wills of married Women. Probate of tration with will annexed in such cases shall take the form of ordinary grants of probate or letters of administration with will annexed, without any exception or limitation, and issue to an executor or other person authorized in the usual course of representation to take the same, a surviving husband, however, being entitled to the same in preference to the next of kin of the testatrix in case of a partial intestacy. Married It must also be borne in mind that the Married Women's Property Act, 1882, has not altered the devolution of a married woman's undisposed of personalty, and that accordingly, on her death, without disposing of her separate personalty, the quality of separate property ceases, and the husband's right to the undisposed of personalty arises just as if the separate use had never existed (1). (1) Stanton v. Lambert, 39 Ch. D. 626, where the previous cases are considered along with the case of Amelia Price and the Probate Rules of March, 1887, cited supra. CHAPTER IV. PROBATE OF THE WILL. The word probate is generally applied to the piece of parchment, signed by the registrar and sealed with the seal of the Court (annexed to a parchment copy of the will), on which is engrossed a statement in the nature of a record, that on a certain day the will of the deceased (naming the day of death and place of abode of the deceased) was proved and registered, and that administration of his estate was granted to the executor, he having first sworn faithfully to administer (1). Any act done to a will after the testator's death does not Will torn alter its effect, if its contents can be ascertained. Thus, in a in pieces. case where a will had been torn in pieces after the testator's death, the pieces had been found, the Court ordered the fragments to be pasted together, and granted probate of the will in common form (2). Of several executors under a will, in equal degree, one may Double or prove alone without notice to his co-executor or co-executors, triple power being reserved to the others to prove at a later period. probate. Should he or they subsequently prove the will, which may be done at any time during the lifetime or after the death of the executor who has proved, the grant is called a double or triple probate, as the case may be. If any executor allows administration to be obtained, the right to probate is thereby extinguished, but proceedings may be taken to have the administration revoked (3). RENUNCIATION. tion. "The office of executor being a private one of trust, named Renunciaby the testator, and not by the law, the person nominated may refuse, though he cannot assign the office; and even if in the lifetime of the testator he has agreed to accept the office, it is still in his power to recede " (4). Prior to the enactments to which we shall next refer, one of several co-executors might in the lifetime of his colleagues (1) Browne on Probate, p. 203. (3) Knight v. Cook, 1 Lee, pp. 413, 414. (3) Dixon on Probate, p. 254. () Williams on Executors, 8th ed. p. 278, citing Bacon's Abr. Lost wills. Lord St. Leonards' will. Lost wills. renounce and then subsequently change his mind and enter upon the duties of his office, but now by the Probate Act of 1857 (1), and the Amending Act of 1858 (2), "Where any person after the commencement of this Act renounces probate of the will of which he is appointed executor, or one of the executors," and by sect. 16 of the Amending Act, "whenever an executor appointed in a will survives the testator, but dies without having taken probate, and whenever an executor in a will is cited to take probate, and does not appear to such citation, then the rights of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall and may, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor." Where a will has been lost or revoked, probate will be granted of a codicil, if the Court is satisfied that the testator intended the codicil to operate separately from and independently of the will (3). The principle upon which the Court proceeds in cases of this description has been judicially stated as follows: "The question is entirely one of the intention of the deceased. Where a will and codicil have been in existence, and the will is afterwards revoked, it must be shown by the party applying for probate of the codicil alone, that it was intended by the deceased that it should operate separately from the will, otherwise it will be presumed that, as the will is destroyed, the codicil is also revoked" (4). The whole subject of lost wills received careful consideration in the case of Sugden v. Lord St. Leonards (5), decided in the year 1876. The result of the decision in that celebrated case may be shortly summarised as follows: (1) The contents of a lost will, like those of any other instrument, may be proved by secondary evidence. (2) Declarations, written or oral, made by a testator both before and after the execution of his will are, in the event of its loss, admissible as secondary evidence of its contents. (1) 20 & 21 Vict. c. 77, s. 79. (4) Per The President, In the () 1 P. D. 154, 250. This case was considered in the House of Lords in Woodward v. Goulstone, 11 App. Cas. 469, 485, where one of the Law Lords said: "I am quite willing to follow the great judges who decided Sugden v. Lord St. Leonards, in the conclusions at which they finally arrived, but am not disposed to go one hair's breadth beyond. That case might be truly said to have reached the very verge of the law, and it ought not to be extended." See also as to probate of lost will, Harris v. Knight, 15 P. D. 170. (3) The contents of a lost will may be proved by a single witness, even though interested, whose veracity and competency are unimpeached. (4) Where the contents of a lost will are not completely proved, probate will be granted to the extent to which they are proved. As a general rule the Court will not grant probate of the contents of a lost will, unless there is very cogent evidence that such a will did exist, and was in existence at the time of the death of the testator. for wills of Special provision has been made by the Legislature for Depository persons who desire to take extra precaution with reference to living the safe custody of their wills. The Probate Act, 1857 (1), enacts persons. that "one or more safe and convenient depository or depositories shall be provided, under the control and directions of the Court of Probate, for all such wills of living persons as shall be deposited therein for safe custody; and all persons may deposit their wills in such depository upon payment of such fees, and under such regulations, as the judge shall from time to time by any order direct." In another case, a testator left a holograph codicil, i.c. entirely in his own handwriting. The will was written on the first side of a sheet of foolscap, and the codicil on the third side. There was a regular attestation clause, and the testator had signed his name at the foot of the codicil, as there was no more space in the sheet, the names of the attesting witnesses appeared at the bottom of the second page opposite the attestation clause. The witnesses, who were clerks in the employment of the deceased, and had frequently witnessed papers for him, acknowledged their signatures, but stated that they had no recollection of having signed the paper, or ever having seen it before. The president proceeded on the familiar principle that omnia presumuntur rite esse acta, viz., all things are presumed to have been rightly done unless there is reasonable ground shown for doubting it, and admitted the codicil to probate (2). Presump tion that all things are rightly done. Where a will leaves only real estate, it is not entitled to Will of probate. If, however, the will be of a man or a feme sole, the real estate. appointment of an executor is sufficient and the will is entitled to probate. The bare nomination of an executor without giving any legacy or appointing anything to be done by him, is sufficient to make the document a will, and as a will it has to be proved. (1) 20 & 21 Vict. c. 77, s. 91. (2) Woodhouse and Another v. Balfour, 13 P. D. 3. Wills of married women. Exemptions from probate or administration. Superannuation Act, 1887. Affidavits. The will of a married woman made during coverture under a power and disposing of real property only, was held not entitled to probate. In a case, however (1), where a married woman possessed real property as separate estate and appointed an executor, and directed him to pay legacies and erect a memorial window, as there was personal property in the shape of arrears of rent the will was held entitled to probate. In a recent case, where the will of a married woman dealing only with realty appointed executors, and a portion of the estate consisted of personalty vested in her under the Married Women's Property Act, the will was held entitled to probate (2). See, as to the present practice in respect of married women (ante, p. 975). The following are the principal cases in which personalty is exempted from probate or administration : 1. Navy money and effects under or amounting to £100 (3). 2. Officers' and soldiers' pension, prize-money, and pay not exceeding £50 (4). 3. Money and effects of merchant seamen not exceeding £50 (5). 4. Deposits in savings banks for seamen (6). 5. Deposits in savings banks not exceeding £50 (†). The Superannuation Act, 1887, provides that on the death of a person to whom any sum not exceeding one hundred pounds is due from a public department in respect of any civil pay, superannuation, or other allowance, annuity or gratuity, then, if the prescribed public department so direct, but subject to the regulations (if any) made by the Treasury, probate or other proof of the title of the personal representative of the deceased person may be dispensed with, and the said sum may be paid or distributed to or among the persons appearing to the public department to be bencficially entitled to the personal estate of the deceased person (*), or among such persons as the department may think fit, and the department shall be discharged from all liability in respect of any such payment or distribution. On applying for a grant of probate the executor must file the oath of office, i.e. the oath alluded to in the probate, and also (1) Brownrigg v. Pike, 7 P. D. 61. See In the Goods of Elizabeth Tomlinson, 6 P. D. 209. (2) In the Goods of Cubbon, 11 P. D. 169. () 28 & 29 Viet. c. 111, the Navy and Marine's Property of Deceased Act. (1) 11 Geo. 4 & 1 Will. 4, c. 41, s. 5. () 19 & 20 Vict. c. 41. 1 |