[441] and that for this reason, (saith Lindwood,) because, perhaps, throughout the whole realm one and the same custom as to this matter doth not prevail; but there are different customs according to the diversities of countries; for there may be a general custom of some province; also a special custom of some city, territory, or place. Lind. 172. Fitzherbert saith, The writ de rationabili parte bonorum lieth, where the wife, or sons and daughters of the deceased, cannot have their reasonable part of the deceased's goods, after the debts are paid, and funeral expences satisfied. F. N. B. 284. And it seemeth, he says, by the statute of Magna Charta, c. 18., that this was the common law of the realm; and so (he says) it appeared by Glanvil. F. N. B. 284. And in the 31 Ed. 3. A woman did demand the moiety of her husband's goods because he had no children, and counted upon the custom of the realm. F. N. B. 284. But in after times, and by degrees, they came to count for the same upon the particular custom of such and such places. F.N.B. 284. And accordingly the writs in the register do rehearse the customs of particular counties; and are of this form: "The king to the sheriff, &c. If W., who was the wife of "D., shall make us secure, &c., that then you summon E. and "E., executors of the testament of the aforesaid D., that they be, "&c. to shew why, seeing that according to the custom in the "county aforesaid hitherto obtained, wives after the death of their "husbands ought to have their reasonable part of the goods and "chattels of their husbands, they the same executors aforesaid "from her the said W. her reasonable part, to the value of ten "marks, of the goods and chattels which were of the aforesaid "D. heretofore her husband, they do detain, unjustly, and refuse "to render them unto her; to the great damage and grievance "of her the said W., and against the custom aforesaid. And ❝have you there the summons and this writ, &c." "The king, &c. Forasmuch as B. of - and S. his sister, "have made us secure, &c. that you summon E. and E., ex"ecutors of the testament of D. of that they be, &c. to "shew why, seeing that according to the custom in the county "aforesaid hitherto obtained and approved, children after the "death of their fathers, who are not their heirs, nor were pro"moted in the life of their fathers, ought to have their reasonable parts of the goods and chattels which were of their fathers, "they the same executors aforesaid, from the aforesaid B. and S., "after the death of the aforesaid D. their father, whose heirs "they are not, and who were not promoted in the life of the same their father, their reasonable parts, to the value of ten "pounds, of the goods and chattels which were of the aforesaid "D. their father, they do detain, unjustly, and refuse to render "the same unto them; to the great damage and grievance of "them the said B. and S., and against the custom aforesaid. And "have you there the summons and this writ, &c." In the case of Stapleton and Sherrard, H. 1684. (1 Vern. 305.). It was said, that the custom of the province of York is the same with the custom of the city of London, unless in the case where the eldest son hath lands by descent; but it will appear when we come to treat of them separately, that there are other differences. And first, of the custom of the city of London. iii. Of the custom of the city of London in particular. 1. By the 11 G. c. 18. Whereas great numbers of wealthy Statute persons, not free of the city of London, do inhabit and carry on enabling [freemen] the trade of merchandize and other employments within the said to dispose city, and refuse or decline to become freemen of the same, by by will. reason of an ancient custom within the said city, restraining the citizens and freemen of the same from disposing of their personal estates by their last wills and testaments; to the intent therefore that persons of wealth and ability, who exercise the business of merchandize and other laudable employments within the said city, may not be discouraged from becoming free of the same, by reason of the said custom, it is enacted that it shall be lawful to all persons who shall after June 1, 1725, be made free, or become free of the said city; and also for all persons who are already free, and on the said first day of June, 1725, shall be unmarried, and not have issue by any former marriage (u), to give and devise, will and dispose of their personal estates, to such uses as they shall think fit; any custom or usage in the said city, or any by [442 ] law or ordinance made or observed within the same, to the contrary thereof in any wise notwithstanding. § 17. (7) Provided that in case any person, who shall at any time after the said first day of June, 1725, become free of the said city; and any person who is already free, and on the said first day of June, 1725, shall be unmarried, and not have issue by any former marriage, hath agreed or shall agree by any writing under his hand, upon or in consideration of his marriage or other (u) [The custom of London, giving the widow a moiety of her husband's personal estate, was held not to be taken away by this section, where the husband had issue by a former wife.] Dansen v. Hawes, Amb. 276. (7) Thus in Webb v. Webb (1689), 2 Atk. 110., the wife, by the custom of London, was held entitled to a moiety of articles, specifically devised by will to other persons, and also to have a moiety of the whole personalty by the custom, and the use of the other moiety by the will. Ryder's case there cited is acc. Custom of distribution in case of intestacy. wise, that his personal estate shall be subject to, or be distributed or distributable according to the custom of the city of London; or in case any person so free, or becoming free, as aforesaid, shall die intestate in every such case, the personal estate of such person so making such agreement, or so dying intestate, shall be subject to, and be distributed and distributable according to the custom of the said city; any thing herein contained to the contrary notwithstanding. 11 G. c. 18. § 18. So that as to intestates, the custom continueth as it was before; which seemeth to be as follows: 2. If a freeman of London dies, in London or elsewhere, leaving a widow and a child or children; his persona lestate (after his debts paid, and the customary allowance for the funeral, and for the widow's chamber [viz. her apparel and the furniture of her. chamber (2 Bla. C. 518.)], being first deducted thereout) is by the custom of the said city to be divided into three equal parts, and disposed of in the following manner; to wit, one third part thereof to the widow, another third part to the children, and the other third part (being taken out of the custom) is now made subject to the statute of distribution [1 J. 2. c. 17.]; and so dividing the whole into nine parts, four-ninths belong to the wife, and five-ninths to the children. [Rutter v. Rutter (1683), 1 Vern. 180. Fowke v. Hunt,] 2 Salk. 426. L. Raym. 1328. Note: In the case of Biddle and Biddle, 18 Mar. 1718, before lord Parker, it was said, that the widow is intitled to the furniture of her chamber; or in case the estate exceeds 2000l. then to 50l. instead thereof, Viner, tit. Customs of London, b. 2. (8) If a freeman hath no wife, but hath children; the half of his personal estate belong to his children, and the other half (being the dead man's [or testamentary] part) is in like manner distributable by the statute. [Northey v. Strange,] 2 P. Will. 341. So if he hath a wife and no children; half of his personal estate belongs to his wife, and the other half is distributable; and in this case one moiety of the dead man's part distributable by the statute as aforesaid, belongeth unto the wife by the said statute: [443] so that in the whole she will have three-fourths of the personal estate, besides her widow's chamber. 2 Salk.246. Law of Test.211. If he hath neither wife nor child at the time of his death, then the whole belongs to the deceased, and is distributable by the statute. Law of Test. 192. [2 Show. R. 175. It seems formerly to have been held that where there are several children, the father (8) But this right, in analogy to the widow's right to paraphernalia in general cases, shall not be exercised to the prejudice of creditors. Swinb. p. 6. § 13. This privilege is not by the custom, and was originally allowed only to citizens of a better sort, yet it is fit to extend it to all citizens' widows. Readshaw v. Duck, 7 Vin. 217. pl. 5. may appoint a right of survivorship among them. If there be a male child only, the father may devise over his orphanage part, if the child should die before 21; and so if only a female child, if she should die under that age, or unmarried. Piddington v. Mayne, E. 1727, Vin. tit. Custom of London, (B.) Ca. 16. Hamond v. Jones, 1 Lev. R. 227. But latterly it has been admitted to be otherwise. See Jesson v. Essington, Pre. Ch. 207. Biddle v. Biddle, H. 1718. cor. lord Parker, Vin. Ab. tit. Customs of London, b. 2.] butable ac bution. 3. Concerning which death's part, to be distributed by the The death's statute, it is enacted by the 1 J. 2. c. 17. as followeth: For the part distri determining some doubts, arising on the statute of frauds and cording to perjuries, it is enacted and declared, that the clause therein the statute whereby it is provided that that act or any thing therein contained of distrishould not any ways prejudice or hinder the customs observed within the city of London, and province of York, was never intended nor shall be taken or construed to extend, to such part of any intestate's estate, as any administrator, by virtue only of being administrator, by pretence or reason of any custom, may claim to have to exempt the same from distribution; but that such part in the hands of such administrator shall be subject to distribution, as in other cases within the said act. § 8. It was called the dead man's part, because the ordinary, or he to whom the ordinary should commit administration, was to dispose of the same to pious uses, for the benefit of the soul of the deceased; but administrators, under pretence of concealed debts, did frequently keep the greatest part thereof to their own use: and after this statute of the 1 J. 2. in the case between the widow and the son of sir Richard How, knight, the widow as administratrix claimed to herself the death's part by virtue of the letters of administration granted to her of her husband's estate; but this being thought unreasonable, was contested by the son in chancery with his mother-in-law; and upon hearing the cause, it was settled and decreed to be observed for ever, that the deceased's part should be divided according to the statute of distribution, in pursuance of this explanatory clause of the 1 J. 2. c. 17. Green's Privil. 49, 50. (9) 4. The court of orphans is held by custom time out of memory, before the lord mayor and aldermen of the city of London; who are guardians to the children of all freemen of London, that are under the age of twenty-one years at the time of their father's decease. Privilegia Londini, 288. And if a freeman or freewoman die, leaving orphans within age unmarried; the court of orphans shall have the custody of their body and goods and the executors or administrators shall ex (9) See 2 Freem. 85. 1Vern. Rep. 133. Superin tendency of the court of orphans. Children intitled, though born out of the city, [and though their father neither lived or died, or had property in London.] Child inti hibit inventories before them, and become bound to the chamberlain to the use of the orphans to make a true account upon oath, and if they refuse, shall commit them till they become bound. Priv. Lond. 280. [Luck's case, Hob. 247.] And their being bound so to do in the spiritual court, excuseth them not from this custom. Law of Ex. 252. For if the father is a freeman of London, he cannot devise the disposition of the body of his child; and if he do, yet the infant shall remain in the custody of the mayor and aldermen. Privil. Lond. 287. Lord 5. The children of a freeman of London are entitled to the share of his personal estate, though they were born out of the city; and though their father did not inhabit or die in London. Law of Test. 202. [And are city orphans. Webb v. Webb, 2 Vern. 110. See 1 Roll. R. 316. 1 Sid. R. 250. 1 Ventr. 180. 1 Mod. 80. S. P. If an orphan is taken out of the custody of the committee appointed by the court of orphans, they may imprison the offender, though a peer, till he produce the infant. 1 Sid. 250. Raym. 116. So if any one, Wilkinson v. Boulton, 1 Lev. 162. though not a freeman, without consent of the court of aldermen, marry such orphan under twenty-one, though out of the city, they may fine and imprison him for non-payment; for if the custom should not extend to marriages out of the city, their power would be vain. The King v. Harwood, 1 Vent. 178. 1 Lev. 32. 1 Mod. 79.] And also, though their estate doth not lie in the city, but elsewhere. Priv. Lond. 288. 6. An after-born child shall come in with the rest for a custled, though tomary share of the father's personal estate. T. 1718, Walsam and Skinner, Prec. Cha. 499. (1) born after the father's death. Child part sur may devise 7. T. 1706, Wilcocks and Wilcocks. A child intitled to an orphanage share of his father's personal estate, dying under dying, the twenty-one, and unmarried, cannot devise it by his will; for by orphanage the custom it survives to the other children: but he vives. [See the share which he hath under the statute of distribution, [for that page 443.] is vested.] 2 Vern. 559. [2 Bla. C. 519. And if a female dies under that age, and unmarried, her share survives also; for an orphan cannot give it away by will. (2) Pre. Ch. 207. 537. But if there is only one child, his orphanage part is vested in him in the same manner as his share by the statute, and is devisable by him at the same age. 3 P. Wms. 318. note (2). Vid. also Prec. Ch. 207. Merriweather v. Hester, 7 Vin. 209. pl. 18.] In the case of Fouke and Lewen, M. 1682, [1 Vern. 88, 89.]; it is said, that if a man marries an orphan, who dies under twenty (1) L. Test. 203. 11 Vin. Ab. 200. Gilb. Eq. Rep. 155. |