York; another 7 & 8 W. III. c. 38. for Wales; and a third 11 Geo. I. 2. 18. for London: whereby it is enacted that persons within those districts and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow's children and other relations to the contrary are totally barred. So that now, throughout all the kingdom of England, a man may devise the whole of his chattels as freely as he formerly could any part thereof. But in case of intestacy, the statute of distribution expressly excepts and reserves the customs of the city of London and province of York. So that although the restraint of devising is removed by the statutes just mentioned, yet the ancient customs of London and York remain in full force with respect to the estates of the intestates d. And by the custom of the city of London, there is still a difference to what it is in most other parts of the kingdom in respect to the disposing the care of children e, as by the statute 12 Car. II. c. 24. any father under age, or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of twenty-one years. But if the father is a freeman of London, he cannot devise the disposition of c2 Black. Com. 493. By the statute 11 Geo. I. it shall be lawful for all persons who, after the 1st of June 1725, shall become free of the city of London, and for all who at that time shall be unmarried, and not have issue by any former marriage, to dispose of their personal estate. But if any person who shall be free of the city hath agreed or shall agree by writing, in consideration of marriage or otherwise, that his personal estate shall be distributed according to the custom of the city; or in case any person so free shall die intestate, his personal estate shall be subject to the custom. freeman of London, who had a son by a former marriage, married a A second wife. The son afterwards e Co. Litt. 88. the body of his child; and if he doth, yet the infant shall remain in the custody of the mayor and alderman f, who are guardians to the children of all freemen of London that are under the age of twenty-one at the time of their father's decease. So that if a freeman or free-woman die, leaving orphans within age unmarried, the court of orphans, which is held by custom time out of memory, before the lord mayor and aldermen of the city of London, shall have the custody of their body and goods; and the executors or administrators shall exhibit inventories before them, and become bound to the chamberlain to the use of the orphans, to make a true account upon oath; and if they refuse, they may be committed till they become bound". And their being bound in the spiritual court doth not excuse them from this custom, as they may still be compelled to give other security to the chamber of London k. And if any person intermarry with an orphan without the consent of the court, such person may be fined by them, according to the quality and portion of the orphan; and unless such person pay the fine, or give security to pay it, they may commit him to Newgate, to remain there till he submit to their orders'. A peer has no privilege for taking and marrying an orphan of London without licence m. He that marries an orphan without the consent of the court, must make a jointure before he receives the portion ". Upon the marriage of orphans, the custom is to appoint the common serjeant to treat and take security for the orphan o. As to intestacy, in the main the customs of London and York agree; but there are some variations, and in two principal points they considerably differ. The one is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testament P; and if they die f Priv. Lond. 287. B. Ibid. 288. h Ibid. 280. 287. i Law of Exec. 252. * 1 Roll's Abr. 550. Priv. London, 282, 283. n Priv. Lond. 286. • Laws of Lond. 67. P 2 Vern. 558. under that age, whether sole or married, their share shall survive to the other children 9. The other is, that in the province of York, the heir at common law, who inherits any land, either in fee-simple or fee-tail, is excluded from any filial portion or reasonable part'. As those variations will appear more conspicuous hereafter, we shall now proceed to take a view of those customs under two distinct heads. SECTION II. The Customs of the City of London as to Intestacy. Ir a freeman of London dies in London or elsewhere, intestate, though his estate doth not lie in the city, but elsewhere, his children are entitled to their share of his personal estate by the customs. And if the freeman dies, leaving a widow and a child or children, his personal estate (after his debts are paid, and the customary allowance for his funeral, and for the widow's chambert, are deducted thereout) is, by the custom of the city, to be divided into three equal parts, and disposed of in the following manner: to wit, one-third part thereof to the widow, another third part to the children, and the other third part (being taken out of the custom) is now, by the statute 1 Jac. II. c. 17. made subject to the statute of distribution; and so dividing the whole into nine parts, four-ninths belong to the wife, and five-ninths to the children ". And if a man dies worth 18007. leaving a widow and two children, the estate shall be divided into eighteen parts, whereof the widow shall have 9 Prec. Cha. 537. r Swinb. 231. 8 Priv. Lond. 288. The widow's apparel, and furniture of her bedchamber, in London, is called the widow's chamber. Black. Com. 518. In a case before Lord Parker, it was said that 2 the widow is entitled to the furniture of her chamber; or, in case the estate exceeds two thousand pounds, then to fifty pounds instead thereof. Briddle v. Briddle, 7 Vin. Abr. 200. u 2 Salk. 426. 1 Vern. 180. L. Raym. 1328. 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 leaves a widow and one child, she shall still have eight parts as before, and the child shall have ten, six by the custom and four by the statute w. And if there should be an after-born child, such child will come in with the rest for the customary share of the father's personal estate. If the freeman leaves 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 ". If he hath no wife, but hath children, the half of his personal estate belongs to his children, and the other half (being, as it is called, the dead man's part; because formerly the ordinary, or he to whom the ordinary committed administration, was to dispose of the same to pious uses for the benefit of the deceased's soul) is now distributable amongst the children by the statute". And if he hath neither wife nor child at the time of his death, then the whole belongs to the deceased, and is distributable by the statute. freeman's grandchildren, the custom doth not these, as hath been determined in several cases b. As to the extend to We may now observe what situation the widow must be in at the time of her husband's death, that she may be entitled to his personal estate; as whether there is any settlement whereby she may be barred of her customary part, or the part she may be entitled to under the statute of distributions; and also the situation the children must be in that they may be entitled; as whether any of them have been advanced, so as thereby to be barred in part or in whole of what they would otherwise be entitled to: which, after being considered, more will be said concerning the distribution. w 2 Black. Com. 518. * Prec. Cha. 499. y 2 Black. Com. 519. z 1 P. Will. 341. a Law of Test. 196. b 1 Vern. 367. 1 P. Will. 341. 2 Salk. 426. с If the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of nonentity with regard to the custom only; but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreement ; and if a freeman of London makes a jointure on his intended wife, and the same is expressed to be in bar only of her dower, or thirds of lands, tenements, and hereditaments, this shall not bar her of her customary share of his personal estated (1); yet it is otherwise, if it is said to be in bar of her customary parte. In respect to the part she will be entitled to under the statute of distributions; where a freeman, whose wife has been compounded with, dies intestate, his widow shall have such part as she is entitled to under the statute of distributions, if there are no express words in the agreement to exclude her f: but where a widower and widow being about to intermarry, and having only personal estate; by articles made before marriage, agreed, that in case the husband survived, he should have two thousand pounds only of his wife's personal estate, and the rest to be at her disposal, &c. and in case the wife survived, then she was to have two thousand pounds out of the husband's personal estate, without saying only or no more. The husband, being a freeman of London, died; and his wife brought her bill for an account of his personal estate over and above the two thousand pounds, and so to be let into the customary share thereof: but it was decreed, that the' equitable construction of those articles must be to exclude the wife from any further share out of the estate; and, though the words c 2 Black. Com. 519. Eq. Cas. Abr. 158, 159. e 1 P. Will, 530. If there be a proviso in a settlement that the wife should not be barred, she will be entitled to her shares by the statute and custom. f Prec. Cha. 327. (1) 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. 1 P. Wms. 532. |