case palmer against ALLICOCK Michaelmas term car roll if a man die intestate  leave two son a moiety of his personal estate immediate vest in each of they  by the statute of car c and therefore if one die intestate before distribution  make his share shall go to his administrator and not to the administrator of  his father for the statute vest the share in those who be entitle to  distribution at the time the intestate die SC skin SC comb SC show vern vern  Bac Abr Com dig Carth Peer wms Prec in Ch case t t Peer wms Peer wms comens  stram Mod Mod pale yellow Eq Rep fitzg quaere if a man die intestate have no  wife at the time of his death and but one child a infant and administration be  grant of the father estate durante those inferior in rank lifetime of the  child and the child die before it attain seventeen year of age whether  administration de good non of the first intestate shall be grant to the next  of kin of the father or of the child?Salk vern stram ld ray the statute of  distribution car c shall be expound accord to the commonlaw prohibition by the  statute of car c for the distribution of intestates estate it be provide that  in case there be no wife then the estate of the husband die intestate shall be  distribute equal among the child and if no child then to the next of kin of  the intestate in equal degree and to those who legal represent they a man die  intestate have no wife at the time of his death and but one child who be a  infant afterward administration be grant of the father estate durante those  inferior in rank lifetime of the child who die before the age of seventeen  then administration be grant by a peculiar to the next of kin of the infant  and a appeal be bring in the arch by the next of kin of the father to revoke  that administration modern the question be whether administration de good non  c of the first intestate shall be grant to the next of kin of the father or  the child Mr pollexfen argue this term for the plaintiff in the prohibition  that the statute give a power to the ordinary to take bind of such person to  who administration be commit the form of which bind be express in the Act and  the condition be to make a true and perfect inventory and to exhibit it into  the registry he have also a power to distribute what remain after debt funeral  charge and expense thus the law stand now then as to the case at the bar three  thing be to be consider first if a man die intestate leave two son and no wife  each have a moiety of his personal estate immediate vest in he so that if one  brother shall afterward die intestate the other shall have the whole second if  a interest be vest in two then by this statute the like interest be vest in  one so that if he die intestate his administrator shall have the estate three  if so then the consequence will be that in this case administration de good  non of the first intestate shall go to the next of kin of the infant by  interest be mean a right to sue for a share after debt pay which interest  every person have in a choose in action as if a man covenant with two that  they shall have such a estate after debt pay a interest vest in they by this  covenant and if they die it go to their executor such also be the interest of  every residuary legatee now if any of they die before the residue can be  distribute the wife modern er p or child of he so die shall have it and to  make this more clear it will be necessary to consider how the law stand before  the make of this Act at the commonlaw neither the wife child or next of kin  have any right to a share of the intestate estate but the ordinary be to  distribute it accord to his conscience to pious use and sometime the wife and  child may be among the number of those who he appoint to receive it but the  law entrust he with the sole disposition of it Inst see also Plowd ld ray Bac  Abr a modern afterward by the statute of Westminster the second Edward c he be  bind to pay the intestate debt so far as he have asset which at the commonlaw  he be not bind to do and a action of debt will then and not before lie against  he if he do alien the good and not pay the debt Greisbrook v fox Plowd a then  the statute of Edward c be make by which he be empower to grant administration  to the next of kin and most lawful friend of the intestate and by this statute  the person to who administration be commit may have a action to recover the  intestate estate for at the commonlaw he have no remedy   light b Inst and  Hensloes case co b but then afterward the statute of Henry c enact that the  ordinary shall grant administration to the widow or next of kin of the person  decease or to both and this be the first law which give any interest to the  wife to who administration be once grant the power of the ordinary be  determine and he can not repeal it at his pleasure as he may at the commonlaw  hob   c but after the make of this statute many mischief still remain because  the administration be once commit the person to who it be grant have the whole  estate and the rest of the relation of the decease be undo and therefore if  his child be under age or beyond the sea and a stranger have get  administration it will have be a bar to they and thus it continue many year  the ordinary still make distribution as he think fit take only a bind from the  person to who he grant administration for the purpose aforesaid and sometime  to dispose the surplus after debt and legacy as he shall direct and no  prohibition be grant to remedy these inconvenience till about the twelve year  of king James the first hob d but now by this Act a good remedy be provide  against these mischief and it be such which take away the cause thereof which  be that the administrator shall not have the whole estate but that a  distribution shall be make the title of the Act show the meaning thereof to be  for the better settlement of intestates estate and the body of it show how  distribution shall be make so that such bind which be usual give by the  administrator before this law to make distribution as the ordinary shall  direct be now take away and other form be prescribe and there can be no remedy  take upon such new bind till the ordinary have appoint the distribution so  that in effect this Act make the will of a person die intestate and tell what  share his relation shall have modern and it be probable that the custom of  London may guide the parliament in the make of this law which custom  distribute the estate of a freeman among his wife and child this show that a  interest be vest in they which go to the administrator the consequence whereof  be very considerable for if such child shall marry they have a security by  this Act that a portion shall be pay and if the wife shall take another  husband he will be entitle to her share and this may be a mean of give credit  in the world when the certainty of their portion be so well know and secure it  be such a interest which be know in the law and may be compare to that in sir  Thomas palmer case   a who sell sixteen hundred cord of wood to a mail who  assign it to another and afterward the vendor sell two thousand cord to one  Maynard to be take at his election the assignee of the first person out six  hundred cord and Maynard carry it away thereupon a action be bring and the  plaintiff have judgement because the first vendee have all interest vest in he  which he may well assign this case be a plain proof that a man may have a  interest in a chattel without a property and such a interest which give the  person a remedy to recover and where there be a remedy there must be a right  for they be convertibles it be modern er p not a new thing in the law that a  contingent interest in the ancestor shall survive to the heir as if a man be  seize of the manor of S and covenant that when b shall make a feoff to he of  the manor of d then he will stand seize of the say manor of S to the use of  the covenantee and his heir who die leave issue a heir who be then a infant b  make a feoff to the covenantor accord it be hold that no right descend to the  heir of the covenantee but only a possibility of a use which may have vest in  the ancestor and therefore the heir shall claim it by descent see wood case  cite in Shelleys case I   b it be like a debt to be pay at a day to come which  be debt is owed in present time though to loosen in going to be and though the  obligee can have a action before the day be come yet such a interest be vest  in he that he may release it before that day and so bar himself for ever  Littleton sect see also   Inst Plowd c now if this Act make a will it ought to  be construe as such and it can be deny that if this case have happen upon a  will the executor of the son will have a very good title it be a weak  objection to affirm that this law be make to establish the practice of the  ecclesiastical court and that it be only explanatory of the statute of Edward  and Henry because it be modern plain introductory of a new law for  distribution be now make otherwise than it be before it seem to be decide by  the case of brown v shore easter term I will mary show that the statute car c  vest the several share of a intestate effect in those who be entitle to  distribution at the time the intestate die therefore where a die intestate and  b and c be his next of kin and b die within a year after the intestate and  before any distribution actual make it be hold that the executor of b be  entitle to his share of the intestate effect SC comb SC holt vern vern but  although each distributory share vest on the intestate death yet the same do  not so vest as to exclude a posthumous child Edward v freeman Peer wms a man  die intestate leave a widow and one son afterward the son die intestate then  the mother be deliver of a female child whereof she be enseint at her husband  death and it be decree that such posthumous daughter be entitle to a share of  the son personal estate Wallis v Hodson Hilary term Geo note to four edition  see the report of this case Eq Abr atk d second a interest be vest where there  be but one child for the better understanding of this point the clause in the  Act ought to be consider which be videlicet if there be no wife then to be  distribute among the child if no child then to the next of kin of the  intestate upon which clause these objection have be make first that it be  insignificant because the statute of Henry c give the right of administration  to the child second that distribution can be make where there be but one three  that this clause ought to be construe accord to the law in the spiritual court  now as to the first objection it be true that before this Act the child have a  right of administration but that right be only personal so that if he have die  before he have administer his executor or administrator can not have it beside  many inconvenience attend this personal right of administration which be now  prevent by the vest of a interest for when the right be mask and the  administrator give bind with surety to administer true and the ordinary have  appoint distribution to be make the administrator be bind to perform it though  not in equal degree and if he die before the estate be get in it be lose for  ever but now by this clause distribution must be make equal videlicet one  three part of the surplus to the wife the rest by equal portion to the child  so that what be very uncertain before and almost at the will of the ordinary  be now reduce to a certainty and therefore a interest must vest in such person  to who such equal distribution of filial portion be give as to the objection  that distribution can be make where there be but one child I answer that this  also be true in propriety of speech and take the word distribute in the strict  sense but this be never intend by the statute as may plain appear upon the  construction of the whole for the word child do comprehend a child and the  form of the bind direct by this statute be that the administrator shall  deliver the good to modern er p such person and person c which show that one  modern be comprehend and therefore to divide in this case be no more that to  assign and must be so take the parliament never intend that distribution shall  not be make where there be but one child as may be easy collect from the  reason of the thing and the inconvenience which will ensue first if a man  shall die leave a wife and one child the wife will be entitle to one three and  the child to the other twothirds of the personal estate now if the child shall  have two three be comprehend under the word child what reason can be give why  he shall not have the whole where there be no wife which he can not have if  the word child do not comprehend child in this case?Secondly if a man have a  personal estate to the value of two thousand pound and die leave issue three  son but have in his lifetime make provision for the second son to the value of  one thousand pound the old son die intestate shall the young be total exclude  from the remain thousand pound because there be none leave to have  distribution his second brother be prefer in the lifetime of his father by a  equal portion with what remain three if the father have a son marry and two  brother and die intestate now if his estate shall not be vest in the son then  if he shall also die intestate his wife can have nothing but it will go to the  uncle and this will be a very hard construction of this law to carry the  estate to the uncle and their executor from the son and his administrator but  there be a case which prove that a child be intend by the word child it be the  case of amner v Lodington cite in Matthew man case   a which be a mail be  possess of a term for year devise it to his wife for life and after her death  to her child unpreferred and make her executrix and die she marry again and  have but one daughter unpreferred and after the death of the mother this  executory devise be hold good to the daughter though it be by the name of  child and she enjoy the term see also the case of Bunhill v Newton cite comb  where a only son administer to his father make his executor and die and a  stranger take out administration de good non c of the father and the court of  exchequer hold that it be not a case within the statute of distribution  because be all only son he be entitle to all his father effect at commonlaw  but holt chief justice in cite this case show say that it be within the  statute and that a interest vest in a only child but it appear show that the  question be concern a mortgage which the father have purchase in the name of  his only son and that equity decree it to the father administrator because it  be his money in the report of the principal case however show the court admit  that the case of one child be as unquestionable within the statute as where  there be several child for the end of the law be that all shall have it as  well as one but deny that there be any more vest by the statute than there be  at commonlaw but it have be since determine in the case of brown v shore show  that a interest be clear vest by the statute and sir b shower show say so it  have be hold in chancery and the exchequer all along see also skin palmer v  Gerrard Prec in Ch b three objection that this Act shall be construe accord to  the spiritual law I answer that can be for all statute ought to be expound  accord to the rule of the commonlaw and not accord to their law for they have  no law which give power to sue nor to distribute to the wife or next of kin  but the usual course be for the ordinary to dispose of intestates good to  pious use modern then admit this to be all interest vest the consequence will  be that it shall go to the administrator and then administration must be grant  where the estate legal ought to go the administration of the husband to the  good of the wife be ground upon this reason because the marriage be quasi a  gift to he in law Ognels case   cro c it be not the only mischief before this  law that the administrator run away with the whole estate for if a man die  intestate leave but one son then beyond sea and administration be grant to a  stranger he who have right can not appeal after fourteen day which the son can  not do at that distance and so by this mean a wrongful administrator modern er  p be entitle to the whole and he who right it be have no remedy to recover at  his return but now this inconvenience be likewise redress by the statute of  distribution for when the son return he may put the bind in suit and for these  reason it be pray that the prohibition may stand Mr William argue for the  defendant in easter term James the substance of his argument be that though  the plaintiff have get administration yet no interest be thereby vest in he  but that the appeal be proper and for this he cite the case of Beamond v long  cro car a which be baron and feme administratrix of her former husband recover  in debt the feme die the survive husband bring a to know facias to have  execution and upon a demurrer all the court but hide agree that the to know  facias will not lie for the husband alone because it be a debt demand by the  administratrix in auter law this statute have not whole alter the commonlaw in  this matter it only limit the practice of ecclesiastical court and make  provision for particular purpose videlicet that distribution shall be make to  the wife and child and their child which be so far introductory of a new law  but no far so that the right of administration be as it be before and  therefore must be grant to the next of kin of the father this court have no  power to grant a prohibition in such a case and if it shall it be the first  which ever be grant of this kind for it ought not to be determine here but in  a ecclesiastical court which have a original jurisdiction of this cause and  the appeal be in to appropriate loco to which Mr pollexfen answer that the  contrary be very plain for here have be many prohibition grant even upon  modern this very Act and the question now before the court be not concern the  manner of distribution but the right of administration whether any interest be  vest in the son or not it be true the estate in law go to the administrator  but the interest and right to sue for and to recover the estate go to the son  so that if he shall die before he be in actual possession his administrator  shall have it to pay debt and to distribute c in the case of a will if a man  shall devise his estate to his wife and child after debt and legacy pay a  interest vest in those child which do not differ from the case at the bar but  in the one case the testator make the will and in the other it be make by a  Act of parliament some inconvenience have be already mention if the law shall  be otherwise take but there be many more for if no interest shall vest in the  child till actual distribution he can neither be trust for his education or  necessary while live and nobody will bury he if he shall happen to die before  the year and a day for the funeral charge will be lose see Jenkins v Tucker I  h Bl Rep a it will likewise occasion delay in administrator to make  distribution in hope of gain neither will any honest man take a administration  upon himself because he can neither pay money safe or take a release for if  the infant die before distribution it be void but notwithstanding these reason  the court give judgement in Michaelmas term follow that a consultation shall  go the chief justice be absent sir b shower say the reason of three of the  judge be because they have a jurisdiction to which he add yet quaere for it  seem if they proceed contrary to the statute they ought to be prohibit SC show  see show b easter term the first of James the second in the king bench king  bench sir Geo jefferies Knt chief justice sir Fran Wythens Knt sir Richard  Holloway Knt sir Thomas Walcot Knt justice common plea sir Thomas Jones Knt  chief justice sir job Charlton Knt sir Thomas street Knt sir h Beddingfeild  Knt justice exchequer William Montague Esq chief baron sir Edward Atkins Knt  sir Edward Nevil Knt Christopher modern er p Milton Esq baron sir Robert  sawyer Knt attorneygeneral Heneage finch Esq solicitor general