to a master to take an account of the personal estate of the said Robert Stapleton, and to make exact distribution of the same according to law, amongst the plaintiff Stapleton, and the child of the lord Meryon, and also the brothers and sisters of the said Robert Stapleton, as well those of the whole blood, as of the half blood, and their respective representatives; the defendant, in right of the defendant Dorothy, as she is widow of the said intestate Robert Stapleton, claiming a moiety of the clear personal estate by the custom of the province of York, and also by the late act for settling intestates' estates, half of the other moiety thereof; and the said master being thereby to report specially to this court, as he should think fit, what should appear doubtful as to the interest of any of the parties concerned therein, the said [454 ] master made his report, dated the 9th day of June, 1684, whereby he certified, that by the custom of the province of York, a moiety of the said clear personal estate was of right due and belonging to the defendant Dorothy, as the widow and relict of the said Robert Stapleton, and that the other moiety he had divided amongst the said intestate's brothers and sisters, and their legal representatives, in such proportions as is therein mentioned. And exceptions having been put in to the said report, and the same coming to be heard the 24th day of February in the first year of king James the Second, before the right honourable the lord keeper of the great seal of England; his lordship desired his grace the then lord archbishop of York to certify, when a man dies intestate within the province of York without issue (after his debts and funeral expences paid,) how the residue was to be divided by the custom of the province of York, and what part remained by the ordinary to be distributed. And his grace the then archbishop of York having, pursuant to the said desire, on the 18th day of March in the first year of James the Second, certified, that in such cases aforesaid, the widow of the intestate by the custom of the said province hath usually had allotted to her one moiety of the clear personal estate, and that the other moiety had been distributed amongst the next of kin to the deceased intestate, and that had been the constant practice of the ecclesiastical court at York. To which certificate the said defendants took exceptions. Upon debate whereof on the 17th of May in the said first year of James the Second, it was ordered, that the exceptions should be overruled; and the defendants were ordered to pay unto the plaintiffs, and bring into court respectively, the several and respective sums of money therein in that behalf mentioned within two months; or in default thereof, or if the plaintiffs should not acquiesce therein, then they were to pay costs. And the defendants being not satisfied with the said order, did afterwards petition the right honourable the lord high chancellor of England for a rehearing of the said cause, upon this point only, namely,

whether the defendant Dorothy, being the widow of the said Robert Stapleton, who died an inhabitant of the province of York, and without issue, and also his administratrix, ought not by virtue of the custom of the said province to have one moiety, or half of the clear personal estate of the said intestate Robert Stapleton her late husband, and also according to the rules of distribution [455] mentioned in the late act for settling intestates' estates, to have half of the other moiety as widow of the said Robert Stapleton, who died without issue as aforesaid. And his lordship having ordered the said cause to be reheard upon that point only, and the same coming to be reheard accordingly before his lordship in the presence of the defendant's counsel, none attending for the plaintiffs, albeit due notice of the said last order for rehearing was given to them and the other parties concerned, as by affidavit then produced did appear; and the case on the pleadings in the cause being opened by the defendant's counsel, and upon consideration thereof, and of the said late act for settling of intestates' estates, and of the statute made in the first year of his said majesty king James the Second, intitled, an act for reviving and continuing several acts of parliament therein mentioned; his lordship declared, that notwithstanding the said certificate of the said lord archbishop of York, his lordship was fully satisfied, the defendant in right of the defendant Dorothy, as widow of the said intestate Robert Stapleton her late husband, ought to have the one moiety or half of his clear personal estate by virtue of the custom of the province of York, and also half of the other moiety of the said clear personal estate by virtue of the said statute and rules of distribution therein mentioned: and did order and decree the same accordingly. And it being alleged, that the defendants in pursuance of the said former decree, and to avoid any contempt for not yielding obedience thereto, had paid and satisfied unto the plaintiffs and others, the brothers and sisters of the said intestate Robert Stapleton, or their respective representatives, or some of them, the respective proportions to them respectively allotted by the master's report, whereas they ought but to have paid one moiety thereof, and prayed that the plaintiffs and the said other persons that were so over-paid, might refund and pay the defendants the moiety or half of the money so paid or satisfied unto them, his lordship did order and decree the same accordingly, and the 57. deposited with the register, upon the granting of the said rehearing, to be paid back to the defendants, or their clerks in court. Afterwards on the 8th day of June, in the third year of the reign of his said majesty king James the Second, the plaintiffs being dissatisfied with the said order made, petitioned his lordship to hear the cause again; and the same coming to be reheard accordingly on the 5th day of February in the year aforesaid, before his lordship, in the presence of counsel learned

on both sides, upon long debate of the matter, and hearing what could be alleged on either side, his lordship declared the defendant's wife is well intitled to one moiety of her late husband's estate by the custom of the province of York, [Swinb., 220. infra, 458. (2)] and to a moiety of the other moiety by the act of distribution, [22 & 23 Car. 2. c. 10. § 6.] and therefore saw no cause to alter the former order; and therefore did order, that the said former order should stand confirmed.

inhabitants

By the 4 W. c. 2. [A. D. 1692.] Whereas by custom within [Power the province of York, or other usage, the widows and younger given to children of persons dying inhabitants of that province, are in- of province titled to a part of the goods and chattels of their late husbands of York to and fathers, (called her and their reasonable part,) notwithstand- make wills.] ing any disposition of the same by their husbands and fathers' last wills and testaments (5), and notwithstanding any jointures made for the livelihood of the said widows by their husbands in their lifetime, which are competent, and according to agreement; whereby many persons are disabled from making sufficient provision for their young children: for remedy thereof, it is enacted, that it shall be lawful for any person inhabiting or residing, or who shall have any goods or chattels within the province of York, by their last wills and testaments to give, bequeath, and dispose of all and singular their goods, chattels, debts, and other personal estate, to their executors, or such other persons as they shall think fit, in as ample manner as by the laws and statutes of this realm any person may give and dispose of the same within the province of Canterbury or elsewhere; and the widows, children, and other the kindred of such testator, shall be barred to claim or demand any part of the goods, chattels, or other personal estate of such testator, in any other manner than as by the said last wills and testaments is limited and appointed. § 1, 2. Provided, that nothing in this act shall extend to the citizens of the cities of York and Chester, who shall be freemen of the said respective cities, inhabiting therein or within the suburbs thereof at the time of their death; but that every such citizen's widow and children shall have such reasonable part and proportion of the testator's personal estate, as they might have had by the custom of the province of York before the making of this act. §3.

Note, the mentioning of the city of Chester here was a mistake; for this custom of the province of York did not extend to that

(5) Thus in North v. North, cited in Webb v. Webb, (1689) 2 Atk. Rep. 110, 111., an inhabitant of the province of York made a will, and devised a moiety of his estate to his wife. It was adjudged that the widow should have three-fourths.

city, nor to any other part of the whole archdeaconry of Chester; and the reason is, because until the erection of the see of Chester, in the time of king Henry the eighth, that archdeaconry was not within the province of York, but was part of the diocese of Litchfield and Coventry within the province of Canterbury. And therefore afterwards, when this proviso was taken off by the [457] statute here next following, with respect to the city of York, there was no need for any application to parliament to repeal the same proviso, in relation to the city of Chester. (6)

[Citizens But as to the city of York, it is enacted by the 2 & 3 An. c 5. of city of as followeth: Whereas in the statute of the 4 W. c. 2. there is York may bequeath a proviso, that nothing in the said act contained should extend or be personalty construed to extend to the citizens of the cities of York and Chester, by will.] who should be freemen of the said respective cities, inhabiting therein or within the suburbs thereof, at the time of their death; but that every such citizen's widow and children should have such reasonable part and proportion of the testator's personal estate, as they might have had by the custom of the province of York before the making of the said act: and whereas notwithstanding, the mayor and commonalty, on behalf of the inhabitants of the said city of York, have requested that the said proviso may be repealed, so that the freemen of the said city may have the benefit of the said act, as well as all other persons inhabiting within the said province; it is enacted, that the said proviso, so far as the same concerneth the citizens of the city of York, shall be and is hereby repealed; so that it shall and may be lawful for all and every the citizens of the said city of York, who shall be freemen of the said city, inhabiting therein, or within the suburbs thereof, at the time of their death, by their last wills and testaments, to give, bequeath, and dispose of their goods, chattels, debts, and other personal estates, to their executors or such other persons as they shall think fit, as any other persons inhabiting or residing within the said province of York, may lawfully do by virtue of the said act; and that the widows, children, and other kindred of such testator, shall be barred to claim or demand any part of the goods, chattels, or other personal estate of the testator, in any other manner than as by the said last wills and testments is appointed; any thing in the said act, or any other law, statute, or usage to the contrary notwithstanding.

1

So that the ancient law and custom restraining the inhabitants of the province of York from disposing of their whole personal estates by will, is now utterly abolished out of that whole pro

vince.

(6) Chester not having been within the province of York at the time of the making it a bishop's see by Henry the eighth, is not within the custom. Pickering v. Stamford, E. 1797, 3 Ves. 338.

But with respect to the distribution of intestate's effects, the [Custom of custom continues as it hath been for ages past; which, taking Prok as to province of Swinburne for our guide, we come now to trace out and delineate. distribution It is to be understood then, that within the province of York of intes. generally, there hath been an ancient custom, and divers famous tate's effects.] writers long ago have made mention of the said custom in their works to have been observed long before their days, and the [458] same also appeareth from the acts and other very ancient instruments of undoubted credit, faithfully preserved in the registry of the archbishop of York; by which custom there is due to the widow, and to the lawful children of every man, being an inhabitant or an housholder within the said province of York, and dying there or elsewhere (7) intestate, being an inhabitant or housholder within that province, a reasonable part of his clear moveable goods; unless such child be heir to his father deceased; or were advanced by his father in his lifetime, by which advancement it is to be understood, that the father in his lifetime bestowed upon his child a competent portion whereon to live. Swin. 220. 230. 233. Reasonable part] which is as followeth :

(1) If the intestate hath neither wife nor child, at the time of his death, his whole personal estate (the funeral expences and other necessary charges being first deducted) shall be disposed in the due course of administration; the same heretofore having been wholly at the disposal of the deceased, and consequently falling now under the directions of the statute of distribution. Swin. 220.

(2) If the intestate at the time of his death leave behind him a wife and no child, or else some child or children but no wife; in this case, by the custom observed not only throughout the province of York, but in many other places besides within this realm of England, the goods are to be divided into two parts; of which one part is due to the wife, or else to the children, by virtue of the said custom. Swin. 220.

But if by settlement a jointure is limited to the wife, in bar of all her demands out of the personal estate of her husband by virtue of the custom, in such case it is as if there were no wife, with respect to the said customary part; so, if it is in bar of all her demands, by virtue of the said custom or otherwise, she shall be debarred also of any distributive share by the statute.

1 Vern. 15.

And if the intestate have a wife, and a child or children, which child is heir to the intestate, or which children were advanced by the father in his lifetime; in this case it is as if he had no child; and therefore in like manner the goods shall be divided into two

(7) But see Pickering v. Stamford, supra.