carter versus Crawley in prohibition distribution Robert Hamond die intestate  leave neither wife nor child father nor mother brother nor sister nor uncle  the administration be grant to Agnes the plaintiff wife the survive sister of  the intestate father the defendant be the child of Margaret the other sister  of the intestate father who sue in the spiritual court to have a proportion  upon distribution accord to the late Act of car cap for settle of ffitestates  estate and the judge do award distribution whereupon they pray a prohibition  and the defendant appear to a attachment upon the prohibition and deny the  contempt set forth this matter in a plea to have a consultation whereuponthe  plaintiff demurrer Raymond sir t the question be single the intestate have  neither wife nor child nor father nor mother but his next of kin be two ant  one whereof be dead in his lifetime and the other have administration whether  the child of the decease aunt shall be adinittedJure representationis in loco  parent to demand a share upon distribution as their mother shall have have if  live it depend upon the exposition of the Act for settle Intestates estate and  be of great consequence for whatever be determine by the commonlaw to be the  true meaning of this Act must be a rule to the ecclesiastical court for the  court of Raymond sir t er p commonlaw be entrust with the exposition of act of  parliament and we ought not to suffer they to proceed in any other manner than  shall be adjudge by the king court to be the true meaning of this Act  therefore if this court shall award a consultation upon this point it be final  and this sentence can be correct by any appeal because the ecclesiastical  court do before this statute exercise a kind of jurisdiction of distribution  of which notice be take by the Act as if it be Le all whereas by our law no  such jurisdiction be allow but prohibition be send to restrain they therein  and this Act intend to restore this jurisdiction it will not be amiss to take  a short view of the history of their practice ecclesiastical court ancient  grasp at a large jurisdiction de debilis catallis upon pretence of take  cautionary oath to perform contract and such like and then upon breach thereof  do proceed pro la sioni trust but by statute and mandatory writ they be  contain within their due bind not to meddle de debt is owed catallis which be  temporal thing nisi de testametis marriage in the jurisdiction de will de  debilis calallis relate to they their power be very large by the commonlaw for  if there be no will appear the ordinary have the absolute disposal of the  estate if they will not pay debt with the estate yet they be so far entrust  that they be not subject to suit until e Westminster c which subject they to  the suit of the creditor in the same manner as executor be upon this their  meddle with deceaseds estate which be very beneficial before become very  troublesome and to free themselves from it they be fain to put the  administration Raymond sir t thereof into three person hand who may give they  security to save they harmless from suit e when it be desire in parliament  that administrator may have the power to sue it be answer that the ordinary  may sue sith they be to answer whereby it appear that parliament will not  discharge they of the burden or take notice of administrator otherwise than as  their servant or atorneys but e ease they in this particular for they be  thereby bind to grant administration to the best friend of the intestate and  the administrator be make as executor they retain only the safe jurisdiction  of grant administration and call the administrator to account the commonlaw be  hereupon to judge who be the best friend and therefore if there be husband or  wife in default of they son or daughter in default of they or their child  father or mother in default of they brother or sister in default of they or  their child uncle or ant the ordinary be compellable to grant administration  to they in their several order they be bind to grant to the next friend if  they be loyal but if they be many in equal degree perhaps they be not bind to  grant administration to all but may choose the most fit person for avoid  confusion h this be make plain for thereby they bad a liberty express provide  to refuse the wife if they please and if they be many in equal degree of the  next of kindred to grant administration to which they please and refuse the  rest which liberty be a great advantage to their jurisdiction for they will  choose he that be most obsequious to they and when they call to account upon  pretence of bestow the overplus for the good of the decease soul a device in  those popish time to make profit to the clergy they dispose the overplus as  their own upon the reformation that pretence vanish but they think it  Allowable to distribute the overplus among the kindred accord to the rule of  the civil law de successor ab having made no will and this be so reasonable  that they use that course without blame a great while and insert a clause into  all their bind for security to account to the ordinary that the overplus upon  such account shall be distribute as the ordinary shall appoint which be more  than they can justify and it come to ba question in Slanys ease hob and more  but end Raymond sir t by reference and afterward in take and Lamnes case hob  the administrator be Willing to make a reasonable distribution but their  adversary not be satisfy appeal to the delegate which Raymond sir t er p  unreasonable opposition drive the administrator to the king court where it be  resolve that he be not compellable to make any distribution at all and accord  it be resolve in Fotherbys case car I Cr and Levannuss case car I cro whereby  the law come to be settle and know that they can neither compel administrator  to make distribution by suit in the spiritual court nor sue any bind take for  that purpose the only way then leave for they be this while they be under  deliberation whether they will grant administration to the wife or next of kin  and to which of the next of kin they do treat with the party and consider what  sum the overplus be like to amount unto bow that ought by their rule to be  distribute and they will prefer he to the administration that will beforehand  perform such distribution by payment of money and give security to person unto  who it be appoint and this practice hold t ill the make of this Act whereon  the question arise the occasion of make this Act be because it be find very  inconvenient for any administrator to pay before be receive it be hard for he  to know what he may undertake before he have possession and the judge can not  have a perfect knowledge of the true value of the overplus to give he in the  measure of his distribution till after the administration end and the account  of the estate take there be public inconvenience which be urge to the  parliament by the civilian who yet have another reason to desire the former  method may be change for the allot distribution in this manner be but a barren  jurisdiction that can not be draw out in length all dispute be end to make one  position without appeal and the account of administrator be never contest when  there be no adversary concern to demand a share in the overplus upon take they  have say thus much concern their practice before the Act of parliament and the  cause of make this law I will now proceed to the exposition of it the statute  be introductivum new law and therefore ought to receive a strict  interpretation in restraint of distribution which be hereby introduce against  the policy of former law Raymond sir t before the statute the administrator  that have all the burden of the administration bad likewise the benefit and  when he have pay all the debt and legacy be never more question upon his  account because no man can demand the overplus from he but now by this law the  overplus be give away and he be to have no part of it but as he stand relate  to the intestae no recompense for his pain no more than he shall have have if  another have be administrator and here be not only gain to go from but damnum  to bring forth for at the end of his administratin he must give a account  which will be dispute by the party concern and if he have not act very  cautious may bring a considerable loss upon he methinks we shall expound this  Act as much in favour of administrator as we can in restraint of distribution  and remote representative that be bring to participate of the benefit of the  administrator thrift and good management but I admit that all act of  parliament be to be expound accord to the true meaning to be collect from the  word of they and that must be a rule in this case therefore I will endeavour  to find out that meaning by consider the reason of distribution and the  practice in the ecclesiastical court ground upon that reason and it be before  this statute by consider the word of the Act relate to this clause as to the  rule of spiritual court in order distribution I shall have be glad the party  will have bring civilian to have inform we concern the ground of their law and  practice in this particular not have have that assistance I have consider in  the best manner I can upon the nature of the thing whereupon I apprehend there  be two motive of distribution one in respect of the intestate another in  respect of the ordinary that grant administration in respect of the intestate  it may be think a obligation upon every man to provide for those which descend  from his loin and as the administrator be to discharge all other debt so this  debt to nature shall likewise exact a distribution to all that descend from he  in the lineal degree be they never so remote Raymond sir t er p and because  those which be remote have not so much of his blood therefore the measure  shall be accordin to the stock more or less as they stand in relation to he  upon this reason representation be admit to all degree in the lineal descent  Raymond sir t there be no such obligation to the remote kindred in a  collateral line therefore they be not regard but in respect of proximity as  they be next of kin it be to be suppose every man will leave his estate to his  next kindred but the child of those that be decease come not within this  reason for they be a degree more remote in respect of the ordinary it may be  consider that those that be of equal degree and next of kin be they never so  many ought to be look upon by the ordinary with a equal eye therefore when he  have prefer one to the administration he ought to give some recompense to the  other that he may not appear partial they be as capable to demand and have  administration as the other but the child of those which be decease have not  the same pretence for they be not capable to contest the administration  another reason there be to exclude representation in remote degree that  thereby the estate may come to be divide into so many and so small part that  the benefit will not be valuable I have hear civilian say that representation  be reject in remote degree of collateral by their law upon this ground now the  case of brother child be of a mix consideration in respect of the obligation  for the intestate be a kind of parent to his brother child and in that respect  marriage between they be prohibit there be no danger that the subdivision  shall be very many and the estate reduce into very small part for brother and  sister can be many as cousin germane and other remote degree may therefore  there may be reason to admit brother child to distribution by representation  and reject all far degree have touch the reason whereupon I suppose  distribution ground concern the practice I can only say what I have learned by  enquiry from civilian of my acquaintance have have no other mean to be inform  of it the bar not have produce any precedent of the spiritual court on either  side royal power in the case at bar the order of the spiritual court be for a  distribution to the brother child of the collateral who be not the integrates  brother child and by that it shall seem as if their law if we shall let they  alone will carry on the Raymond sir t but I have be inform by eminent civilian  of my acquaintance I suppose I may name they without their displeasure sir  leoline Jenkins judge of the prerogative court and sir Robert wiseman dean of  the arch that it be the constant and clear practice of their court to reject  all representation of collateral except child of the intestate brother and  sister I be sorry the plaintiff in this prohibition do not seek redress by way  of appeal that we may have see what will have be final order in their law by  which we may have know how their law stand as to this point which may have  give we some light towards the understanding this Act I must confess that I do  acquiesce in the opinion of those learned man and take their law to stand in  this point for the exclusion of all representation to remote collateral I give  little credit to the sentence in this cause I remember the same judge the  archdeacon of Huntington the other day order distribution among the kindred of  the first intestate upon a administration cum will fastening where the  residuum will do you much good be devise to the executor who die intestate who  next of akin ought clear to have have it which occasion our grant a  prohibition upon sight of the sentence this be the same judge I have the less  reverence for his opinion in the other matter I will now consider the word of  the Act of parliament whereupon this question arise they be these the residue  qf the say estate to be distribute equal to every of the next of kindred of  the intestate who be in equal degree and those who legal represent they  provide that there be no representation admit among collateral after brother  and sister child distribution by representation to a more remote degree  Raymond sir t er p upon these word the question be thus whether in the  collateral line only the intestate brother and sister child can be admit to  have distribution jure representationis in loco parent or whether  representation be admit in remote degree of collateral to the child of such as  be brother and sister to the collateral in short whether the word brother and  sister shall relate to the intestate or to the collateral I hold that the word  of the Act must be understand of brother and sister to the intestate and not  of brother and sister of remote collateral for these reason Raymond sir t all  other relative term general express through the whole Act have the intestate  for their correlative so wife be mean wife of the intestate child be child of  the intestate heir at law be of the intestate so that in the most plain and  obvious sense the intestate ought here to be take for the correlative to the  word brother and sister my second reason be because the distribution be give  by the Act for their relation to the intestate and not for their relation to  the collateral therefore the relation mention ought natural to refer to the  intestate and not to the collateral there may be case put wherein brother and  sister child of collateral may be no kin to the intestate if they be by the  half blood and it can be pretend that such shall have a share in the  distribution now why shall the word be take in the sense that comprehend those  that have no title to distribution my three reason be because as these word  comprehend more than ought to have distribution in some instance so they fall  short and leave out many that by parity of reason ought to have distribution  and therefore this sense they will put upon the word be very improper as for  instance suppose the next of kin be nephew by several brother and some of they  be dead leave child these child be not brother child to the collateral and can  within the word claim any share but if by chance any of they have have uncle  survive then they have be brother child to the collateral so if the next of  kin be cousingerman and some of they be brother to one another other be not  the child of such of they as have brother that survive the testator shall have  a share but the child of such who have no survive brother shall have no share  which be most absurd for they ought to have a share as they relate to the  intestate and not as they relate to the collateral I must needs say it be hard  to imagine the parliament can oversee these absurdity which be so plain in  consequence and they have be so easy avoid that we ought for that reason to  believe that they mean the relation to the intestates in this as well as other  place if they have mean the relation shall have be to the collateral how easy  may it have be express so and by word that will have bring in all case in  parity of Raymond sir t degree as if it have be thus express provide that  there be no representation admit among collateral after their child this have  be without ambiguity or question and it have extend to all case in acquire  step and to no case but where there be kindred to the intestate I can imagine  the parliament mean to let in representation in remote degree because they may  so easy have express it in plain term and they will certain have do it in this  Act which be careful pen in other part of it a four reason be because the  exclude representation in a remote degree agree with the reason upon which  distribution be ground for nephew and niece to the intestate be of so near  relation the intestate have be as a parent to they that they be of great  regard whereas remote degree have no regard but for their proximity because  there be none near and therefore no reason to admit representation among they  to bring in a remote degree to share with those that be near of kin again  nephew and niece can be many so that the division can come into very many  parcel but in a remote degree there may be very many of the same degr e and to  admit a subdivision to the child of any decease will make the share of such  child very inconsiderable not worth demand Raymond sir t er p my five reason  be because by the opinion of the learned the law and practice of the spiritual  court before this Act do exclude all representation of collateral after the  intestates nephew and niece the whole scope of the Act be to make their  jurisdiction as to distribution legal which before be condemned by the king  court and the word of the Act legal represent pro his cuiq jure and accord to  the law in such case and the rule and timitations set down show that there be  a reference to their law now if there be a opinion this way before the Act  there be great reason to believe this clause be find upon that opinion and to  expound it that way I never hear of any opinion that before the Act the  representation be bind to brother child of collateral it may be the learned  doctor who have order distribution in this case bas do it upon a imagination  that this clause have change their law in this particular take it in that  sense that my brother do that have argue against I Raymond sir t I shall now  observe the objection that be make against I object they say ad neighbor  anteceden fiat reference to standard and the next precedent relative be the  word collateral sol this maxim have always this restraint that it must agree  with the sense so that it admit a enquiry which relative best agree with the  sense and we must judge accord to the sense and not by the order of word  object they say it be strange this proviso shall restrain representation of  collateral to one particular case which be leave under a generality before sol  I see no cause of wonder if it be so but that which be call a generality be by  the word legal representative and if by the course of their law representation  be not admit to other collateral than brother and sister child then those  remote degree bad no legal representation so that this clause be but  explanatory of the word legal in the sense of their law our law have no notice  of it at all object they say there be no inconvenience in the other exposition  but it seem reasonable that the nephew in all case shall have a share with the  uncle sol I have already show by my reason that by the other exposition the  symmetry and reason upon which distribution be ground fail and many absurd  case will follow upon it object then they object that there be few act of  parliament that provide for all case there be casus remiss upon the most clear  law and the sense of a Act must not for that be lose sol confess a law clear  pen shall have its force in case it do reach though it do not reach all case  but where a law be pen that it may be expound one way or other and there be a  question of the meaning of it it be more natural to believe it be mean in that  way that be clear and that reach all case that be in parity of reason than in  that way that have absurd consequence as this have both by include those which  be not intend and leave out those which stand in the same degree as I show  before to conclude I conceive this Act be intend for a plain rule and I think  it much better to interpret it in the most plain and obvious sense which will  establish the succession of personal estate accord to reason and symmetry than  to strain to find out another sense for the sake of remote kindred that be of  no regard which will produce apparent absurdity Raymond sir t and subject  personal estate to fanciful and intricate dispute that will need another Act  to compose and settle have desire the opinion of the learned doctor of  doctorscommon upon the question follow whether before the late statute of car  for settle intestates estate upon order distribution representation be admit  among collateral in remote degree or whether there be any bind set by their  law or practice beyond which representation be reject and what those bind be  or whether it be not mere discretionary as the ordinary think fit I receive  this answer from they in make distribution of intestates estate among  collateral our civil law and the practice of the ecclesiastical court have  constant observe these two rule the first be reprcesentatio in thread brother  sister so much locum to have ad farther yes collateral non to stretch out  Raymond sir t er p the second be that in case there be no brother nor brother  child to call ad succession rest of collaterales quicunq in step are the  nearest remotioribus sluice ita quod infallibly always prior in yradu sit  drinking in succession whereby representation must needs be out of door the  next of kin whether one or more be only to be admit to the distribution may  robert wiseman thomas exton richard lloyd edward master William Trumbal levinz  er p levinz report volume the report of sir creswell levinz Knt late one of  the judge in the court of common plea at Westminster contain case hear and  determine in the court of king bench during the time that sir Matthew hale sir  richard Rainsford and sir William Scroggs be chief justice there as also of  certain case in other court at Westminster during that time translate into  English by Mr sergeant Salkeld and other of the middle temple the three  edition careful correct Vol term sanct mich year car two in banc king