The personal estate of an intestate, domiciled in this country at the time of his death, is distributable, if he leaves a widow and family, as follows: one-third to his widow and the remaining two-thirds to his children and the representatives, i.e., descendants, of any of his children who are then dead. The children of deceased children take per stirpes, i.e. they take by representation the share which their parent would have taken if he or she had survived. In a case which came before the Court in 1888, it was decided that the division of personal estate among descendants of an intestate is always to be per stirpes (1). If there were no children, nor any descendants of them, then, according to the law prior to the Intestates' Estates Act, 1890, one moiety of the estate went to the widow. The other moiety was distributable equally between the next of kin of the intestate who were in the same degree, or their descendants. If there were no next of kin it went to the Crown. The law as to the interest which the widow took in her deceased husband's real property has been previously considered. (See ante, p. 30.) If there is no widow, all the estate is distributable amongst the children equally, and if there is no child, then amongst the next of kindred, in equal degree, of the intestate or their descendants. No representation is admitted among collaterals after brothers' and sisters' children. The general effect of the provisions of the statute when the intestate leaves no widow has been well summed up by a learned judge (the late Sir John Wickens), as follows:-"The general effect of the provisions is, that (supposing there to be no wife) the estate, in case there are descendants, shall go between the children and their representatives; and in case there are no descendants, shall go case of a fee simple upon the basis of twenty years' purchase of the annual value by the year at the date of the death of the intestate as determined by law for the purposes of property tax, less the gross amount of any mortgage or other principal sum charged thereon, and less the value of any annuity or other periodical payment chargeable thereon, to be valued according to the tables and rules in the schedule annexed to the statute 16 & 17 Vict. c. 51 (the Succession Duties Act, 1853), and in the case of an estate for a life or lives according to the said tables and rules. "6. The net value of such personal estate as aforesaid shall be ascer tained by deducting from the gross value thereof all debts, funeral and testamentary expenses of the intestate, and all other lawful liabilities and charges to which the said personal estate shall be subject." (1) Re Natt. Walker v. Gammage, 37 Ch. D. 517, where it was also held that the term "next of kindred" in sect. 7 of 22 & 23 Car. 2, c. 10, does not include the issue of children of the intestate; but children and their descendants are all included under the term "children," which means children living at the death of the intestate, either themselves or in their descendants. amongst the next of kin or their representatives; and that the division is per capita where all the takers claim in their own right; and per stirpes where they, or some of them, claim as representatives of another person. It has been long settled that the word representatives' in this Act includes only 'descendants.' It has been further settled that where all the persons entitled to claim are collaterals equally near of kin, for instance, second cousins twice removed, they take per capita, because they all take in their own right; but that where there are no ancestors or descendants, and the nearest of kin are brothers and sisters, but there are also children of dead brothers and sisters, the latter, though not of the next of kin, may claim as representatives of the brother or sister from whom they spring, and may stand in the place of that brother or sister for the purpose of distribution; so that the distribution is per stirpes. This privilege is expressly limited by the statute, and does not extend to any more remote descendants of brothers or sisters than their children, and does not apply at all to any case where the next of kin are all more remote than brothers and sisters. There are therefore two cases provided for by the statute, viz. (1), where there are children, or the representatives-i.e., the descendants of children; (2), where there are no descendants" (1). All children who have been advanced by the parent in his Hotchpot. lifetime must bring the portion so advanced into "hotchpot," (2) as it is called, so as to make the final division equal. The heir-at-law is not, however, obliged to bring any estate in land, which he has acquired by descent or otherwise from the intestate, into hotchpot in this way (3). The principle of hotchpot is well illustrated by a case which was decided in 1878 (4). A husband had covenanted under a separation deed to pay an annuity of £200 to each of his daughters during their respective lives. The annuities were, however, to cease if the husband and wife lived together again, (1) In re Ross's Trusts, 13 Eq. 292. (2) The origin of the term "hotchpot," which corresponds to some extent, though with essential differences, to the collatio bonorum of the Roman law, is thus given by Littleton: "And it seemeth that this word hotchpot' is in English a pudding; for in this pudding is not commonly put one thing alone, but one thing with other things together. And therefore it behoveth in this case to put the lands given in frank- (*) Hatfield v. Minet, 8 Ch. D. Hotchpot. which event never happened. The husband survived his wife and died intestate, and the Court of Appeal decided that so much of the annuities as had been paid during the father's life was not to be treated as advancements, but that the value of each annuity at the time of his death was to be estimated and that amount brought into hotchpot. "Having regard," said the Court, "to the principle of the rule of hotchpot, and the words of the Act of Parliament, it is the duty of the Court to divide the money as nearly as it can do, having regard to all the circumstances of the case, and to have regard to all those circumstances for the purpose of ascertaining what really is an equal division of the estate of an intestate between his children at his death so as to do equal justice between them." Husband and wife. The legal representatives of children to the remotest degree are admitted, but they must, as we have seen above, be descendants, strictly speaking. Thus it has been decided that if a son of the intestate has predeceased him, leaving a widow and child, the child will take the whole of his father's share (1). A husband surviving his wife is entitled to all her undisposedof personal property in possession, including her leaseholds, and he is also entitled to all her undisposed-of choses in action, as her administrator. It has been decided (2) that the Married Women's Property Act, 1882, has not altered the devolution of (1) Price v. Strange, 6 Madd. 161, 162. (2) Re Lambert's Estate. Stanton husband nor wife is entitled as next The alterations introduced into the law by the two cases: Re Ross's Trusts and Re Natt, to which we have referred (ante, pp. 342, 343), and by the Intestates' Estates Act, 1890, have been summed up in some verses which appeared in the 'Law Journal,' October 18th, 1890, and which we here reproduce, by permission, with a slight verbal alteration. The original verses, which are too lengthy to be here given, appeared in the 'Law Journal,' January 5th, 1872. After Stanza 2, which states that in default of issue the widow will take one-half of the personalty, the writer proposes to add This used to be so, But now you must know, To five hundred she'll first have a claim; And if of the store There remains any more, She'll of that get her half all the same. But if the deceased Was of realty possessed," The law has considered it fair, the undisposed-of separate personalty of a married woman. Accordingly, on the death of a married woman without disposing of her separate personalty, the quality of separate property ceases, and the right of the husband to such undisposed-of personalty accrues as if the separate use had never existed. That the claim should not all On the moveables fall, But the land must contribute its share. 53 & 54 Vict. c. 29. After the eighth stanza, to the effect that the issue if all in equal degree will take per capita, the writer proposes to add When grandchildren and great- The division per stirpes is made Respectively stand In the place of their parents who're dead. Re Ross's Trusts, Law Rep. 13 Eq. 292; 41 L. J. (Ch.) 130. BUSINESS OF THE COURTS. INTRODUCTORY. And now, having considered to some extent the leading principles of the law with regard to property, we pass on to another main division of our subject, that which is more intimately connected with the administration of justice by the Courts. Hitherto our task has been to consider that portion of the law which is chiefly concerned with what is technically termed non-contentious business. For the future our attention will be to a great extent occupied with that which is concerned with contentious business. Before, however, proceeding to consider the present state of the law and practice administered by the Courts in this country it will be desirable to notice very briefly the condition of things which existed at a comparatively recent period. Prior to the 2nd November, 1875 (1) (the date when the Judicature Acts came into operation), a person who came before a judicial tribunal to seek relief against another was obliged to employ different forms of procedure in different Courts. Thus, in the Court of Chancery, proceedings were commenced by filing a Bill or Information; In a Court of Common Law by serving a writ, to be followed by a declaration; In the Court of Admiralty by a cause; In the Court of Probate by citation. Now the Judicature Acts and Rules have, to a very large extent, introduced uniformity in this respect into the practice of the different divisions of the Court. They provide that all these processes shall be instituted in the High Court of Justice by an "action" (2), and that every action shall be commenced by a writ of summons, which shall be indorsed with a statement of the nature of the claim or the relief required in the action, so that the defendant may have notice of what the plaintiff (1) 38 & 39 Vict. c. 77, s. 2. (2) R. S. C. 1883, Order 1. r. 1; Order II. r. 1. See post, pp. 701, 703, et seq. |