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will in writing of their whole landed property (except their copyhold tenements), concerning which particulars we shall treat in the subsequent part of our work, and therewith begin the ensuing chapter.

SECTION IV.

Observations on the Use and Benefit a Will may be to a Man's Family or Relations.

HAVING just now shewn that every man is at liberty to make a will, and thereby to dispose of his real estate, and in a former part of our work, that he may by will dispose of the whole of his personal estate to whom he thinks fit Ꭹ ; likewise that infants-at the age of fourteen years, if males, and twelve if females, may make wills, and thereby dispose of their personal estate; we shall here make some brief observations on the use and benefit the same may be to such of a man's family or relations who would be legally entitled to his estate and effects, in case he died intestate. And to this end we will first suppose a man to have relations, several of whom may be entitled to the administration of his estate, and he makes his will, and appoints one or more executors, and thereby gives his relations his personal estate, just in the same proportion as the law would entitle them thereto in case he had died intestate, and left it to the disposition of the law: now by means of the will, for which some at first sight may be apt to think there was little occasion, much altercation may be prevented; as thereby all disputes and controversies concerning who should have the administration will be totally excluded, no room being left for dispute; and therefore it is probable very considerable expence will be saved: for, as we have seen in the first chapter of this book, there may be room for contending who should, and who should not have the administration; and in the second chapter, we may perceive there are many y Page 129.

circumstances that might excite those entitled thereto, rigorously to contend for it; which has too often been the case, and the determining who should have the administration has been attended with such expense and detriment to the parties concerned, as ultimately to render the intestate's personal estate of little or no benefit to them.

Next let us suppose a man to die intestate, leaving a wife and several children who are of age, and equally entitled to the administration with their mother; yet all amicably agree to suffer their mother alone to administer their deceased father's estate; and that one or more of those children have been advanced by their father, either in part or to the full amount of their share of his personal estate. Now although those children may all have amicably agreed to suffer their mother to administer, yet it may not only require some consideration for the administratrix to ascertain this advancement, and so to make a just and equal distribution amongst them, pursuant to the statute of distribution; and, if the intestate be a citizen of London, or an inhabitant of the province of York, where the customs interfere with the statute, to make distribution pursuant to those customs and the statute; but it will probably require much more consideration, as well as a deal of pains and trouble for the administratrix, after she has allotted each of those children their lawful share, to convince them that it is the whole each can demand; so that all may be satisfied of justice being done, and thereby be prevented from calling in the aid of counsel, or some person learned in the law, if not the aid of a court of equity, to satisfy them respecting their shares of their deceased father's estate; which latter aid having been often required when the former could not satisfy, the consequence has been, that considerable sums of money have been spent in litigation, and that not only to the great loss, but even to the utter ruin of some of the intestate's children; which might totally have been prevented, had he made a will with good advice, as by the assistance of some person sufficiently versed in the law.

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Again, let us suppose a man to die intestate, leaving no wife, but a child or children, who may not be of the age the law requires to administer his estate. Here as concerning the personal estate, the ordinary assigns some person to take care thereof, and to provide for the infant's maintenance and education Whereas the father might by will have vested his estate in one or more of his judicious friends to have taken care thereof, and to have disposed of it at such times and in such manner as he might have directed; by which means he would not only have had one or more persons of his own choosing to take care of his estate for his children, and to distribute it to them according to his own direction, but would have saved the expence which the ordinary's assignment is attended with, and which ceases when either child attains twenty-one years of age, on which a new administration is granted; the expence whereof, as well as of that which ceases, is somewhat more than the expence of general letters of administration: so that in this case here is perhaps more than double the expence to come out of the deceased's estate than the proving his will (if he had made a will) would have been attended with; and probably much greater expence than this may be occasioned, by the children, when of age, calling the person assigned by the ordinary to account, and in getting his account settled and adjusted.

Concerning the utility of a will, and the benefit it may be of to a man's family or relations, much more might be said; as any person, after reading this work may clearly perceive, and thereby see that such advantage may redound to a man's family or relations by a will, as to be convinced that the small expence of employing counsel, or a person sufficiently versed in the law for making it, is not an object to be compared with the hazard of litigation that might be occasioned by a person dying intestate; and the loss and detriment his family or relations may thereby sustain. — By a will made with good advice, or by the assistance of a person sufficiently

21 Black, Com. 461. 463.

versed in the law, the testator's estate may be given and disposed of so as not to leave the least room for dispute or litigation; yet if the will be not made with good advice, it may be attended with as bad consequences as if the testator had died intestate, and left his estate to the disposition of the law; and this is obvious to every person who has been conversant with the books of report, or hath attended the courts of justice; and it is observed by Sir William Blackstonea, that an ignorance of the forms which the policy of the laws hath made necessary for the wording of last wills and testaments, and of the attestation, must be of dangerous consequence to such as compile their own testaments without any assistance; and that those who have attended the courts of justice, are the best witnesses of the confusion and distresses that are thereby occasioned in families, and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all; so that in the end his estate may be vested quite contrary to his intentions; because he has perhaps omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires.

As an illustration of these observations will appear in the ensuing part of this work, where the testator has such instructions for making his will, as by due attention thereto he be assisted and enabled to make it with accuracy, may unless his estate should be so fettered with intails, or entangled by settlements or conveyances, as to render him incapable of forming a just conception thereof, and under such circumstances, as well as when the estate is of very considerable value, it is advisable for him to apply to counsel, or some person well versed in the law, for further information; we shall now conclude this part of our work, by just mentioning that as it hath been presumed, where a will has been made contrary to the interest and inclination of some of the testator's family or relations, the same unknown to him has been

a 1 Com. 7.

destroyed before his death, or concealed afterwards: and thereby, notwithstanding the care he may have taken to dispose of his estate and effects, the same have been left to the disposition of the law; for preventing such misfortune we may observe Lord Coke's advice; which is to make two parts of the will, and to leave one part thereof in the hands of a friend; either of which parts may be proved, and hereby the testator's will may be secured; and if he should have a mind to cancel it at any time before his death, this will in no wise prevent or hinder him from so doing; no more than if there was only one part. For the cancelling of one part, when the same is done with an intention to destroy the will, is as the cancelling of both, and a good revocation of the whole will .. Where the estate and effects are of any considerable value, this method of making the will in two parts, and leaving one part thereof with a friend, is commonly used.

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would be well for him at the time of cancelling the duplicate to mention his intention to some disinterested person, or to make a memorandum thereof in writing, which might be subscribed by witnesses, similar to the form we have, in a subsequent page, laid down for republishing a will.

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