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William Blackstonep; and his reason given for it is, because that is the rule of the civil law, and that as the ecclesiastical court is the judge of every testator's capacity, this case must be governed by the rules of the ecclesiastical law; so that, as the learned author says, no objection can be admitted to the will of an infant of fourteen, merely for want of age; but if the testator was not of sufficient discretion, whether at the age of fourteen or four-and-twenty, that will overthrow his testament.

The Custom of the Province of York as to Intestacy.

We have already seen, that here, as well as in the city of London, a man may by will dispose of the whole of his personal estate to whom he thinks fit, and that the claims of the widows, children, and other relations to the contrary, are totally barreda. But as to intestacy; if a man be an inhabitant or an householder within the province of York (5), and dying there or elsewhere intestate, and at the time of his death hath a wife, and also a child or children; his goods (after paying his debts, and deducting the widow's apparel and furniture of her bed-chamber r) shall be divided into three parts; whereof the wife ought to have one part, the

'P 2 Com. 497.

their own persons; which things have , 9 Page 130.

been usually omitted out of the in* By the general and ancient cus- ventory of their deceased husband's tom of the province of York, widows goods, unless the husband was so have been tolerated to reserve to their far indebted, as the rest of his goods own use, not only their apparel and would not suffice to discharge the a convenient bed, but a coffer with same. Swinb. 422. divers things therein necessary for

(5) It is to be observed, that this custom not having anciently prevailed in what is now the diocese of Chester, it does not at present extend to it. For the custom of York never attached upon any part of the province which was not so during the reign of Henry VIII., and Chester was annexed thereto subsequently to that period. 3 Ves. 338.

child or children another part, and the third part (which is called the death's or dead man's part) is distributable by the statute ; of which dead man's part, by the statute, the wife shall have one-third, and the other two-thirds shall be distributed amongst the children : so that, dividing the whole into nine parts, the wife shall have four and the children five; in like manner as has been mentioned concerning the. custom of the city of London s. But if by settlement a jointure is limited to the wife, in bar of all her demands out. of the personal estate of her husband by virtue of the custom, in such case it is as if there were no wife with respect to the customary part ; so if it is in bar of all her demands, by virtue of the said custom, or otherwise, she shall be debarred also of any distributive share by the statutet. And as to the children; if the intestate hath a wife, and a child or children, which child is heir to the intestate, or which children, were advanced by the father in his lifetime ; in this case it is as if he had no child; and therefore his goods shall be divided into two parts; whereof the wife is to have one part to herself, and the other half is distributable by the statute a, as we shall see more of hereafter. If the intestate hath neither wife nor child at the time of his death, his whole personal estate (the funeral expences, and other necessary charges being first deducted) shall be disposed of in due course of administration, as now falling under the direction of the statute of distribution w; and consequently must be distributed in such manner as was shewn in a former chapterx.

As to the child's being excluded as being heir ; this, we may observe, is one of the main points wherein the custom of the city of London and province of York differ; as in the former, whatever real estate the child has, either by descent from his father, or conveyed to him by his father in his lifetime, it will in po wise bar the child from receiving his share of his father's personal estate ; whereas here he will be totally barred from receiving any part thereof by the custom, if he should have any real estate by descent, or otherwise, from his father. For here not only the heir of lands holden in fee-simple is thereby barred from the recovery of a filial portion, but he also that is heir in fee-tail, either general or special y; and although the lands be of very small revenue, perhaps not more than a noble yearly rent, and the goods very great in comparison of so small a rent (as may be 10001. or more ;) even in this case the heir is barred from the hope of a filial portion?: and not only that heir is excluded from a filial portion who doth enter upon the land immediately after his father's death, but he also who is heir in reversion, is heir; and being heir, can have no filial portion: so by this it may fall out very hard with the heir in reversion; for if he should die in the mean time, before he could lawfully enter to those lands which be his only in reversion, he could reap no benefit either of his father's lands or goods ; yet he must be content with his lot, and though not he, but his shall enjoy the land at the time appointeda. And although the heir receive the land by settlement made upon his father's marriage: yet he is heir so as to be excluded thereby from a filial portion; as where the father having by settlement on his marriage settled his real estate to himself for life, part to his wife for her jointure, and the remainder of the whole to his first and other sons in tail, remainder to his own right heirs ; the eldest son was thereby excluded by the custom of the province of York, from having any share of his father's

s Page 132. ti Vern. 15. u Swinb. 220.

w Swinb. 220. * Chap. iii.

y Estates tail may be either gene- tate tail female general. Tenant in ral :-or general to male or to fe- tail special is, where the gift is remale; - or special; - or special to strained to certain heirs of the donee's male or to female. Tail general is, body, and does not go to all of them where lands and tenements are given in general. As where lands and to one, and the heirs of his body be- tenements are given to a man and gotten. By which manner of be- the heirs of his body on Mary his now queathing, how often soever the do- wife to be begotten; hereby no issue nee in tail marries, his issue by every can inherit, but such special issue as such marriage is in successive order is engendered between them two; capable of inheriting the estate tail not such as the husband may have per formam doni, that is, by the form by another wife, and therefore it is of the gift. If lands are given to a called special tail. Black. b.ii. c. 7. man, and the heirs male of his body 2 Swinb. 231, 232. begotten, it creates an estate in tail a Ibid. 231. male general; and vice versa, an es

personal estate b. And if the heir hold lands by deed of feoffmente in mortgage, or with clause of redemption; that is to say, upon condition that if the feoffor pay unto him a sum of money at a certain day, that then the feoffer may reenter, and the deed or grant be void ; yet in the mean time, until the condition be performed and the land redeemed, if he should demand any filial portion he is barred; because as yet he is heir to the deceased. But if the lands should be redeemed, and the money satisfied, then it is thought that he may recover a filial portion; because then he is not heir to the deceased, nor the advancement certain which was made by the father in his lifetimed (6). · Having thus seen how the heir may be barred from receiving a filial portion by having lands from his father by descent or otherwise ; we come now to consider what advancement will bar a child from receiving a filial portion. But before we proceed with this, we may here just take notice, that what has been said concerning the heir being barred, relates solely to his being barred of what he would be en

Constable and Constable. 2 Vern. surance to pass lands and tenements; 375.

for it amounts to a feoffment, the c A feoffment, or deed of feoff.. use drawing after it the possession ment, is the ancient method of con- without actual entry, and supplying veyance. 2 Black. Com. 310. Yet the place of livery and seisin resince the statute of 27 Hen. VIII. quired by the deed of feoffment, c. 10. of uses, the conveyance by 2 Vern. 35. lease and release has taken place of d Swinb. 232. it, and is become a very common as

(6) When the heir, by the common law, takes lands from his father, not as heir at law. but by a devise, expressed in such termís as to make him a purchaser, he shall not be debarred from the recovery of a filial portion, Swinb. 232. ; for he may refuse or waive the bequest, and recover a filial portion according to the custom of the country. Ib. 233. Nei. ther shall he be so debarred by the descent of copyhold, or, as it seems, of customary lands, upon him from his father. Ib. 232. And the youngest son, who is heir in boroughenglish, seems not to be heir, so as thereby to be debarred from a filial portion ; for he is not heir according to the course of the common law, but by a particular custom. 4 Burn. Eccl. Law, 465.

titled to by the custom, and not what he will be entitled to by the statute ; which may be perceived by what will be said hereafter.

As concerning the advancement, whereby a child may be barred from receiving a filial portion; this advancement must be by the father in his lifetime. For although another bestow any advancement, be it as much as it may, this preferment by another is no bar to the child from the recovery of a filial portion of his father's goods; much less where the child hath advanced his estate by his own industrye. And if the father bestow any thing upon another for his child's sake, or for the good of his child ; this is no such preferment as will hinder a child of his filial portionf; and therefore if the father bestow any thing upon a man of trade, to take his son for an apprentice, and to teach him his mystery, this is no advancement to the effect aforesaid 8; or if the father bestow any thing upon a schoolmaster, or tutor in the university, for the increase of his child's knowledge in learning, or for any degree there to be obtained ; this is no advancement to exclude the child of a filial portion".

The advancement must be a provision made by the father of some competent thing for the maintenance of his child, whereby he may be the better enabled to live after his fa. ther's death; for if the father bestow any thing upon his child to any other end, as money in his purse to spend among his equals, or to buy him suits of apparel or books ; yet this is not to be holden for an advancementi. - If a portion be given to a child in lieu and satisfaction of a filial portion, and the child be of age, and in consideration thereof doth release his future filial portion; then the child will be barred of any future claim : as a child when of age, for a valuable consideration, may release his future filial portion *. - If the father in his lifetime bestow a lease upon his child, or grant unto him an annuity for life out of his lands, though it be in such a manner as the child shall not reap any benefit

• Swinb. 233.

f Ibid.

n Swinb. 239.
i Ibid.
* 4 Burn's Eccles. Law, 395.

& Ibid.

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