor 369
Bond Creditor 369
Rights of Creditor after Grant 369
2.7 Administration cum Testamento annexo
To Residuary Legatee 370
If he refuses 370
Representative of Residuary Legatee 370
Executor out of Jurisdiction 371
Renunciation of Co-Executor 371
2.8 A Grant de Bonis non administratis 371
Where an Executor does not leave transmissible Interest 372
Effect of the Death of one of several Administrators 372
Distinction between the Executor of an Executor and the Executor of an Administrator of a third Person 372
Where Administrator dies, &c. 372
Where a Creditor dies having administered in Part 373
[Form of Letters of Administration de Bonis non 374
2.9 Temporary Administration 375
As during absence out of the Kingdom 375
Other kinds of limited Administrations 375
Administration for carrying on Suits at Law or Equity 376
Executor abroad 376
38 George III, c. 87 376
If at the expiration of 12 Months from a Testator's Decease, the Executor to whom Probate is granted, shall not reside within the 376
Jurisdiction of his Majesty's Courts, a Creditor, &c. may obtain Special Administration on a 5s. Stamp 376
The Party applying to make the following Affidavit 376
Administration to be granted in the following Form 377
Court of Equity may appoint Persons to collect outstanding Debts 377
Stock belonging to the Estate of the Deceased may be transferred into the Name of the Accountant General in Chancery, in Trust for such Purposes
as the Court shall direct in any Suit 377
Executor returning to reside within Jurisdiction of the Court, to be made a Party in such Suit 378
Limitation of Statute 378
Where revoked 379
Where not revoked 379
What the Court will require previous to the Grant 379
Power of the Prerogative Court in respect of satisfied Term in another Diocese 380
Limited to a particular Place 380
To carry on Proceedings in Chancery 380
2.10 Administration pendente Lite (pending litigation) 381
General Rule 381
When granted on Motion 381
Principles which govern the Court, generally 381
As to Nominees 382
Who preferred amongst Nominees, and why 382
Requisite Security before Grant 382
Nature of the Office of Administrator pendente Lite 382
His Duties on Termination of Suit 382
When the Court of Chancery will appoint a Receiver 383
2.11 Administration durante Minoritate (the minority of an infant executor or administrator) 384
To whom granted 385
Where Infant is sole Executor 386
2.12 Administration durante Corporis aut Animi Vitio (unsound mind or body) 386
Bankruptcy 387
2.13 Miscellaneous Points.
Administrator dying 387
Refusal of Administration 388
Where none will administer 388
Administration granted to a Person without direct Interest 388
Where there are no Kindred 389
Intestate without Relatives 389
Foreigner 389
Administration granted to the Legatee of the Wife of a Convict 389
May be granted out of the Jurisdiction 390
Cannot act before Administration 390
Time of granting Administration 390
Fee for Administration 390
Letters of Administration allowed as Evidence 391
Bond to take possession of the Effects of Persons dying Intestate abroad 391
2.14 Temerary Administration.
When and in what case this Action doth lie, and when an Action of Detinue doth lie, and what Words are most fit to use in the Articles
given in this Cause 391
What things are necessary and preparatory to be done, before this Action be begun, in a Cause of Temerary Administration 391
The Tenor of the Sentence in this Cause 392
2.15 The Administrator's Oath; and 393
Bond on granting Administration 393
Greenside v. Benson 394
Folkes v. Docminique 395
Archbishop of Canterbury v. House 396
Administration de Bonis non 399
Administration durante Lite 399
Administration durante Minoritate 399
To a Foreigner 399
Creditor 399
Court of Probate will not pronounce Bond forfeited 400
Justifying Securities 400
What is to justify 400
2.16 Revocation of Administration. 400
Where Legatee will not be allowed to call in 402
What his Allegation must show to be admissible 402
Where next of Kin may call in 402
A limited Administration called in 402
Original Papers cannot be delivered out 402
Renunciation of, when revocable 402
Revocation, from Creditor 403
Generally for what not revocable 403
Generally for what revocable 403
Conduct of Executor's Attorney where no Bar 403
Interest how and when to be propounded 403
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VIOf the Duty of Executors and Administrators in making an Inventory, and getting in the Effects of the Deceased. [Vide infra, "Account."]
Administering before inventory made 404
Laws requiring the making of an Inventory 405
Neglect of making Inventory reproved by the Temporal Courts 406
Things to be put into the inventory, Goods 407
Chattels 407
Debts owing by the deceased 408
Debts owing to the deceased 408
Leases 408
Estates pur autre Vie 408
Extent 409
Rent 409
Profits from Apprentices 409
Corn or other Things growing 409
Things affixed to the Freehold 410
Heir looms 413
Boxes with Writings 414
Profits of Lands to be sold 414
Wife's Paraphernalia 414
Wife's Goods or Chattels 417
The kind of Inventory expected by the Court 418
Valuation 418
In what Cases an Inventory may be dispensed withall 419
Where the Ecclesiastical Courts will refuse to compel Production of 419
Decree for Inventory where refused 420
How far the strict Formalities before required are necessary 420
Strictness requisite in contestation of Suit 420
Appraisement before the granting of Probate 420
Who may call for an Inventory, et contra. General Principles in respect of 422
Assignees of Bankrupt 422
Of Insolvent 422
Executors 422
Legatees 423
Minors 423
Right to call for, how barred 423
A Physician 423
Creditors 423
Who is bound to exhibit 423
Jurisdiction of the Ecclesiastical Court 424
Case of Catchside v. Ovington 424
Objections to Inventories 424
Telford v. Morison. Right of the Ecclesiastical Court to hear Objections to Inventories 425
Action given to Executors 431
Action given to Administrators 432
3 & 4 William IV, c. 42. Executors may bring Actions for Injuries to Real Estates of the Deceased; 432
and Actions may be brought against Executors for an Injury to Property, Real or Personal, by their Testator, 432
Simple Contract Debt 433
32 Henry VIII, c. 37. Action in Case of Rent in Arrear 433
Executors, &c. may have Action, and distrain for Rent due to their Testator in his Lifetime 434
Distress for a Rent the Estate whereof dependeth upon another's Life being Dead 434
3 & 4 William IV, c. 42. Executors of Lessor may distrain for Arrears in his Lifetime 435
Arrears may be distrained for within Six Months after Determination of Term 435
Rents recoverable from Under-tenant, where Tenants for Life die before the Rent is payable 435
In what Courts to be brought 436
In what case Co-executors must all join 436
Case where one Co-executor refuses 436
In what Case one may do what all may do 437
Co-Administrators 437
Where one Executor may sue another 438
Co-Executor dying 438
Executor or Administrator of an Executor 438
Administrator dying 440
Executor of an Administrator 440
Administrator de bonis non (of goods not administered) 440
Actions brought against divers Executors 440
Costs 441
Executors suing in right of the Testator to pay Costs 443
Executor Bankrupt 443
| Editions: | 1763 sub | | | 1797 | | | > 1842 |
VIIOf the Payment of Debts by Executors or Administrators.
The King first Creditor 444
Ordinary liable 444
Executors and Administrators liable 444
Devisee or Heir at Law of Lands liable 445
11 George IV & 1 William IV, c. 47. Recited Acts repealed 446
For remedying Frauds committed on Creditors by Wills 446
Enabling Creditors to recover upon Bonds, &c. 446
Traders Estates shall be Assets to be administered in Courts of Equity 447
Creditors by Specialty to be paid first 447
Freehold and Copyhold Estates in all Cases to be Asses for the Payment of Simple Contract or Specialty Debts 447
Liability of Haeres natus 448
Elliot v. Merryman. Semble, it will be no Restriction of the Executor's general Power of Disposal, though the personal Estates be given on Trust 449
Power of Executors to sell or pledge the Assets 452
Lands devised to divers to be sold for Payment of Debts, one of them may sell 454
In what Case the Heir may enter for the Condition broken 455
Fraudulent alienations to defeat Creditors 456
Fraudulent Administrations to defeat Creditors 456
Assets. 1. by Descent; 2. In Hand; 3. Legal; 4. Equitable; 5. Real; 6. Personal. 457
Lands devised to be sold are equitable Assets 457
Mortgage for Years goes to the Executor 458
Mortgage in Fee to the Heir 458
Mortgages 458
Money due on Mortgages 459
Avoidance in a Church 459
Advowson in Fee 460
Estate pur autre Vie 460
Lease for Years 461
Assets abroad 461
Lands, Houses, Negroes, &c. in the Plantations liable to satisfy Debts 461
India 462
9 George IV, c. 33. Whenever any British Subjects, or Persons not being Mahomedans or Gentoos, shall die, entitled to any Real Estate in India,
such Estate shall be deemed Assets 462
Executors may sell such Real Estates for the Payment of Debts 462
In any Action for Debt, the Executor may be charged with the full Amount of such Real Estate 462
In Suits against Executors, Courts may order Writs of Sequestration 462
Bonds and Specialties 462
Damages 462
Debts 463
Interest in a Servant; 463
in an Apprentice 463
Liberty of a Prisoner 463
In what case the Lands and Personalty shall be charged in Aid of each other 464
Mortgage 464
Case of Haslewood v. Pope. Where a Man devises his Lands for the Payment of all Debts, Specialty and Simple Contract, and Bond Creditors,
having been partly paid from the Personalty, apply for the Rest from the Realty 464
It was formerly held that there must be express Words to exempt Personalty from Payment of Debts 465
Walker v. Jackson 465
Bridgman v. Dove 465
Result of all the Cases 466
In what Case Executors shall be charged, where one only hath assets 466
When an Executor or Administrator is guilty of a devastavit 467
Funeral expenses 468
Overseers of the Poor dying 469
4 & 5 William IV, c. 40. Executors, &c. of Officers of Friendly Society to pay Money due to Society before any other Debts 469
Charges of Probate or Administration 470
Debts due to the King on Record 470
Debts due to Post Office 470
Judgements 471
What shall be sufficient Notice to bind the Executor 471
Distinction between Debts of Record and other Debts 471
4 & 5 William & Mary, c. 20 472
2 & 3 Victoria, c. 11. No Judgements to be hereafter docketted under the Provisions of 4 & 5 William & Mary, c. 20 472
As to Judgements already docketted 473
1 Victoria, c. 110 473
Judgements under Five Years from Entry, to be void, unless a fresh Memorandum is left 473
Decree in equity 474
Recognisances and statutes 475
Mortgages 475
Rent, Bonds, and other Obligations 476
Voluntary Bond 476
Where there are divers Obligations of the same kind 477
Simple Contract 477
29 Charles II, c. 3 478
Construction of 478
Dilapidations 478
Damages in an Action against the Testator recoverable against Executor 479
What Debts to be first satisfied. Retainer by Executor 479
Executor or Administrator may not prefer his own Debt before another Executor or Administrator 480
Practice of the Court of Equity with respect to Retainer 480
Chapman v. Turner 481
When an Executor may prefer a Debt 481
Confession of an Action by the Executor where there is a real Debt, is a good Plea at Law against another Executor 482
A Decree of a Court of Equity is equal to a Judgement at Law against an Executor 482
Whether an Executor, after Bill filed, can voluntarily pay another Creditor of equal Degree 482
Where a Creditor sues an Executor both at Law and Equity at the same Time, he shall not be put to his Election
according to the general Rule 483
Legal Assets must be administered in due course of Law, but equitable Assets pari passu
(proportionally without preference) without regard to Priority 485
Distinction between legal and equitable Assets 486
In what cases Interest shall be allowed 487
Debt barred by the Statute of Limitations 488
Executor may file a Bill, to determine priority of Payment 489
Plea of plene administravit (estate fully administered and assets exhausted) 489
Plea of ne unque executor (not nor ever executor) 491
Debts to be paid before Legacies 491
| Editions: | 1763 sub | | | 1797 | | | > 1842 |
VIIIOf the Payment of Legacies, and Distribution of Intestate's Effects.
1 Concerning the payment of legacies
What Persons are incapable of a Legacy 492
Ademption or Extinction of Legacies 492
Money charged upon Land and Legacies to be deemed satisfied at the end of twenty Years if there shall be no Interest
paid or Acknowledgement in Writing in the meantime 493
No Arrears of Dower to be recovered for more than six Years 493
No Arrears of Rent or Interest to be recovered for more than six Years 493
Satisfaction of Portions by Legacies 494
Satisfaction of Portion by Legacies 494
Term of Years 495
Lease of Tithes 495
Ademption of specific Legacies of Debts 495
What does not amount to an Ademption of a specific Legacy of a Debt 496
Mere Possession by Testator at the Date of his Will of Stock, &c. of an equal or larger Amount than the Legacy,
will not make the Bequest specific where given generally of Stocks, &c. 496
Legacy where to be sued for 497
In Ecclesiastical Courts, 497
or in Court of Chancery; 497
but not in Court of Common Law 497
In Ecclesiastical Court 498
Legacy out of Lands 499
Jurisdiction of the Court of Arches 499
Where Ecclesiastical and Equity Courts have a concurrent jurisdiction 500
Where there is a Trust 501
Ecclesiastical Court 501
Security to be given, when the Day of Payment is distant 502
Modern Practice of Appropriation of Fund 502
For Payment of Legacy 503
Rules respecting Appropriation. First; Second; Third; Fourth; Fifth; 503
Sixth 504
Payment to an Infant 504
If by Infancy or Absence Legacies cannot be paid, the Money may be paid into the Bank, and laid out in the 3l. per Cents. 508
In what Case a Legacy shall bear Interest, and from Time 508
Where the Legatee is an Infant, where not 509
It makes no difference if the Legacy be vested 510
If Interest be due, from what Time it shall accrue 511
Points decided as to: 1. Legacy on Land; 2. On Personalty; 3. On a dry Reversion; 4. On Mortgage; 5. Legacy brought into Court 512
Quantum of Interest is generally 4l. per Cent. 512
Interest on Annuities 513
Maintenance and Education, how far to be allowed 514
Where Court will allow the Principal to be broken into 515
Where Legacy is devised over 515
Payment to a Feme Covert (married woman) 516
Difference as to the Time of Payment of a Legacy to a Legatee and his Representative 517
Security to refund 517
Exacted by Ecclesiastical Court 518
In Equity the Presumption is, that where an Executor pays one, he has Funds to pay all Legacies 518
Exception to this Rule 519
When in Equity a Legatee must give Security against contingent Debts 519
If Assets fall short, in what Case general Legatees shall abate 519
Result of the Cases as to the Abatement of general Legatees 521
Specific Legacy or Devise 521
Why a specific Legatee shall not abate 521
Between two specific Devisees 521
Between a specific Devisee and Heir 522
Why Assets are marshalled 522
Blower v. Morret. What Words do not constitute a specific Legacy 522
Inclination of the Court against Specific Legacies 523
Oneale v. Meade. When the Heir shall not be exonerated at the cost of the Legatee 523
Disadvantage and advantage of Specific Legatee 523
Annuitant 524
Charities 524
Executors' own Legacies 524
Legatees in Land and Monies 524
When the Specific Legatee shall stand in the place of the Bond Creditor or Mortgagee 524
Co-executor dying, who shall be sued 525
Testator appointing his Debtor Executor 526
2 Concerning the Distribution of Intestates' Effects
2.1 Of the Statutes of Distribution 526
22 & 23 Charles II, c. 10 526
Construction of the Statutes of Distribution 527
State of the Law before the Statutes of Distribution 528
The Spiritual Court cannot compel Distribution of the Residue where there is a Will 529
Nor order the Testator's Goods to be brought in 530
But may refuse to proceed until it brought in 530
Domicil 530
Widow's Claim. May be barred by Settlement 531
By Will 531
Heir at Law 532
Hotchpot or Collatio Bonorum. Advancement 532
Where the Heir at Law is the youngest Son 532
What is Advancement. Not small Sums 533
Marriage Settlement 534
Out of the Mother's Estate 537
Children of a Father who has been advanced 537
Query. Whether Grandchildren advanced by the Testator must bring their Advancement into Hotchpot before they distribute their
Father's Share of their Grandfather's Estate 537
Child partly advanced 538
Next of Kin, who are 538
No Difference in the ascending and ascending Line between Civil and Canon Law 539
Difference between these two Laws in the collateral Line 539
Why there is this Difference 541
The Common Law follows the Canon Law 542
Representations in general governed by Rules of Civil Law 543
Chapter 1. Of the succession of Descendents 543
Grandchildren take per Capita 544
Child unborn 544
Chapter 2. Of the succession of Ascendents 545
Lineal Ancestor may be Heir in preference to collateral Persons claiming through him 546
In the Ecclesiastical Court the next of Kin, though collateral, is preferred before one more remote, though lineal 546
Grandmother preferred to Aunt in Distribution 546
According to our Law, the Brother is preferred to the Grandfather 547
Evelyn v. Evelyn 548
Chapter 3. Of the Succession of Collaterals 552
No Distinction as to Personal Property between Whole and Half Blood 553
Where there are Brothers' Children only 553
Object of the Right of Representation 553
22 & 23 Charles II, c. 10. No Representatives after Brothers' and Sisters' Children 554
Where there is no Child 555
Husband's Right to Administration under 29 Charles II 556
Husband's Right to administer 556
When the Mother shall be entitled to the whole 558
When the Mother shares with Brothers and Sisters and Wife 558
If there be no Father of the Intestate living, yet if there be Nephews, Nieces and a Wife, the Mother shall share with them 559
Construction of and in 1 James II, c. 17, s. 7. 560
Brothers and Sisters of the Half Blood share with the Mother 561
Mother-in-Law 561
Wallis v. Hodgson. Lord Hardwick's Judgement that a posthumous Sister is entitled to a Share in her Intestate Brother's Property 561
2.2 Of customs in particular places 564
Statutes confirming Distribution by Custom 565
Lord Coke's Account 566
That of the Author of the Law of Testaments 566
Bishop Gibson's Account 566
Dr Swinburne's Account 566
How far traceable by the Civil Law 568
Bracton's Account 568
Constitution of Archbishop Stratford 568
Fitzherbert's Account 569
2.2.1 Of the Custom of the City of London in particular
Statute enabling to dispose by Will 570
Custom of Distribution in case of Intestacy 571
The Death's Part distributable according to the Statute of Distribution 571
Superintendency of the Court of Orphans 572
Children entitled, though born out of the City 572
Child entitled, though born after the Father's Death 572
Child dying, the Orphanage Part survives 572
Wife divorced 573
Husband attainted 573
What shall be deemed a sufficient Advancement 574
Child of Age may release the Customary Part 576
Whether the Husband can release 577
Where the Share released shall fall into the dead Man's or the Orphanage Part 578
Whether Marriage without Consent bars the Custom 579
Custom extends not to Grandchildren 579
Lease 580
Trust of a Term 580
Mortgage 580
2.2.2 Of the Custom of the Province of York 580
Decisions under 1 James II, c. 17 581
4 William III. c. 2 583
Mistakes as to Chester 584
2 & 3 Anne, c. 5 584
What is a reasonable Part 585
Advancement 586
Rateable Part of Goods 589
The Heir 590
When Advancement debars Child of filial Portion 592
What is a competent Portion 593
Summary of the Course of Distribution of Intestates' Effects in the Province of York 596
The Law of Scotland as to Distribution, and as to the Power of making a Will 600
As to Heir at Law 600
Children foris-familiated 601
Grandchildren 601
In Scotland, the Widow 601
The Dead Man's Part 602
Payment of Debts 602
2.2.3 Of the Custom within the Principality of Wales 602
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IXAccount.
Executor's Oath to account 603
Administrator's Bond to account 603
Before whom the Account shall be 604
Ordinary's Power to compel the Executor to account 604
Ordinary's Power to compel the Administrator 604
Parties interested to have Notice 605
Manner of passing the Account 605
Expenses to be allowed 608
Money lost 608
Discharge 609
Costs 609
Form of an Inventory 610
Form of a Will of Lands and Goods [since 1 January 1838] 610
Form of a Codicil 614
Volume III (extract): Popery
Lands given to Superstitious Uses 163
Summary of the Laws against Papists before April, 1829 163
How far those Laws had been mitigated by 18 George III, c. 60 166
How far mitigated by 31 George III, c. 32 167
And by 43 George III, c. 30 167
Roman Catholic Relief Acts
10 George IV, c. 7. An Act for the Relief of his Majesty's Roman Catholic Subjects 169
2 & 3 William IV, c. 115. An Act for the better securing the Charitable Donations and Bequests of his Majesty's Subjects in Great Britain professing the Roman Catholic Religion 178