bution of the personal estate of a freeman of London feems to be thus: If the freeman dies inteftate, leaving no wife, but an only child; which child is advanced, or partly advanced, or not advanced; in all these cases it makes no difference, for one way or other fuch child fhall have the whole clear perfonal estate. For fuppofing fuch child is advanced, he fhall have nothing by the custom, but by the ftatute he shall have the whole as next of kindred. If he is partly advanced, he shall have one half by the custom; there being no other child with whom to bring his partial advancement into hotchpot, and the other half by the ftatute. So in like manner, if he is not at all advanced; he fhall have one half by the custom, and the other half by the ftatute. IF the freeman leaves no wife but divers children; as fuppose them to be three, the first of which is advanced, the fecond partly advanced, and the third not advanced: in this cafe the child partly advanced, and the child not advanced, fhall have one half equally betwixt them by the custom; the child partly advanced firft thereunto bringing his partial advancement into hotchpot; and the other half (which is called the dead man's part) fhall be diftributed by the ftatute equally between thofe two children, the first child being fuppofed to be fully advanced already. As to the reprefentatives of children dead; thofe we must obferve, are admitted by the ftatute to a diftributive fhare of the dead man's part, in the place of the deceafed child or children whom they reprefent; but not fo of the customary part by the custom. IF the freeman leaves a wife, and no child; fhe shall have, befides her chamber, one half by the cuffom, and the other half (being the dead man's part), fhall be diftributed by the ftatute; of which dead man's part by the faid ftatute she fhall have one half: fo that, dividing the whole personal estate into four parts, she shall have three, and the next of kindred one. But although there there be no child of the freeman's living at his death; yet if there hath been a child, and there are any legal reprefentatives of fuch child, that is, lineal defcendants; then of the dead man's part, by the ftatute, the wife fhall have but onethird, and the reprefentatives fhall have the other twothirds; fo that, dividing the whole perfonal eftate into fix parts, the fhall have four, and the reprefentatives two. IF the freeman leaves a wife, and alfo a child or children, any one or more of which children are not advanced; by the custom she shall have one-third part, and the children not advanced shall have another third part, and the remaining third part (being the dead man's part) fhall be diftributed by the ftatute; of which dead man's part by the faid ftatute the shall have one-third, and the other two-thirds fhall be diftributed amongst the children: fo that, dividing the whole into nine, she shall have four, and they fhall have five. But if the wife be barred by fettlement, whereby it may be as if there were no wife; then the children will have one half by the custom, and the other half by the ftatute, as hath been mentioned 9. THE orphanage share not being fully vested in the children till they attain the age of twenty-one, a child intitled to an orphanage fhare of his father's perfonal estate dying under twenty-one, cannot devife it by his will; for by the custom it furvives to the other children, as hath been mentioned. But a child may devife the share which he hath by the ftatute of diftributions; and that at the age of fourteen, if a male, and twelve, if a female; provided he or she be of fufficient difcretion; as it seems exprefsly laid down by Sir William Blackftone; and his reafon given for it is, because that is the rule of the civil law, and that as the ecclefiaftical court is the judge of every teftator's capacity, this case must be governed by the rules of the ecclefiaftical law; fo that, as the learned author fays, no objection can be admitted to the will of an infant of fourteen merely for want of age; but if the teftator was not of fufficient difcretion, whether at the age of fourteen or four-and-twenty, that will overthrow his teftament. q Page 106. T Page 103. I s 2 Vern. 559. SECTION THE CUSTOM OF THE PROVINCE OF YORK AS TO INTESTACY. WE E have already feen, that here, as well as in the city of London, a man may by will difpofe of the whole of his perfonal estate to whom he thinks fit, and that the claims of the widows, children, and other relations to the contrary, are totally barred. But as to inteftacy; if a man being an inhabitant or an householder within the province of York, and dying there or elsewhere inteftate, and at the time of his death hath a wife, and alfo a child or children; his goods (after paying his debts, and deducting the widow's apparel and furniture of her bed-chamber w) fhall be divided into three parts; whereof the wife ought to have one part, the child or children another part, and the third part (which is called the death's or dead man's part) is diftributable by the ftatute; of which dead man's part, by the ftatute, the wife fhall have one-third, and the other two-thirds fhall be diftributed amongst the children: fo 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. But if by fettlement 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 cuftom, in fuch cafe it is as if there were no wife with respect to the customary part; fo, if it is in bar of all her demands, by virtue of the faid cuftom, or otherwife, the fhall be debarred alfo of any diftributive fhare by the ftatute. And as to the children; if the inteftate hath a wife, and a child or children, which child is heir to the inteftate, 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 fhall be divided into two parts; u Pag. ICI. w By the general and ancient cuftom of the province of York, widows have been tolerated to referve to their own ufe, not only their apparel and a convenient bed, but a cffer with divers things therein neceffary for their own perfons; which things have been ufu 9 ally omitted out of the inventory of their whereof whereof the wife is to have one part to herself, and the other half is diftributable by the ftatute, as we shall see more of hereafter.If the inteftate hath neither wife nor child at the time of his death, his whole perfonal eftate (the funeral expences, and other neceffary charges being firit deducted) fhall be difpofed of in due courfe of administration, as now falling under the direction of the ftatute of diftribution; and confequently must be distributed in such manner as was fhewn in a former chapter ". As to the child's being excluded as being heir; this, we may obferve, 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 no wife bar the child from receiving his fhare of his father's personal estate; whereas here he will be totally barred from receiving any part thereof by the custom, if he fhould have any real eftate by defcent, or otherwife, from his father. For here not only the heir of lands holden in feefimple is thereby barred from the recovery of a filial portion, but he alfo that is heir in fee-tail, either general or special; and although the lands be of very fmall revenue, perhaps not more than a noble yearly rent, and the goods very great in comparison of so small a rent (as may be roool. 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 alfo who is heir in reverfion, is heir; and being heir, can have no filial portion: fo by this it may fall out very hard with the heir in reverfion; for if he should z Swinb. 220. a Ibid. b Chap. 3. c Eftates tail may be either general: -or general to male or to female;-or fpecial; or fpecial to male or to female. Tail general is, where lands and tenements are given to one, and the heirs of his body begotten. By which manner of bequeathing, how often foever the donee in tail marries, his iffue by every fuch marriage is in fucceffive order capable of inheriting the eftate tail per formam doni, that is, by the form of the gift. If lands are given to a man, and the heirs male of his body begotten, it creates an estate in tail male general: I 2 die die in the mean time, before he could lawfully enter to those lands which be his only in reverfion, 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 fhall enjoy the land at the time appointed. And although the heir receive the land by fettlement made upon his father's marriage; yet he is heir fo as to be excluded thereby from a filial portion; as where the father having by fettlement on his marriage. fettled his real eftate to himself for life, part to his wife for her jointure, and the remainder of the whole to his first and other fons in tail, remainder to his own right heirs; the eldest fon was thereby excluded by the custom of the province of York from having any fhare of his father's perfonal eftate f. And if the heir hold lands by deed of feoffment in mortgage, or with claufe of redemption; that is to fay, upon condition that if the feoffor pay unto him a fum of money at a certain day, that then the feoffor may re-enter, and the deed or grant be void; yet in the mean time, until the condition be performed and the land redeemed, if he fhould demand any filial portion he is barred; because as yet he is heir to the deccafed. But if the lands fhould be redeemed, and the money fatisfied, 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 lifetime. HAVING thus feen how the heir may be barred from receiving a filial portion by having lands from his father by descent or otherwife; we come now to confider 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 faid concerning the heir being barred, relates folely to his being barred of what he would be entitled to by the custom, and not what he will be entitled to by the ftatute; which we shall perceive by what will be said hereafter. e Swinb. 231. common affurance to pafs lands and te f Cafe of Conftable and Constable, nements; for it amounts to a feoff2 Vern. 375. g A feoffment, or deed of feoffment, is the ancient method of conveyance. Black. Com. 2 V. 310. Yet fince the ftatute of 27 Hen. VIII. c. 10. of ufes, the conveyance by leafe and release has taken place of it, and is become a very ment, the ufe drawing after it the poffeffion without actual entry, and fupplying the place of livery and feifin required by the deed of feoffment. 2 Ven. 35. h Swinb, 233. As |