EXECUTOR. Ufi 
to a delivery of the trunk, and its contents. Nor in thofe 
inftances were the key and bill of fale-confi.dered in the 
light.of fymbols, but as modes of attaining the polfeflion 
and enjoyment of the property. So a bond given in prof- 
peCt of death, although a chofe in action, is a good dona¬ 
tion mortis caufd, for a property is conveyed by the deli¬ 
very. Such, like wife, have-been the decifions in regard 
to bank notes. In all thefe cafes, the donor delivers as 
complete a polfeflion as the fubjcCt matter will permit. 
But bills of exchange, promifTory notes, and checks on 
bankers, feem incapable of being the objedts of fuch do¬ 
nation. The delivery of thefe inftruments is diftinguifh- 
able from that of a bond, which is a fpccialty, and Ltfelf 
the foundation of the action, the deftruClion of which de- 
ftroys the demand; whereas the bills and notes are only 
evidence of the contrail. Nor (hall a delivery merely 
fymbolical have fuch operation. As, where, on a deed 
of gift not to take place till after the grantor’s death, a 
fix pence, was delivered by way of putting the grantee in 
poflefiion; the ecclefiaftical court held fuch delivery to 
be infufficient for the purpofe, and pronounced for the 
inftrument as a will. So it was determined in chancery, 
that the delivery of receipts for South-Sea annuities was 
in like manner ineffectual, and that, to make it complete, 
there ought to have been a transfer of the hock. Leaf! ot 
all (hall fuch donation be effectuated by parol, as, merely 
faying, “ I give,” without any ad to transfer the pro¬ 
perty” Nor fliall a prefent abfolute gift be conlidered as 
of this denomination. To bring it within the clafs, it 
muft be made to take etfed only on the death of the 
donor. Therefore, the gift, of a check on a banker, “ Pay 
to felf or bearer two hundred pounds,” and alfo of a pro- 
mifl'ory note, being abfolute and immediate, .was held 
clearly on that ground to be no donatio mortis caufd. But 
where the donor gave a bill on his banker, with an indorfe- 
ment, exprefling that it was for the donee’s mourning, 
and giving directions refpeding it, the bill was decided 
to be an appointment in the nature of fuch donation, fince 
it was for a purpofe neceffarily fuppofing death. 
Simple contn d debts, and arrears of rent, are incapable 
of this fpecies of difpofition, becaufe there can be no de¬ 
livery of them. Whether the delivery of a mortgage deed 
will amount to fuch gift of the money due on the fecu- 
riry, is an undecided point. If the donor die, the intereft 
of the donee is completely vefted ; nor is it neceli'ary that 
the gift fhould be proved as part of the will ; nor is the 
executor’s alfent to it requifite, as in the cafe of a legacy. 
But the gift, however regularly made, fall not prevail 
againf creditors. 
Concerning an adminiftrator, there was formerly much 
debate, whether or no he could be compellable to make 
any diffribution of the inteftate’s eftate. For though (af¬ 
ter the adminiflration was taken in effeft from the ordi¬ 
nary, and transferred to the relations of the deceafed) the 
fpiritual court endeavoured to compel a diftribution, and 
took bonds of the adminifirator for that purpofe, they, 
were prohibited by the temporal courts, and the bonds 
declared void at law. 2 P. Wins. 447. And the right of 
the hufband not only to admin.Her, but alfo to enjoy ex- 
clufively, the e if efts of his deceafed wife, depends ftill 
on this doctrine of the common law: the fcaiuteof frauds 
declaring only, that the ftatute of diftribution does not 
extend to this cafe. But now thefe controverfies are quite 
at an end; for by the ftatute commonly called the-ftatute 
of diftribution, 22 and 23 Car. 11 . c. 10, explained by 29 
Car! II. c. 30, it is enafted, that the furplufage of intes¬ 
tates’ eftates, (except of Janes coverts, which are left as at 
common law, by first. 29 Car. II. c. 3.) ihall, alter the 
expiration of one full year from the death of the inteftate, 
be diftributed proportionally among the 'next of kin.— 
For the duty of. the adminifirator in this cale, lee the ar¬ 
ticles Administration, and Administrator, vol. i. 
p.117-118. 
The ftatute of diftributions exprefsly excepts and re- 
ferves the cuftoms of the city of London,-of the province 
Vol. VII. No. 412. 
of York, and of all other places having peculiar cuftoms. 
of diftributmg inteftares’ eft'efts. So that, though in thofe 
places the reftraipt of deviling is removed, their ancient 
cuftoms remain in full force, with refpeft to the eftates 
of inteftates. In the city of London, and -province of 
York, as well as in the kingdom of Scotland, and proba¬ 
bly alfo in Wales, the effefts of the inteftate, - after pay¬ 
ment of his debts, are ingeneral divided according to the 
'ancient univerfal doftrine of the pars rationabilis. If the 
deceafed leaves a widow and children, his fubftance, de¬ 
ducting for the widow her paraphernalia and furniture of 
her bed-chamber, (which in London is called the widow’s 
chamber,) is divided into three parts, one of which be¬ 
longs to the widow, anotheiatp the children, and the third 
to the adminiftrator; if only a widow, or only children, 
they fliall refpeftively, in either cafe, take one moiety, 
and the adminiftrator the other. 1 P. IVms. 341. Salk. 246. 
If neither widow' nor child, the adminifirator fliall have 
the whole. 2 Show. 175. And this portion or dead man’s 
part, the adminiftrator was wont to apply to his own ufe, 
till the flat. 1 Jac. II. c. 17, declared that the fame’fhould 
be fubjeft to the ftatute of diftribution. So that if a man 
dies inteftate in London worth 1800!. perfonal eftate, leav¬ 
ing a widow and two children, this eftate fhnll he divided 
into eighteen parts; whereof the widow Ihall have eight, 
fix by the culfom, and two by the ftatute; and each of 
the children five, three by-the cuftom, and two by the 
ftatute ; if he leaves a widow and one child, (he fnall 
have ftill eight parts, as before; and the child fliall have 
ten, fix by the cuftom, and four by the ftatute; if he 
leaves a widow and no child, the widow fliall have three- 
fourths of the whole, two by the cuftom, and one by the 
ftatute ; and the remaining fourth fliall go by the ftatute 
to the next of kin. It is alfo td be obferved, that if the 
wife be provided for by a jointure before marriage in bar 
of her cuftomary part, it puts her in a ftate of non entity, 
with regard to the cuftom only; but fire (hall he entitled 
to her lhare of the dead man’s part under the ftatute of 
diftribution, unlefs barred by fpecial agreement, i Pern. 
15. 2 Chan. Rep. 252. And if any of the children are ad¬ 
vanced by the father in his life-time with any futn of 
money, (not amounting to their full proportionable part,) 
they ihall bring that portion into account with the reft of 
the brothers and filters, but not with the widow, before 
they are entitled to any benefit under the cuftom ; but if 
they are fully advanced, the cuftom entitles them to no 
farther dividend. 2 P. Wms. 527. Thus far in the main 
the cuftoms of London and of York agree: but befides 
certain other lefs material variations there are two prin¬ 
cipal points in which they confiderably differ. One is 
that in London the fiiare of the children (or orphanage 
part) is not fully vefted in them till the age of twenty- 
one, before which they cannot difpofe of it by teftamenr - 
and, if they die under that age, whether foie or married’ 
their fnare (hall furvive to the other children ; but after 
the age of twenty-one, it is free from any orphanaoe cuf¬ 
tom, and in cafe of infeftacy, fliall fall under the‘ftatute 
of diftributions. Prec. Chanc. 537. 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 reafonable part. 2 Barn, 7 54. 
Againft an adminiftrator, and for him, action will lie as 
for and again!! an executor, and he fliall be charged’ to 
the value of the goods, and no further ; unlefs it be'by his 
own falfe plea, or by wafting the goods of the inteftate. 
An executor or adminiftrator fliall never be charged 'de 
bonispropriis, but where lie dotli Come wrong; as by fellin ’- 
the teilator’s goods, and converting the money to his own 
ufe, concealing or wafting them, or by ple'ading what is 
falfe. Dyer, 210. But this plea muft be of a fact, within 
his own knowledge. If an adminiftrator plead /dene acini, 
nifravit, and it is found againft him, the judgment Audi 
be de bonis propriis, becaufe it is a falfe plea, and that upon 
his own knowledge. Contra where he pleads fuch a plea, 
and that he hath nQ more than' to fatisfy fuch a juftn-l' 
G g inentj 
