26. [18, R. S.31] Original note. "Section 5 of the present act would seem to be confined to children of the intestate; but it was taken from the English act, 10 & 11 Will. III, ch. 16, which declared the right of posthumous children under a marriage settlement, and ought to receive a construction equally liberal. The terms of this section are conformable to a suggestion made by the revisers in chapter VI, of the second part, in regard to the distribution of the estates of intestates, which has been adopted by the legislature." 27. [§ 28, R. S. as first enacted; 32 but by subd. 25 of § 15 of the act of the 10th Dec. 1828, Concerning the Revised Statutes," reported by the revisers, the words, in the life time of," originally reported and enacted, were directed to be omitted, and the word "before" substituted, and the section was so published.] Original note to § 28: To prevent doubt and avoid repetition." 28. [§ 19, R. S.33] Original note. "To avoid the repetition of the term lawful." 29. [§ 20, R. S.34] "The estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of the provisions of this chapter; nor shall the same affect any limitation of any estate by deed or will." Original note. "4th section of present act. The saving clause in italics is new, but seems proper to be added. The general terms of the present law direct, that on the failure of descendants, the inheritance shall go to the collateral relatives; but it frequently happens, that where there are no issue of the intestate to take at his death, other persons are entitled under an executory devise, or other limitation. It seems full as necessary to save their rights, as the rights of tenants by the curtesy or in dower." 30. [ 21, R. S.35 Original note. "So much of the latter part of the 4th section of the act concerning uses, I R. L., 74, as relates to this subject." 31. [ 22, R. S.36] Original note. "This section is intended to change a very harsh rule of the existing law, by which a person not an alien himself, may sometimes be debarred from inheriting." 32. Original note to section.37 "The 16th section of an act concerning executors, etc., p. 314, was copied nearly verbatim, from the English statutes of 22 and 23 Car. II, chap. 10, and 1 Jac. II, chap. 17, both of which are stated by Lord Hardwicke, in one of the cases above referred to 'to be very incorrectly penned.' The Revisers have conformed these parts of the 31 Refers to 1 R. S. 754, § 18, supra, p. 412. 32 Judge Edmonds' note to IR. S. 755, § 28, supra, p. 331. 33 Refers to 1 R. S. 754, § 19, supra, p. 399. 34 Refers to I R. S. 754, § 20, supra, p. 330. 35 Refers to 1 R. S. 754, § 21, supra, p. 330. 36 Refers to 1 R. S. 754, § 22, supra, p. 416. 37 Refers to 2 R. S. 96, § 75, now $ 98, Decedent Estate Law. section which were most defective, to the decisions, but have made no alterations in principle. The term 'deceased,' has been substituted for 'intestate,' in order to provide for the case where there is a will which does not bequeath the estate, and omitting the part respecting advancement as being more proper for a separate section. The Revisers respectfully suggest that the following subdivision might with great propriety be added. It is found in the laws of several states. "8. If the deceased leave a wife, and no child, parent, grandchild, brothers or sisters, or a brother's or sister's child, such widow shall be entitled to the whole of the surplus. "The Revisers also suggest the following subdivision, as fixing the interpretation of the statute, and declaratory of the existing law, on a point which seems, from the authorities, to be involved in some doubt, viz.: the cases in which posthumous children and relatives may take under the statute. That such children and relatives may take in some cases, is settled; but the proper limitations of the rule, and who are to be considered as such, is unsettled. (See Barnardisten's Cases in Chancery, 272, and 1 Ves. Sen. 156.) "9. Descendants and next of kin of the deceased, in existence at the time of his death but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him. "In the laws of Maryland (Laws of 1798, chap. 101, and chap. II of the act), a provision will be found, that was intended for the same purpose as the above, though its terms and effect are different." 33. Original note.38 § 1, 1 R. L. 316. As estates held in trust are descendible (§ 4, 1 R. L. 74 and chap. 1, pt. II, R. S.), and as they may be devised (§ 21, chap. 2, pt. II, R. L. and § 2, tit. 1, chap. 6, R. S.) it is conceded they will be sufficiently described by the terms used in this section." 34. Original note. 39 "No principle can be better settled at the com mon law, than this, that the personal estate is the first and immediate fund for the payment of debts. And unless the personal estate be expressly exonerated, it must be first applied to the payment of a debt charged on land (1 Cruise Dig. 73, 74, pl. 61, 64; 2 Johns. Ch. 614). And yet it has been held that the heir could not plead assets in the hands of the executor (1 And., pl. 13, Dyer, 204, Fitz. Execution, 163); contrary to the opinion of Coke, 2 Inst., 442, and to 7 ed., 4, 13." 35. Original note.40 By section 60, title 2, of chapter 6, 2d part, R. S., executors de son tort, as they are called, are deprived of the right of retaining for any debt to them. The effect is to abolish the office, if it can be called such, as, in truth, he will be in no better situation than any trespasser. It is deemed useful, however, to declare it explicitly. 38 Refers to 2 R. S. 452, now § 101, Decedent Estate Law. 39 2 R. S. 453, §§ 33-36; § 35 now 102, Decedent Estate Law. 40 2 R. S. 449, § 17, now § 112, Decedent Estate Law. 36. Original note.41 Part of 11th section of Statute of Frauds, p. 78. The word "specially" substituted in lieu of the word "lawfully" as more consistent with the intent of the statute and the decisions. 37. Original note.42 Fifth section of same act (1 R. L., p. 311), extended to all actions upon contract, and declaratory of the rule of law. Administrators omitted in this section, because all actions which executors may bring, are given to them in the next section.43 38. Judge Edmunds' note.44 Same as enacted, the following words being reported in italics, "and the personal property and effects of their intestate." Original note of revisers, § 4 of act concerning executors (1 R. L. 311) italics (above) new, but conformable to the existing law. 66 39. Judge Edmunds' note.45 Same as enacted, except last clause of enacted section inserted by Legislature: Executors and administrators should have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. Original note of Revisers.46 Part of the 6th section of act concerning executors or (1 R. L. 312). The words in italic (above) inserted to render the clauses of the original section consistent, and conformable to the construction it has received, and to the existing law. 2 Johns. Rep. 227. 40. Original note.47 This section flows from section 45, title 2, chap. 6, 2d part, R. S., which directs letters of administration to be granted on the death of an executor; but it is deemed useful to declare this explicitly. 41 Refers to 2 R. S. 113, § 1, now § 113, Decedent Estate Law. 42 Refers to 2 R. S. 113, § 8, now 116, Decedent Estate Law. 43 2 R. S. 113, § 3, now § 117, Decedent Estate Law. 44 Refers to 2 R. S. 113, § 3, now § 117, Decedent Estate Law. 45 Refers to 2 R. S. 114, § 4, now $118, Decedent Estate Law. 46 Refers to 2 R. S. 114, § 4, now § 118, Decedent Estate Law. 47 Refers to 2 R. S. 448, § II, now $121, Decedent Estate Law. |