or sister of a grandfather or grandmother of the deceased, or any descendant of a brother or sister of a grandfather or grandmother of the deceased; a duty on the amount or value thereof at and after the rate of per centum £ 5 0 0 And where any such legacy, or residue, or share of such residue, shall have been given, or have devolved, to or for the benefit of any person, in any other degree of collateral consanguinity to the deceased than is above described, or to or for the benefit of any stranger in blood to the deceased; a duty on the amount or value thereof at and after the rate of per centum £8 0 0 II. Where the testator, testatrix, or intestate, shall have died after the 5th April, 1805. For every legacy, specific or pecuniary, or of any other description, of the amount or value of 201. or upwards, given by any will or testamentary instrument, of any person, who shall have died after the 5th April, 1805, either out of his or her personal or moveable estate, or out of or charged upon his or her real or heritable estate, or out of any monies to arise by the sale, mortgage, or other disposition of his or her real or heritable estate, or any part thereof, and which shall be paid, delivered, retained, satisfied, or discharged, after the 31st August, 1815. Also, for the clear residue (when devolving to one person) and for every share of the clear residue (when devolving to two or more persons) of the personal or moveable estate, of any person, who shall have died after the 5th April, 1805, (after deducting debts, funeral expences, legacies, and other charges first payable thereout,) whether the title to such residue, or any share thereof, shall accrue by virtue of any testamentary disposition, or upon a partial or total intestacy; where such residue, or share of residue, shall be of the amount or value of 201. or upwards, and where the same shall be paid, delivered, retained, satisfied, or discharged, after 31st August, 1815. And also for the clear residue (when given to one person) and for every share of the clear residue (when giving to two or more persons) of the monies to arise from the sale, mortgage, or other disposition, of any real or heritable estate directed to be sold, mortgaged, or otherwise disposed of, by any will or testamentary instrument, of any person, who shall have died after 5th April, 1805, (after deducting debts, funeral expences, legacies, and other charges first made payable thereout, if any) where such residue, or share of residue, shall amount to 201. or upwards, and where the same shall be paid, retained, or discharged, after 31st August, 1815. Where any such legacy or residue, or any share of such residue, shall have been given, or have devolved, to or for the benefit of a child of the deceased, or any descendant of a child of the deceased, or to or for the benefit of the father or mother, or any lineal ancestor of the deceased; a duty on the amount or value thereof at and after the rate of per centum £1 0 0 Where any such legacy, or residue, or any share of such residue, shall have been given, or have devolved, to or for the benefit of a brother or sister of the deceased, or any descendant of a brother or sister of the deceased; a duty on the amount or value thereof at and after the rate of per centum € 3 00 Where any such legacy, or residue, or any share of such residue, shall have been given, or have devolved, to or for the benefit of a And where any legatee shall take two or more distinct legacies or benefits, under any will or testamentary instrument, which shall altogether be of the amount or value of 201. each, shall be charged with duty, though each or either may be separately under that amount or value. (How to calculate the value of annuities, see 36 G. 3. c. 52. § 8. Tab. I., II.) Exemptions. Legacies, and residues, or shares of residue, of any such estate or effects as aforesaid, given or devolving to or for the benefit of the husband or wife of the deceased, or to or for the benefit of any of the royal family. (See 36 G. 3. c. 52. § 2. 45 G. 3. c. 28. § 3.) And all legacies which were exempted from duty by the act passed in the 39 G. 3. c. 73. for exempting certain specific legacies given to bodies corporate, or other public bodies, from the payment of duty.] 26. If the executor die intestate, the testator also from that Executor time shall be deemed intestate, and administration may be com- dying. mitted in this case of the goods not administered. Swin. 382. [ 270 ] 1 Roll's Abr. 907. But if the executor maketh an executor and dieth; his executor shall be executor to the first testator, in case there be no executor. Swin. 329. And if the executor of an executor assume the administration of the first testator's goods, he cannot afterwards refuse the administration of the goods of the latter testator; but he may accept the latter, yet refuse the former. T. 17 J. Wolfe and Heyden, Hutt. 30. [Where the executor dies before the proving of the will, his executor cannot take upon himself the execution of the first will; but administration of the goods of the first testator, with Power of the ordi nary. the will annexed to it, is to be committed to the executor of the executor, if the residue of the goods of the first testator (the legacies performed) were bequeathed by his last will to the first executor; or (else) to such other person or persons to whom the said residue is bequeathed; otherwise to the next of blood to the first testator demanding it. And this (ex relatione Dr. Drury, judge of the prerogative court of Canterbury) is the usage and custom of the said court, and agreeable to law, as seemed to him; to which the court gave credit. Isted v. Stankey, Dyer, 372. (1)] E. 4 & 5 P. & M. Two executors; one of them proved the will, the other refused before the ordinary, who thereupon granted administration to the other, who made his executor, and died; and that executor alone brought an action of debt, for a debt due to the first testator: and adjudged, that the action did lie; for though he who refused might administer at any time, yet it must be in the lifetime of his companion; and he being dead, that election is gone. Dyer, 160. Tingrey v. Brown. In this case the testatrix by her will made Francis Tingrey her sole executor, who proved the will, and afterwards died intestate; The plaintiff took out administration of his effects, but it was held that she could not sue the defendant for the double value of lands held over after notice to quit under a demise from the testatrix, contrary to the 4 G. 2. c. 28., without taking out administration de bonis non, even thought the tenant had attorned to her. 1 Bos. & Pul. 310. II. Of the Administration of Intestates' Effects. This matter concerning the administration of intestates' effects, so far as the same hath respect unto peculiar jurisdictions, bona notabilia, process in the king's name, the oath in animam constituentis, administration by commission, and the fees of administration of seamen's effects, hath been treated of already in the law concerning the probate of wills. 1. As to the disposition of intestates' effects, and granting administration, it is plain, that by the common law, and before the [271] statute of the 13 Ed. 1. st. 1. c. 19. here following, the ordinary had the absolute disposal of intestates' effects. 2 Bac. Abr. 398. (2) (1) Adhered to in Day v. Chapfield, 1 Vern. 200. (2) The following note is transcribed from Dr. Phillimore's Reports, 1st vol. 124. The jurisdiction which the ecclesiastical court exercises over the effects of persons dying without a will rests on a very ancient foundation in the early periods of our history the ordinary had by common law the absolute disposal of the personal property of all intestates; and, under the pretext of applying their goods to religious : But lord Coke thinks, that this was granted to him by some articular constitutions; and therefore says, that anciently the ings of England, by their proper officers were wont to take oods of intestates in their hands. 9 Co. 36. [Henslow's case.] And there are several instances in, Madox's History of the 'xchequer, where the king issued a mandate to his officers, to ttach the goods of divers persons who died intestate. Mad. Exch. 237. But this seemeth to have been only in case where they were inebted to the king; who by the law, was to be satisfied before the other creditors; according to the statute of Magna Charta, c. 18., which enacteth as follows: If any that holdeth of us lay fee do die, and our sheriff or bailiff do shew our letters patents of our summons for debt, which the dead man did owe to us; it shall be lawful to our sheriff or bailiff to attach and inroll all the goods and chattels of the dead, being found in the said fee, to the value of the same debt, by the sight and testimony of lawful men, so that nothing thereof shall be taken away, until we be clearly paid of the debt. But so much as remained over and above the king's debt, or if nothing was owing to the king, then the whole was in the sole power of the ordinary to dispose. And therefore if a man died intestate, neither his wife, child, or next of kin, had any right to a share of his estate, but the ordinary was to distribute it according to his conscience to pious uses; and sometimes the wife and children might be amongst the number of those whom he appointed to receive it; but, however, the law trusted him with the sole disposition. 2 Bac. Abr. 398. The first statute that abridged the power of the ordinary herein, was the aforementioned statute of the 13 Ed. 1. st. 1. c. 19., by which it is enacted as followeth: Whereas after the death of a person dying intestate, which is bounden to some other for debt, the purposes (in pios usus), possessed itself of them, not only in cases where the deceased left a widow and children, or other near relations, but in defiance also of the just claims of creditors. On this footing the law continued under the Norman kings and the first sovereigns of the line of Plantagenet; but when the free spirit of our constitution, which had been long labouring under the pressure of the feudal institutions and the shackles of papal superstition, commenced those struggles which ultimately led to its emancipation, the abuses practised by the ordinary in the administration of the effects of intestates, became in their turn subjected to correction and control. The 32d article of the Magna Charta, extorted from king John, expressly provides against them; but it is a curious fact, and one which strongly marks the influence of the papal power in England at that period, that this article was wholly omitted in the Magna Charta of Henry III. goods come to the ordinary to be disposed; the ordinary from henceforth shall be bound to answer the debts as far forth as the goods of the dead will extend, in such sort as the executors of the same party should have been bounden, if he had made a testament. Dying intestate] There be divers kinds of intestates; one, that maketh no will at all; another, that maketh a will and exe[272] cutors, and they refuse, in this case he dieth quasi intestatus; and these are within the purview of this act. Therefore the ordinary is the person whom the law appointeth to have the charge or administration of the goods and chattels of the party that dieth intestate, or quasi intestatus. And justly did the law in this case appoint the ordinary; for the law presumed, that he who had the care of his soul in his lifetime, would after his death have care of his temporal goods and chattels, to see them well disposed and administered. 2 Inst. 397. Which is bounden to some other for debt] This is not only intended of an obligation or deed in writing, but howsoever he was charged in law, as for rent upon a lease, or upon an assumpsit, or the like. 2 Inst. 397. For debt] This act is not only intended of that which is properly a debt, but of all duties, covenants, or just causes of action, such as might be brought against executors. 2 Inst. 897. The goods come to the ordinary to be disposed] So that this statute doth not give this power of disposing, but supposeth it in the ordinary; the statute being, as to this, in affirmance only of the common law. 5 Co. 83. But unless some of the goods or chattels came to the hands and possession of the ordinary, he was not to be charged by the common law; but if they came to his hands, and he should neither administer and pay the debts and duties himself, nor commit them over to the kin and friends of the intestate that would, the common law did charge him, and so doth this act which is made in affirmance of it. 2 Inst. 397. Goods come to the ordinary] If a man die intestate, and a stranger taketh the goods: the ordinary shall not have an action of trespass for taking of them (unless he had taken them into his possession). But the executor or administrator, before seizure, may have an action of trespass. 2 Inst. 397. Come to the ordinary] Neither can the ordinary have any action of debt, covenant, or any other action, which belonged to the intestate; but those to whom the ordinary committeth administration may have all these actions by the statute of the 31 Ed. 3. (hereafter following); but before that statute, there was no remedy by law given to the administrators, to recover those things in action. 2 Inst. 397, 398. But by the common law, an action of debt did lie against the |
