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Sect.

to have power to call

account, and to

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 or tinaries to proceed and call such administrators to account for administrators to and touching the goods of any person dying intestate ; make 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 (9), 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. 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.

By section 4, it is provided, “ That this Act or anything herein contained shall not any ways prejudice or hinder the Sect. 4. customs observed within the city of London, or within Customs.com Loma the province of York, or other places having known and saved. 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 (1), who by this Act is enabled to make distri.

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shall be duly divided : By Bayley, B., in the Archbishop of Canterbury 0. Robertson, 1 Cr. & M. 529.

(f) Ante, p. *452, et seq. (9) Ante, p. *238.

() 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

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 Advancement by any child, other than the heir-at-law, who shall have any portion. 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 chil. dren to be equal as near as can be estimated : but the heir-at-law,

notwithstanding any land that he shall have by descent Heir-at-law to have an equal

or otherwise from the intestate, is to have an equal part 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." 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). 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 wife or child.

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."

(1) As to the modification of this sec- 1890, 53 & 54 Vict. c. 29, see post, tion made by the Intestates' Estates Act,

p. *1359.

Sect. 6.
If no children.

Sect. 7.

Sect. 8.

distribution

If debts afterward

Sect. 9.

And by section 8, it is likewise enacted, “ To the end that a due regard be had to creditors, that no such distribution of the goods of any person dying intestate be made till til after a year: after one year be fully expired after the intestate's death, and that such and every one to whom any distribution appearindberopat! and share shall be allotted, shall give bond with suffi- tionably. cient sureties in the said Courts, that if any debt or debts, truly owing by the intestate, shall be afterward sued for, and recovered or otherwise duly made to appear, that then and in every such case he or she shall respectively refund and pay back to the administrator his or her ratable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share 80 as aforesaid allotted to him *or her, thereby to enable the said administrator to pay and satisfy the debt or debts so discovered after the distribution made as aforesaid."

Finally, by section 9, it is enacted, “That in all cases where the Ordinary hath used heretofore to grant administration cum testamento annexo, he shall continue so to do, and Act not to extend the Will of the deceased in such testament expressed cum shall be performed and observed in such manner as it should have been if this Act had never been made.”

It is obvious to observe how near a resemblance this Statute of Distributions bears to the ancient English law, de rationabili parte bonorum; which Sir Edward Coke, though he doubted the generality of its restraint on the power of bequeathing by will, held to be uni. versally binding, in point of conscience at least, on the administrator or executor, in case of either a total or partial intestacy (j). It also bears some resemblance to the Roman law of succession, ab intestato, which, and because the act was also penned by an eminent civilian (k), has occasioned a notion that the Parliament of England copied it from the Roman Prætor; though it is little more than a restoration, with some refinements and regulations, of our old constitutional law; which prevailed as an established right and custom, from the time of King Canute downward, many centuries before Justinian's laws were known or heard of in the western parts of Europe (?).

Lord Hardwicke, in the case of Stanley v. Stanley (m), took occasion to observe, that this statute was very incorrectly penned.

to administration

testamento annexo.

a

() 2 Inst. 32, 33. 2 Black. Comm. 516.

(k) Sir Walter Walker : See R. O.

Raines, 1 Lord Raym. 574, by Lord
Holt.

(1) 2 Black. Comm. 516.
(m) 1 Atk. 457.

[*1356]

Agreement as to

Where a party, entitled to a distributive share of the personal estate

of an intestate, makes an agreement relating to the disdistributiveshare. tribution, under a supposition that the estate is of a *certain value, and it turns out to be greater than was known at the time of the agreement, a court of equity will set it aside (n) : for it is a general principle of equity, that agreements, relative to real or personal estate, if founded on mistake, will be for that reason set aside (o).

In the investigation of the rights of the several parties entitled under this statute, it is proposed to consider, First, The rights of a husband, with respect to the personal property of his deceased wife: Secondly, The rights of a widow, with respect to the effects of her husband : Thirdly, The rights of the children, and lineal descendants of the deceased : Fourthly, The rights of the next of kin.

(n) Cocking v. Pratt, 1 Ves. Sen. 400. 126. Leonard ». Leonard, 2 Ball &

(0) See Pooley v. Ray, 1 P. Wms. Beat. 183. Stewart v. Stewart, 1 Rob. 355. Bingham v. Bingham, 1 Ves. Sen. App. Cas. 431.

+ What law governs. The distribution bate Court. This is generally made of the intestate estate in the hands of the upon the final accounting on the appliadministrators is, in general, regulated in cation of the administrator or of any the United States by statutes determin- party interested, and no further demand ing the time and manner of distribution is then necessary. Leland v. Kingsbury, and the persons entitled to receive the 24 Pick. 315; Henry v. State, 9 Mo. estate. The right to a distributive share 778. For particular procedure, and vests at the time of the death of the in. notice to parties and form of decree testate. Schouler on Exrs. $ 507 ; Cros. for distribution, reference must be had well on Exrs. § 528; Foster o. Fifield, to the statutes and decisions of the 20 Pick. 67 ; Rose v. Clark, 8 Paige 574 ; several states determining the local Thompson v. Thomas, 30 Miss. 153; practice. See also Woerner on Admn. Estate of Black, Tuck. 147 ; Armstrong SS 561–62. The jurisdiction of the v. Grandin, 39 O. St. 368. It follows that Probate Court even extends to a disthe distribution is governed by the law in tribution by the public administrator, force at the time. Woerner on Admn. although the statute directs him to $ 565 ; Brown v Critchell, 110 Ind. 31 ; pay the balance into the state treasury Paschall v. Hailman, 9 III. 285. But to for future distribution. Parker 0. the effect that distribution is controlled Kuckens, 7 Allen 509. And in order by a law passed after the intestate's to determine the amount of the estate death, there having been no statute subject to distribution the surrogate before that time, see Armstrong v. has jurisdiction, in New York, to pass Armstrong, 1 Or. 207.

upon the validity of a trust under Order for distribution. In general, which part of the intestate's property is these statutes provide for distribution held. Matter of Collyer, 4 Dem. 24. of intestate estates by order of the Pro- But the Probate Court has no jurisdic

sooner

tion to direct the payment of legacies, unless it is expressly conferred on it, Arnold v. Smith, 14 R. I. 217; nor, under the Texas law of “independent administration,” to regulate the distri. bution of that part of the estate as to which a testator died intestate. Lumpkin v. Smith, 62 Tex. 249.

In California, the Probate Court having jurisdiction to order the payment of legacies, must do so before ordering a distribution of the surplus, and the latter order is conclusive against legatees, Hill v. Drew, 54 Cal. 6; but not against a legatee claiming property adversely against the estate in his own right. Estate of Rowland, 74 Cal. 523. An order for distribution is conclusive as to the distributee's rights in an action brought by him on the administrator's bond. State v. Berning, 74 Mo. 87. If it is made by mistake for too large a payment, it will not be amended for mere inadvertence of the administrator. Parker v. Townsend National Bank, 121 Mass. 565. And, on the other hand, such order is a full protection of the administrator as to distribution made by him in good faith under it, although it may be afterward modified by the court. Charlton's Appeal, 88 Pa. St. 476 ; Stewart's Appeal, 86 Pa. St. 149. The order for distribution cannot, however, protect the administrator against a rightful claim to a distributive share which was fraudulently concealed by him from the court. O'Neil's Appeal, 55 Conn. 409. Creditors are, in general, barred before the order of distri. bution is made. But, in Texas, where the estate is open for presentation of claims until distribution, they will be barred by the order. Bledsoe v. Beiler, 66 Tex. 437. In Pennsylvania, however, the order for distribution is not conclusive until it is actually carried out. Kline's Appeal, 86 Pa. St. 363.

Distribution- When made. Distribution should not be made, in general,

until the debts are paid and the surplus for distribution ascertained by account and settlement or otherwise. In New Jersey (1877 Rev. 785, $ 149), the statute prohibits distribution by the administrator until one year has elapsed after letters issued. And the administrator may be required to distribute, in Alabama (1886 Code, $ 2192), after eighteen months or

sooner on order if estate shown to be insolvent ; Arkansas (1884 Dig. Stats. 148), after two years or

on order and bond given; Colorado (1891 An. Stats. & 4789), after payment of debts and legacies on order ; Maryland (1888 P. G. L. Art. 93, § 140), one-third share, when needed, on order and bond given ; Mississippi (1892 Code, § 1961), after twelve months ; Nevada (1885 G. S. & 2919), after four months on order and bond given ; Nero York (1889 R. S. 8th ed. 2562, § 43), after one year or sooner on order and bond given ; Oregon (1892 An. Laws, S 1194), after first account on order and bond given ; Pennsylvania (1883 Purd. Dig. Decedents' Estates, S 219), after one year. So, in Tennessee, there may be a decree for distribution within the statutory two years if there are no debts. Murgitroyd 0. Cleary, 16 Lea 539. And in Indiana, if the estate is ample, there may be a petition for distribution before all assets are collected and all debts paid. Lilly v. Stahl, 5 Ind. 447.

When the debts have been paid, the next of kin are entitled to have the surplus distributed, although some of them may desire to have the general management of the administrator continued. Succession of Powell, 38 La. An. 181. But no suit can be brought until the debt and expenses are provided for. Alexander v. Alexander, 26 Neb. 68. And a decree for distribution of the entire personal property made within the time allowed for presentment is void as to creditors pressing their claims within such time. Browne v. Doolittle,

a

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