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2 P. Wms. 601.

Ibid. 26, 27. Application of the residue after payment of debts.

The Statute of
Distributions.

the age of twenty-one years is a vested legacy; an interest which commences in præsenti, although it is to be paid at a future period and if the legatee dies before that age, his representative shall receive it out of the testator's personal estate, at the same time that it would have become payable in case the legatee had lived. But if such legacies be charged upon a real estate in both cases they shall lapse for the benefit of the heir (a). In case of a vested legacy due immediately, and charged on land or money in the funds which yield an immediate profit, interest shall be payable thereon from the testator's death; but if charged only on the personal estate, which cannot be immediately got in it shall carry interest only from the end of the year after the death of the testator.

When all the debts and particular legacies are discharged the surplus or residuum must be paid to the residuary legatee; and if there be no residuary legatee appointed by the will, and the executor has no legacy at all, the residuum shall, in general, be his own, yet wherever these is sufficient on the face of a will (by means of a competent legacy or otherwise) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin, the executor then standing upon exactly the same footing as an administrator (b).

By 22 & 23 Car. 2, c. 10, explained by 29 Car. 2, c. 30, the 29 Car. 2, c. 3, surplusage of intestates (except of femes covert, which are left as at common law) after the expiration of one full year from

8. 25.

estate tail, or of a preceding gift, being without any implication arising from such words, a limitation of an estate tail to such person or issue or otherwise: provided that this act shall not extend to cases where such words as aforesaid import, if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.

(a) But see the two last notes.

(b) By 11 Geo. 4 and 1 Wm. 4, c. 40, when any person shall die, having by his will, or any codicil thereto, appointed any person or persons executor or executors, such executor or executors shall be deemed by courts of equity to be a trustee or trustees for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not expressly disposed of, unless it shall appear by the will, or any codicil thereto, that the person or persons so appointed executor or executors was or were intended to take such residue beneficially; provided that nothing shall affect any right to which any executor, if this act had not been passed, would have been entitled, in cases where there is not any person who would be entitled to the testator's estate under the Statute of Distributions, in respect of any residue not expressly disposed of.

the death of the intestate is to be distributed: one-third to the widow of the intestate, and the residue in equal proportions to his children; or if dead to their representatives: that is, their lineal descendants (c), if there are no children or legal representatives subsisting, then a moiety to the widow, and a moiety to the next of kindred in equal degree, and their representatives: if no widow, the whole to the children: if neither widow nor children, the whole to be distributed among the next of kin in equal degree and their representatives: but no representatives are admitted among collaterals farther than the children of the intestate's brothers and sisters.

The next of kindred here referred to are to be investigated by the same rules of consanguinity as those who are entitled to letters of administration (d). By this statute the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate and without wife or issue; in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father; but by statute 1 Jac. 11, c. 17, if the father be dead, and any of the children die intestate, without wife or issue in the lifetime of the mother, she and each of the remaining children or their representatives shall divide his effects in equal portions (e). The Statute of Distributions

Raym. 496.
Lord Raym.

571.

(c) Other than such child or children (not being heir-at-law) who have any estate by settlement of the intestate, or shall be advanced by him in his lifetime, by portion equal to the distributive share, but if not equal, to be made so; the heir-at-law to have an equal part, notwithstanding he may have had land by descent or otherwise from the intestate, 22 & 23 Car. 2, c. 10, s. 5. And by s. 8, if any just debts be, after distribution, sued for and recovered, or duly made to appear the persons to whom distribution has been made, shall pay back to the administrator the rateable proportion of those debts and of the costs.

(d) See ante, p. 296.

(e) "The next of kin who are to have the benefit of the Statute of Distributions must be ascertained according to the computation of the civil law, including the relations, both on the paternal and maternal sides; and when relations are thus found, who are distant from the intestate by an equal number of degrees, they will share the personal property equally, although they are relations to the intestate of very different denominations, and perhaps not relations to each other. There is only one exception to this rule, viz., where the nearest relations are a grandfather or grandmother, and brothers or sisters, although all these are related in the second degree, yet the former shall not participate with the latter; for which singular exception it does not appear that any good reason can be given. (3 Atk. 762.) No difference is made between the whole and half blood in the distribution of intestate personal property."-Mr. Christian's Note to Bl. Com. v. 2, p. 516.

Of the customs of London, York, &c.

Lord Raym. 1329.

2 Burn. Eccl.

expressly excepts and reserves the customs of the city of London, the province of York, and of all other places having peculiar customs of distributing intestate's estates.

In the city of London and province of York, as well as in the kingdom of Scotland, and probably also in Wales, the effects of the intestate, after payment of his debts are in general divided according to the ancient doctrine of the pars Law, 746, 782. rationabilis. If the deceased leaves a widow and children, his substance (deducting for the widow her apparel and the furniture of her bed chamber, which in London is called the widow's chamber) is divided into three parts, one of which belongs to the widow, another to the children, and the third to 1 P. Wms. 341. the administrator. If only a widow, or only children, they

Salk. 246.

2 Show. 175.

2 Freem. 85.

1 Vern. 133.

2 Vern. 665.
3 P. Wms. 16.

1 Vern. 15.

2 Chan. Rep.

252.

2 Freem. 279. 1 Eq. Cas. Abr.

155.

2 P.Wms. 526. Ibid. 527.

Of the dif

respectively, in either case, take one moiety, and the administrator the other; if neither widow nor child, the administrator takes the whole. This portion, or dead man's part, the administrator used to apply to his own use, till the stat. 1 Jac. 2, c. 17, declared that it should be subject to the Statute of Distributions. So that if a man dies worth 1800l. personal estate, leaving a widow and two children, this estate is divided into eighteen parts; the widow taking eight, six by the custom, and two by the statute; and each of the children five; three by the custom, and two by the statute. If he leaves a widow and one child, she still takes eight parts as before; and the child has ten, six by the custom and four by the statute. If he leaves a widow and no child, the widow takes three-fourths of the whole, two by the custom and one by the statute; and the remaining fourth goes to the next of kin.

If the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of non-entity, with regard to the custom only; but she is still entitled to her share of the dead man's part, under the Statute of Distributons, unless barred by special agreement. If any of the children are advanced by the father in his lifetime with any sum of money (not amounting to their full proportionable part) they must bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to benefit under the custom: but if they are fully advanced, any the custom entitles them to no further dividend.

So far the customs of London and York agree; but besides ference in cus- certain other less material variations, there are two principal points in which they differ. In London, the share of the

toms of London and York.

children (or orphanage part) is not fully vested till twenty-one,

537.

before which they cannot dispose of it by testament: and if 2 Vern. 558. they die under that age, whether sole or married, their share survives to the other children; but after twenty-one, it is free from any orphanage custom, and in case of intestacy falls under the statute of distributions. But in the province of York Prec. Chan. the heir at common law, who inherits any land, either in fee or in tail, is excluded from any filial portion or reasonable part. 2 Burn. 754. As a similar policy formerly prevailed in every part of the island, we may conclude the whole to be of British original, or if derived from the Roman law of succession, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions it considerably differs; though it is not improbable that the resemblances yet remaining may be owing to the Roman usages introduced in the time of Claudius Cæsar.

BOOK THE THIRD.

OF PRIVATE WRONGS.

CHAPTER I.

OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF
THE PARTIES.

a

Ar the opening of these Commentaries law was defined to be "a rule of civil conduct prescribed by the supreme power in state, commanding what is right and prohibiting what is wrong (a);" hence it follows that the primary objects of law are the establishment of rights and the prohibition of wrongs. Wrongs are divisible into private wrongs and public wrongs. The former are an infringement of the private or civil rights of persons considered as individuals; and are termed civil injuries: the latter are a violation of public rights, affecting the whole community considered as a community; and are distinguished by the appellation of crimes and misdemeanors. Private wrongs

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(a) Sanctio justa, jubens honesta, et prohibens contraria; Cic. 11 Phillip 12, orig. n. to Bl. Com. v. 3, p. 1.

X

The redress of private wrongs.

may be redressed in three ways; by the mere act of the parties themselves; by the mere act and operation of law; and by suit or action in courts. The redress which is obtained by the mere act of the parties, is either that which arises from the act of the par- act of the injured party only; or that arising from the joint act of all the parties together.

By the mere

ties.

Defence of

one's self or relations.

2 Roll. Abr. 546.

1 Hawk. P. C. 131.

Recaption of goods, &c.

3 Inst. 134. Hal. Anal. s. 46.

55, 56, 208.

The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife (b), parent and child (c), master and servant (d).

In these cases, if the party himself, or any of these his relations be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. Self-defence is the primary law of nature, nor is it, or can it be taken away by the law of society; but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention; for then the defender himself becomes an aggressor.

Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one has deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods and the husband, parent, or master, may lawfully claim and retake them wherever he finds them; so it be not in a riotous manner, or attended with a breach of the peace; otherwise they might be conveyed away, or destroyed, or concealed out of his reach, if he had no speedier remedy than the ordinary process of law. If for instance my horse is taken away, and I find him in a common fair, or public inn, I may lawfully seize him to my own use: but I cannot

2 Roll. Rep. justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.

2 Roll. Abr. 565, 566.

Entry on lands

or tenements.

Abatement of ruisances.

There is a remedy of the same kind for injuries to real property, by entry on lands and tenements, when another person without any right has taken possession. The cases in which such entry is lawful will be considered in a subsequent chapter (e).

Another species of remedy by the mere act of the party injured, is the abatement or removal of nuisances.

(b) See ante, p. 83.
(c) See ante, p. 87.

(d) See ante, p. 81.

(e) See post, b. 3, c. 10.

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