Status of uncer rupt. in the pound, unless the creditors have passed a special resolution (i. e., a resolution passed by a majority in number, representing three-fourths in value of the debts, of the creditors present in person or by proxy at a meeting specially convened), to the effect that a discharge should be granted to the bankrupt. An order of discharge releases the bankrupt from all debts proveable under the [* 631] bankruptcy, except those which he incurred by means of any fraud or breach of trust, and those of which he obtained forbearance by means of fraud; and, also, except debts due to the crown or relating to the revenue: but of these last he may be discharged if the commissioners of the treasury certify their consent in writing to such discharge (j). If the bankrupt fail to obtain an order of discharge, then, after the close of tificated bank his bankruptcy, the following consequences ensue: a period of three years is given to the bankrupt, during which, if he pays to his creditors such additional sum as, together with the dividend already paid, makes up 10s. in the pound, he is to obtain an order of discharge; and, meanwhile, no debt proveable under the bankruptcy shall be enforced against his property: but if, at the expiration of the three years, he has not in this manner obtained an order of discharge, any balance remaining unpaid in respect of any debt proved under the bankruptcy (without interest) shall be deemed an existing debt in the nature of a judgment debt, and may be enforced as such. The court referred to throughout is, in the case of debtors residing in or carrying on business in London (k), the London Bankruptcy Court, which is to consist of a chief judge and the usual subordinate officers. In the case of those residing in any other part of England, the court is the county court of the district in which the debtor resides or carries on business (1). Orders of the county courts are to be subject to appeal to the chief judge; and orders of the latter are to be subject to appeal to the court of appeal in chancery, and ultimately to the house of lords. Bankruptcy courts. The act also contains provisions for liquidating the affairs of a debtor by arrangement otherwise than in bankruptcy. The details of these cannot be here enlarged upon. (j) Sect. 49. the districts of the metropolitan county (k) This includes the city of London and courts, s. 60. (7) Sects. 59, 71. *CHAPTER XXXI. TITLE BY TESTAMENT AND ADMINISTRATION. [*632] THERE yet remain to be examined, in the present chapter, two other methods of acquiring personal estates, viz., by testament (a) and administration. And Title by will or these we propose to consider in one and the same view; they administration. being in their nature so connected and blended together as makes it impossible to treat of them distinctly, without manifest tautology and repetition. Subject divided. In the pursuit, then, of this joint subject, we will, first, inquire shortly into the origin and antiquity of testaments and administrations; secondly, show who is capable of making a last will and testament; thirdly, consider the nature of a testament and its incidents; fourthly, show what an executor and administrator are, and how they are to be appointed; and, lastly, select some few of the general heads of the office and duty of executors and administrators. There is no question that testaments are of very high antiquity, though, as we have seen, wills dealing with real estate in England have not been invariably admitted by our law. The power of directing who shall be the possessors of a person's moveables, after his death, to a limited extent at least, has been nearly universal among civilized nations, and the law of every well-regulated *society (b) has made provision as to the persons in whom the goods [* 633] are to vest in the absence of such direction, or so far as such direction may not or does not extend. The former method of acquiring personal property, according to the express directions of the deceased, we call a testament the latter, which is according to the will of the deceased, not expressed, indeed, but presumed by the law (c), we call in England an administration; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates. There seems ample evidence that the Jews in the earliest times exercised this right of testamentary disposition (d). Among the Greeks, also, at Athens at least, it was permitted, having been introduced by Solon (e), though in other parts of Greece it was discountenanced (ƒ). Amongst the Romans in ancient times a member of the comitia curiata could, by a kind of special law, passed at his personal instance, alter the devolution of his personal property (g). Plebeians effected a like object by an indirect method of a pretended sale (per æs et libram), a proceeding afterwards countenanced by the Laws of the Twelve Tables (h). Subsequently, by 44 (a) The word "will," ultima voluntas in scriptis, is now properly applicable to real estate; testament being the appropriate word for "personalty" (Co. Litt. 111 a). The two words are however, in substance, the same. Testament has been defined as testatio mentis (Inst. 2. 10. 1), though this is hardly a derivation. (b) Puff. L. of N., b. 4, c. 10. (c) Ib. b. 4, c. 11. (d) Barbeyr. Puff. 4. 10. 4; Godolph. Orph. Leg. 1. 1, citing Gen. c. 15; and see Gen. c. 48. (e) Plutarch, in Vitâ Solon. (f) Pott. Antiq. 1. 4, c. 15. (h) Ubi legassit super pecunia tutelare suæ rei, ita jus esto. the prætorian law and the imperial constitutions, simple testaments became permissible; to be made, however, with considerable formalities, such as, amongst others, the presence of seven witnesses (i). Amongst the Germans, however, they do not seem to have been in use (k). And this variety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state (); which has permitted it in some countries and denied it in others: and, even where it is permitted by law, it is subjected to different formalities and restrictions [* 634] Testamentary power in England. * With us in England this power of bequeathing is coeval with the first rudiments of the law for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. "Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem (præter eam quæ jure debeter hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur” (n). But we are not to imagine that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us (0), that by the common law, as it stood in the reign of Henry II., a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal: or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but, if he died without either wife or issue, the whole was at his own disposal (p). The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them (q). Reasonable parts of widow and children. This continued to be the law of the land at the time of magna carta, which provides, that the king's debts shall first of all be levied, and then the residue of the goods * shall go to the executor to perform the will of the [* 635] deceased; and, if nothing be owing to the crown, "omnia catalla cedant defuncto; salvis uxori ipsius et pueris suis rationabilis partibus suis" (r). In the reign of King Edward III. this right of the wife and children was still held to be the universal or common law (s); though frequently pleaded as the local custom of Berks, Devon, and other counties (t): and sir (i) Inst. 2. 10. 2. (k) Tacit. de More Germ. 21. (1) Ante, p. 8. solent a tempore, &c., habere suam rationabilem partem bonorum maritorum suorum: ita videlicet, quod si nullos habuerint liberos, tunc (m) Sp. L. b. 27. c. 1; Vinnius in Inst. 1. 2, medietatem: et si habuerint, tunc tertiam par tem, &c.; and that her husband died worth Power to bequeath by will the whole of personal tor may please. Henry Finch lays it down expressly (u), in the reign of Charles I., to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now, by will, bequeath the whole of his goods and chattels; though we cannot estate as testa trace out when first this alteration began. Indeed, Sir Edward Coke (x) is of opinion, that this never was the general law, but only obtained in particular places by special custom: and to establish that doctrine, he relies on a passage in Bracton, which, in truth, when compared with the context, makes directly against his opinion. For Bracton (y) lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception, which Sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch seem to agree with Bracton that this right to the pars rationabilis was by the common law (z). * But whatever was the common law throughout the kingdom, [* 636] this at least is certain, that until comparatively modern times, in certain places, particularly in the province of York, the principality of Wales, and the city of London, a restriction upon the testamentary power of disposition was by custom imposed upon testators in favour of their wives and children, which, in fact, continued until abolished by statute (a). These common law or customary restrictions now nowhere exist: absolute power of disposition by testament over all his personal property is possessed by everybody who is not under personal disability (b). In case a person made no disposition of such of his goods as were testable, whether that were only part or, as is now the case, the whole of them, he was, and is, said to die intestate; and in such cases, it is said, that by the old law the king was entitled to seize upon his goods, as the parens patriæ, and general trustee of the kingdom (c). This prerogative the king continued to exercise for some time by his own ministers of justice; and probably in the county court, where matters of all kinds were determined; and it was granted as a franchise to many lords of manors, and others, who had, till very recently, a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts baron, and other courts, or to have their wills there proved, in case they made any disposition (d). Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative; which was done, says Perkins (e), because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowledge what things would conduce to the benefit of the soul of the deceased (ƒ). [* 637] The goods, therefore, of intestates were given to the ordinary by the crown; and he might seize them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios * usus: and if he did otherwise, he broke the confidence which the law reposed in him (g). So that, properly, the whole interest and power which were granted to the ordinary, were only those of being the king's almoner within his diocese; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken zeal of the times had denominated pious (h). And, as he had thus the disposition of intestates' effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was effectually superseded thereby. The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were, therefore, not accountable to any, but to God and themselves, for their conduct (i). But even in Fleta's time it was complained (k), "quod ordinarii, hujusmodi bona nomine ecclesiæ occupantes, nullam vel saltem indebitam faciunt distributionem." And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of Pope Innocent IV. (7), written about the year 1250; wherein he lays it down for established canon law, that "in Brittaniâ tertia pars bonorum decedentium ab intestato in opus ecclesiæ et pauperum dispensanda est.” Thus the popish clergy took to themselves (m) (under the name of the church and poor) the whole residue of the deceased's estate, after the partes [* 638] rationabiles, or two-thirds, of the wife and children were deducted; without paying even his lawful debts, or other charges thereon. This, however, was in excess of their rights; for we find that in Snelling's case (n) it was resolved that the ordinary, if he took possession of the intestate's goods, was chargeable with his debts at common law. The statute Westminster 2 (0), which made a declaration to this effect, was only confirmatory of the common law, but probably was effective in enforcing its observation. But, though they were now made liable to the creditors of the intestate for their just and lawful demands: yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary should approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate dependents: Administration to nearest and most lawful friends of deceased. and therefore the statute 31 Edw. 3, c. 11, provides, that, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods; which administrators are put upon the same footing, with regard to suits and to accounting, as executors appointed by will. This is the origin of administrators, and they so stood till the year 1857, when the Probate Act (p) was passed. Administrators were considered as the officers of the ordinary, appointed by him in pursuance of this statute, which |