POPULAR LEGAL FALLACIES.[1]
BY AN EXPERIENCED PRACTITIONER.
THE RIGHTS OF THE ELDEST SON AND OTHER CHILDREN OF AN INTESTATE OWNER OF REAL AND PERSONAL ESTATE.
Many persons believe that the eldest son of a man who has died without leaving a will, or who in other words dies intestate, is entitled to the whole of the property, both real and personal, left by his deceased parent; but this is an error so far as relates to the personal estate, and in some cases also in respect of the real estate. By the common law, which had its origin in feudal times, the eldest son was entitled to succeed to the property of his deceased father; and might be called upon to perform the military and other duties which were due and accustomed to be paid in respect of such property to the immediate feudal superior. Hence the origin of what is often spoken of as an iniquitous system of favouritism arbitrarily established by law. When there were no standing armies, and the king upon the throne for the time being had to depend upon the military services of the barons who had received lands upon condition of performing such services, while the barons in turn had to depend upon the persons to whom they had granted parts of their lands upon similar conditions, it was of great importance that there should always be a male possessor of those lands. If he were an ‘infant’ and incapable of bearing arms, a relative was appointed guardian of his person and estate during his minority, and upon this guardian devolved the duties appertaining to the estate. But in those days, tenancies for years and other smaller interests in lands were not held as of much account, being of small value, and subject to being forfeited or declared void on various pretences; whence arises the apparent anomaly, that leasehold property is personal estate, whatever may be its value, and therefore distributable among all the children of an intestate, as will be explained more fully. A third class of property is ‘copyhold,’ which is real estate, but in respect of which the feudal services were of a different description. Being useful only, and not military, these services were considered as inferior in dignity and less honourable than the duties attached to the possession of freehold property. The subject of tenures and services is full of interest, but the exigences of space compel us to turn away from the tempting theme. It was, however, necessary to refer thus briefly to the origin of the present rules of law, in order to make intelligible the reasons for the distinctions which still exist.
We have mentioned the common-law rule of descent of land, and must note two exceptions to the general rule. By the custom of ‘borough English,’ which exists at Maldon in Essex, in the city of Gloucester, and other places, the youngest instead of the eldest son inherits his father’s freeholds in case of intestacy. And by the custom of ‘gavelkind,’ which still applies to most of the land in Kent, although some has been disgavelled by private Acts of Parliament, the freeholds of an intestate are divisible among all the sons of the deceased in equal shares.
Leaving these customs aside, we propose to consider the effect of the intestacy of an owner of freehold and other property who leaves a family of children surviving him.
In such a case, the widow (if any) would be entitled to receive one-third of the rents of the freeholds for her life, that being a provision made for her by the law under the name of dower. Dower attaches to all the freehold lands and hereditaments of which her deceased husband was the actual owner at the time of his decease, either in fee-simple or fee-tail; except, in the latter case, if the entail were limited to the children of the first wife, the second wife would not be dowable out of the estate. But this provision, mercifully made by the law for the widow of a man who had so far neglected the duty of a husband as to omit to provide for her by his will, may be barred in a very peculiar manner. The right of a widow to dower will be barred if in the conveyance to her husband, or any deed subsequently executed by him, there should be a declaration that she is not to be entitled to dower out of the property to which such conveyance or other deed relates. In this way many widows have been deprived of dower without the knowledge of their husbands. If the declaration be contained in the conveyance, the execution thereof by the husband is not necessary, as he takes the property subject to the contents of such conveyance. If in any other deed, probably he signs, seals, and delivers it without taking the trouble to read its contents, trusting to his solicitor to see that the documents are all right. There cannot be any possible advantage in inserting the declaration in question, and, in our opinion, any solicitor who inserts it without express instructions to do so—which are never given—is guilty of a grave dereliction of duty towards his client.
Subject to the right of dower, if not barred, and to any existing mortgages or other charges, the freehold property of an intestate becomes the property of his eldest son immediately on the death; and the rents are apportionable according to the ownership. The proportion of the current rent down to the actual date of the decease of the former owner forms part of his personal estate, as well as all arrears of rent then remaining unpaid. When the heir first receives any rent, he pays to his father’s executors so much as belongs to them, and retains the remainder for his own use, although he must satisfy prior charges thereout. Thus, if the father died in the middle of a half-year, the year’s rents being one thousand pounds, there being a mortgage of ten thousand pounds at four per centum per annum, and the widow being dowable, then, upon receipt of the first half-year’s rent, five hundred pounds, the mortgagees would claim two hundred pounds, the executors one hundred and fifty, the widow fifty, and the heir would have one hundred for his own benefit. The next half-year, the mortgagees would again take two hundred pounds, the widow one hundred, and the heir two hundred pounds. This is how the practical working of such a case is generally managed; but strictly, the widow might have one-third of the lands set apart for her own use during her life, in satisfaction of her right to dower. This, however, is seldom done, although it used to be the ordinary course.
Copyhold property is more uncertain in its incidents than freehold, being regulated entirely by the custom of each manor of which the property is holden. The three modes of descent mentioned above may perhaps be considered to divide the manors in the kingdom almost equally amongst them. There is an equal diversity in respect of free-bench, the copyhold equivalent for dower. In a few manors, the widow is entitled to the whole of the rents so long as she remains a widow; in others, she has half; and in others, two-thirds; while in the remainder, the proportion is the same as the dower payable out of freeholds, one-third; although the duration of the allowance frequently differs, not being usually for life, as dower, but during widowhood—in some manors the additional obligation of chastity being imposed. The heir, whether the eldest or the youngest son, is subjected to the same obligations as in respect of freehold; and if the gavelkind custom applies, each share on a further intestacy descends to the heirs of the co-heir. In this way has been illustrated the disadvantage of any rule of law which makes real estate divisible. We knew a small copyhold estate consisting of a cottage and garden, which became by successive intestacies subdivided into shares, some of which were worth no more than two shillings per year each. Only those who have had practical acquaintance with the management of land can appreciate the inconvenience arising from this minute subdivision.
We have already said that leasehold property is personal estate; and it only remains to explain the process of distributing the personal estate of an intestate. Assuming that the deceased was a widower who left seven grown-up children, and who was the owner of leasehold houses, money on mortgage, shares in various railway and other joint-stock companies, also household furniture and other movable effects—any one or more (not exceeding three) of the children might apply for letters of administration of the personal estate and effects of the deceased; two sureties being required to enter into a bond for the due administration of the personalty. The administrator, when appointed, would have full power to sell the houses, shares, furniture, &c., and to call in the mortgage moneys. Out of the moneys to be produced thereby, and any other money in the bank, in the house, or elsewhere, and of any debts collected and got in, either by means of actions or otherwise, the administrator would first pay the funeral expenses and costs of administration, including sale expenses; next, all debts which were owing by the intestate at the time of his decease; and would then divide the clear residue among all the children of the deceased in equal shares. If any child had died leaving lawful issue, the share which he would have taken if living would be divided equally amongst his issue. In either case, no distinction would be made in respect of age or sex. The eldest son would take the share which fell to him, within the rule of distributions, whether he had inherited any real estate from his father or not. If the intestate left a widow, she would be entitled to letters of administration, and to retain one-third of the residue for her own benefit before the division of the remainder amongst the children, &c.