It still remains to consider the case of property not reached by the provisions of the will, such as a residue after all the debts and legacies are paid, with no residuary or other legatee named. In such a case the early rule was, that the executor was entitled to the surplus. He was practically a general residuary legatee by implication. This was but a presumption of the testator's intent, and could be rebutted by a contrary intent appearing from the instrument, in which case the executor would be held in equity to be a trustee for the next of kin. Thus, if the testator professed to dispose of his whole estate, though he in fact failed to do so, the executor will be a trustee.2 This view will be strengthened by a request to executors to accept the office. In some cases nice distinctions were taken whereby the executors took the surplus as their own, and free from any trust. This doctrine was in the end unsatisfactory, and the rule was changed in England by statute, requiring that the executor should not claim to his own use unless the intent of the testator that he should do so appeared from the will. The rule as to the presumption was thus reversed, and the executor no longer takes the residue by implication. The whole subject is thus a matter of intention, to be collected from the terms of the will. If there be express words of trust, the case is perfectly clear. The rule has also disappeared from American law, and any surplus is distributable among the testator's next of kin, in accordance with the Statute of Distributions. - SECTION II. Succession in Case of Intestacy. By the common law, the personal property of an intestate vested in the bishop, or ordinary, who was required to devote it to pious uses, or, in other words, to the purchase of masses to be chanted for the repose of the soul of the deceased. This was, in a sense, to appropriate it to the use of the intestate, the prayers being assumed to be available to him in the world where he was supposed to be. The opposing theory, advocated by Lord COKE, in Hensloe's Case, if ever plausible, is no longer so, since the publication by the English government of the ancient authority on which Lord COKE rests his opinion. That in no respect sustains him. This was long ago perceived by JOHN SELDEN, who refuted Lord COKE. The "ordinary," or bishop, had jurisdiction to dispose of the property in the way above described, until the time of the Protestant Reformation, when the saying of 1 Dawson v. Clark, 15 Ves. 409; s. C., 18 Id. 247. 2 Oldham v. Carleton, 2 Cox Eq. 399. Giraud v. Hanbury, 3 Mer. 150. • Williams v. Arkle, L. R. 7 H. of L. Cas. 606. 7 Coke's Reports, Part 9, 36 b, 38 b. 8 Rotuli Literarum Clausarum (Close 4 See Barrs v. Fewkes, 2 Hem. & M. 60. Rolls), 7 Henry III. memb. 16, p. 537. 61 Wm. IV. c. 40. masses, having been declared by Parliament to be superstitious, was no longer allowed by the courts. The practical result was, that the administrator, appointed by the ordinary under the authority of an early English statute, took the whole estate. This was a point, however, much in controversy between the probate court and the common-law courts. The probate court would require distribution among the next of kin, and require a bond from the administrator to that effect. The common-law court, holding that the administrator was entitled to the estate, would declare the bond void, and, where the circumstances admitted of it, would prohibit the probate court from compelling the administrator to account. To settle this controversy, the Statute of Distributions was enacted, providing for distribution among the widow and next of kin. This statute did not extend to the estate of a wife, so that the husband, if there be no supplementary statute, continues to take her assets as at the.common law. The Statute of Distributions was borrowed from the Roman law, as found in the 118th Novel of Justinian. The substance of Justinian's legislation, modifying prior rules, was as follows: Succession was made to depend on the nature of relationship, whether ascendant or descendant or collateral. The claimants could be arranged into five classes: (1) Descendants, all of whom shared in the estate without reference to degree if no living ancestor intervened. If all the descendants were of the first degree (son or daughter), the estate was divided equally (per capita); if not, then the division was made according to "stocks" (per stirpes). In other words, the division was made as if all the sons or daughters not living, but leaving descendants, were still living. The shares of any that were dead were subdivided among their descendants. (2) The next class included ascendants. In this case the nearest ascendant (father, mother, etc.) excludes the more remote, without reference to sides. Ascendants in equal degree on either side share the succession. The brothers and sisters of the whole blood are members of this class. The sons and daughters of one who is dead represent his share, but the grandchildren do not take. The mode of subdivision among the various members of this class is intricate, and unnecessary for the present purpose to be detailed. (3) There being no members of the first and second classes, brothers and sisters of the half blood succeed. The rule of representation is the same as among the members of the second class. (4) The next class includes all other collateral relatives. No distinction is henceforth made between relatives of the whole blood and of the half blood. They 1 Edwards v. Freeman, 2 P. Wms. 435, 447. take the succession according to the proximity of relationship. Uncles and aunts, and their descendants, would be the nearest of kin. Special rules govern the relation of husband and wife. The English Statute of Distributions is not an exact reproduction of Justinian's Novel, but it closely resembles it. They are alike in making the classes of successors depend upon nearness of relationship; in the doctrine of representation, not carried in either case in collaterals beyond brothers' and sisters' children, and in making certain distinctions as to the half blood. So in the American States, the Justinian legislation has had large influence. Great stress was laid by the Roman law upon an equality of advantages among the members of the respective classes. The same rule was applied as to land. From this the common law widely departed in the doctrine of primogeniture. A further rule in the direction of equality, in Roman law, is the doctrine of "collation of goods." This came into the common law in the distribution of the personal property of an intestate, being known as the doctrine of "advancement." By "collation" is meant the duty of one of several distributees to bring into the common fund such advances or gifts as were made to him in his lifetime by the intestate, or, what is equivalent, to submit to be charged with such advances as a part of his share in the succession. (1) Advancements. To descendants. - This word is used in a variety of senses in law. It is only proposed here to consider it in connection with the Statute of Distributions. It is a settled rule that if one of the share-takers under that statute has received from a parent, or from one standing in the place of a parent, something to establish him in life, or a so-called "provision," he must "collate" the amount so received before taking his share in the intestate's estate. The English equivalent expression is "hotchpot." Sometimes there is a clause in a will providing for "collation." This is otherwise called a "hotchpot clause." 1 1 Section 5 of the Statute of Distributions, (22 & 23 Car. II. c. 10) is as follows: "One-third part of the surplusage (after payment of debts) to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the in testate in his lifetime, by portion or portions, equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made; and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime, by portion not equal to the share which will be due to the other children by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate, to be distributed The principle on which the doctrine of advancement rests is, that as the aim of the statute is to make the children's portions equal, any payment made by a father out of the common fund for a particular purpose, at the son's desire, if in considerable amount, must be made up before the latter may participate in the distribution. The payment is the material thing. The court does not look to the application of the money. In a recent case, an advancement was defined to be a sum of money given by a parent to establish a child in life, or to make a provision for a child. In this case some eight particular inquiries were put to the court. The following were held to be advancements: admission fee paid to one of the Inns of Court of a child intended for the Bar; price of a commission of one entering the army; price of the outfit also; price of plant and machinery to start a child in business. The following were not deemed to be advancements: payment for instruction to a special pleader in the case of one intended for the Bar, this was regarded rather as preliminary education; passage-money of an officer and his wife going to India to join a regiment; payment of debts incurred by an officer in the army; payment to a clergyman to assist in housekeeping.2 It would seem that in the third case there would be an advancement if the payment of the debts was necessary to his continuance in the army.3 The subject of advancement in cases of intestacy is fully recognized in this country, and is extended to real as well as personal estate, there being no such exception as to the "heir at law" as is found in the English Statute of Distributions. The phraseology of the statutes must be considered, as it is likely to vary to some extent from the English statute. There are two such statutes in New York, which must be construed together. One concerns the case where the intestate leaves no real estate, and the other where he does leave it.5 (a) The word "children," as used in the former statute, is equivalent to "descendants." So that the rule of advancements to a child may be invoked by a grandchild entitled to a share in the estate.R to such child or children (as were so advanced, etc.), as shall make the estate of all the said children to be equal as near as can be estimated." Then follows a clause to the effect that the heir at law should not be obliged to bring his land derived from the intestate into hotchpot. This is not applicable to descents in this country. (a) See ch. 686, of the Laws of 1893, amending § 2733 of the Code of Civil Procedure, and embodying therein the provisions formerly contained in the Revised 1 Boyd v. Boyd, L. R. 4 Eq. 305. 4 Beebe v. Estabrook, 79 N. Y. 246. 52 R. S. 97, §§ 76-78; 1 R. S. 754, §§ 23-26. 6 Beebe v. Estabrook, supra. Statutes concerning the distribution of an estate consisting wholly of personal property where a child has been advanced by the decedent. Advancements depend, in principle, upon the intention of the intestate, which may be shown from extraneous sources, such as entries in his bocks. Where there is no specific evidence of intention, a presumption is raised that the money paid is or is not an advancement according to the principles derived from the English cases already cited. (2) To a wife. -The Statute of Distributions gives a part of the intestate's property (one third) to a wife. This third may be received by way of advancement in such a manner as to disentitle her from claiming her "thirds." This point resembles a rule in the law of dower of real estate. There may be a settlement, for example, so made as to require a wife to choose or "elect " whether she will take the provision in the settlement, or the amount allowed by the rule of law. The discussion is now confined to cases of intestacy, though a similar question may arise under a husband's will, as to whether the wife is bound to elect. The word "thirds," used in a settlement or will, is not confined to real estate, but is a general expression including the interest of a widow in any of her husband's property. It may, accordingly, include the share of personal property coming to the wife in case of intestacy. Whether the settlement deprives the wife of her share, is purely a question of construction. The court will adopt a reasonable construction of the words used. Where the language was, that a jointure was in full bar and satisfaction of any dower or "thirds" which she could or might claim at common law in the estates real, personal, or freehold of her intended husband, it was held that though she did not claim in the personal estate by "common law" in the technical sense, the fair meaning of that expression was "general law," and that she was barred.2 It will aid that construction if the settlement was based to some extent upon the husband's personal estate.3 Domicile as affecting the distribution of the estate of an intestate. There are two principal questions to be considered. First. By what law is it determined that a person dies intestate. Second. By what law, in case of intestacy, is his personal property to be distributed. With respect to the first question, it may be said that the fact of intestacy is governed by the rules prevailing in the law of his domicile at the time of his death. This rule may be modified by statutes. The reason for it is plain. Assume that the validity of any will that he may make is to be determined 1 Thompson v. Watts, 2 Johns. & H. 291. 2 Gurly v. Gurly, 8 Cl. & F. 743 (House of Lords). The case of Colleton v. Garth, 6 Sim. 19, was decided the other way, but the word “personal” was not used there, & Thompson v. Watts, supra; Davila v. Davila, 2 Vern. 724. |