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dentia, bona fide made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted before bankruptcy.

Interest out of Surplus. Within eighteen months after the commission issued, a second and final dividend shall be made, unless all the effects were exhausted by the first. If any surplus remain, after selling the estate and paying every creditor his full debt, it shall be restored to the bankrupt. Though the usual rule is that all interest on debts shall cease from the time of issuing the commission, yet in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt or his representatives.

CHAPTER XXXII._TITLE BY TESTAMENT AND ADMIN

ISTRATION.

Division of the Subject. We shall inquire into:
1. The antiquity of testaments and administrations.
2. Who is capable of making a last will.
3. The nature of a testament, and its incidents.

4. Executors and administrators, who they are, and how appointed.

5. Office and duty of executors and administrators.

I. THE ORIGIN OF TESTAMENTS AND ADMINISTRATIONS.

Original Occupancy of Property. When property became vested in the first occupant, it was necessary for the peace of society, that this occupancy should be continued to those persons, to whom he should transfer it, which introduced the doctrine and practice of alienations, gifts and contracts. These precautions would be imperfect, if confined only to the life of the occupier, for then, upon his death, all his goods would again become common, and create great confusion.

Right of Continuing the Occupancy. The law has therefore given to the proprietor a right of continuing his property after his death, in such persons as he shall name; and in defect of such appointment, or where it is not permitted, the law has directed the goods to be vested in certain particular individuals, exclusive of all other persons. The former method of acquiring personal property, according to the directions of the decedent, we call a testament; the latter, which is presumed, according to the will of the deceased, though not expressed, we term an administration, being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

Will of the Patriarch Jacob. Testaments are of very high antiquity. We find them in use among the ancient Hebrews, as where Jacob bequeathed to his son Joseph a portion of his inheritance, double that of his brothers, wbich was carried into execution many hundred years later, when the posterity of Joseph was divided into two distinct tribes, those of Ephraim, and of Manasseh. These had two several inheritances assigned them, whereas the descendants of each of the other sons formed but a single tribe, and had only one portion of inheritance.

In Different Nations. Solon was the first legislator to introduce wills into Athens, but, in many other parts of Greece, they were totally discountenanced. In Rome, they were unknown until the compilation of the laws of the twelve tables, which first gave the right to bequeath ; and among the northern nations, particularly the Germans, testaments were not in use. The right of making wills, and disposing of property after death, is merely a creature of the civil state, which has permitted it in some countries, and denied it in others, and even where allowed by law, it is subjected to different formalties and restrictions in almost every nation.

In Early England. In England, the power of bequeathing is coeval with the first rudiments of the law. Mention is made of intestacy in the old law before the conquest, as being merely accidental. This power of bequeathing did not extend originally to all a man's personal estate. Under Henry II, a man's goods were to be divided into three parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal. If he died without a wife, he might then dispose of a moiety, and the other moiety went to his children. If he had a wife and no children, the wife was entitled to a moiety, and he might bequeath the other, but if he died, without either wife or issue, the whole was at his own disposal. The shares of the wife and children were termed their reasonable parts, and the writ de rationabili parte bononum was given to recover them.

Change in the Law. This continued to be the law at the time of magna carta, which provides that the king's debts shall first be levied, and then the residue of the goods shall go to the executor, to perform the will of the deceased. In the reign of Edward III, the right of the wife and children was still held to be the common law, and is also mentioned as such by writers under Charles I. But the law has altered by imperceptible degrees, and the deceased may now, by will, bequeath all his goods and chattels. Coke thinks this was never the universal law, but only obtained in particular places by special custom. In disposing thus of his property, it was the custom in many places for a man to remember his lord and the church, by leaving them his two most valuable chattels, which was the original of heriots and mortuaries, and bequeath the remainder as he pleased.

Claim of the King. As to such testable goods as a man made no disposition of, he was said to die intestate, and, by the old law, the king could seize on his goods, as the parens patriae, and general trustee of the kingdom. The king continued to exercise this prerogative by his ministers of justice for some time, and it was granted as a franchise to many lords of manors and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courtsbaron and other courts, or to have their wills there proved, in case they made any disposition. Afterwards, the crown, in favor of the church, invested the prelates with this branch of the prerogative.

Goods of an Intestate. The goods of intestates were given to the ordinary by the crown, and he might seize them, and keep them without wasting; and also might aliene, give or sell them at his will, and dispose of the money in pios usus. The ordinary was the king's almoner within his diocese, in trust to distribute to the poor, or what were termed pious uses. The probate of wills, of course, followed, for it was thought just that the will be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was superseded thereby

Residue for Pious Uses. The reverend prelates, in the discharge of this trust, were not accountable to any but God for their conduct. Hence, abuses became prevalent, and finally the clergy, under the name of the church and the poor, took the entire residue of the decedent's estate, after the partes rationabiles, or two-thirds were deducted for the wife and children, without paying the debts or other charges thereon. The first check to this inordinate power was to compel the payment of the debts of the decedent, as far as the goods extended.

Origin of Administrators. To take the administration to the estate out of the hands of the ordinary or his immediate dependents, the statute of Edward III provides that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods, who shall be put on the same footing, with regard to suits and accounting, as executors under a will. Administrators hence were only the officers of the ordinary, appointed by him, being the next lawful friend of the deceased, who is interpreted to be the next of blood, that is, under no legal disabilities. A later statute permitted the ecclesiastical judge to grant administration either to the widow or next of kin, or to both of them, at his own discretion, and where two persons are in the same degree of kindred, gives the ordinary his election to appoint either. II. WHO MAY MAKE A TESTAMENT.

Causes of Prohlbition. Generally every person has the right to make a will, who is not under some special prohibition by law or custom. These prohibitions are principally upon three accounts:

(1) Want of sufficient discretion.
(2) Want of sufficient liberty and free will.

(3) Because of criminal conduct.

1. Infants. Under the civil law, males under the age of fourteen, and females under the age of twelve were deemed infants. Apart from the question of age, the ecclesiastical court is the judge of every testator's capacity.

Mental Incapacity. Persons non compotes, idiots or natural fools, persons grown childish by age or disease, as well as drunkards, are incapable by reason of mental imbecility, from

1

By statute of Victoria, a testator or testatrix must be at least twenty-one years of age, when the will is made.

making a will, until the disability is removed. So also persons born blind, deaf and dumb, who, wanting the common inlets of understanding, are incapable of having animum testandi, hence their testaments are void.

2. Prisoners and others in Duress. The law of England does not make prisoners or captives absolutely intestable, but only leaves it to the discretion of the court to judge, under the particular circumstances of duress, whether such person had liberum animum testandi.

Married Women. Our law as to a married woman differs most materially from the civil. Among the Romans, there was no distinction, and she had the same power of bequeathing as a feme-sole had. But with us, a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills of Henry VIII, but also incapable of bequeathing chattels, without her husband's consent. For all her personal chattels are absolutely his, and he may dispose of her chattels real, or may retain them, if he survive her.

Husband's Assent to Wife's Will. Yet by her husband's license, she may make a will, and the husband upon marriage frequently covenants with her friends, to allow her that license, or rather to give his assent to a particular will, which it must be, to be a complete testament, even though he has assented to her making a will. Yet such will suffices to prevent the husband from administering his wife's effects, as is his general right, and administration shall be granted to her appointee, with such testamentary paper annexed. So that in reality, the woman makes no will at all, but only something like a will, operating in the nature of an appointment, the execution of which the husband, by his bond or agreement is bound to allow.

Donatio Causa Mortis. A distinction like this occurs in the civil law. For though a son, who was in potestate parentis could not make a legal testament, even though the father permitted it, yet he might with the like permission, make what was called a donatio causa mortis.

Queen-consort. The queen-consort is an exception to the general rule, for she may dispose of her chattels by will, without the consent of her lord.

Married Woman's Will. Any feme-covert may bequeath goods, which are in her possession in auter droit as executrix or

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