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estate they shall acquire remains liable to their creditors, excepting their necessary apparel, household goods, and the tools and implements of their trades.(6)
Thus much for the proceedings on a commission of bankrupt, so far as they affect the bankrupt himself personally. Let us next consider,
4. How such proceedings affect or transfer the estate and property of the bank. rupt. The method whereby a real estate in lands, tenements, and heredita. ments may be transferred by bankruptcy, was shown under its proper head in a former chapter.(c) At present, therefore, we are only to consider tho transfer of things personal by this operation of law.
By virtue of the statutes before mentioned,(d) all the personal estate and effects of the bankrupt are considered as vested, by the act of bankruptcy, in the future assignees of his commissioners, whether they be goods in actual possession, or debts, contracts, and other choses in action : and the commissioners, by their warrant, may cause any house or tenement of the bankrupt to be broken open in order to enter upon and seize the same. And when the assignees are chosen or approved by the creditors, the commissioners are to assign every thing over to them; and the property of every part of the estate is thereby as fully vested in them as it was in the bankrupt himself, and they have the same remedies to recover it.(e)"
The property vested in the assignees is the whole that the bankrupt had in himself at the time he committed the first act of bankruptcy, or that has been vested in him since, before his debts are satisfied or agreed for. Therefore it is usually said, that once a bankrupt and always a bankrupt; by which is *486]
meant, that a plain direct act of bankruptcy once *committed cannot be
purged or explained away by any subsequent conduct, as a dubious, equivocal act may be ;(1) but that, if a commission is afterwards awarded, the cominission and the property of the assignees shall bave a relation or referencu back to the first and original act of bankruptcy (9) Inasmuch that all transactions of the bankrupt are from that time absolutely null and void, either with regard to the alienation of his property or the receipt of his debts from such as aru privy to his bankruptcy; for they are no longer his property, or his debts, but those of the future assignees. And if an execution be sued out, but not served and executed on the bankrupt's effects till after the act of bankruptcy, it is void as against the assignees. But the king is not bound by this fictitious relation, nor is he within the statutes of bankrupts;(h) for if, after the act of bankruptcy committed, and before the assignment of his effects, an extent issues for the debt of the crown, the goods are bound thereby.() In France, this doctrine of relation is carried to a great length; for there every act of a merchant, for ten days precedent to the act of bankruptcy, is presumed to be fraudulent, and therefore void.(k) But with us the law stands upon a more reasonable footing: for, as these acts of bankruptcy may sometimes be secret to all but a few, and it would be prejudicial to trade to carry this notion to its utmost length, it is provided, by statute 19. Geo. II. c. 32, that no money paid by it bankrupt to a bona fide or real creditor, in the course of trade, even after an
() 4 Burr. 32.
(6) Stat. 5 Geo. II. C. 30.
5 By the act of Congress August 19, 1841, (5 Story, 2830,) it was provided that all the property and rights of property, of every name and nature, and whether real, personal, or mixed, of every bankrupt, except as presently mentioned, who shall be declared to be a bankrupt, shall by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment, or other conveyance whatsoever. The exception referred to is necessary household and kitchen furniture, and such other articles and necessaries of the bankrupt as the assignee shall designate or set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt, but altogether not to exceed in value, in any case, the sum of three hundred dollars; and also the wearing-apparel of such bankrupt, and that of his wife and children.-SAARSWOOD.
act of bankruptcy done, shall be liable to be refunded. Nor, by statute 1 Jac I. c. 15, shall any debtor of a bankrupt, that pays him his debt without knowing of his bankruptcy, be liable to account for it again; the intention of this relative power being only to reach fraudulent transactions, and not to distress the fair trader.
The assignees may pursue any legal method of recovering this property so vested in them, by their own authority; but *cannot commence a suit in equity, nor compound any debts owing to the bankrupt, nor refer any
[*487 matters to arbitration, without the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the Gazette.(I)
When they have got in all the effects they can reasonably hope for, and reduced them to ready money, the assignees must, after four and within twelve months after the commission issued, give one-and-twenty days' notice to the creditors of a meeting for dividend or distribution; at which time they must produce their accounts, and verify them upon oath if required. And then the commissioners shall direct a dividend to be made, at so much in the pound, to all creditors who have before proved, or shall then prove, their debts. This dividend must be made equally and in a ratable proportion to all the creditors, according to the quantity of their debts; no regard being had to the quality of them. Mortgages, indeed, for which the creditor has a real security in his own hands, are entirely safe ; for the commission of bankrupt reaches only the equity of redemption.(m) So are also personal debts, where the creditor has a chattel in his hands as a pledge or pawn for the payment, or has taken the debtor's lands or goods in execution. And, upon the equity of the statute 8 Anne, c. 14, (which directs that upon all executions of goods being on any premises demised to a tenant, one year's rent, and no more, shall, if due, be paid to the landlord,) it hath also been held that, under a commission of bankrupt, which is in the nature of a statute-execution, the landlord shall be allowed his arrears of rent to the same amount in preference to other creditors, even though he had neglected to distrein while the goods remained on the premises, which he is other. wise entitled to do for his entire rent, be the quantum what it may.(n) But, otherwise, judgments and recognizances, (both which are debts of record, and therefore at other times have a priority,) and also bonds and obligations by deed or special instrument, (which are called debts by specialty, and are usually the next *in order,) these are all put on a level with debts by mere sim
[*488 ple contract, and all paid pari passu.() Nay, so far is this matter carried, that, by the express provision of the statute,(p) debts not due at the time of the dividends made, as bonds or notes of hand payable at a future day cer. tain, shall be proved and paid equally with the rest,q) allowing a discount or drawback in proportion. And insurances and obligations upon bottomry or respondentia, bona fide made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted bufore any act of bankruptcy.(r)
Within eighteen months after the commission issued, a second and final divi dend shall be made, unless all the effects were exhausted by the first.(8) And if any surplus remains, after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupt.(t) This is a case which sometimes happens to nen in trade, who involuntarily, or at least unwarily, commit acts of bankruptcy, 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 superseded.(u) This case may also happen: when a knave is desirous of defrauding his creditors, and is compelled by : commission to do them that jus
() Stat. 5 Geo. II. c. 30.
(9) Lord Raym. 1549. Stra. 1211
tice whicn 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(w) or his representatives.
OF TITLE BY TESTAMENT, AND ADMINISTRATION.
THERE yet remain to be examined, in the present chapter, 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, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show 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 became 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 doc.
trine 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 persons.(a) The former method of acquiring personal property, according to the express directions of the deceased, call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law,(6) we call in England an administra. tion; 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 antient Hebrews; though I hardly think the example usually given(©) of Abraham's complaining(d) that, unless he had some children of his body, his steward, Eliezer of Damascus, would be his heir, is quite conclusive to show that he had made him so by will. And, indeed, a learned writer(e) 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)(9) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings,(1) (0)1 Atk. 244.
(*) Taylor's Elem. Civ. Law, 517.
(Seo page 12.
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
[*491 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 ;() but in many other parts of Greece they were totally discountenanced.(k) In Rome they were unknown till the laws of the twelve tables were compiled," which first gave the right of bequeathing :(l) 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,(n) 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 alınost every nation under heaven.(0)
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 debetur hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantur."(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 informs us(q) that by the common law, *as it stood in the reign of Henry the Second, a man's goods were to be divided into three [*492 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 80 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 () Plutarch in vita Solon.
(n) See page 13 (6) Pott. Antiq. I. 4, c. 15.
(9) Sp. L. b. 27, c. 1. Vinnius in Inst. 1. 2, tit. 10. ( Inst. 2, 24, 1.
(P) LL. Canut. c. 68. (*) Tucit. de Mor. Germ. 21.
(1) L. 2, c. 5. 1 This position is very questionable. Long before the compilation of the laws of the Twelve Tables, a testament might be made by a Roman, and his private will converted into a public law, by promulgation in calatis comitiis. A Roman, also, who was girt for war, and about to proceed to battle, was allowed, antecedently to the laws of the Twelve Tables, to make what was termed testamentum in procinctu. And a third mode of making a will, without the formality of ratification by the comitia, and by persons who were not entitled to the exclusively-military privilege of making testamentum procinctum, was in use before the introduction of the laws of the Twelve Tables. This was by means of a fictitious purchase by the intended inheritor, to whom the purchase-money was tendered, and weighed in a balance, before witnesses, which was termed testamentum per as et libram.
“Sciendum est, vlim quidem duo genera testamentorum in usu fuisse; quorum altero in pace et orio utebantur, quod calatis comitiis appellabant; altero, cum in prælium exituri essent, quod procinctum dicebatur. Accessit deinde tertium genus testamentorum, quod dicebatur per æs et libram, scilicet quod per emancipationem, id est, imaginariam quandam venditionem agebatur, quinque testibus et libripende civibus Romanis puberibus, præsentibus, et eo qui familiæ emptor dicebatur. Sed illa quidem priora duo genera testamentorum ex veteribus temporibus in desuetudinem abierunt: quod vero per as et libram fiebat, diutius permanserit.”. Vinnius, lib. 2, tit. 10. Heineccius, in his commentary on this passage, observes that the comitia, which were calata, or convocata, for the purpose of giving a public sanction to private wills, could neither have been the comitia centuriata nor the comitia tributa, but must necessarily have been the comitia curiata, quæ sola, primis temporibus, cum in concione testamenta fiebant, in urbe haberentur. Certum est tempore medic jurisprudentiæ comitiis testari desitum fuisse. Immo, latis tabulis xii. desiisse testamenta in comitiis calatis fieri, verisimillimum est. Quis enim voluisset voluntatem svam submittere populi suffragiis, quum bere
8oque arbitrio testari posset? Et quis maluisset publice et palam hæredem nuncupare, quam jure uti zii. tabularum concesso ?-Chitty.
was at his own disposal.(r) The shares of the wife and children were called their reasonable parts, and the writ de rationabili parte bonorum was given to recover them.(8)
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 suis."(t) 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;(u) though frequently pleaded as the local custom of Berks, Devon, and other counties :(w) and Sir Henry Finch lays it down expressly, (x) 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 Cokely) is of opinion that *493]
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(2) 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, do all agree with Bracton, that this right to the pars rationabilis was by the common law; which also continues to this day to be the general law of our sister kingdom of Scotland.(a) To which we may add, that whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the antient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times; when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided: the one 4 & 5 W. and M. c. 2, explained by 2 & 3 Anne, c. 5, for the province of York; another 7 & 8 W. III. c. 38, for Wales; and a third, 11 Geo. I. c. 18, for London: whereby it is enacted that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter)(0) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries; and afterwards he was left at his own liberty to bequeath the remainder as he pleased. *494]
*In case a person made no disposition of such of his goods as were
testable, whether that were only part or the whole of them, he was, and is, said to die intestate; and in such case 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 kind were determined : and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant ad. ministration to their intestate tenants and suitors, in their own courts-baron, () Bracton, l. 2, c. 26. Flet. l. 2, c. 57.
to the pleadings, and the fact of the husband's dying without (") F. N. B. 122.
issue was denied, but the rule of law, as stated in the writ, 9 llen. III. c. 18.
soems to have been universally allowed. M. 30 Edw. ILL. (*) A widow brought an action of detinue against her husband's executors, quod cum per consuetudinem totius regni Angliæ hactenus usitatam di approbatam, uzores debent et solent a tempore, &c. habere suam rationabilem partem bo norum maritorum suorum ; ita videlicet, quod si nullos (L. 2, c. 26, 2. habuerint liberos, tunc medietatem; et si habuerint, tunc a) Dalrymp. of Feud. Property, 145. tertiam partem, &c., and that her husband died worth () Page 428. 200.000 marks, withont isste had between them; and there
() 9 Rep. 38. upoo she claimed the moiety. Some exceptions were takun
25. And a similar case occurs in H. 17 Edw. III. 9.
Reg. Brev. 142. Co. Litt. 176.
Law, 175. () 2 Inst, 33.