if only a widow, or only children, they respectively took one moiety, and the administrator the other (a); if neither widow nor child, the administrator had the whole (b). And this portion, or dead man's part, the administrator was wont to apply to his own use (c) till the statute 1 Jac. II. c. 17, declared that the same should be subject to the Statute of Distributions. So that if a man died worth 1,800l. personal estate, leaving a widow and two children, this estate was divided into eighteen parts; whereof the widow had 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 left a widow and one child, she still had eight parts, as before; and the child had ten, six by the custom and four by the statute: if he left a widow and no child, the widow had three-fourths of the whole, two by the custom and one by the statute; and the remaining fourth went, by the statute, to the next of kin. It is also to be observed that, if the wife were provided for by a jointure before marriage, in bar of her customary part, it put her in a state of non-entity with regard to the custom only (d); but she was entitled to her share of the dead man's part under the Statute of Distributions, unless barred by special agreement (e). And if any of the children were advanced by the father, in his lifetime, with any sum of money (not amounting to their full proportionable part), they were to bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they were entitled to any benefit under the custom (ƒ); but if they were fully advanced, the custom entitled them to no further dividend (g).

The special customs, however, observed in the city of London (or in relation to its citizens and freemen), the province of York, "and certain other places," concerning the distribution of the personal estate of intestates, have now wholly ceased and determined, having been abolished by 19 & 20 Vict. c. 94, save only with respect to the distribution of the personal estate of persons who may have died on or before the 31st December, 1856; and this statute enacts, that the distribution of the personal estate of all persons dying on or after the 1st January, 1857, 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.

We have thus taken some general view of the duty of the personal representative, in respect to his administration

taken verbatim from Blackstone (2 Bl. Com. pp. 518,519), and he also mentions some variations between the customs of London and York; particularly that in London the share of the children (or orphanage part) was not fully vested in them till the age of twenty-one, before which they could not dispose of it by testament, and if they died under that age, whether sole or married, their share should survive to the other children; but after the age of twenty-one it was free from any orphana e custom, and in case of intestacy fell under the Statute of Distributions; and also that in the province of York, the heir at common law, who inherited any land, either in fee or tail, was excluded from any filial portion or reasonable part. He proceeds also to say, that "as a policy similar to "these customs of London and York "formerly prevailed in every part of

"the island, we may fairly conclude "the whole to be of British origin;

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 in many points "(particularly in the advantages "given to the widow) it very con.. "siderably differs: though it is not improbable that the resemblances "which yet remain may be owing to "the Roman usages, introduced in "the time of Claudius Cæsar, who "established a colony in Britain to "instruct the natives in legal know"ledge; inculcated and diffused by

of the estate of the deceased. It only remains to add, that this branch of the law is very variously distributed in point of jurisdiction. For the Court of Probate, though it has an exclusive province in the matter of probates and administrations, cannot entertain suits against executors or administrators, to compel them to pay the debts, or legacies, or the distributive shares of residues, due from the estate of the testator or intestate (h); the enforcement of their duty as regards the two last of these subjects belonging exclusively (among the superior courts (i)) to the Court of Chancery (k), and as regards the first, (viz. the debts,) belonging, in one point of view, to the same Court, in another, to the superior courts of the common law, viz. the Queen's Bench, Common Pleas, and Exchequer (7).

(h) The Spiritual courts, which the Court of Probate has superseded, had a jurisdiction as to compelling payment of legacies and distributive shares; but it was of an inconvenient and defective nature.

(Report on Ecclesiastical Courts, dated 16 Feb. 1832, p. 39.) (i) A legacy or distributive share of residue may be recovered however in the county courts, if not exceeding 501. See 9 & 10 Vict. c. 95, s. 65; 13 & 14 Vict. c. 61; Pears v. Williams, 6 Exch. 833; Longbottom v. Longbottom, 8 Exch. 203; Hewston v. Phillips, 11 Exch. 699; Fuller (In re), 2 Ell. & Bl. 573; Ratcliffe v.

Winch, 22 L. J. Chan. 915.

(k) A superior court of the common law can entertain no action for a distributive share of residue; nor for a legacy, except in the particular case where the action is brought by the legatee of a chattel specifically bequeathed, and to the bequest of which the executor has assented. Doe v. Guy, 3 East, 123; Jones v. Tanner, 7 Barn. & Cress. 542; 2 Williams' Executors, p. 1748, 5th ed. (1) As to the difference between the courts of law and equity as regards this subject, vide post, bk.

V. c. XIV.

CONCLUSION.

OF SOME MIXED OR IRREGULAR SUBJECTS OF

PROPERTY.

We have thus taken a general survey of the law of property, under its great divisions of things real and things personal, which form, as we have seen, two distinct classes of subjects, strongly contradistinguished from each other, not only as regards the natural qualities of immobility on the one hand, and mobility on the other, but also as regards the legal constitution and incidents to which each class respectively is liable. There is, however, no science which admits of an arrangement so perfect as to be subject to no anomalies; and in the law of property there are, accordingly, some few cases of irregular character, with the consideration of which we intend to close the Second Book of these Commentaries.

First, then, there are some matters falling within the definition of things real, which are attended, nevertheless, with some of the legal qualities of things personal; and again, there are others which, though things personal in point of definition, are, in respect of some of their legal qualities, of the nature of things real. Of these in their order.

I. The subjects which present themselves for notice, under the first head, are as follows:

1. Emblements;-or the growing crops of those vegetable productions of the soil, which are annually produced by the labour of the cultivator. All natural growths (it is to be observed), until actually severed from the soil, are in legal

contemplation parcel of the realty, not less than the soil itself; but upon severance, change their character, and are converted into personalty. By the general law, they are consequently governed, when in the first predicament, by all those rules as to estate and title which are incident to things real; when in the second, by all those which attach to things personal. Thus trees, while still implanted in the ground, are parcel of the freehold, and as such will pass, on the death of the terretenant, to his heir or devisee; but when felled or blown down, are part of his personal estate; and if still belonging to him at his decease, will devolve to his personal representative.

To this general doctrine, however, there is an exception in the case of the fructus industriales, such as are above described under the name of emblements; for these, though still in union with the soil, follow, nevertheless, in several particulars, the nature of personal, as distinguished from real estate.

In the first place, emblements may be lawfully severed from the soil, and removed by the tenant whose cultivation has produced them, though his estate may be too limited to entitle him to cut down trees or the like; and, as shown in a former part of the work, a tenant, whose interest determines at a period which he was not in a condition to foresee, is entitled to cut and carry away, when ripe, even after his tenancy has determined, the emblements which he himself has sown or planted, and to convert them to his own use, as his own goods and chattels (a).

Again, upon the death of a terretenant seised in fee, the emblements on his land will devolve, by the rule of law, upon his executor, or, in case of his intestacy, on his administrator; and will not, like the land itself, descend to his

(a) Co. Litt. 55 a; 1 Roll. Ab. 726; et vide vol. 1. pp. 261, 288, where it is shown that in some cases the common law right of the tenant as to conveying away emble

ments after the determination of the tenancy, is now superseded by the new species of protection afforded by 14 & 15 Vict. c. 25; but that otherwise, it is in full force.