SECTION THE THIRD. 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 dispose of the whole of his perfona! eftate 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 be an inhabitant or an houfeholder 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 fhall 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 perfonal estate of her husband by virtue of the custom, in fuch case it is as if there were no wife with refpect to the customary part; fo if it is in bar of all her demands, by virtue of the said cuftom, or otherwife, the fhall be debarred alfo of any diftributive 1hare 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 cafe it is as if he had no child; and therefore his goods fhall be divided into two parts; u Pag. 101. w By the general and ancient cuftom of the province of York, widows have been tolerated to reterve to their own ufe, not only their apparel and a convenient bed, but a coffer with divers things therein neceffary for their wn perfons; which things have been ufually omitted out of the inventory of their deceafed hufband's goods, unlefs the hutband was fo far indebted, as the rest of his goods would not fuffice to discharge the fame, Swinb. 422. * Pag. 104. 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 adminiftration, as now falling under the direction of the ftatute of diftribution *; and confequently must be diftributed in fuch manner as was shewn in a former chapter 6. 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 defcent 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 perfonal eftate; 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 fo fmall a rent (as may be 100ol or more ;) even in this cafe 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 begotten, it creates an eftate in tail 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 estate to himself for life, part to his wife for her jointure, and the remainder of the whole to his firft and other fons in tail, remainder to his own right heirs; the eldest fon was thereby excluded by the cuftom 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 feoffer 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 deceafed. 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 defcent 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 faid hereafter. e Swinb. 231. Conftable and Conftable. 2 Vern, 375: 8 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 lease and release has taken place of it, and is become a very common affurance to pafs lands and tenements; for it amounts to a feoffment, the ufe drawing after it the poffeffion without actual entry, and fupplying the place of livery and feifin required by the deed of feoffinent. 2 Ven. 35. Swinb. 232. As 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 lefs where the child hath advanced his eftate by his own induftry. And if the father bestow any thing upon another for his chi'd's fake, or for the good of his child; this is no fuch preferment as will hinder a child of his filial portion: and therefore if the father bestow any thing upon a man of trade, to take his fon for an apprentice, and to teach him his myftery, this is no advancement to the effect aforefaid1; or if the father beftow any thing upon a schoolmaster, or tutor in the univerfity, 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 provifion made by the father of fome competent thing for the maintenance of his child, whereby he may be the better enabled to live after his father's death; for if the father beflow any thing upon his child to any other end, as money in his purfe to fpend among his equals, or to buy him fuits of apparel or books; yet this is not to be holden for an advancement ".-If a portion be given to a child in lieu and fatisfaction of a filial portion, and the child be of age, and in confideration 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 confideration, may release his future filial portion .-If the father in his lifetime beftow a leafe upon his child, or grant unto him an annuity for life out of his lands, though it be in fuch manner as the child fhall not reap any benefit thereby, fo long as the father lives, but after his death; this is holden for a preferment or advancement: because it was affured unto him in his father's life-time P. And if the father beftow a competent portion with his daughter in marriage upon him. that hall marry her; this is fuch an advancement as will bar her from a demand of a filial portion. By the word portion is to be understood, not only a fum of money, or part of the father's goods and chattels; but alfo lands and annuities. bestowed by the father upon the font.-Competent, fignifies 4 Burn's Ecclef. Law, 395. P Swinb. 234. 3 1 Swinb. 233* * Ibid. 1 Ibid. 9 Ibid. Ibid. equal, equal, or not far inferior to that quantity which otherwise, according to the cuftom of the province, fhould fall to be due to the child, after the rate and proportion of the father's eftate, at the time when he doth beftow any fuch thing upon his child; for the fame being equal, or not much under the rate which fhould belong to the child by the cuftom, if his father had then died, shall stand for a sufficient preferment and advancement to exclude him from a filial portion". IT feems fince Swinburn's days generally to have prevailed as the cuítom of the province of York, (that children exclufive of the heir at law) not advanced to their full proportion of the children's part, fhall be admitted to come in for their share of the faid children's part, bringing thereunto their partial advancements into hotchpot; agreeable to what Swinburn acknowledgeth to be the rule of the civil law; in conformity alfo to the custom of London, and to the measures of the ftatute of diftribution, and the rules obferved by the courts of equity in all fuch like cafes. WHERE there is a wife, child, or children, the course of diftribution of inteftates effects within the province of York feems to ftand thus: If a perfon die inteftate, leaving no wife, but an only child, which child is heir at law, or advanced, or partly advanced, or not advanced; in all these cafes it makes no difference; for one way or other fuch child fhall have the whole clear personal estate. For fuppofing fuch child to be heir at law; he shall have nothing by the cuftom, but by the ftatute he fhall have the whole as next of kindred. If he is advanced; he fhall likewife have nothing by the custom, but by the ftatute in like manner he fhall have the whole. If he is partly advanced; he thall 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 ftaSo in like manner, if he is not at all advanced; he fhall have one half by the custom, and the other half by the statute, 4 Burn's Ecclef. Law, 403. tute. s Swinb. 234. |