been fully advanced, shall, without his bringing his advancement into hotchpot, be distributed by the statute equally amongst them all. [399] If such advancement exceeded his orphanage part, then, whether the excess shall go in satisfaction of his distributive share by the statute, or not, seems to depend on the provision being expressly in satisfaction of the orphanage part, or whether it be general, and without any stipulation. (m) The interest which a child has in such orphanage part is a mere contingency, and no present right, and therefore a release of it is not valid in point of law; but, if founded on a valuable consideration, shall operate as an agreement, and be binding in equity. (n) Therefore, a freeman's child, if of age, may in consideration of a present fortune, waive all claim to the orphanage part: as where the father, on the marriage of his daughter who had attained twenty-one years, agreed to give her three thousand pounds, and she covenanted to receive that sum in full of such share this, as there was no fraud in the transaction, was held in equity to be a good bar of the custom. (o) So if A., who is of age, marry a freeman's daughter, who is an infant, he may, on receiving an adequate portion, bar himself of any future right to a customary estate in virtue of the marriage by a release of all future right, or by a covenant to release it when it shall accrue. (p) Indeed, if the latter mode be adopted, the wife, if under age, would not be barred by the covenant; and in case of his death before the execution of the [400] release, she would by survivorship be entitled to the share, as a chose in action not recovered or received by her husband; but if he be living when the right accrues, as he clearly may release it, and his release will bind her, therefore it is reasonable he should perform his covenant. It is (m) Vide supra, 395. (2) Blunden v. Barker, 1 P. Wms. 636,639. Cox v. Belitha, 2 P. Wms. 273. (0) 2 Eq. Ca. Abr. 272. Lockyer v. Savage, Stra. 947. (p) Cox v. Belitha, 2 P. Wms. 272. Ives v. Medcalf, 1 Atk. 63. highly expedient that articles of this nature should be carried into execution; and that, when the father is bountiful to his children in his lifetime, he should have his affairs settled to his satisfaction at his death. (q) But such release shall be altogether ineffectual if in any manner extorted, or obtained by undue influence, (r) or without consideration. (s) These points are indeed less likely to occur, in consequence of the authority given to a freeman by the abovementioned stat. Geo. 1, of disposing by will of his whole personal estate, without regard to the custom. SECT. III. Of distribution by the custom of York-and of Wales. THE Custom of York, as it regards the widow, varies from that of London only in this respect, that she is allowed to reserve to her own use not only her apparel and furniture of [401] her chamber, but also a coffer box containing various ornaments of her person, as jewels, chains, and other articles of the like nature. (a) As relative to children, the custom of York differs in two material points from the custom of London. In the city, as we have seen, a child's orphanage part is fully vested till he attains the age of twenty-one. In the province it is vested immediately on the death of the intestate. (b) In the city, we may remember, the advancement of a child cannot arise out of a real estate. In the province the heir at common (9) Ibid. 1 Atk. 63. (r) Heron v. Heron, 2 Atk. 160. Blunden v. Barker, 1 P. Wms. 639. (s) Ives v. Medcalf, 1 Atk. 63. Morris v. Burroughs, 402. Heron v. Heron, 2 Atk. 161. Blunden v. Cox v. Barker, 1 P. Wms. 639. (b) 2 Bl. Com. 519. 4 Burn. Eccl. L. 398. law, who inherits any land either in fee or in tail, is divested of all claim to any filial portion. (c) And, however small in point of value the land may be in comparison with the personal estate, he is nevertheless excluded, (d) and even although the estate he inherits be only a reversion. (e) He is also barred, though the land devolved upon him by settlement made on his father's marriage. (f) Nor, in case lands held by a mortgage in fee descend to him before redemption, shall he be entitled to a filial portion; but on redemption of the mortgage, and payment of money to the [402] administrator, it seems he shall be entitled to such portion, because then he has nothing by inheritance, nor in fact has had any preferment. (g) The principles established in regard to advancement on the construction of the statute of distributions apply in general to such as is pursuant to the custom of this district; (h) but as here land as well as money constitutes an advancement, the heir at law under the custom is excluded by his inheritance of land, either in fee or in tail: (i) whereas such inheritance is no bar by the statute; but, as well under the custom as under the statute, younger children in respect to advancement are on the same footing. It is essential in order to the custom of York's attaching, that the intestate should be resident, at the time of his death, within the province; but for that purpose it is immaterial where his estate is situated. If a testator domiciled and resident at the time of his death in the province of York, make a will by which he appoints executors who do not take the residue of his personal estate beneficially, but make no disposition of the beneficial interest in that residue, such residue is to be distributed ac cording to the statute of distributions, and not according to the custom. (ii) In case a freeman of London shall die within the province, the custom of the city for the distribution of his effects shall prevail, and shall control the custom of the province of York. Therefore in that case the heir shall come in for a share of the personal estate; for the custom of the province is only local, and circumscribed to a certain district; but that of London, as above stated, follows the person, although ever so remote from the city. (k) [403] With these distinctions the custom of London and those of York in the main agree, and appear to be substantially the same. (7) Thus, if an intestate in the province of York die seised of an estate in fee-simple, leaving a widow and three sons; the widow in that case shall have one-third of the whole personal estate under the custom, the other third shall be divided equally between the two younger sons, and of the remaining third the widow shall take one-third under the statute, and the other two-thirds shall be divided equally among the three sons; for the heir is barred merely of his orphanage part, but not of his share, by the statute. In respect to Wales, (m) we may learn in general from the stat. 7 & 8 Wm. 3, c. 38, above referred to, (n) that the doctrine of the pars rationabilis extends to the intestate's effects within that principality; but the books contain no further information on the subject. (ii) Fitzgerald v. Field, 1 Russ. 416. (k) 4 Burn. Eccl. 416. Chomley v. Chomley, 2 Vern. 47, 82. Supra, 391. (D) 2 Bl. Com. 519. 1 Vern. 15, 134, 200, 305, 432, 465. 2 Ch. Rep. 255. L. of Test. 221, 222. Swinb. p. 3, s. 16. 4 Burn. Eccl. L. 398, et seq. (m) 4 Burn. Eccl. L. 424. Off. Ex. 97, in note, ibid. Suppl. 72. (n) Supra, 388. [404] CHAP. VII. OF THE POWERS AND DUTIES OF LIMITED ADMINISTRATORSOF JOINT ADMINISTRATORS. THERE are certain powers and duties which belong in common to all special and limited administrators. Whether the administration be committed durante minoritate, durante absentiá, or pendente lite, or whether such special and limited administration be granted with or without a will annexed, or in a general or restrictive form only, as ad usum et commodum infantis; they are all invested in some respects with the same authority. (a) They may perform all such acts as cannot be delayed without prejudice or danger to the estate. They may sell bona peritura, cattle which are fattened, grain, fruit, or any other substance which may be the worse for keeping: (b) They may pay debts which were due from the deceased at the time of his death, (c) or for the payment of them they may dispose of effects not perishable. (d) They may also in such [405] respective characters receive debts due to the deceased, (e) or may maintain actions for the recovery of the same (f) for, in all these and the like instances, the urgency of the case requires them immediately to act. They have also it seems, the privilege of retaining for debts owing to themselves. (g) If administration be granted generally during infancy, the (a) Walker v. Woolaston, 2 P. Wms. 576. (b) 3 Bac. Abr. 13. 11 Vin. Abr. 102, 103. 1 Roll. Abr. 910. Anon, 3 Leon. 278. 2 Anders. 132, pl. 78. Price v. Simpson, Cro. Eliz. 718. 5 Co. 9. Godb. 104. (c) Com. Dig. Admon. F. Vide Briers v. Goddard, Hob. 250. 5 Co. 29 b. 78. (d) 5 Co. 29 b. 2 Anders. 132, pl. (e) Com. Dig. Admon. F. Vide Anon. 3 Leon. 103. (f) Walker v. Woolaston, 2 P. Wms. 576. 1 Roll. Abr. 888. Bearblock v. Read,2 Brownl. 83. Slaughter v. May.1 Salk. 42. Ball v. . Oliver, 2 Ves. & Bea. 97. (g) Com. Dig. Admon. F. Semb. Raym. 483. |