widow and no child, the widow shall have three-fourths of the whole, two by the custom and one by the *statute; and the remaining fourth shall go by the statute to the next of kin. It is also to be observed, that, if the [*519] wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of non-entity, with regard to the custom only; (7) but she shall be entitled to her share of the dead man's part ur ler the statute of distributions, unless barred by special agreement. (m) And if any of the children are advanced by the father, in his lifetime, with any sum of money (not amounting to their full proportionable part), they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, (44) before they are entitled to any benefit under the custom: (n) but, if they are fully advanced, the custom entitles them to no further dividend. (0) Thus far in the main the customs of London and of York agree; but besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testament: (p) and, if they die under that age, whether sole or married, their share shall survive to the other children; but after the age of twenty-one, it is free from any orphanage custom, and, in case of intestacy, shall fall under the statute of distributions. (7) The other that in the province of York, the heir at common law, who inherits any land either in fee or in tail, is excluded from any filial portion or reasonable part. (r) But, notwithstanding these provincial variations, the customs appear to be substantially one and the same. And, as a similar policy formerly prevailed in every part of the island, we may fairly conclude the whole to be of British original; or, if derived from the Roman law of successions, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points (particularly in the advantages given to the widow) it very considerably differs; though it is not improbable that the resemblances [*520] which yet remain may be owing to the Roman usages; introduced in the time of Claudius Cæsar, who established a colony in Britain to instruct the natives in regal knowledge; (s) inculcated and diffused by Papinian, who presided at York us præfectus prætorio, under the Emperors Severus and Caracalla: (t) and continded by his successors till the final departure of the Romans in the beginning of the fifth century after Christ. (7) 2 Vern. 665. 3 P. Wms. 16. (p) 2 Vern. 558. (44) [Advances which an intestate has made to any of his children, are never brought into hotchpot for the benefit of his widow: Kircudbright v. Kircudbright, 8 Ves. 64; but solely with a view to equality as amongst the children: Gibbons v. Caunt, 4 Ves. 847; and in cases arising upon the custom of London, the effect of the full advancement of one child is merely to remove that child out of the way, and to increase the shares of the others. Folkes v. Western, 9 Ves. 460. So, when a settlement bars, or makes a composition for, the wife's customary share, that share, if the husband die intestate, will be distributable as if he had left no wife: Knipe v. Thornton, 2 Eden, 121; Morris v. Burrows, 2 Atk. 629; Read v. Snell, id. 644; and will not go to increase what is called "the dead man's part:" Medcalfe v. Ives, 1 Atk. 63; to a distributive share of which the widow would be entitled, notwithstanding she had compounded for her customary part: Whithill v. Phelps, Prec. in Ch. 328; unless the expressed, or clearly implied, intention was, that she should be barred as well of her share of the dead man's part, as of her share by the custom. Benson v. Bellasis, 1 Vern. 16. A jointure in bar of dower, without saying more, will be no bar of a widow's claim to a customary share of personal estate; for dower affects lands only, and land is wholly out of the custom. Babington v. Greenwood, 1 P. Wms. 531.] THE END OF THE SECOND BOOK. VOL. I.-86 681 APPENDIX. No. I. VETUS CARTA FEOFFAMENTI. · SCIANT presents et futuri, quod ego Willielmus, filius Willielmi de Segenho, Premises. dedi, concessi, et hac presenti carta mea confirmavi, Johanni quondam filio Johannis de Saleford, pro quandam summa pecunie quam michi debit pre manibus, unam acram terre mee arabilis, jacentem in campo de Saleford, juxta terram quondam Richardi de la Mere: Habendam et Tenendam totam predictam acram Habendum and terre, cum omnibus ejus pertinentiis, prefato Johanni, et heredibus suis, et suis Tenendum. assignatis, de capitalibus dominis feodi: Reddendo et faciendo annuatim eisdem Reddendum. dominis capitalibus servitia inde debita et consueta: Et ego predictus Willielmus, et heredes mei, et mei assignati, totam predictam acram terre, cum omnibus Warranty. suis pertinentiis, predicto Johanni de Saleford, et heredibus suis et suis assignatis, contra omnes gentes warrantizabimus in perpetuum. In cujus rei testimonium huic presenti carte sigillum meum apposui: Hiis testibus, Nigello de Saleford, Johanne de Seybroke, Radulpho clerico de Saleford, Johanne molendario de eadem villa, et aliis. Data apud Saleford die Veneris proximo ante festum sancte Margarete virginis, anno regni regis EDWARDI fillii regis EDWARDI Sexto. (L. S.) MEMORANDUM, quod die et anno infrascriptis plena et pacifica seisina acre infraspecificate, cum pertinentiis, data et deliberata fuit per infranominatum Willielmum de Segenho infranominato Johanni de Saleford, in propriis personis suis, secumdum tenorem et effectum carte infrascripte, in presentia Nigelli de Saleford, Johannis de Sey broke et aliorum. No. II. A MODERN CONVEYANCE BY LEASE AND RELEASE. SECT. 1. LEASE OR BARGAIN and Sale, for A YEAR. Conclusion. Livery of seisin endorsed. No. II. THIS INDENTURE, made the third day of September, in the twenty-first year Premises. of the reign of our sovereign lord GEORGE the Second, by the grace of God, king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in the year of our Lord one thousand seven hundred and forty-seven, between Abraham Barker, of Dale Hall, in the county of Norfolk, esquire, and Parties. Cecilia his wife, of the one part, and David Edwards, of Lincoln's Inn, in the county of Middlesex, esquire, and Francis Golding, of the city of Norwich, clerk, of the other part, witnesseth: that the said Abraham Barker and Cecilia his wife, in consideration of five shillings of lawful money of Great Britain, to them in hand paid by the said David Edwards and Francis Golding, at, or before, the ensealing and delivery of these presents, (the receipt whereof is hereby acknowledged), and for other good causes and considerations, them the Consideration. said Abraham Barker and Cecilia his wife, hereunto specially moving, have barBargain and gained and sold, and by these presents do, and each of them doth, bargain and sell, sale. unto the said David Edwards and Francis Golding, their executors, administrators, and assigns, All that, the capital messuage, called Dale Hall, in the parish of Dale, Parcels. in the said county of Norfolk, wherein the said Abraham Barker and Cecilia his wife now dwell, and all those their lands in the said parish of Dale, called or known by the name of Wilson's farm, containing by estimation five hundred and forty acres, be the same more or less, together with all and singular houses, dovehouses. barns, buildings, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, No. II. Habendum. Reddendum. Intent. Conclusion. Premises. Parties. Recital APPENDIX. fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatever to the said capital messuage and farm belonging or appertaining, or with the same used or enjoyed, or accepted, reputed, taken, or known, as part, parcel, or member thereof, or as belonging to the same, or any part thereof; and the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits thereof, and of every part and parcel thereof: To have and to hold the said capital messuage, lands, tenements, hereditaments, and all and singular other the premises herein before mentioned, or intended to be bargained and sold, and every part and parcel thereof, with their and every of their rights, members, and appurtenances, unto the said David Edwards and Francis Golding, their executors, administrators, and assigns, from the day next before the day of the date of these presents, for, and during, and unto the full end and term of, one whole year from thence next ensuing, and fully to be complete and ended: Yielding and paying, therefor, unto the said Abraham Barker, and Cecilia his wife, and their heirs and assigns, the yearly rent of one pepper-corn at the expiration of the said term, if the same shall be lawfully demanded: To the intent and purpose that, by virtue of these presents, and of the statute for transferring uses into possession, the said David Edwards and Francis Golding may be in actual possession of the premises, and be thereby enabled to take and accept a grant and release of the freehold, reversion, and inheritance of the same premises, and of every part and parcel thereof, to them, their heirs and assigns; to the uses and upon the trusts, thereof to be declared by another indenture, intended to bear date the next day after the date hereof. In witness whereof, the parties to these presents their hands and seals have subscribed and set, the day and year first above written. Sealed and delivered, being George Carter, William Browne. SECT. 2. DEED OF RELEASE. Abraham Barker, (L. S.) THIS INDENTURE of five parts, made the fourth day of September, in the twenty-first year of the reign of our sovereign lord GEORGE the Second, by the grace of God, king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in the year of our Lord one thousand seven hundred and fortyseven, between Abraham Barker, of Dale Hall, in the county of Norfolk, esquire, and Cecilia his wife, of the first part; David Edwards, of Lincoln's Inn, in the county of Middlesex, esquire, executor of the last will and testament of Lewis Edwards, of Cowbridge, in the county of Glamorgan, gentleman, his late father, deceased, and Francis Golding, of the city of Norwich, clerk, of the second part; Charles Browne, of Enstone, in the county of Oxford, gentleman, and Richard More, of the city of Bristol, merchant, of the third part; John Barker, esquire, son and heir apparent of the said Abraham Barker, of the fourth part; and Katherine Edwards, spinster, one of the sisters of the said David Edwards, of the fifth part. Whereas a marriage is intended, by the_permission of God, to be shortly had and solemnized between the said John Barker and Consideration. Katherine Edwards: the said intended marriage, and the sum of five thousand pounds, of good and Now this Indenture witnesseth, that in consideration of lawful money of Great Britain, to the said Abraham Barker, (by and with the consent and agreement of the said John Barker and Katherine Edwards, testified by their being parties to, and their sealing and delivery of, these presents), by the said David Edwards in hand paid, at or before the ensealing and delivery hereof, being the marriage portion of the said Katherine Edwards, bequeathed to her by the last will and testament of the said Lewis Edwards, her late father, deceased; the receipt and payment whereof the said Abraham Barker doth hereby acknowledge, and thereof, and of every part and parcel thereof, they the said Abraham Barker, John Barker, and Katherine Edwards, do, and each of them doth, release, acquit, and discharge the said David Edwards, his executors and administrators, forever by these presents: and for providing a competent jointure and provision of maintenance for the said Katherine Edwards, in case she shall, after the said intended marriage had, survive and overlive the said John Barker, her intended husband: and for settling and assuring the capital messuage, lands, tenements, and hereditaments, hereinafter mentioned, unto such uses, and upon such trusts, as are hereinafter expressed and declared: and for and in consideration of the sum of five shillings, of lawful money of Great Britain, to the said Abraham Barker and Cecilia his wife, in hand paid by the said David Edwards and Francis Golding, and of ten shillings of like lawful money to them also in hand paid by the said Charles Brown and Richard More, at or before the ensealing and delivery hereof, (the several APPENDIX. No. II. Release. Habendum 523 the grantors til receipts whereof are hereby respectively acknowledged,) they the said Abraham Barker and Cecilia his wife, have, and each of them hath, granted, bargained, sold, released, and confirmed, and by these presents do, and each of them doth, grant, bargain, sell, release, and confirm unto the said David Edwards and Francis Golding, their heirs and assigns, All that, the capital messuage called Parcels. Dale Hall, in the parish of Dale, in the said county of Norfolk. wherein the said Abraham Barker and Cecilia his wife now dwell, and all those their lands in the said parish of Dale, called or known by the name of Wilson's farm, containing by estimation five hundred and forty acres, be the same more or less, together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, casements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm belonging or appertaining, or with the same used or enjoyed, or accepted, reputed, taken, or known, as part, parcel, or member thereof, or as belonging to the same or any part thereof: (all which said premises are now in the actual possession of the said David Edwards and Francis Golding, by virtue of a bargain and sale to Mention of bar them thereof made by the said Abraham Barker and Cecilia his wife, for one gain and sale. whole year, in consideration of five shillings to them paid by the said David Edwards and Francis Golding, in and by one indenture, bearing date the day next before the day of the date hereof, and by force of the statute for transferring uses into possession;) and the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits thereof, and every part and parcel thereof, and also all the estate, right, title, interest, trust, property, claim, and demand whatsoever, both at law and in equity, of them the said Abraham Barker and Cecilia his wife, in, to, or out of the said capital messuage, lands, tenements, hereditaments, and premises: to have and to hold the said capital messuage, lands, tenements, hereditaments, and all and singular other the premises hereinbefore mentioned to be hereby granted and released, with their and every of their appurtenances unto the said David Edwards and Francis Golding, their heirs and assigns, to such uses, upon such trusts, and to and for such intents and purposes, as are hereinafter mentioned, expressed, and declared, of and concerning the same: that is to say, to the use and behoof of the said To the use of Abraham Barker and Cecilia his wife, according to their several and respective marriage. estates and interests therein, at the time of, or immediately before, the execu tion of these presents, until the solemnization of the said intended marriage: and from and after the solemnization thereof, to the use and behoof of the said Then of the John Barker, for and during the term of his natural life; without impeachment life, sans of or for any manner of waste: and from and after the determination of that waste: estate, then to the use of the said David Edwards and Francis Golding, and their heirs, during the life of the said John Barker, upon trust to support and Remainder to preserve the contingent uses and estates hereinafter limited from being defeated serve contin and destroyed, and for that purpose to make entries, or bring actions, as the gent remaincase shall require; but, nevertheless, to permit and suffer the said John Barker, for her jointand his assigns, during his life, to receive and take the rents and profits thereof, and of every part thereof, to and for his and their own use and benefit: and Remainder to from and after the decease of the said John Barker, then to the use and behoof the wife for life, of the said Katherine Edwards, his intended wife, for and during the term of ure, in bar of her natural life, for her jointure, and in lieu, bar, and satisfaction of her dower dower: and thirds at common law, which she can or may have or claim, of, in, to, or out of, all and every. or any, of the lands, tenements, and hereditaments, whereof or wherein the said John Barker now is, ar at any time or times hereafter during the coverture between them shall be, seised of any estate of freefor a term, upon hold or inheritance; and from and after the decease of the said Katherine Ed- Remainder to wards, or other sooner determination of the said estate, then to the use and other trustees behoof of the said Charles Browne and Richard More, their executors, admin- trusts after istrators, and assigns, for and during and unto the full end and term of five mentioned: hundred years from thence next ensuing, and fully to be complete and ended, without impeachment of waste: upon such trusts nevertheless, and to and for such intents and purposes, and under and subject to such provisoes and agreements, as are hereinafter mentioned, expressed, and declared of and concerning the same: and from and after the end, expiration, or other sooner determina- Remainder to tion of the said term of five hundred years, and subject thereunto, to the use the first and and behoof of the first son of the said John Barker on the body of the said the matriago Katherine Edwards his intended wife to be begotten, and of the heirs of the in tail: body of such first son lawfully issuing and for default of such issue, then to the use and behoof of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and of all and every other the son and sons of the said John Barker on the body of the said Katherine Edwards his intended wife to be begotten, severally, successively, and in remainder, one after another, as they husband for trustees to pre ders. other sons of 685 |