sued out, but not served and executed on the bankrupt's effects till after the act of bankruptcy, it is void as against the assignees; but the king is not bound by this fictitious relation, nor is he within the statutes of bankrupts. No money paid by 1 Atk. 262. bankrupt to a bona fide creditor, in a course of trade, even after a sue. an act of bankruptcy, shall be liable to be refunded. Nor is any debtor of a bankrupt that pays him his debt without knowing of his bankruptcy, liable to account for it again (b). The Their power to assignees must obtain the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the Gazette, in order to commence a suit in equity, or compound any debts owing to the bankrupt, or refer any matters to arbitration (c). When they have got in the effects, and reduced them to Dividend. ready money, the assignees must, after four, and within twelve months after the commission issued, give twenty-one days notice to the creditors of a meeting for a dividend or distribution, at which time they must produce their accounts, and verify them upon oath, if required (d); and then the commissioners shall direct a dividend to be made at so much in the pound to all creditors who have before proved, or shall then prove their debts. This dividend must be made equally, and in a rateable proportion, to all the creditors, according to the quantity of their debts, no regard being had to the quality of them. Mortgages, indeed, for which the creditor has a secu- Mortgages. liable to the bankrupt laws, all contracts, dealings, and transactions, bona fide made and entered into with any bankrupt previous to the date and issuing of the first; and all executions and attachments against his lands and tenements, goods and chattels, boná fide executed or levied before the date and issuing of the fiat, are valid, notwithstanding any prior act of bankruptcy, if no notice was had of such act of bankruptcy, provided that all fraudulent preferences by the bankrupt are still void. (b) See the 82d section of 6 Geo. 4, c. 16, which makes valid all payments bona fide made to the bankrupt before the commission, without notice of an act of bankruptcy. And see also 2 Vict. c. 29, in the last note. (c) See the 88th section of 6 Geo. 4, c. 16. If one-third in value, or upwards, of such creditors shall not attend at any such meeting, the assignees have power, with the consent of the commissioners in writing, to compound any debt, submit any dispute to arbitration, or commence any suit in equity. (d) By s. 107 of 6 Geo. 4, c. 16, the commissioners must not, sooner than four, nor later than twelve calendar months, appoint a meeting to make a dividend, at which all creditors who have not before proved shall be entitled to prove; and the assignees, without any deed of distribution, shall forthwith make such dividend, and take receipts in a book to be kept for that purpose from each creditor, which shall discharge the assignees; but no dividend shall be declared until the accounts of the assignees shall have been first audited, as provided in s. 106 of the act. Finch Rep. 466. rity in his own hands, are entirely safe, for the commission of bankrupt reaches only the equity of redemption. So are also personal debts, when the creditor has a chattel in his hands as a pledge or pawn for the payment (e), or has taken the debtor's lands or goods in execution. And upon the equity of the statute 8 Ann. c. 14 (which directs that upon all executions of goods being upon any premises demised to a tenant, one year's rent, and no more, shall, if due, be paid to the landlord), it has been held, that under a commission of bankrupt, which is in the nature of a statute execution, the landlord shall be allowed his arrears of rent to the same amount in preference to other creditors, even though he has neglected to distrain, while the goods remained on the premises, which he is otherwise entitled to do for his entire rent, be the quantum what it may (f). But judgments and recognizances, bonds and obligations by deed or special instrument, are all put on a level, 21 Jac. 1, c.19. and paid pari passu, with simple contract debts. Debts not Lord Raym. 1 Atk. 103, 104. 1549. Second and final dividend. due at the time of the dividend made shall be proved and paid equally with the rest, allowing a discount or drawback in proportion; but insurances and obligations upon bottomry or respondentia, bona fide made by the bankrupt, though for feited after the commission is awarded, shall be treated as debts contracted before any act of bankruptcy. Within eighteen months after the commission issued a second and final dividend shall be made, unless all the effects were exhausted by the first; and if any surplus remains after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupt. All interest on debts carrying (e) By s. 109, if the estate shall not have been wholly divided, the commissioners are to make a second and final dividend within eighteen months. By s. 108 of 6 Geo. 4, c. 16, no creditor having security for his debt, or having made any attachment in London, or any other place by virtue of any custom, shall receive upon any such security or attachment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure upon, or any mortgage of or lien upon any part of the property of such bankrupt before the bankruptcy, provided that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors. But see as to the latter part of this section, 1 Wm. 4, c. 7, n. (a), 286. (ƒ) By 6 Geo. 4, c. 16, s. 74, no distress for rent levied after an act of bankruptcy, (whether before or after the issuing of the commission) shall be available for more than one year's rent prior to the date of the commission, but the landlord shall be allowed to come in as a creditor under the commission for the overplus. interest (g) shall cease from the time of issuing the commission; yet in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt or his representatives (h). 1 Atk. 244. CHAPTER XXXII. OF TITLE BY TESTAMENT AND ADMINISTRATION. of testaments and adminis THE law has given to the proprietor a right of continuing his Of the origin property after his death, in such persons as he shall name: and in defect of such appointment or nomination, has directed trators. the goods to be vested in certain particular individuals, exclusive of all other persons. The former method of acquiring personal property being called a testament (a), the latter an Puff. L. N. administration. b. 4, c. 10. (9) That is debts proved under the commission. By 6 Geo. 4, c. 16, s. 57, the holder of a bill or note whereon interest is not reserved, overdue at the issuing of the commission, shall be entitled to prove for interest, to be calculated by the commissioners to the date of the commission, at such rate as is allowed by the court of king's bench in actions upon bills or notes. (h) The assignees shall not pay such surplus until all the creditors who have proved shall have received interest upon their debts, to be calculated as therein mentioned; 6 Geo. 4, c. 16, s. 132. By s. 135, the statute extends to aliens, denizens, and women. By 3 & 4 Wm. 4, c. 74, the act 6 Geo. 4, c. 16, so far as relates to estates tail, is repealed. See the new provisions on this head, ante, p. 138. By 2 & 3 Wm. 4, c. 114, provision is made for the custody of records under former commissions of bankrupt. Fiats, adjudications, and certificates of conformity, are to be entered of record, on the application of any interested party; and the judges may, on petition, direct any deposition under a fiat to be entered of record. In case of the death of witnesses, depositions so entered of record may be given in evidence. No fiat is to be received in evidence unless first entered of record. Upon the production of any proceedings in bankruptcy, sealed with the seal of the court of bankruptcy, or any copy thereof, sealed with such seal, the same shall be received as evidence and of the same, having been so entered of record. By 6 & 7 Wm. 4, c. 27, the official assignee is to file a certificate of the unclaimed dividends, and to pay such dividends to the unclaimed dividend account in the bank of England. (a) The act 7 Wm. 4, and 1 Vict. c. 26, "for the amendment of the law with respect to wills," repeals 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, 10 Car. 1, sess. 2, c. 2; also so much of the "Statute of Frauds," 29 Car. 2, c. 3, and 7 Wm. 3, c. 12, "for prevention of frauds and perjuries,” as relates to devises or bequests of lands or tenements, or to the revocation or alteration of any devise in writing, of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to U Of the distribution of a deceased's By the common law, in the reign of Hen. 2, a man's goods were divided into three equal parts; of which one went to his any such estate being assets, or to nuncupative wills, or to the repeal, altering or charging of any will in writing, concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein; and also so much of 4 & 5 Anne, c. 16, and 6 Anne, c. 10, as relates to witnesses to nuncupative wills. And so much of 14 Geo. 2, c. 20, as relates to estates pur autre vie; and also 25 Geo. 2, c. 6, (except as to the colonies); and 25 Geo. 2, c. 11, and 55 Geo. 3, c. 192, so far as they relate to any estates pur autre vie, to which this act does not extend. By s. 3, all property may be disposed of by will. The 4th and 5th sections regulate the fees and fines payable by devisees of customary and copyhold estates, and the entry of wills on the court rolls. By s. 6, the destination of estates pur autre vie, is prescribed, where no disposition has been made of them. No will by any person under age is valid; nor any will by a married woman, except where she might have made a will before the act, nor unless it be in writing, and executed as required by the 9th section. Appointments by wills must be executed like other wills; but soldiers and mariners, in service, may dispose of their personal estate as before the act; nor does the act effect the provisions of 11 Geo. 4, and 1 Wm. 4, c. 20, with respect to wills of petty officers, seamen, &c., so far as relates to prize-money. Publication of a will is no longer requisite. No will is invalid from the incompetency of any witness thereto; but gifts to an attesting witness are void; a creditor attesting a will, or an executor thereto, may be admitted as a witness to prove its execution. Marriage is a revocation of a will; but no will is to be revoked by any presumption of an intention on the ground of an alteration in circumstances. Neither wills or codicils can be revoked, otherwise than by marriage, or by another will or codicil executed in the manner required by s. 9, of the act, or by burning, tearing, or destroying the same, by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same; and no alteration in a will has any effect, unless executed as a will. The 22nd section declares in what manner a revoked will may be revived. No conveyance or other act, subsequent to the date of a will (except an express revocation in the manner prescribed by the act) prevents the operation of the will. The will speaks from the death of the testator. A residuary devise, unless a contrary intention appear by the will, includes estates and interests comprised in lapsed and void devises. A general devise of lands includes copyhold and leasehold lands, as well as freehold; and also lands over which the testator has a general power of appointment, unless a contrary intention appears, and if there is nothing in the will to show a different intention, a general bequest of personal estates includes property over which the testator has only a power of appointment. A devise of real estate, without words of limitation, passes the fee or the whole estate which the testator had power to dispose of. The 29th section defines the manner in which the words "die without issue," or "die without leaving issue," shall be construed. A devise of real estate (other than a presentation to a church) to a trustee or executor passes the fee or the whole interest of the testator, unless a term of years be given expressly, or by implication; and trustees under an unlimited devise, where the trust may endure beyond the life of a person beneficially entitled for life, take the fee. A devise of an estate tail does not lapse by the death of the first taker in the life time of the testator, if he leave any issue inheritable under such entail, unless a contrary intention appears by the will. Gifts to children or other issue, who leave issue living at the testator's death, do not lapse, but take effect, as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. The act does not extend to any will made before 1st Jan. 1838, common law. c. 26. Flet. 1, 2, c. 57. F. N. B. 122. heirs or lineal descendants, another to his wife, and the third property by the was at his own disposal; or if he died without a wife he might then dispose of one moiety, and the other went to his children; and so, e converso, if he had no children, the wife Brac. 1, 2, was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them. But the deceased may now by will bequeath the whole of his goods and chattels. In case a person made no disposition of such of his goods as were testable, he was and is said to die intestate; and in such case by the old law the king was entitled as the parens patriæ, and general trustee of the kingdom to seize them. This pre- 9 Rep. 38. rogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, where matters of all kinds were determined: and it was granted as a franchise to many lords of manors and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors in their own courts baron and other courts, or to have their wills there proved. Ibid. 37. Afterwards, the crown, in favour of the church, invested the the right of the ordinary to administer intestate's goods. prelates with this branch of the prerogative. The goods, Perk. s. 486. therefore, of intestates were given to the ordinary, whose whole 174. interest and power were only those of being the king's almoner Finch law, 173, within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the religion of the times denominated pious. And as he had thus Plowd. 277. the disposition of intestate's effects the probate of wills followed for it was thought just and natural that the will of the deceased should be proved to the satisfaction of the prelate whose right of distributing his chattels was thereby superseded. But the statute 31 Edw. 3, c. 11, enacted, that in case of The ordinary was liable in intestacy the ordinary should depute the nearest and most the same manlawful friends of the deceased to administer his goods; which ner as an exadministrations were put upon the same footing with regard to suits, and to accounting, as executors appointed by will. This is the original of administrators as they at present stand, who are only the officers of the ordinary appointed by him in pur ecutor is now liable. but any will re-executed or re-published or revived by any codicil, subsequently, is subject to its provisions. The act does not extend to any estate pur autre vie, of any person who died before 1 Jan. 1838, nor does it extend to Scotland. See a full abstract of the act, ante, book 2, cap. 23, p. 239. |