after the date of the will (r), but it is essential, in order to make the trust binding, that it shall be communicated to the legatee in the testator's lifetime, and that he should accept that particular trust (s). Vice-Chancellor Hall, in his judgment in Re Fleetwood (t), refuses to accept Att.-Gen. v. Dillon (u), and McCormick v. Grogan (x), as establishing contrary to the authorities mentioned in his judgment, that where the trust is referred to on the face of the will, the court will not give effect to the intended trust, although there is conclusive evidence upon which the court would have given effect to the intended trust had the will been altogether silent as to the trust. The judgment of the vice-chancellor is difficult to reconcile with the cases cited in note (p), but whether or not the principle, which led courts of *equity to hold that the Statute of Frauds and the Statute of Wills were not to be used as instruments of fraud, applies to cases where the will shows some trust was intended, as well as to those where this does not appear, it seems clear that in either case the trust must be definite, communicated to the legatee, and accepted by him. The judgment in the case of Riordan v. Banon (y) assumes that a court of equity will enforce the trust in favor of the person for whose benefit the legatee accepted the trust, even though the legatee make no claim to take the property beneficially; for although no doubt the fraud would be of a different kind, if the legatee could by means of it retain the benefit of the legacy for himself, yet it would also be a fraud, though the result would be to defeat the expressed intention for the benefit of the heir, next of kin, or residuary donees. In Re Fleetwood (z), Vice-Chancellor Hall held that one of the witnesses to enforced in favor the will being interested under the parol trust such interest failed, but if the trust was enforced not under the will but to prevent the Wills Act being used for fraud, the decision would seem difficult to support.

Parol trusts not

of witness to will.

amongst all the

It may be mentioned, in conclusion of this subject, that where there If the residue be is no gift of the undisposed of residue, a testator cannot, undisposed of, it must be divided by negative words, exclude one of his next of kin from next of kin, not participating in it. Thus, where a testator, by his will, cut off his widow and one of his daughters from any part of his property, and directed that they should not have none of his receive any benefit therefrom, but he made no disposi

withstanding the testator declares

by his will that

one of them shall

property.

(r) Moss v. Cooper, 1 J. & H. 352.

(8) Re Boyes, 26 C. D. 531.

(t) 15 C. D. 594.

(u) 13 Ir. Ch. Rep. 127.

(x) L. R. 4 H. L. 82.

(y) 10 Ir. Eq. Rep. 649.
(2) 15 C. D. 594.

tion of his property; it was held that the widow and daughter were, nevertheless, entitled to their share in the undisposed of residue, under the Statute of Distributions (a).

(a) Johnson v. Johnson, 4 Beav. 318. But see Bund v. Green, 12 C. D. 819. ·

*BOOK THE FOURTH.

OF DISTRIBUTION.

The office of an administrator, as far as it concerns the collecting of the effects, the making of an inventory, and the payment of debts, is altogether the same as that of an executor: But as there is no will (unless the administration be cum testamento annexo), to direct the subsequent disposition of the property, at this point they separate, and must pursue different courses (a).

CHAPTER THE FIRST.

OF DISTRIBUTION UNDER THE STATUTE.†

After the Ordinary was divested of the power of administering an intestate's effects, and compelled, in the manner mentioned in the preceding part of this treatise (b), to delegate such authority to the relations of the deceased, the Spiritual Court attempted to enforce a distribution, and took bonds of the administrator for that purpose: But such bonds were prohibited by the temporal courts, and declared to be void in point of law, on the ground, that by the grant of administration, the ecclesiastical authority was executed, and ought to interfere no further (c). Thus the administrator was entitled, exclusively, to enjoy the residue of the testator's effects, after payment of the debts and funeral expenses (d).

*The hardships of this privilege upon those of kin to the intestate in equal degree with the administrator was the occasion of making the Statute of Distributions, 22 & 23 Car. II. c. 10 (e). That statute, after empowering the Ordinary, on the granting of administration, to take a bond of the administrator, with two or more sureties, conditioned as before men

22 & 23 Car. 2, c. 10.

Statute of Distributions:

Sect. 3.

to

Ordinaries administrators to

have power to call

account, and to

make distribution, &c.

tioned in a preceding part of this work (f), proceeds, in section 3, to enact as follows, "And also that the said Ordinaries and Judges respectively shall and may and are enabled to proceed and call such administrators to account for and touching the goods of any person dying intestate; and, upon hearing and due consideration thereof, to order and make just and equal distribution of what remaineth clear, (after all debts, funeral, and just expenses of every sort first allowed and deducted,) amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks, pro suo cuique jure, according to the laws in such cases, and the rules and limitation. hereafter set down; and the same distributions to decree and settle, and to compel such administrators to observe and pay the same by the due course of his Majesty's ecclesiastical laws; saving to everyone, supposing him or themselves aggrieved, their right of appeal, as was always in such cases used."

It has already appeared (g), that by reason of the Court of Probate Act, s. 23, that court (whose jurisdiction was substituted for that of the Ordinary and other ecclesiastical judges) could not entertain a suit for the distribution of residue. But the Court of Equity compelled the administrator to apply it according to the statute. And now although the Probate Division probably has jurisdiction to *entertain an administration action, yet it would probably refuse to do so, since by sects. 33, 34 of the Judicature Act, 1873, all causes and matters for the administration of the estates of deceased persons are assigned to the Chancery Division.

Sect. 4.
Customs of Lon-
don and York

saved.

By section 4, it is provided, "That this Act or anything herein contained shall not any ways prejudice or hinder the customs observed within the city of London, or within the province of York, or other places having known and received customs peculiar to them, but that the same customs may be observed as formerly: anything herein contained to the contrary notwithstanding."

And by section 5, it is further enacted, "That all Ordinaries, and every other person (h), who by this Act is enabled to make distri

shall be duly divided By Bayley, B., in the Archbishop of Canterbury v. Robertson, 1 Cr. & M. 529.

(f) Ante, p. *452, et seq. (g) Ante, p.*238.

(h) The word "person" here evidently means judge: See Archbishop of Canterbury v. Tappen, 8 B. & C. 158, by Lord Tenterden.

[*1354]

Sect. 5.
How and
whom the sur-

distributed:

bution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or to estates in manner and form following: that is to say, plusage is to be one-third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir-at-law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made: And in case

portion.

Advancement by any child, other than the heir-at-law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share, which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any *land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated but the heir-at-law,

Heir-at-law to have an equal part.

notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate."

Sect. 6.

If no children.

And by section 6, "In case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them" (i).

Sect. 7.

wife or child.

And by section 7, it is provided, "That there be no representations admitted among collaterals after brothers' and sisters' If no wife, or if no children; and in case there be no wife, then all the said estate to be distributed equally to and amongst the children and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever."

:

(i) As to the modification of this section made by the Intestates' Estates Act,

1890, 53 & 54 Vict. c. 29, see post, p. *1359.