SECTION VI.

Of the payment of the residue.

The subject of the duties of an administrator, with respect to the payment of the residue of an intestate's estate, has been in a great measure anticipated by the discussion of the duties of an executor with regard to the payment of the residue under a testamentary disposition of it.

For example, there has already been occasion to consider the subject with respect to the right of retainer by the administrator, in part or full satisfaction of a debt due to the intestate from the party entitled in distribution (y): Again the law with respect to the payment of a residue, where a party entitled to a distributive share is an infant (z); or a married woman (a), has been considered in a previous part of this treatise, incidentally to the subject of the payment of legacies.

If a person en

tion die within the

Although the 8th section of the statute enacts, that no distribution of an intestate's effects shall be made until one year titled to distribu- be expired after his death, yet if a person entitled to a year, his executor, distributive share shall die within the year, such inter&c., may claim. est shall be considered as vested in him, and shall go to his personal representative for this proviso makes no suspension or condition precedent to the interest of the parties, but was inserted merely with a view to creditors (b): The statute also is in the nature of a will framed by the legislature for all such persons as die without having made one for themselves; and, by consequence, the parties entitled in distribution resemble a residuary legatee; and it has been always held, that if such legatee dies before the amount of the surplus is ascertained, still his representative shall have the whole residue, and not the representative of the first testator (c).

*CHAPTER THE SECOND.

OF DISTRIBUTION UNDER THE CUSTOMS OF LONDON AND YORK, &C.

The fourth section of the Statute of Distributions provides, that the act shall not in any way prejudice the customs of the city of London, or the province of York, or other places, but that they should be observed as formerly.

So, that, although by subsequent statutes, mentioned in an earlier part of this work (a), the restraint on testamentary dispositions in those places has been removed, and the customs may be thereby controlled at the pleasure of a testator: yet if a man died intestate, before December 31, 1856, the customs remained in the same force, with respect to the distribution of his personal estate, as if no statutes had ever passed.

19 & 20 Vict. c.

94. may

Customs of Lon

don and York

abolished, as to

the estates of perdied on or after

sons who have

Jan. 1, 1857.

But by stat. 19 & 20 Vict. c. 94, the 4th section of the Statute of Distributions is repealed, save only with respect to the distribution of the personal estate of persons who have died on or before December 31, 1856, "and the special customs respecting the distribution of the personal estates of intestates observed in the city of London, or in relation to the citizens and freemen of such city, and in the province of York, and certain other places, shall, with reference to all persons dying on or after January 1st, 1857, wholly cease and determine, and the distribution of the personal estates of all persons so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estates of intestates generally prevalent in the province of Canterbury had prevailed throughout England *and Wales, any law or statute to the contrary notwithstanding." It has been deemed advisable to omit in the present edition of this work any discussion in detail of distribution as it existed under the customs of London and York, &c., which were abolished by the above act. As, however, these customs remain in force and affect the distribution of the estates of persons who have (a) Ante, p. *2. 59 [*1403]

[*1404]

died before January 1st, 1857, the reader is referred to the former editions of this work [Pt. III. Bk. IV. Ch. 2] where the nature and incidents of the customs which have been abolished are investigated at length.