The Orphans Legacy, Part 2 · Chapter 32
CHAP. XXXII. Of Filial Portions.
1. The Pretorian Law in point of Succeſſion.
2. Whether the Ordinary may compel the Adminiſtrator to give Filial Portions.
3. What proviſion of Law now in force as to diſtributions of Inteſtates Eſtates.
1. AN Adminiſtration of a deceaſeds Goods and Chattels doth not proceed by or out of the Civil Law properly ſo called, which only makes Heirs, and giveth right of Succeſſion, but out of the Pretorian Law, or Law of Conſcience; which in Equity calleth ſundry to the Succeſſion of other mens Goods by Adminiſtration where there is no Will, and in ſome Caſes where there is a Will, as where the Will is concealed, or the Executor renounceth the Will; but if the Will once appear, then the Adminiſtration ceaſeth. In Caſes where Adminiſtrations are to be granted, the Children of the deceaſed had liberty by this Law to take it within a year after the death of the deceaſed; and if they were further off of Kin, then they had only a hundred dayes to take it in, unleſs thoſe who were to take it were Infants, Mad, Deaf, Dumb, or Blind; in which Caſes there was a longer time aſſigned. By this Law the Praetor granted Adminiſtration, not only according to the Tables of the Teſtament, but many times even againſt the Tables of the Teſtament: As where a Child was not diſ-inherited in his Fathers Will, by and in plain and expreſs terms, but paſſed over with ſilence only; or that the Child was not born at the time of his death, and ſo not certainly known whether any ſuch Child were living or not, or whether to be hoped for: In which caſe if it did after appear, then was the Mother by that Law to be put into poſſeſſion of that which was the Childs part. If there appear no Will, then was the Adminiſtration by this Law committed in this order or method. Firſt, the Children of the deceaſed were admitted; Secondly, thoſe that were next of Kin by the Male Line; Thirdly, thoſe that were next of Kin in the Female Line; which difference notwithſtanding between Male and Female at this day is taken away, and they that are next of Kin, are equally admitted of either Sex. Laſtly, came thoſe which had right thereto, in that they were Man or Wife.aRidleys view of the Civil and Eccleſiaſtical Laws. Sext. 8. cap. 1. par. 1.
2. It hath been and ſtill is much controverted, whether the Ordinary hath power to compel the Adminiſtrator to give Portions to Children, or to allot and diſtribute Filial Portions to the deceaſeds Children out of his Eſtate; If the Ordinary attempt this, either before or after the granting of Letters of Adminiſtration, it is held by ſome, that the Adminiſtrator may have a Prohibition againſt the Ordinary, bCoke 8. 135. 9. 39. Dyer 255. Weſtm. 2. cap. 20. & 31 Ed. 3. cap. 11.and divers have been granted accordingly; yet notwithſtanding this, it is uſual for the Ordinary to order and allot diſtributions of Filial Portions, and therein Prohibitions not often granted at this day.cHill. 13 Jac. Coke B. Henſlowes Caſe. & Trin. 3 Jac. Coke B. in Davies caſe. & Hill. 2 Char. 1. Coke 9. in Fotherly's Caſe.
3. But now this Queſtion is fully Reſolved, and the Controverſy at an end; for by a late Statute, d22, 23 Char. 2.it is Enacted, "That the Ordinaries ſhall call Adminiſtrators to Account, for and touching the Goods of any perſon dying Inteſtate, and order and make juſt and equal diſtribution of what remaineth clear (after all Debts, Funerals, and juſt Expences firſt allowed and deducted) amongſt the Wife and Children, or Childrens Children, if any ſuch be, or otherwiſe to the next of Kindred to the dead perſon in equal degree, or legally repreſenting their Stocks pro ſuo cui que jure, according to the Lawes in ſuch Caſes, and in manner and form following: That is to ſay, one third part of the ſaid Surpluſage to the Wife of the Inteſtate, and all the reſidue by equal Portions to and amongſt the Children of ſuch perſons dying Inteſtate, and ſuch perſons as legally repreſent ſuch Children, in caſe any of the ſaid Children be then dead, other than ſuch Child or Children (not being Heir at Law) who ſhall have any Eſtate by the ſettlement of the Inteſtate, or ſhall be advanced by the Inteſtate in his life-time, by Portion or Portions equal to the ſhare which ſhall by ſuch diſtribution be allotted to the other Children to whom ſuch diſtribution is to be See the ſaid Stat. at large.made, &c. And the Heir at Law, notwithſtanding any Land that he ſhall have by deſcent or otherwiſe from the Inteſtate, is to have an equal part in the diſtribution with the reſt of the Children, &c. And in caſe there be no Children, nor any Legal Repreſentatives of them, then one Moity of the ſaid Eſtate to be allotted to the Wife of the Inteſtate, the reſidue of the ſaid Eſtate to be diſtributed equally to every of the next of Kindred of the Inteſtate who are in equal degree, and thoſe who legally repreſent them. Provided, that there be no Repreſentations admitted among Collaterals after Brothers and Siſters Children: And in caſe there be no Wife, then all the ſaid Eſtate to be diſtributed equally to and amongſt the Children, &c." And no ſuch diſtribution to be made till after one year after the Inteſtates death; nor without ſufficient ſecurity to be given by thoſe to whom ſuch diſtribution ſhall be made, for refunding back to the Adminiſtrator (according to each ones ratable proportion) in caſe of the Inteſtates Debts afterwards ſued for and recovered, or otherwiſe duly made to appear: For other Proviſoes, Rules and Limitations in the ſaid late Act of Parliament, the Reader is referred to the Statute it ſelf, there more at large.
Note: An Adminiſtration cannot be revoked for the not bringing in of the Inventory, and the Account of the Adminiſtrator: And the Ordinary upon an Adminiſtration granted, had not [before the ſaid Statute] power to make any diſtribution of the Surpluſage, nor to take any Bond for to Anſwer the Surpluſage, by the true meaning of the Statute of 21 H. 8. which intends a benefit to the Adminiſtrator, and not an unprofitable burden. eMich. 15 Jac. in C. B. Tooker and Loanes Caſe. Hob. 190. Vid. Styles Paſch. 24. B. R. Hill. & Birds Caſe. acc. Vid. Hill. 16 Car. in C. B. Merſh. 93. Hugh. Abridg. verb. Adm. p. 117.The Ordinary hath not power to make diſtribution of the Goods, becauſe there may be a Debt which was unknown; and if he might diſtribute, then the Adminiſtrator ſhould be charged with the debt of his own Goods. Vid. Brierſley's Caſe, Brown 1 Part. 31. acc. Whether this were Law then, is a needleſs queſtion, it being otherwiſe now by the Statute aforeſaid.