been held to mean the testator's brothers and sisters, to the exclusion of nephews and neices. (a)

If a bastard, or any other person having no kindred, die intestate, without wife or child, his effects, as we have [387] seen, (b) belong to the king, who, with the exception of a small part, usually grants them by letters patent or otherwise; and then such grantee seems of course entitled to the administration, and consequently to the sole enjoyment of the property. (c)

The personal property of an intestate, wherever situated, must be distributed according to the law of the country where his domicil was, and such is prima facie the place of his residence; but that may be rebutted; or supported by circumstances; (d) for although the locality of the party's abode at the time of his death determine the rule of distribution, yet it must be a stationary, not an occasional, residence, in order that the municipal institutions may attach on the property. (e) If, therefore, an Englishman be settled, and die in this country, and administration be taken out to him here, debts due to him, or other of his personal effects in Scotland, or abroad, shall be distributed according to the law of England: (f.) But if an alien resident abroad die intestate, his whole property here is distributable according to the laws of the country where he so resides, otherwise no foreigner could deal in our funds but at the peril of his effects going according to our laws, and not to those of his own country. (g)

Where a native of England domiciled in Guernsey died intestate, leaving a widow and infant children, and the widow was appointed guardian of the children by the royal court of [388] Guernsey, and sold the property of the intestate, and invested the produce in the English funds, and afterwards

(a) Smith v. Campbell, Coop. Rep.

275.

(b) Vide supra, 107.

(c) 2 Bl. Com. 505. Doug. 542. (d) 2 Ves. jun. 198. See also Sir Chas. Douglas's case there cited.

(e) 1 Wooddes. 385. Pipon v. Pipon, Ambl. 25. Burn v. Cole, ib. 415, 416.

(f) Thorne v. Watkins, 2 Ves. 35. (g) 1 Wooddes. 585. Pipon v. Pipon, Ambl. 27.

came to England with her children, and was domiciled there: A question arose on the death of some of the children under age, whether their shares of the property became distributable according to the law of England or of Guernsey; and it was held, that the law of England was to govern the succession, the domicil of the children being (according to the opinion of foreign jurists, our own law being silent on the subject) to follow the domicil of the surviving parent, where no fraudulent intention can be imputed. But fraud may be imputed where no reasonable cause appears for the removal. (h)

SECT. II.

Of distribution by the custom of London.

I PROCEED, in the last place, to consider the customs of the city of London on this subject, and also of the province of York, and the principality of Wales; which having peculiar customs of distributing intestate's effects, are expressly excepted from the operation of the statute.

Although the restraints in regard to the power of making wills, which subsisted in those respective districts, are now removed by different statutes; namely the 4 & 5 W. & M. c. 2, explained by the 2 & 3 Ann. c. 5, for the province of York; the 7 & 8 Wm. 3, c. 38, for Wales; and the 11 Geo. 1, c. 18, for London; by which persons residing in those several places, and liable to those customs, are empowered to dispose of all their personal estates by will, and the claims of the widows, children, and other relations to the contrary are totally barred; yet those customs remain in full force

(h) Potinger v. Wightman, 3 Meriv. Rep. 67.

with respect to such property of an intestate, (a) or where the deceased freeman agreed by writing, in consideration of marriage or otherwise, that his personal estate should be distributed according to the same. Their nature and incidents

therefore demand now our attention.

[389] In the city of London, (b) and in the province of York, (c) as well as in the kingdom of Scotland, (d) and therefore, probably also in Wales, (e) (respecting the latter of which, little information is to be collected, except from the statute of Wm. 3,) the effects of the intestate, after payment of his debts, are in general divided according to the ancient doctrine of the pars rationabilis, (f) to which I have before alluded. (g)

And first, as to the custom of London; if a freeman of the city die, leaving a widow and children, his personal property, after deducting her apparel, and the furniture of her bed-chamber, is divided into three equal parts, one of which belongs to the widow, another to the children, and the third to the administrator in that character. If only a widow or only children, they shall respectively in either case take one moiety, and the administrator the other. (h) If neither widow nor child, the administrator shall have the whole. (i)

The portion of the administrator is styled in law the dead man's part. It is so called because formerly, as we have seen, (k) the ordinary or his grantee was to dispose of it in masses for the deceased's soul. But after the disuse of this [390] superstitious practice, the administrator was wont to apply it to a better purpose, that is to say, for his own benefit; (7) till the legislature thought it was capable of an ap

(a) 2 Bl. Com. 493, 517, 518. L. of Test. 194. 3 P. Wms. 19, in note.

(b) Redshaw v. Brasier, Ld. Raym. 1329. 4 Burn. Eccl. L. 387.

(c) 4 Burn. Eccl. L. 398. (d) Ibid. 421.

(e) Ibid. 423, 442.

(ƒ) 2 Bl. Com, 518. Off. Ex. 97. (g) Supra, 81.

(h) Northey v. Strange, 1 P. Wms.

plication still better; and accordingly, by the stat. 1 Jac. 2, c. 17, it was declared, that it should be subject to the law of distributions.

Hence, if a freeman die worth eighteen hundred pounds personal estate, leaving a widow and two children, this estate shall be divided into eighteen parts; of which the widow shall have 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 leave a widow and one child only, she shall still have eight parts as before; and the child shall have ten, six by the custom, and four by the statute; if he leave a widow and no child, the widow shall have three-fourths of the whole, two by the custom, and one by the statute; and the remaining fourth shall go by the statute to the next of kin. (m)

A posthumous child shall come in for his customary share with the other children. (n) But the custom extends merely to the wife and children of the freeman, and not to his grandchildren. (o)

Hence if a freeman die intestate, leaving a wife but no child, yet if there hath been a child, and there be any legal [391] representatives, that is, lineal descendants of such child, they are admitted to his distributive share of the dead man's part under the statute, though they are entitled to no part of his share by the custom. In that case, therefore, of the dead man's part by the statute, the wife shall have onethird, and the representatives shall have the other two-thirds; so that, dividing the whole personal estate into six parts, she shall have four, and the representatives two.

If there be neither wife nor child, nor such representative of a child, the whole shall be subject to the statute of distribution. (p)

(m) 2 Bl. Com. 518. L. of Test.

209.

(n) Walsam v. Skinner, Prec. Chan. 499. L. of Test. 203. 11 Vin. Abr. 200. Gilb. Eq. Rep. 155.

(0) Northey v. Strange, 1 P. Wms.

341. Fowke v. Hunt, 1 Vern. 397. Regina v. Rogers, 2 Salk. 426. L. of Test. 210.

(p) L. of Test. 192, 221, 222. 1 Vern. 200.

The custom attaches, although the freeman neither resided, nor died, (q) nor left property (r) within the city.

In respect to the widow, I have already mentioned that she is entitled to her apparel and the furniture of her chamber, which is called the widow's chamber; (s) or, in lieu of it, in case the estate shall exceed two thousand pounds, it has been said that she is entitled to fifty pounds. (t) The privilege of the widow's chamber is analogous to her right to paraphernalia in general cases, and, like that, shall in no case be exercised to the prejudice of creditors. (u)

[392] If she be provided for by a jointure before marriage in bar of her customary part, she is put in a state of nonentity with regard to the custom only; (w) but she shall still be entitled to her share of the dead man's part under the statute of distributions. (x) But if the jointure is expressed to be in bar of her dower without saying more, this shall not bar her of her customary share of the personal estate, for land is wholly out of the custom. (y) Such also is the case, if the intestate covenant to lay out money in a purchase of land by way of jointure, for the money has in equity all the qualities of land. (≈)

And à fortiori she shall not be excluded from her customary share, if the settlement be so expressed as if it contain a proviso, that she shall not be barred or deprived of her right to dower, or of taking any other gift, provision, or be

(q) L. of Test. 202, 220. Spencer's case, 1 Roll. Rep. 316. Wilkinson v. Miles, 1 Sid. 250. Harwood's case, 1 Ventr. 180. S. C. 1 Mod. 80. Rutter v. Rutter,1 Vern. 180. Chomley v. Chomley, 2 Vern. 48, 82. Webb v. Webb, ib. 110.

(r) Priv. Lond. 288. (s) 2 Bl. Com. 518.

(t) 7 Vin. Abr. 2, tit. Customs, B. 2. Briddle v. Briddle, 4 Burn. Eccl. L. 388.

(u) Swinb. p. 6, s. 13.

(w) Hancock v. Hancock, 2 Vern. 665. Blunder v. Barker, 1 P. Wms.

644. Cleaver v. Spurling, 2 P. Wms. 527. Lewin v. Lewin, 3 P. Wms. 16. Pusey v.Desbouverie,315. Medcalfe v. Medcalfe, 1 Atk. 64. Morris v. Burroughs, 403. Tomkyns v. Ladbrooke, 2 Ves. 592.

(x) Benson v. Bellasis, 1 Vern. 15. 2 Chan. Rep. 252. Whithill v. Phelps, Prec. Ch. 327.

(y) 1 Eq. Ca. Abr. 158, 159. Ba bington v. Greenwood, 1 P. Wms. 531. Blunderv. Barker,647. Babington v. Greenwood, Prec. Chan. 505. L. of Test. 214.

(2) S. C. 1 P. Wms. 532.