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and-brought into hotchpot. Morris v. Burroughs, H. 1737. 1 Atk. 399.]
If an only child be advanced in part, he shall have the whole share of the children, without putting his part received into hotchpot, which extends only to children, not to the wife. Sal. 426. Semb. cont. 2 Lev. 130.
For there it is said, that a voluntary settlement upon a son will be fraudulent upon the custom by which the wife claims. Ch. R. 16. temp. Finch. Acc. 2 Ver. 234. 629. 630. 754.
But any sum given in money to a son or daughter by the father, shall be taken for an advancement. R. 2 Ca. Ch. 118.
[Sums, however small, if given as advancement, must be brought into hotchpot, but petty sums given as presents shall not. Morris v. Burroughs, H. 1737. 1 Atk. 399.] :
[So, small sums given occasionally, of maintenance money or allowance, at the university or travelling, shall not be deemed part of child's advancement, it is only education; nor money given with him as apprentice. Hender v. Rose, T. 1718, 3 P. W.317.]
[If a freeman has two daughters, A. and B. On A.'s marriage he gives 20001. and a bond for 2000l. more at his death, and afterwards gives 428l. to buy a house, which is done ; and B. marries without his consent, but he is afterwards reconciled, often stays weeks with her, and gives her presents from time to time to about 500l., but no advancement; A's 2000l. and 2000). shall be brought into hotchpot, but not her 4281. nor B.'s 5001. Hume v. Edwards, #. 1746, 8 Atk. 450.)
[A gold watch or wedding clothes are no advancement, nor a gift of 501. in money, where the orphanage share is considerable. Elliot v. Collier, T. 1747, 3 At. 526. i Ves. 15. i Wils. 168.] · [Consent to a daughter's marriage does not bar her; it must appear under his hand quantum he has advanced her. Ibid.] · [If a father maintains his daughter, after her husband's death, his executor shall be considered as a creditor for so much as that maintenance deserved, which shall be deducted out of the daughter's customary share. Ibid.]
[But buying an office, though but at will, or a commission, are advancements. Norton v. Norton, M. 1692. Rawlinson v. Hutchins, 3 P. W. 317.]
[If some years after the marriage of a freeman's son, the parents on both sides meet, and agree to advance 2001. a-piece to lie by till they can purchase a commission in the army for him; this is a marriage-portion, and bars him of his orphanage part. Hearn v. Barker, H. 1744, 3 Atk. 213.]
[But he is entitled to his share of the testamentary part if his father die intestate. Ibid.]
[Judd's law does not make money advanced a bar, unless it is an advancement on marriage. Ibid.] ..
So, a term for years assigned to a son by the father. Semb. 2 Lev. 130.
So, a gift or present after marriage shall be taken into hotchpot, though they are no advancement to bar from a share of the personal estate. i Ver. 61.
A legacy for mourning goes out of the legatory part. 2 Ver. 240. So, a devise to a trustee for a daughter. 2 Ver, 754.
Ff [F] 3
[If a loss happens in a freeman's estate by the insolvency of the executor, it shall be borne wholly out of the testamentary part, and not out of the customary. Redshaw v. Brasier, T. 1 G. in Can. 2 Ld. Raym. 1328.]
When an orphan attains his full age, he shall have his proportion with customary interest. 2 Vent. 341.
Or, if it be a woman, when she marries. 2 Vent. 341. |
Though the woman die after marriage before the age of 21 years. R.'1 Ver. 89.
So, an orphan shall have his share, though his father die within the province of York; for the custom of London shall be preferred to the custom within the province of York. 2 Ver. 48.82.111. Vide Chancery, (3 D 3.)
So, an orphan after 21 may dispose of his orphanage part, though it be not received; but not before 21. Pr. Ch. 537.
And if he die intestate, it shall be distributed according to the st. 22 & 23 Car. 2. c. 10. Pr. Ch. 537.
So, if he die within age, though his orphanage part survives to the other orphans, if he has any part by the death of another orphan as survivor, that shall be distributed. Pr. Ch. 537.
But before recovery or receipt by an husband of the share of his wife, who was an orphan, the interest does not vest in him. 2 Vent. 341. R. Ca. Ch. 182.
And he cannot dispose of it by his will. R. 2 Vent. 341.
And if he gives it to the wife in compensation for her dower, his wife shall have her dower, and likewise the money due to her as an orphan. R. Ca. Ch. 182.
[If husband and wife, she being under age, covenant before marriage, in consideration of her portion, to release her orphanage share; if the father dies in the husband's life, he is barred of any customary share in right of his wife; but if the husband is dead, the articles would not bind the wife, and she would by survivorship be entitled to the customary share, as a chose en action not recovered by the husband. Metcalfe v. Ives, T. 1737, 1 Atk. 63.]
[And this covenant of the husband shall be considered in equity as actual release, and so an extinguishment of the wife's right to the orphanage part, and leaves the father's estate as if never charged with it; and therefore must be considered as part of his general personal estate, and not go wholly to his executors as part of the dead man's share. Ibid.]
If the husband devise a lease, books, &c. the wife by custom shall have a moiety of the specific legacies, and likewise of the other personal estate. R. 2 Ver. 110.
And the specific legatee shall have no recompence out of his testamentary part. R. 2 Ver. 111.
So, a settlement by a freeman in trust for himself for life, and afterwards to his grandchildren, will be a fraud upon the custom. R. 2 Ver. 612. 635.
Otherwise, if he makes a gift to his grandchildren in his lifetime. 1 Ver. 612.
Or, purchases land in his lifetime. 2 Ver. 612." : .
ose Atk. 63.nd shall be the wife's charged with y of the kitinguishmente as if ne veneral de man's
mentary the specifica Ver pecific lega
So, a voluntary settlement, by a freeman, of a term, does not bind his wife. R. 2 Lev. 130. 2 Ver. 98.
So, a father, freeman of London, cannot by his will dispose of his personal estate to the prejudice of the customary part of his children and wife. i Lev. 227. R. i Ch. R. 84.
[If a freeman of London devises no more than his testamentary part, his children shall have both their legacies and their customary shares; but if he devises his whole estate, they must make their election. Wilson v. Philips, P. 1725, Bunb. 195.]
[If the daughter of a freeman has 10,0001. legacy left her by her father, on condition that she renounce her orphanage part, and being told by her brother she may make her election, to have an account of the father's estate, and have her orphanage part, she declares she will accept the legacy, and executes a release; yet if the orphanage part is greatly superior, it shall be supposed she did not rightly understand it, and the release may be set aside. Pusey v. Desboverie, T. 1734, 3 P. W.315.]
[If a freeman by will disposes of all his estate, orphanage and testamentary, and some of his children abide by the custom, others by the will, the shares of the latter shall not go among the other, but shall accrue to the testator's estate, and go according to the will. Morris v. Burrows, T. 1743, 2 Atk. 627.]
Nor can he by will direct, that the share of the infant shall not survive, if he dies within age. R. Wild. cont. 2 Vent. 341.
Or, that if the infant die within age, his share shall go to another. R. Ca. Ch. 199. 2 Vent. 341.
[A freeman cannot devise either the orphanage part or the contingency of the benefit of survivorship, among orphans; nor can an orphan devise his orphanage part, nor the part which accrued by survivorship: but such freeman may by will give his children legacies inconsistent with the custom, and then they must make their election, to abide by the will, or by the custom; but they cannot abide by the will in part, and have the benefit of the custom also. Harvey v. Desbouverie, T. 9 G. 2. C. T. T. 130.]
Yet he may direct by will, that if they all die, the survivor shall have their shares. R. i Lev, 227. but Lev. makes a quære.
So, if an husband, being an orphan, marry a woman with a portion, and die within age, the wife shall not be relieved for any part of the portion of her husband, which by the custom survives. Semb. 1 Ch. R. 26.
So, if the husband settle an estate upon his wife in lieu of her customary part, he may dispose of it. R. 1 Ver. 6.
[If a woman, before marriage with a freeman, accepts of settlement to take effect after his death of part of his personal estate, (without taking notice of custom of London,) she is thereby barred of her customary part. Lewin v. Lewin, M. 1727, 3 P. W.15.]
[If a wife was divorced a mensa et thoro for adultery, she forfeits her right to her moiety, and widow's chamber, though entitled thereto by custom of London. Pettifer v. James, T. 1717, in Sc. Bunb. 16.]
If the husband acknowledge a judgment without consideration, to secure money to be paid after his death; this does not prejudice his Ff [f] 4
debts upon simple contract, nor the customary share of his wife or children, but only his legatory part. R. 2 Ver. 202.
So, a term for years taken by a freeman upon his purchase of the inheritance, is not part of his personal estate within the custom. 2 Ver. 57.
The custom shall not be eluded; and therefore, a settlement in fraud of the custom shall be avoided. Eq. Ca. 137.
[If A., having three children of age, and two under age, enters into agreement signed by him and the three of age, that if he takes up his freedom of London, they release and disclaim all right to his personal estate as freemen's children, it is void. Morris v. Burroughs, H. 1737, 1 Atk. 399.]
[If a freeman, for love and affection, without pecuniary consideration, make a settlement, but still keeps possession and receives the rents, the property continues in him, and is subject to the custom. Smith v. Fellows, M. 1740, 2 Atk. 62.]
[If a father obliges a son, merely for maintenance, and not for advancement in marriage or trade, to release his right to the orphanage share, such release is void; and even though he had in his life given him small sums, to the amount of 3 or 4001. Heron v. Heron, P. 1741, 2 Atk. 160.]
[If a freeman assigns over to trustees a leasehold, reserving to himself an estate for life, the trust to commence after his death, it is a fraud on the custom, and the assignment shall be cancelled, and the premises and profits since his death deemed part of his personal estate. Smith v. Fellows, T. 1742, 2 Atk. 377.]
[If a freeman, several years before his death, purchases a leasehold for 40 years, in the joint names of himself and wife, it is a fraud on the custom, and the estate shall be applied as the rest of his estate. Coomes v. Elling, H. 1747, 3 Atk. 676.]
[But had it been given to trustees to the separate use of the wife in possession, it had been good. Semb. ibid.]
[The funerals of a child dying after the father, shall be paid out of its orphanage share. Ibid.]
[If a freeman aged 72, ill of the gout, and two days before his death, by deed of same date with will, assigns part of his personal estate to trustees to the separate use of his daughter, and that she shall not have power to give it to her husband, (whom she had married without consent, but father is reconciled,) and does not deliver the deed to his daughter, it is a testamentary disposition, and a fraud on the custom, and may be disputed by the husband; but he must make a settlement, even if there is a provision for the wife before. Tomkyns v. Ladbrook, T. 1755, 2 Ves. 591.]
[By st. 11 G. 1. c. 18. s. 17. any person becoming free of the city after 1st June 1725, may dispose of his personal estate, to such person or persons, and to such use and uses 'as he shall think fit; unless he shall before marriage agree by any writing under his hand, in consideration of his marriage, that his personal estate shall be subject to the custom, or unless he shall die intestate; and the personal estate of such person so making such agreement, or so dying intestate, shall be subject to and be distributed and distributable according to the custom of the city.]
by dede man tgeed Ibid.dying ateibid
(G 3.) Allowance to an orphan. The mayor, and aldermen make an allowance to orphans for maintenance, in proportion to their estate. D. 2 Vent. 341.
And at their age, or marriage, their estate with interest is paid to the orphans. 2 Vent. 341.
(G 4.) Marriage. By the custom of London, the mayor and aldermen have the care of the marriage of every orphan within their custody.
And if any marry such orphan within the age of 21, without their licence, they shall be fined according to the quality and portion of the orphan, and committed to Newgate till payment. R. 2 Lev. 32.
Or, at least, shall give bond for the payment.
Though the estate of the husband deserves a larger portion than the orphan had.
And it is sufficient to say, that he married such an one being an orphan without assent, though it is not said, that the marriage was within the city. R. 2 Lev. 32.
Though it is not said, that he had not a reasonable excuse for it; for that shall not be intended, unless it be shewn, R. 2 Lev. 32.
Though it is not said, that he took her out of the custody of the mayor and aldermen; for she is in their custody wheresoever she is. R. 2 Lev. 32.
(H) Kemedy by a guardian.
(H 1.) Right of ward. If tenant in chivalry die in the homage of the lord, and a stranger enter into the land, or take the body of his heir within age, the lord may bave writ of right of ward. F.N.B.139.B.
And he may have it for the land and body together, or for the land, or body by itself. F. N. B. 139. C.
So, the lord paramount may have it for the land and body of the mesne. F. N. B. 139. E.
Or, the lord by reason of ward. F.N.B. 130. D.
So, a guardian in socage may have right of ward for the land and body by reason of ward. F. N. B. 189. H.
So, he shall have right of ward for the body in his own right. F. N. B. 139. H. .
But a guardian in socage shall not have right of ward for the land; for he is only bailiff to his ward for the land, and has no right to the land. F. N. B. 189. H.
Right of ward may be sued by justices in the county, or in C. B. F.N.B. 139. F.
If it be sued by justices, the plaintiff may remove it by pone into C. B. without cause, and the defendant with cause, as in replevin. F. N. B. 139. G.
By the st. Mert. 20 H.3.6. in right of ward the plaintiff shall recover valorem maritagii, and the defendant shall be imprisoned till he satisfy the plaintiff for his default, and the king for his trespass. 2 Inst. 90.