« SebelumnyaLanjutkan »
panied with delivery of possession, and has come to us from the civil lawyers, who themselves borrowed it from the Greeks.
7. Residuary Estate. When all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if one be appointed by the will. If there be none, it was long a notion, that it devolved to the executor's own use, by virtue of his executorship. This is now understood, with this restriction, that although where the executor has no legacy at all, the residuum in general shall be his own, yet wherever there is sufficient on the face of the will, by a competent legacy or otherwise, to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin, the executor then standing on the same footing as an administrator.
Distribution of an Intestate's Estate. By statute of Charles II, it is enacted, that the surplus of the estate of intestates, except in the case of a feme-covert, which is left as at common law, shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner:
To Widow and Children. One-third shall go to the widow of the intestate, and the residue in equal proportions to his children, or if dead, to their representatives; that is, their lineal descendants. If there are no children or issue of a deceased child, then a moiety shall go to the widow, and a moiety to the next of kin in equal degree, and their representatives. If no widow, the whole shall go to the children.
To Next of Kin. If neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representatives, but no representatives are admitted among collaterals, further than the children of the intestate's brothers and sisters. The next of kindred are to be investigated by the same rules of consanguinity, as those who are entitled to letters of administration.1
To Father and Mother. And likewise by this statute, the mother, as well as the father, succeeded to all the personal effects of the children, who died intestate, and without wife or issue, in exclusion of the brothers and sisters of the decedent. And so the law still remains with respect to the father, but by statute of James II, if the father be dead, and any of the children die intestate, without wife or issue, in the lifetime of the mother, she and each of the remaining children, or their representatives, shall divide his effects in equal portions.
1 No difference is made between the whole and half blood in the distribution of an intestate's personal estate.
Advancements. Another part of the statute of distributions enacts, that no child of the intestate, except his heir at law, on whom he settled in his lifetime any estate in land or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters. If however the estates so given them, by way of advancement, are not equivalent to the other shares, the children so advanced shall now have so much as to make them equal. This just provision is derived from the collatio bonorum of the imperial law.
Distribution per Stirpes or per Capita. The doctrine and limits of representation have been mainly borrowed from the civil law, whereby it will sometimes happen, that personal estates are divided per capita, and sometimes per stirpes, whereas the common law knows no other rule of succession than per stirpes. They are divided per capita, to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred and not jure representutionis, in the right of another person.
Example. As if the next of kin be the intestate's brothers A, B and C; here his effects are divided into three portions, and distributed per capita, one to each; but if one of these brothers had been dead, leaving three children, and another B, leaving two, then the distribution must be per stirpes, viz., one-third to A's three children, another third to B's two children, and the remaining third to C, the surviving brother; yet if C had been dead without issue, then A's and B's five children, being all in equal degree to the intestate, would take in their own rights per capita, viz., each of them, one-fifth part.
Ancient Customs Affecting Distribution. The statute of distribution expressly excepts and reserves the customs of London, of the province of York, and of all other places having peculiar customs of distributing the effects of intestates. Though in those places, the restraint of devising is removed by these statutes, their ancient customs remain in force, with respect to the estates of intestates.
Particular Customs. In London, York, Scotland and probably also in Wales, the effects of the intestate, after payment of his debts, are in general divided according to the ancient universal doctrine of the pars rationabilis. If the decedent leave a widow and children, his substance, after deducting for the widow her apparel, and the furniture of her bedchamber, is divided into three parts, one of which belongs to the widow, another to the children, and the third to the administrator. If a widow only, or children only, they shall respectively in either case take one moiety, and the administrator the other. If neither widow nor child, the administrator takes all. Prior to the statute of distributions of James I, the administrator was wont to apply this to his own use, and it was termed the dead man's part.
Effect of Jointure. If the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of non-entity, with regard to the custom only, but she shall be entitled to her share of the dead man's part, under the statute of distributions, unless barred by special agreement.
Advancements to Children, Hotch pot. And if any of the children are advanced by the father, in his lifetime, with any sum of money, less than their full proportionate part, they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to any benefit under the custom, but, if they are fully advanced, the custom entitles them to no further dividend.
Customs of London and York. In nearly every point, the customs of York and London agree, and at one time a similar custom prevailed in all parts of the island, indicating the whole to have been of British original. If, however, it was derived from the Roman law of successions, it must have been taken from that fountain earlier than the time of Justinian, from whose constitutions it considerably differs. It may have been owing to Roman usages, introduced in the time of Claudius Caesar, who established a colony in Britain to instruct the natives in legal knowledge, inculcated and diffused by Papinian, who presided at York as praefectus praetorii, under the emperors Severus and Caracalla, and continued by his successors, in the beginning of the fifth century.
BOOK THE THIRD.
Object of Law. The establishment of rights and the prohibition of wrongs.
Wrongs Defined. Private and Public. The former are an infringement or privation of the private or civil rights of individuals, as such, i. e., civil injuries; the latter, a breach of public rights and duties, which affect the whole community as such, 2. e., crimes and misdemeanors.
Remedies. Principally by applications to the courts, i. e., by civil suit or action. This book will treat of such. Certain injuries, however, require a more speedy remedy, calling for an extra-judicial or eccentrical kind.
Modes of Redress. There are three kinds of redress :
That which arises from suit or action in courts, the act of the parties co-operating with the act of law.
CHAPTER 1.-REDRESS BY THE PARTIES' ACTS.
First. From the act of the injured party only.
1. Self-defence. The defence of one's self, of husband or wife, of parent or child, or of master or servant. Where one of these his relations be forcibly attacked in his person or property, a man may repel force by force, and the breach of the peace is chargeable only upon him who begins the affray. This is the
prompting of nature. It considers, that the future process of law affords no adequate remedy for injuries accompanied with force, which, unless opposed by force, might be carried to wanton lengths of outrage. Care however must be taken, that the resistance does not exceed the bounds of mere defence and prevention, otherwise the defender becomes an aggressor.
2. Recaption or Reprisal. This happens, when one is unlawfully deprived of personal property, or where wife, child, or servant is wrongfully detained, in which case he may lawfully claim or retake thein, wherever he finds them, so it be not in a riotous manner or attended with breach of the peace. This may be his only opportunity to do himself justice, as his goods or member of his family may otherwise be concealed or removed, if he await his remedy at law. If therefore he can contrive to regain his property without force or terror, he is justified in so acting. This right of recaption must never be exerted, where it shall occasion strife, or endanger the peace of society.
3. Entry. Entry by the party himself on lands taken from him without right is a remedy, if it can be done peaceably.
4. Abatement of Nuisances. Whatever unlawfully annoys or damages another is a nuisance. The party aggrieved may abate or remove it, so that he commits no breach of the peace in so doing. Such annoying and obstructing injuries require an immediate remedy, and cannot wait for the slow progress of forms of justice.
5. Distress. Generally. Of cattle, or goods for non-payment of rent or other duties, or for cattle damaging or trespassing upon land. A landlord can thus prevent tenants secreting or withdrawing their goods to his prejudice, and in the case of trespassing cattle he can at once seize them, as it may be impossible in the future to ascertain whose cattle committed the damage.
Distress. Defined. A distress, districtio, is the taking a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed.
Distress Allowed. (1.) For non-payment of rent. By common law this was incident to every rent service, and by reservation to rent charges, and by statute to all kinds of rent. A distress, therefore, may be taken for any kind of rent in arrear, the