executor may ascertain the fact before he pays the legacies, which will fave any trouble of refunding. Legacies are faid to be lapfed, contingent, or vested. A lapfed legacy is where the legatee dies before the teftator, by which the legacy is loft, and finks into the refiduum of the estate. For a will is of no force, till the death of the teftator. Of course a legacy, cannot vest till that time, if the legatee dies before the teftator, the legacy cannot vest in him, but if he furvives him ever fo fhort a time, it will veft, and then defcend to his heirs.

A contingent legacy is where the bequeft depends upon the happening of fome future thing, as a bequest to a perfon if or when he arrives to the age of twenty-one: if he dies before that time, the contingency on which the legacy was dependent, never happens, and of course the legacy is loft and is called a lapfed legacy.

A vested legacy is oppofed to a contingent one, as if a bequest is made to a person to be paid when he arrives to the age of twenty-one. This is a vefted legacy, the intereft commences inftantly on the death of the teftator, tho the payment is to be made at fome future time, and if the legatee furvives the teftator, tho he dies before he arrives to the age of twenty-one, yet his heirs are entitled to receive it at the time it would have been payable, had he lived. But it is faid by the common law, if fuch legacy be made chargeable on the lands, it fhall under fuch circumftances lapfe for the benefit of the heir.

In cafe of a vefted legacy, which is immediately due, and the payment of which is charged upon lands, or fome property that gives immediate profit, then intereft fhall be paid from the death of the teftator: but if it be chargeable on perfonal ef tate, then after the executor has had a reasonable time to pay it. And by the common law, the interest commences in a year after the teftator's deceafe.

It is the duty of the executor to pay the legacies, unless fome other perfon is ordered to do it by the will. By the common law of England, it is faid, that the affent of the executor is neceffary to perfect a legacy. But by our law, no fuch affent is necefK kk 2

fary,

fary, and as foon as a legacy becomes due, action of affumpfit will lie in favour of the legatee against the executor, for the recovery

of it.

When all the debts and particular legacies are paid, then the furplus or remainder, goes to the refiduary legatee, if there be any appointed by the will, but if there be none, then it is confidered as inteftate eftate, and will be divided among the heirs of the teftator, in the fame manner as if no will had been made, and of this we are next to treat.

2. I proceed to confider the title to perfonal eftate by defcent, which comprehends the fettlement of inteftate eftates.

By the English law, the title by defcent is confined to real, and never applied to perfonal estate, because that goes into the hands of the administrator, and from him to the heirs by a legal diftribution, different from the defcent of real eftates. But as in this ftate, perfonal eftate is tranfinitted by defcent from the ances tor to the heir, in the fame manner in cafe he dies inteflate, as real eftate, there can be no impropriety, in the application of this term to perfonal eftate, as it expreffès the idea with more clearnefs and certainty, than any other term.

A perfon is faid to die inteftate, when he leaves no will, and in that cafe, as he has not fignified his intention, refpecting the dif pofition of his eftate, the law to preferve the public peace, points out the mode of fettling the eftate, and the perfons to whom it fhall defcend.

:

When a perfon dies inteftate, the court of probate fhall grant administration of his eftate to his widow, or the next of kin, or both, and on their refufal or incapacity, to fome other perfon, as the court fhall judge fit and on granting administration, fuflicient bond with furety, fhall be taken for a faithful discharge of the truft. When an adminiftrator is appointed, his power and duty are the fame with that of an executor, and he is bound to proceed to the fettlement of the estate in the fame manner. He must collect and inventory the eftate, call in and pay out the debts. The only material

Statutes, 53.

material difference between thefe offices, feems to be this, that if an executor dies, his own executor fucceeds to his office, and is the executor of the firft teftator: but the executor of an adminif trator, or the adminiftrator of an executor, is not the reprefentative of the first teftator; for the power of an executor is founded on the appointment of the teftator, which evidences a confidence repofed in him. Such executor may therefore transmit his power to his executor. But the administrator being appointed by the court of probate, no fuch confidence can be prefumed between him and the intellate. Therefore, whenever an adminiftrator dies, before he has compleatly fettled the estate, or an executor in the fame circumstances, leaving no executor, it is neceffary for the court of probate, to grant new letters of adminiftration, on the goods not administered upon, by the former executor, or administrator: but where an executor dies, leaving an executor appointed by his will, he may by virtue of fuch appointment, proceed to compleat the fettlement of fuch unfettled estate.

When the adminiftrator has collected and difpofed of the perfonal eftate of the inteftate, if there be not a fufficiency to pay the debts, the court of probate may order a fale of lands, fufficient to pay the debts and incident charges of fale. When the debts are paid, the adminiftrator must fettle his account with the court of probate, and of the refiduum of the perfonal eftate, if any, a diftribution must be made to the heirs of the inteftate, unlefs fuch heirs being legally capable of acting, fhall make a divifion among themselves, and prefent the fame, in writing under their hands, and feals to the court, and acknowledge the fame before fuch court or an affistant, or juftice of the peace, which voluntary divifion, fhall be recorded in the records of the court of probate, and be conclufive on the parties: but if no voluntary divifion be made, then the court of probate may appoint three fufficient freeholders, who, under oath, or either two of them, may make a distribution of the estate.

The perfonal eftate of a man lying inteftate, is to be diftributed among his lineal heirs, precifely in the fame manner, as real estate, and among his collateral heirs, in the fame manner as real estate,

not

/ Statutes, 54.

not received by defcent, gift, or devife, from fone parent, ances tor or kindred. But the ftatute makes this difference in rofpect of the right of the widow, to a portion of the real and perfonal eftate of the inteftate. She is entitled to one third of his real eftate during life, and to one third of his perfonal eftate forever, if he leaves any children; but if he leaves none, then she is entitled to one half of his perfonal cftate forever.

The ftatute law makes provifion, that if any of the children, in the lifetime of the intellate, have any estate advanced to them by way of fettlement, this fhall be taken into confideration in the diftribution, and all the children fhall be made equal in their fhares. if any have received their full fhares, they are entitled to no more, and if any have received only part of their fhares, they fhall be made equal with the rest.

3. Of title by infolvency. When the eftate is infolvent, the ftatute law has made the following provifion to fettle it.

That when the eftate of any perfon deceased shall be infolvent, or infufficient to pay all the juft debts, which the deceased owed, the fame fhall be fold, and the avails thereof be divided and diftributed to and among all the creditors, in proportion to the fums to them refpectively owing, fo far as the eftate will extend, faving that the debts due to this state, and for sickness, and necef. fary funeral charges of the deceafed, are to be first paid.

And the executor or adminiftrator, appointed to adminifter on any fuch infolvent eftate, before payment be made to any perfon, (except as before excepted) fhall reprefent the condition. and circumstances thereof unto the judge of the probate of wills and granting of adminiftrations, who fhall nominate and appoint two or more fit and indifferent perfons, to make a true and equal appraisement of fuch eftate, and adminifter the oath by law preferibed to them for that purpofe; and fhall alfo nominate and appoint two or more fit perfons to be commiffioners, with full power to receive and examine all the claims of the feveral creditors, and how they are made out and evidenced; which commiffioners fhall be fworn according to law, and caufe the times and places of their meetings for attending the creditors, in order for

Satutes, 105.

the

the receiving and examining of their claims, to be made known and publifhed, by fetting up or polting notifications thereof in fome public places in the town where fuch deceafed perfon laft dwelt; and alfo by advertising the fame in one or more of the public news papers in this ftate, and any further notice that the court of probate may order: And the faid judge of probate fhall allow fix, ten or eighteen months, (as the circumftances of the eftate may require) for the creditors to bring in their claims and prove their debts: At the end of which time limited as aforefaid, fuch commiffioners fhall make their report, and prefent a lift of all claims to fuch judge, who fhall order them a meet recompence out of the eftate, for their care and labour in that affair.

And if on the report of the commiffioners, fuch estate shall appear to be infolvent, the judge of probate to whom fuch report is made, fhall order and fet out to the widow of the deceased, (if any be) fuch neceffary houfhold goods as are mentioned in the law, entitled, "An alt for directing and regulating the levying and Serving Executions," to be exempted from execution; which goods fo set out, fhall be her own property. And the judge fhall order the widow's dower to be fet out according to law. And the refidue and remainder of faid eftate, both real and perfonal, (including that fet out for the widow's dower, and under the incumbrance of her holding it for life) the judge of probate fhall order and direct the executor or administrator, or executors or administrators, appointed to administer on fuch eftate, to fell in fuch way and manner as to the judge fhall appear fafeft and moft for the benefit of the creditors. And fuch executors and adminiftrators being so ordered and directed, fhall have full power and authority, and they are hereby authorifed and impowered to make fale thereof, and to make and execute legal and proper conveyances to the purchafers, which fhall be good evidence in law for their holding the fame accordingly. And fuch fales being made, the faid executors and adminiftrators fhall render account to the judge of probate of the amount thereof, and the monies arifing thereby. And the judge fhall thereon order full payment to be made of the debts due to this ftate, and for ficknefs, neceflary funeral expences

and