СНАР. III.

Of Diftribution.

SECTION THE FIRST.

WHAT THE ADMINISTRATOR IS TO OBSERVE BEFORE HE MAKES DISTRIBUTION.

BY

Y the ftatute of 22 & 23 Car. II.c. 10. whereby we have feen that ordinaries may call adminiftrators to account, and order and compel them to make distribution; it is enacted, to the end that a due regard be had to creditors, that no such distribution of the goods of any perfon dying inteftate be made, till after one year be fully expired after the inteftate's death; and that fuch, and every one, to whom any diftribution and share shall be allotted, fhall give bond with fufficient fureties in the ecclefiaftical courts, that if any debt or debts truly owing by the inteftate fhall be afterwards fued for and recovered, or otherwise duly made to appear; that then, and in every such case, he or she fhall respectively refund and pay back to the adminiftrator, his or her rateable part of that debt or debts, and of the cofts of fuit and charges of the adminiftrator, by reafon of fuch debt, out of the part and share so as aforefaid allotted to him or her.

By the ftatute of the 20 Geo. III. c. 28. it is enacted, that after the firft of June 1780, there fhall be charged on every skin or piece of vellum or parchment, or sheet or piece of paper, upon which shall be engrossed, written, or printed, any receipt or other difcharge, for any legacy left by any will or other teftamentary inftrument, or for any fhare or part of a personal estate divided by force of the statute of distribution, or the custom of any province or place, the amount whereof fhall not exceed the value of 20l. a ftamp duty of 2s. 6d. And where the amount thereof fhall be of the value of 201.

Pag. 61.

and

and not amounting to 100l. a ftamp duty of 5s. And where the amount shall be of the value of 100l. and upwards, a ftamp duty of 20s. And that this act shall not extend to the wills of failors, or foldiers, flain, or dying in his Majesty's fervice.

By ftatute 23 Geo. III. c. 58. an additional duty is added to the above; and by this act the receipt which was to be on a 2s. 6d. stamp, must be on a 5s. ftamp. Where it was to be on a 5s. ftamp, on a 10s. And where on a 20s. ftamp, a 40s. And if the legacy or perfonal eftate amount to 2001. an additional duty of 20s. is added; and the like additional duty upon every further fum of 100l. And by statute 29 Geo. III. c. 51, where the legacy or perfonal estate amount to 400l, an additional duty of 20s. is added; and for every further fum of 100l. a like additional duty of 20s. So by thofe latter acts, if the legacy or personal estate amount to 400l. the duty required is 61. and 21. additional duty for every further 100l. But hereby it is provided, that nothing herein contained shall extend to charge with the additional duties any legacy left by will, or any perfonal eftate, to be divided amongst the wife, children, or grandchildren of the perfon making fuch will, or, that fhall be divided amongst them by force of the statute of diftributions, or the custom of any province or place. So that thofe are only liable to the duties impofed by the former act.

IN Green v. Croft, Eafter, 32 Geo. III. The Court of Common Pleas held, that where there is a devife to G. for life, of the rents and profits of real eftate, and the interest and dividends of perfonal property, and after his death, the whole eftates, both real and perfonal, to be divided between H. and J. the executors and trustees are bound to pay to G. the annual produce of the perfonal as well as real property (especially if the perfonal property be money in the funds), without requiring a receipt ftamped as for a legacy.-By Lord Loughborough, in delivering his opinion on this cafe. The only queftion for us to confider is, whether a receipt under the legacy acts was neceffary in this cafe. The defendants might have empowered the plaintiff to receive the money himself, which brings it exactly to the cafe of money had and received by them to the plaintiff's ufe. Legacies charged on land are undoubtedly liable, but not a devife of land, or of an intereft in land. No receipt is given for land, and the plaintiff in this cafe is tenant for life in equity, and might have received the rents froin the tenants, for it would have been no imputation on the defendants to have permitted him fo to do. The intention of the legiflature was to charge all pecuniary legacies, it being fuppofed that for them

*F

th

દ

the executors would find it neceffary to take receipts; and therefore where the executor can demand a receipt as executor, he may deduct it out of the legacy. But this is not a cafe where the executors can demand a receipt, for undoubtedly they might authorife the legatee to receive the dividends at the Bank, and if an action were to be brought afterwards by him for the dividends, it would be a fufficient defence for the executors that he had received them himself, of which the books of the Bank would be evidence. It is impoffible to conftrue the words " any legacy," to mean all legacies; for it is plain, they do not extend to specific chattels, as a horse or a piece of furniture. So a refidue is out of the act of parliament, and accumulations de anno in annum are not subject to the tax, for if they were, it would be taxing interest upon intereft. Suppofe a legacy of 1000l. were given to A. in trust for an infant, to go over in cafe he should die during his minority, and the infant dies; the intereft during his life would belong to his reprefentatives, and the remainder man would be intitled to the principal. Now in that cafe, would the intereft be liable to the legacy duty? Or fuppose the money was paid to a trustee by the executor, and a receipt taken for the whole, would the remainder-man afterwards be liable? The act does not appear to me to charge the profits arising after the death of the teftator, but only the grofs amount at the time of his death. If this intereft were liable, it would follow, that all dividends of the public funds tranfmitted by will to perfons for life, would pay an annual tax; which would very much fink the credit of the funds. It is difficult to calculate the value of an annuity; and the calculation can only be made, at the time when the annuity commences: befides, the annuitant may fell it. But the growing profits after a teftator's death, are not fubject to the tax.

BY

OF

MAKING DISTRIBUTION. Y the statute 22 & 23 Car. II. after debts and funeral expences are paid, the furplufage of inteftates eftates (except the estates of femes covert; that is, married women, to which their husbands have a right, as before mentioned *) fhall, after the expiration of one full year from the death of the inteftate, be diftributed in the following manner: one third shall go to the widow of the inteftate, and the refidue in equal proportions to his children, or if the children be dead, to their reprefentatives, that is, their lineal defcendants. But no child of the inteftate (except his heir at law) on whom he fettled in his lifetime any eftate in lands, or pecuniary

2 H. Black, Rep. 30.

• Page 3.

portion,

portion equal to the distributive shares of the other children, fhall have any part in the furplufage with their brothers and fifters; but if their eftates, fo given them by way of advancement, are not quite equivalent to the other fhares, the children fo advanced fhall now have fo much as will make them equal. But the heir at law fhall have an equal part in the diftribution with the other children, without any confidera tion of the value of the land, which he hath by defcent, or otherwife, from the inteftate.

By this ftatute the heir at law thall not abate, in refpect of the land which he hath by defcent, or otherwife, from the inteftate; yet if he hath had an advancement from his father in his life-time, otherwife than by land as aforefaid, he shall abate for the fame in like manner as the other children. And fo it seems that coheireffes fhall bring together into hotchpot, fuch advancement (not being lands) as they fhall refpectively have received from their father, before they fhall be entitled to recover their feveral diftributive fhares, agreeable to the general purport of the act; which is evidently to promote an equality as much as may be .

THIS word hotchpot is generally understood to fignify mixing and blending together, and conveys much the fame idea as the words collatio bonorum, which in the civil law is anfwerable to the word hotchpot, and fignifies, that if a child advanced by the father, doth, after his father's decease, challenge a child's part with the reft, he must cast in all that he had formerly received, and then take out an equal fhare with the others'.

In respect to borough-english lands, which by cuftom defcend to the youngest fon, as we fhall again fee in the enfuing chapter; it became a point upon the ftatute of diftri. butions, whether the youngest fon (to whom the land defcended by the custom of borough-english) thould abate for these lands, or thould be confidered as an heir at law, who by the ftatute is to have a distributive fhare, without any al

lowance for lands by defeent. And it was ruled by Sir Joseph Jekyll, mafter of the rolls, that he should allow for these lands 1. Yet where a man was poffeffed of a personal estate, and seised of a copyhold in fee, which was in the nature of boroughenglish, and the question was, whether the youngest son, upon whom the copyhold defcended, fhould have an equal share with the other children of the personal estate, exclusive of the copyhold, or only fo much as with that copyhold would make his portion equal to that of the other children. By lord chancellor Talbot: The heir at law is the eldest son, and not the heir in borough-english; and the exception in the statute extends only to the eldest son. Yet nevertheless the youngest fon, who is heir in borough-english, fhall not bring the borough-english eftate into hotchpot; there being no law to oblige him to do this, but only this ftatute, and there are no words in the statute that require it: for the ftatute speaketh only of fuch estate as a child hath by settlement, or by advancement of the inteftate in his lifetime. And it was decreed, that the youngest son should have an equal share with the other children, without regard to the value of the boroughenglish estate. And the former cafe coming after this before the lord chancellor Talbot, he reverfed the decree of the master of the rolls, and decreed agreeable to this latter cafeTM.

IN refpect to what fhall be an advancement, fo as to come within the meaning of the flatute, we may obferve, it hath been determined, that fmall inconfiderable fums, occafionally given to a child, cannot be deemed an advancement or part thereof. Thus maintenance money, or allowance made by the father to his fon at the univerfity, or in travelling or the like, is not to be taken as any part of his advancement, this being only his education; and it would create charge and uncertainty to enquire minutely into fuch matters. So, putting out a child apprentice, is no part of his advancement; for it is only procuring the mafter to keep him for seven years instead of the parent. But the father's buying an office for the fon, though but at will, as a gentle

> Str. 935.

Caf. Talb. 276.

man