The cause arose in Connecticut, it is true,
but the social condition of the two colonies was so similar as to make
this circumstance immaterial.
Wait Winthrop, [Footnote: This report of Winthrop v. Lechmere is taken
from a MS. brief in the possession of Hon. R. C. Winthrop.] grandson of
the first John Winthrop, died intestate in 1717, leaving two children,
John, of New London, and Anne, wife of Thomas Lechmere, of Boston. The
father intended his son should take the land according to the family
tradition, and in pursuance of this purpose he put him in actual
possession of the Connecticut property in 1711; but he neglected to make a
will.
By the common law of England real estate descended to the eldest son of
him who was last seised; but in 1699 the Assembly had passed a statute of
distribution, copied from a Massachusetts act, which directed the probate
court, after payment of debts, to make a "distribution of ... all the
residue ... of the real and personal estate by equal portions to and among
the children ... except the eldest son ... who shall have two shares."
Here, then, at the threshold, the constitutional question had to be met,
as to whether the colonial enactment was not in conflict with the
restriction in the charter, and therefore void. Winthrop took out letters
of administration, and Lechmere became one of the sureties on his bond.
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