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died without administration, he would take, as trustee for the husband's next of kin, even a chose in action not reduced to possession by the husband. Bryan 0. Rooks, 25 Ga. 622. So, where the wife died seized of a vested remainder in personal property after a life estate which outlasted her life. Colson 0. Martin, Phil. Eq. 125. But since the married woman's act of 1860, in New Hampshire, the husband takes as distributee, and not by the common-law right to administer without account.

Woodman o. Woodman, 54 N. H. 226. So, in Connecticut. Baldwin o. Carter, 17 Conn. 201. In other states also he could take only by administration her choses in action not reduced to posses. sion in her lifetime, Grote v. Pace, 72 Ga. 302 ; Townsend v. Radcliff, 44 III. 446 ; and only beneficially, after administration, in accordance with the Statute of Distribution. Cox 0. Morrow, 14 Ark. 603. As to the wife's choses in action, see p. *759, American note, ubi supra,

a

SECTION II.

issue.

Of the rights of a widow, in the distribution of the effects of her

intestate husband, under the statute.t The Statute of Distributions, it will be observed, provides, that if the intestate leaves children, as well as a widow, one-third shall go to the widow, and the residue among the children. If there be no children or lineal descendants of children subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred. But. the Statute of Distributions, 22 & 23 Car. II. c. 10, has been materially modified in favor of the widow of an intestate dying without issue by the Intestates' Estates Act, 1890, 53 & 54 Vict. c. 29, an act to amend the law by making better provision for the widows of certain intestates in the distribution of such intestates' property. This act provides : Sect. 1. The real and per

Intestate's estate sonal estates of every man who shall die intestate (x) not exceeding

5002. to belong to after the 1st of September, 1890, leaving a widow but widow where no no issue, shall, in all cases where the net value of such real and personal estate shall not exceed 5001., belong to his widow absolutely and exclusively.

Sect. 2. Where the net value of the real and personal estates, in the preceding section mentioned, shall exceed the sum of 5001., the widow of such intestate shall be entitled to widow to have a 5001., part thereof absolutely and exclusively, and shall charge for 5001. have a charge upon the whole of such real and personal estates for such 5001., with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.

Sect. 3. As between the real and personal representatives of such intestate, such charge shall be borne and paid in pro- How charge to be portion to the values of the real and personal estates borne as between respectively.

alty. *Sect. 4. The provision for the widow, intended to be made by this act, shall be in addition and without prejudice to Above provision her interest and share in the residue of the real and per- tion to share of sonal estates of such intestate remaining after payment

residue. of the sum of 01., in the same way as if such residue had been the

Intestate's estate

be

in addi

+ See American note at end of this Section.

(x) The act only applies to the case of a man dying wholly intestate : it

does not, like the Statute of Distributions, apply to cases of partial intestacy. Re Twigg's Estate, (1892] 1 Ch. 597.

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whole of such intestate's real and personal estates and this act had not been passed. Sect. 5. The net value of such real estates as aforesaid shall, for

the How realty to be

purposes of this act, be estimated in the case of a valued.

fee-simple upon the basis of twenty years' purchase of the annual value by the year at the date of the death of the intestate, as determined by law for the purposes of property tax, less the gross amount of any mortgage or other principal sum charged thereon, and less the value of any annuity or other periodical payment chargeable thereon, to be valued according to the tables and rules in the schedule annexed to the statute 16 & 17 Vict. c. 51, and in the case of an estate for life or lives according to the said tables and rules.

Sect. 6. The net value of such personal estates as aforesaid shall be How personalty ascertained by deducting from the gross value thereof to be valued.

all debts, funeral, and testamentary expenses (y) of the intestate, and all other lawful liabilities and charges to which the said personal estate shall be subject.

Where an intestate leaves a widow, but no next of kin, the widow is not entitled to the whole of the personal estate ; but one moiety belongs to her, and the other to the Crown (2). The widow's title, however, under the statute, may be barred by a

settlement before marriage (a), excluding her from her Widow's may be barred by distributive share of her husband's personal estate ; and settlement.

even in the case of a female infant, she may be barred of her right by such a settlement, made *before marriage, with the approbation of her parents or guardians ().

Where the settlement is expressed to be “as and for her jointure, in full lieu, bar and satisfaction of any dower or thirds which she could or might claim at common laro out of all or any of the estates real, personal, or freehold, of her intended husband,” the widow will be excluded from her share under the statute ; for the words “common law” must be construed as equivalent to the terms “according to the general law” (c).

(y) The phrase “testamentary ex- (2) Cave v. Roberts, 8 Sim. 214. penses" is not strictly applicable to an (a) See Slatter o. Slatter, 1 Younge & intestacy : taking the act as a whole it Coll. 28, as to the effect of a separation appears to be a slip of draftsmanship, deed executed by the wife after marand as meaning the expenses of obtain- riage. ing letters of administration and of (6) Lord Buckinghamshire r. Drury, administration generally. Re Twigg's 3 Bro. C. C. 492. 4 Bro. C. C. 506, note. Estate, (1892] 1 Ch. 579, 582, per 2 Roper on Husb. & Wife, 26, 2nd edit. Chitty, J.

(c) Gurly v. Gurly, 8 Cl. & F. 743.

claim

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In such cases, whether the husband die intestate, or dispose of his personal estate by will, which disposition fails by lapse, the wife will be equally excluded from her distributive share.

But it is otherwise when the husband by will makes a provision for his wife, stating it to be in lieu and in bar of all her Provision by will claims on his personal estate, and then subjects his per- of her thirds, does

lieu sonalty to a disposition which lapses, or is void, so that not bar her claim

under a quasi inthe latter fund is subject to distribution ; for then not

testacy. withstanding the words of the will, the widow is entitled to a share under the statute (d): The principle of this distinction is, that where a woman has before marriage agreed to accept *a consideration for her widow's share, she is bound by her compact, whether her husband die testate or intestate ; but where there is no such contract, but the provision in bar of the distributive share arises upon the husband's will, it is presumed that the motive for the widow's exclusion originated in a particular design or purpose of the testator, viz., for the benefit of the person in favor of whom the property was bequeathed by him; so that if the purpose be disappointed, there is no reason why the bar or exclusion should continue (e).

It is necessary to consider the right of the widow under the Statute of Distributions, with relation to the widow existence of a covenant or agreement, on the part of the distributive share husband, to settle or to leave, or that his executors shall under a covenant

for her provision : pay, to his widow, a portion of his personal estate.

In what case &

cannot claim both her

due

See also Druce v. Denison, 6 Ves. 385. inter alia, the fund out of which the But where the husband, on his mar- provision for the wife was made : riage, settles on the wife a rept-charge Thompson v. Watts, 2 Johns. & H. 291. for her jointure, and in lieu of dower and (d) Pickering v. Stamford, 3 Ves. thirds at common law, she is not thereby 332. Garthshore v. Chalie, 10 Ves. 17, precluded from her distributive share 18. 2 Rop. Husb. & Wife, 23, 2nd in his undisposed of personal estate ; edit. because the rent-charge must be re- (C) 2 Rop. Husb. & Wife, 23, 2nd garded as intended to be in lieu only of edition. Lord Alvanley found this any claim she might have on his lands : principle recognized by Lord Cowper, Colleton v. Garth, 6 Sim. 19. The in Sympson v. Hornsby, which he stated

thirds," however, is not con- from the registrar's book : Pickering o. fined to real estate, but is a general ex- Stamford, 3 Ves. 335. But this prinpression which may signify, according ciple cannot be applied to a case where, to the context and scope of the instru- on the face of the will, there is an inment, the interest of a widow in any testacy, with language excluding the property, whether real or personal, of widow in absolute and comprehensive her deceased husband ; and in constru- terms from any further share : Lett v. ing the instrument the court considers, Randall, 3 Sm. & G. 83.

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word

It is a general rule, that if the husband covenants to leave, or that his executor shall pay, to his widow a sum of money, or part of his personal estate, and he dies intestate, so that she becomes entitled to a portion of his personal property under the statute, such distributive share shall be a performance of the covenant, and she cannot claim both (f). The principle seems to be, that the husband, looking forward to the event of his death, when his wife will have an interest in his property by the provision of the law, declines for that reason to give her any interest in it in his lifetime, *considering that his covenant will be as effectually performed by what the law provides for her, as if the provisions were made by himself (9).

If the widow's distributive share is less than the amount of her provision under her husband's covenant, such share will be regarded as a partial performance; so that if the money covenanted to be paid by the husband's executors be 1,0001., and the widow's distributive share amount only to 5001., such share will nevertheless be a part performance of the covenant; viz., to the extent of 5001. (h).

In the case of Goldsmid v. Goldsmid (i), Sir Thomas Plumer, M. R., decided, that if the widow takes a distributive share of her husband's personal estate, not under an actual but a quasi intestacy, such share will be a performance of his covenant that his executors shall pay to her a sum of money at his death if she survived him : In that case the husband by marriage articles covenanted, that if he died in the lifetime of his wife, his executors should, within three months after his decease, pay to her 3,0001.: By his will he gave all his property to his executors, in trust after payment of his debts, at the expiration of three years from his decease, to divide it in such ways, shares and proportions, as to them should appear right : On his death, during the life of his wife, the executors having died or renounced, the property became divisible according to the Statute of Distributions: And the widow's distributive share, exceeding 3,0001., was held a performance of the covenant in the marriage articles (k).

(s ) Blandy v. Widmore, 1 P. Wms. to repel the legal presumption : ibid. 324. Lee o. Cox and D’Aranda, 1 Ves. 13. Sen. 1. Garthshore v. Chalie, 10 Ves. (9) Garthshore v. Chalie, 10 Ves. 1, 1. It will make no difference that the 16. money under the covenant is to be paid (h) Ibid. 16. at a determinate period within the year (i) 1 Swanst. 211. after the testator's death, whereas in (k) The authority of this decision is strictness the distributive share is not doubted in 2 Rop. Husb. & Wife, 50, payable until the end of that year ; for 2nd edit. this difference shall not be permitted

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