dispose, by will, of personal estate settled to her separate use (v). So she may bequeath any property by will, where an express power has been conferred upon her so to dispose of it, though her will may in that case be more properly described as an appointment in execution of the power(x). Moreover, persons are intestable through immaturity of age as to which the rule until a recent period was, (according to Blackstone,) that a male was competent to make a will at the age of fourteen; a female at twelve; but neither of them at an earlier period (y); and this was also the regulation of the civil law (z). But this is now altered by the new Statute of Wills, 7 Will. IV. & 1 Vict. c. 26, mentioned in the Chapter on Devises (a), which, (subject to exception as to the wills of the personal estate of soldiers and seamen, and to wills made before 1st January, 1838,) provides as to all wills, whether land or personalty be concerned, that none shall in any case be valid, if made by a person under the age of twenty-one years (b). 2. We shall next advert to the solemnities which the execution of the will requires. And here also the law has lately undergone important alterations. It was formerly as follows:-testaments (as regarded personal property) might be either written, or verbal, (otherwise called nuncupative); of which the former were committed to writing, and published or declared by the testator as his will; the latter depended merely upon oral evidence; [being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing.] But as nuncupative wills and codicils (c) (which were formerly more (v) Peacock v. Monk, 2 Ves. sen. 191. (x) Southby v. Stonehouse, 2 Ves. 610; Shelford on Wills, 130. See also Wms. on Executors, 45, 3rd edit.; Sugd. on Powers, 287, 6th edit. As to powers in general, vide sup. vol. 1. p. 549. (y) 2 Bl. Com. 497, cites Godolph. p. 1, c. 8; Went. 212; 2 Vern. 104, 469; Gilb. Rep. 74; vide Co. Litt. by Harg. 89, n. (6); Wats. Conv. 404 (8th edit.), in notis. (z) 2 Bl. Com. 497; Co. Litt. by Harg. 89 b, n. (6). (a) Vide sup. vol. 1. p. 587. (b) 7 Will. 4 & 1 Vict. c. 26, s. 7. Vide sup. vol. 1. p. 593. (c) As to codicils, vide sup. vol. 1. p. 588. in use than afterwards, when the art of writing became more universal) were liable to great impositions, and might occasion many perjuries, the Statute of Frauds, 29 Car. II. c. 3, laid them under many restrictions (except when made by mariners at sea, and soldiers in active service), and indeed surrounded them by so numerous a train of requisites, that the things themselves had fallen into disuse (d). As to written wills of personalty, they needed not in general any witnesses (e). A testament of chattels written in the testator's own hand, though it had neither his hand. nor seal to it, nor any witness present at its publication, was good, provided sufficient proof could be had that it was his handwriting (f). And [though written in another man's hand, and never signed by the testator, yet if it proved to be according to his instructions, and approved by him, it hath been held a good testament of the personal estate (g).] Such was lately the state of the law on the subject of solemnities, so far as the will was to operate as a disposition of the personal estate; while as regarded the real estate, it was required on the other hand to be invariably in writing, and attested by three witnesses; but the new Statute of Wills, above referred to, has now introduced the obvious and incontestable improvement of establishing one uniform rule on this subject, which, having been already stated in the course of the chapter on Devises (h), we shall not again repeat, further than to remind the reader, that it requires a written and signed instrument, executed before and attested by two or more witnesses; and makes this sufficient without further publication;the only exceptions to this enactment, being those of the wills of the personal estate of soldiers and seamen, and (d) 2 Bl. Com. 501. (e) Ibid.; et vide Phil. Ec. C. 173. A bequest, indeed, of stock, required to be attested by two witnesses, vide 33 Geo. 3, c. 28; 35 Geo. 3, c. 14. Yet even when the will was unattested, the executor was con sidered in equity as a trustee for the legatee. Franklin v. The Bank of England, 1 Russell's R. 589. (f) 2 Bl. Com. 501, cites Godolph. p. 1, c. 21; Gilb. Rep. 260. (g) Comyns, 452, 453, 454. wills executed before 1st January, 1838, both of which remain subject to the former law (i). 3. The next point that we shall notice, under our second general head of inquiry, is the appointment of an executor. In every will by which personal estate is bequeathed, such an appointment ought regularly to be made (k); but it is capable of being made either by express words or by a clear implication (1). [An executor is he to whom another man commits by will the execution of his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as femes coverts, and infants: nay, even an infant unborn, or in ventre sa mère, may be made executor (m).] Where an infant is sole executor, it is, however, provided by 38 Geo. III. c. 87, s. 6, that probate shall not be granted to him until his full age of twenty-one; and that administration, with the will annexed, shall in the meantime, durante minore ætate, be granted to his guardian, or such other person as the court having jurisdiction shall think fit (n); but if there be several executors, and one of them is of full age, no administration is granted, for he who is of full age may execute the will (o). So also a limited administration may be granted durante absentia, when the executor or administrator is out of the realm, or pendente lite, when a suit is commenced touching the validity of the will (p). 4. We shall lastly advert to the probate, or official proof of the instrument, which the law deems essential to the completion, or rather the authentication, of the title by will to personal estate (g). Until recently (that is, prior to the (i) Vide sup. vol. 1. p. 597. (k) Went. Off. Ex. c. 1; Plowd. 281. (1) 2 Bl. Com. 503. (m) West. Symb. p. 1, s. 635. (n) Before the passing of this Act the law considered an infant, aged seventeen years, capable of acting as executor; Godolph. Pt. 2, c. 9, s. 2; Swinb. Pt. 5, s. 1, pl. 6; Piggot's case, 5 Co. 29 (a). (0) 1 Wms. Exors. p. 419, 5th ed. (p) 2 Bl. Com. 503; 38 Geo. 3, c. 87; 20 & 21 Vict. c. 77, ss. 70, 73, 74. This last Act contains provisions as to a limited grant of administration in other cases also. Sect. 73. (q) See Smith v. Milles, 1 T. R. new Act of 20 & 21 Vict. c. 77) this has been done by the executor, (if he accepted the office, for that is of course in his discretion (r),) before the ordinary (s): and was either in common form, which was only upon the executor's own oath, before the ordinary or his surrogate,-or per testes, in more solemn form of law, in case the validity of the will were disputed (t): and when the will was so proved, the original was to be deposited in the registry of the ordinary (u), and a copy thereof on parchment made out under the seal of the ordinary, and delivered to the executors, together with a certificate of its having been proved before him; all which together was usually styled the probate (x), though that term was also often applied to the official copy of the will taken alone. As to this proceeding, however, it is to be remarked, that if all the goods of the deceased lay, at the time of his death, within the same diocese or jurisdiction, a probate before the ordinary was in general the only proper one. But if the deceased had bona notabilia (y), or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will was to be proved before the metropolitan of the province, by way of special prerogative (z); whence the courts where the validity of such will was tried, and the 480; Doe v. Mew, 7 A. & E. 240; (r) A person appointed executor by the will may, if he think fit, refuse to act, or even formally renounce; as to which, vide Creswick v. Woodward, 4 Man. & G. 814; Venables v. East India Company, 2 Exch. 633; 20 & 21 Vict. c. 77, s. 79. (s) As to the ordinary, vide sup. p. 195, n. (u). (t) See Godolph. vol. 1, c. 20, s. 4, where the mode of "proving in form of law" is more particularly explained. (u) It is now to be deposited under the control of the Court of Probate, in a place to be directed by Order in Council. 20 & 21 Vict. c. 77, s. 66. (x) On every probate granted there is an ad valorem duty payable; as to which, see 36 Geo. 3, c. 52; 55 Geo. 3, c. 184, sched. p. 2; 5 & 6 Vict. c. 79, s. 23. (y) As to bona notabilia, vide Gurney v. Rawlins, 2 Mee. & W. 87. See also 10 & 11 Vict. c. 98, s. 6. (z) 4 Inst. 335; vide AttorneyGeneral v. Bouwens, 1 Horn. & Hurl. 319. offices where they were registered, were called the prerogative courts, and the prerogative offices, of the provinces of Canterbury and York. The makers of the canons of 1603, understood this antient rule to be meant of the shilling current in the reign of James the first, and therefore directed, that five pounds should for the future be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative; which prerogative (properly understood) was grounded upon this reasonable foundation, that as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the subsequent administrators were in effect no other than their officers or substitutes, it was impossible for the bishops, or those that acted under them, to collect any goods of the deceased other than such as lay within their own dioceses, beyond which their episcopal authority extended not (a). But as it would have been extremely troublesome if as many administrations were to be granted as there were dioceses within which the deceased had bona notabilia, besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund out of which their demands are to be paid;-a prerogative was, therefore, very prudently vested in the metropolitan of each province, to make in such cases one administration serve for all within the same province; and the practice in the probate of wills naturally followed (as before remarked) that in the granting of administrations (b). But the law as to bona notabilia, and as to the particular ecclesiastical authority before which a will was to be proved, (though fit to be understood and recollected,) is now entirely done away; it being provided by 20 & 21 Vict. c. 77, s. 4, that the whole jurisdiction and authority in relation to granting probates shall in future be exercised by the new Court of Probate. As to this, however, a distinction is to be remarked between (a) See 10 & 11 Vict. c. 98; 11 & 12 Vict. c. 67; Easton v. Carter, 5 Exch. 8. (b) The account here given of the law of bona notabilia is from 2 Bl. Com. p. 509. |
