Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/451

 IS. ANDREWS: COLONIAL CONDITIONS 437 New England. This becomes the more apparent when we real- ize that for more than sixty years it existed as a custom in no way binding on the people, and that it did not become a law in Massachusetts until 1692, or in Connecticut until 1699.^ By the English common law the eldest son was the sole heir and was entitled to the whole estate exclusive of all other children ; whereas the colonial law ^ directed that the real estate of an intestate be distributed in single shares to all the children except the eldest son, to whom, following the ruling of the Mosaic Code, the law assigned a double portion.^ The Connecticut law was not the arbitrary act of the assembly of the colony ; it was the sanctioning of a custom which had grown out of the consent of heirs to an intestacy, and which had been proved by experience to be the best adapted to the needs of the colony.* Governor Talcott gives in brief the ' Conn. Col. Bee. IV, p. 307. " I have observed," writes Lieut. Gov- ernor Law, "the law to be of no ancienter date than 1699 and our old law book, dated in 1672, prescribes no rule excepting the righteousness and equity lodged in the breast of the County Court." Law to Talcott, Talcott Papers, I, p. 119. Also I, pp. 122-123, 144, 392-394. II, pp. 225, 244-245. The October Orders of 1639 contain the earliest form of the law, as follows : " But when any prson dyeth intestate the sayd order- ers of the affayres of the Towns shall cause an Inventory to be taken and then the Public Court may graunt the administracon of the goodes and chattels to the next of kin, joyntly or severally, and divide the estate to wiefe (if any be) children or kindred as in equity they shall meet." Conn. Col. Rec, I, p. 38, This was repeated verbatim in the Code of 1650. In the Revision of 1673 to which Law refers there are slight changes in phraseology but none in meaning. to order and make a just distribution of the surplusage or remaining goods and estate of any such intestate, as well real as personal in manner following: That is to say one-third part of the personal estate to the Wife of the Intestate (if any be) forever, besides her dower or thirds in the housing and lands during life, where such wife shall not be otherwise endowed before marriage; and all the residue of the real and personal estate by equal portions to and among the children and such as shall legally represent them (if any of them be dead) other than such children who shall have any estate by settlement of the Intestate in his lifetime, equal to the other's share; children advanced by settle- ment or portions not equal to the other shares; to have so much of the surplusage as shall make the estate of all to be equal; except the eldest then surviving (where there is no issue of the first born or any other eldest son) who shall have two shares or a double portion of the whole, and where there are no sons the daughters shall inherit as co-partners." 'Deut. xxi. 17. parties interested in any estate being equally capable to act, shall mutually agree of a division among themselves and present the same
 * " The said Court of Probate shall and hereby are fully empowered
 * Another clause of the Act makes this clear. " Unless where all the