take them under the custom. Morris v. Burroughs, 3 Atk. 399.

As to the custom of the province of York, it differs from that of London in only three material points: one is, that in the province of York the child's share is fully vested in him immediately on the death of his father, and, in case of his own death, will go to his representatives; whereas, by the custom of London, it does not vest in him till the age of twenty-one: if, therefore, he dies under that age, whether single or married, his part will go to his surviving brothers and sisters. 2 Vern. 558. But the survivorship of the orphanage part takes place only as to the orphanage to which the deceased was entitled by virtue of the custom; for, if he had, by survivorship, the share of any of his brothers or sisters, that goes according to the statute. Prec. Chanc. 507. And, should the intestate leave an only child, its orphanage share is, on the death of the intestate, immediately vested, and, in the event of the decease of such child, goes to the next of kin, according to the statute of distributions. 3 P. Wms. 318, n. (Q.) except such orphan is a femme covert, when it seems that her husband will, on her decease, be entitled to her share. 1 Vern. 88; sed vide Prec. Ch. 537. And, if an intestate leave an only child, the orphan may, though under twenty-one years of age, bequeath its orphanage part; provided, if

a male, that he is fourteen years of age, or, if a female, that she is twelve years of age. Off. of Ex. 213; Co. Lit. 89, b. n. 6. The third variation is, that the real estate, whether it comes by descent or limitation in a settlement made in the father's marriage, and whether in fee or in tail, in possession or reversion, excludes the claim to the filial portion, under the custom. 4 Burn. Ecc. Law, 409. The other is, that, in the province of York, the heir at common law, who inherits any land, either in fee or in tail, either in possession or reversion, is excluded from any portion of the personal estate. Swinb. Test. 231. So, if the heir succeeds to any lands under his father's marriagesettlement, he is excluded from any filial portion under the custom. 2 Vern. 375; Swinb. Test. 215. But the custom is construed strictly, and is held to apply to such lands only as devolve to him in the character of heir at common law: so that, if he takes lands by purchase, (as under his father's will,) and not by descent, or if he inherits them as heir by borough-English, or if the estate to which he succeeds is copyhold, in either of these instances, he will be excluded from his filial portion. Swinb. Test. 216; 4 Burn. Ecc. Law, 465; Roper. Law of Husb. and Wife, 14.

The provincial variations excepted, the customs appear to be substantially the same.

PART II.

A PLAIN AND PRACTICAL EXPOSITION OF THE LAW OF EXECUTORS AND ADMINISTRATORS.

What is an Executorship, and what an Administratorship, and the Distinction of those Offices.

An executor is a person to whom another entrusts, by will, the execution of the duty which he prescribes to be performed in such testamentary document. An administrator is a person appointed, by the ordinary, to distribute the property among the legal representatives of a party dying without having made any testamentary disposal of his personal property, or where a testator has made an incomplete will, by not appointing any executors, or by appointing persons incapable of acting in that office, or where the executors appointed refuse to act; and, further, to discharge those legal duties which the law imposes on executors, relative to their testator's property.

The particular distinction between the office and duty of executors and administrators is, that the power of an executor is founded on the special confidence and actual appointment of the deceased by his will; but an administrator is merely

the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased had reposed no trust at all, and whose power over the effects of the deceased arises from several statutes made for the purpose, and on whose death it results back to the ordinary to appoint another, who is then called an administrator de bonis non, that is, of the goods not administered by a former administrator. And, in such case, this administrator de bonis non is the only legal personal representative of the deceased.

A second distinction between the nature of the office and the extent of the duties of an executor and an administrator is, that, as the first derives his title from the will, at the instant of the testator's death, the property of the testator vests immediately in him on the testator's death; but, as the latter derives his power only from the grant of the letters of administration, which, though it has relation to the time of the intestate's decease, does not vest the property in him till he obtains those letters.

A third distinction is, that an executor is bound to perform the trusts of a will, which an administrator is not, unless where a testament is annexed to the letters of administration. And, fourthly, an executor is entitled to perform almost every act that is incident to his office before he proves the will; whereas, an administrator is incompetent to

exercise any of his functions till letters of administration are issued; for his authority depends entirely on the appointment of the ordinary. 2 Black. Comm. 503, notes to Williams's edition.

Having shown the nature of an executorship and an administratorship, and the distinction of those offices, I shall proceed to point out their respective offices and duties; and, for the purpose of rendering the inquiry as clear as possible to the comprehension of the subject, shall distribute it into the following subdivisions :

1. The Office and Duty of an Executor. 2. The Office and Duty of an Administrator. 3. The Functions and Duties applicable to both Executors and Administrators.

4. Their Powers.

5. Their Responsibility.

1. The Office and Duty of an Executor. An executorship is either a general or special, or an absolute, a conditional, or a partial appointment; and may arise either from express nomination in the will, or by constructive appointment, as by the mere recommendation or committing to a person the charge of those duties which properly belong to or are the province of an executor, or by any words or means which denote or infer the testator's intention to invest him with the