by absconding and the like, while their effects are more than sufficient to pay their creditors. And, if any suspicious or malevolent creditor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence; except that, upon satisfaction made to all the creditors, the commission may be superseded. This case may also happen, when a knave is desirous of defrauding his creditors, and is compelled by a commission to do them that justice, which otherwise he wanted to evade. And therefore, though the usual rule is, that all interest on debts carrying interest shall cease from the time of issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt, or his representatives (38).

u 2 Ch. Cas. 144.

w 1 Atk. 244.

(38) Bills and notes, in which interest is not named, carry interest only between the protest and the date of the commission.

In case of a surplus the chancellor will not order it to be returned to the bankrupt till he has discharged the interest up to the time of all debts bearing interest, and satisfied all other equitable claims upon the fund. 2 Ves. jun. 303.

CHAPTER THE THIRTY-SECOND.

OF TITLE BY TESTAMENT, AND

ADMINISTRATION.

THERE yet remain to be examined, in the present chap

ter, two other methods of acquiring personal estates, viz. by testament and administration. And these I propose to consider in one and the same view; they being in their nature so connected and blended together, as makes it impossible to treat of them distinctly, without manifest tautology and repetition.

XI, XII. In the pursuit then of this joint subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, shew who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, shew what an executor and administrator are, and how they are to be appointed; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators.

FIRST, as to the original of testaments and administrations. We have more than once observed, that when property came to be vested in individuals by the right of occupancy, it be came necessary for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, gifts, and contracts. But these precautions would be very

short and imperfect, if they were confined to the life only of the occupier; for then upon his death all his goods would again become common, and create an infinite variety of strife and confusion. The law of very many societies has therefore given to the proprietor a right of continuing his property after his death, in such persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other personsa. The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law b, 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.

TESTAMENTS are of very high antiquity. We find them in use among the ancient Hebrews; though I hardly think the example usually given, of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir, is quite conclusive to shew that he had made him so by will. And indeed a learned writere has adduced this very passage to prove, that in the patriarchal age, on failure of children, or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at law f. But, (to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world 8,) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings 1, wherein Jacob bequeaths to his son Joseph a portion of his

inheritance double to that of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens i; but in many other parts of Greece they were totally discountenanced. In Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathing: and, among the northern nations, particularly among the Germans m, testaments were not received into use. 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 in almost every nation under heaven.

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 (praeter eam quae jure debetur "hereoti nomine) sibi assumito. Verum possessiones uxori, libe"ris, et cognatione proximis, pro suo cuique jure, distribuan"tur P." 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 9, that by the common

i Plutarch. in vita Solon.

k Pott. Antiq. I. 4. c. 15.

1 Inst. 2. 22. 1.

m Tacit. de mor. Germ. 21.

■ See pag. 13,

o Sp. L. b. 27. c. 1. Vinnius in Inst. 1. 2. tit. 10.

P LL. Canut. e. 63.

q 1. 2. c. 5.

law, as it stood in the reign of Henry the second, 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. The shares of the wife and children were called their reasonable parts; and the writ de rationabili parte bonorum was given to recover them.

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 deceased: and, if nothing be owing to the crown, " omnia catalla cedant defuncto; “salvis uxori ipsius et pueris suis rationabilibus partibus suis1.” In the reign of king Edward the third this right of the wife and children was still held to be the universal or common law; though frequently pleaded as the local custom of Berks, Devon, and other counties w: and sir Henry Finch lays it down expressly, in the reign of Charles the first, 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 trace out when first this alteration began. Indeed sir Edward Cokey is of opinion, that this never was

r Bracton. 1. 2. c. 26. Flet. I. 2. c. 57. s F. N. B. 122.

t 9 Hen. III. c. 18.

u A widow brought an action of detinue against her husband's executors, quod cum per consuetudinem totius regui Angliae bactenus usitatam et approbatam, uxores debent et solent a tempore, dr. habere suam rationabilem partem bonorum maritorum suorum: ita videlicet, quod si nullos habuerint liberos, tunc medietatem; et, si habuerint, tune tertiam partem, &c. and that her hus

band died worth 200,000 marks, without issue had between them; and thereupon she claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the husband's dying without issue was denied; but the rule of law, as stated in the writ, seems to have been universally allowed. (M. 30 Edw. III. 25.) And a similar case occurs in H. 17 Edw. III. 9.

w Reg. Brev. 142. Co. Litt. 176.

x Law. 175.

y 2 Inst. 33.