validity of a will are, however, questions of fact; and therefore, by sect. 35, they will be tried by a jury before the Court of Probate, or by an issue directed to any of the superior courts of common law, in the same manner as an issue directed by the Court of Chancery is now tried, in any case when the heirat-law or other parties interested make application to the Court of Probate in the manner directed by that section. The wording of this section, which gives to the decision of the Court of Probate the same power over realty that the Prerogative Court had over personalty, would seem to lead us to the point to which the doctrine of the conclusiveness of the Ecclesiastical Courts was carried in the King and Vincent; for, taking out the parenthesis, the first part of the section runs thus, "The probate copy of such will, &c. shall in all courts, &c. be received as conclusive evidence, &c. of the validity, &c. of such will &c. in the like manner, &c." Upon this principle, a defendant indicted for forging a will of which probate had been granted, produced the probate, and the validity of the will was thereby at once established and the paying consequently disproved. Such was the decision of King, C. J., reported in 1 Strange, 481; overruled, however, by R. v. Buttery and Macnamara, and held not to be law by Lord Ellenborough in R. v. Gibson at the Lancaster Assizes, 1802. It cannot be supposed that any such estoppel is intended by this section; it seems rather that, in thus wording the power which the decision of the Prerogative Court had over personalty and in applying it to realty, it is wished to enforce the doctrine that the Court of Probate is the only court which can pronounce whether or not a will is good; and that the courts of common law have no jurisdiction over the subject; that the probate is conclusive till it is repealed; and that no court of common law can admit evidence to impeach it, and that, as a will may be proved after any lapse of time or at any time impeached, even when probate had been taken in solemn form, unless all parties claiming an interest have been cited (sup. p. 91), any attempt to establish or to set aside a will must be made in the first instance in the Court of Probate. A probate of a will communi formâ was not binding in the spiritual court. Sir John Edgerton's case, 1 Roll. Rep. 21. This section follows very nearly the law as laid down by Foster, C. J., in Noell v. Wells, 1 Lev. 235, and afterwards confirmed by the Court of King's Bench, "that evidence could not be given directly contrary to the seal of the Ordinary in a matter within his jurisdiction. But evidence may be given, that the seal was forged or repealed, or that there were bona notabilia; for those confess and avoid the seal. But he can't give in evidence that another was executor, or that the testator was non compos mentis; for those falsify the proceedings of the Ordinary in cases of which he is judge. But those are to be remedied by appeal." I R. & R. C. C. 342. y Hoffman v. Norris, 2 Phillim. 230, n. Heir in cer tain cases not to be cited, and where to be affected by probate. LXIII. Nothing herein contained shall make it neces sary to cite the heir-at-law or other persons having or not cited not pretending interest in the real estate of a deceased person, unless it is shown to the court and the court is satisfied that the deceased was at the time of his decease seised of or entitled to, or had power to appoint by will some real estate beneficially, or in any case where the will propounded or of which the validity is in question would not in the opinion of the court, though established as to personalty, affect real estate, but in every such case, and in any other case in which the court may, with reference to the circumstances of the property of the deceased or otherwise, think fit, the court may proceed without citing the heir or other persons interested in real estate; provided that the probate, decree or order of the court shall not in any case affect the heir or any person in respect of his interest in real estate, unless such heir or person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party. Probate or office copy to of the will in suits concerning real estate, save where the validity of the will is put in issue. PROOF OF WILL. LXIV. In any action at law or suit in equity, where, be evidence according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition to give to the opposite party, ten days at least before the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition the probate of the said will or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the Court of Probate; and in every such case such probate or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition. LXV. In every case in which, in any such action or As to costs of suit, the original will shall be produced and proved, it shall be lawful for the court or judge before whom such evidence shall be given to direct by which of the parties the costs thereof shall be paid. The inconvenience and unnecessary expense of the attendance of an officer from the depository with the original will is thus saved in all actions and suits where it is necessary to put the will in evidence, in order to establish a devise of real estate. Notice must be given by the party, of whose case the will form a part, that he intends to give in evidence an examined copy of the probate. Such examined copy cannot, however, be put in evidence without proof of due notice having been given. It will be observed, that this section has reference only to a suit concerning real estate; where, therefore, a bequest of personalty is in question, it is still necessary to produce the probate. Where the will has not been proved in solemn form or its validity decreed in a contentious cause or matter, the party disputing the validity may give notice, within four days after receipt of notice of the intention to put in evidence the examined copy, that he disputes the validity, and, in such case, it will be necessary for the other party to produce the original will, for the will does not then come within sect. 62; and the probate or letters of administration with the will annexed are not conclusive evidence of the validity and contents of such will as against the heir-at-law or other persons against whose interest in real estate such will might operate. If the examined copy be not admitted, the costs of producing the original will are in the discretion of the judge, and he may direct upon which party they shall fall. Although the executor derives his title from the will by which he is appointed and not from the probate, yet it is the probate alone which authenticates his right; and, as the probate or letters of administration with the will annexed had hitherto been the only legal evidence of the will in all questions regarding personalty, so now also with regard to realty they are the only legitimate evidence of the property being vested in an executor or of the executor's appointment. The original will cannot be read in evidence for that purpose unless it bears the seal of the court.a 1 R. v. Netherseal, 4 T. R. 258. Kempton dem. Bayfield v. Cross, Cas. temp. Hardw. 108. F proof of will. All that is required, either in the case of an executor or administrator, is to show that the court has given authority to the person to administer. It is only the act of the court that is to be proved. The probate is a copy of this act; the original book containing the entry of the act of court is the original, and therefore the primary evidence. Hence the act-book or, by the 14 & 15 Vict. c. 99, s. 14, a copy of it is admissible evidence of the parties therein named being executors, without accounting for the non-production of the probate.b To prove that the probate of a will has been revoked, an entry of the revocation in a book of the Prerogative Court, in which all causes were entered by the registrar, and which was kept as the only record of such proceedings and of the decree of the court, has been admitted as good evidence.c The title of an administrator de bonis non is sufficiently proved by the letters of administration de bonis non, without producing those granted to the first executor or administrator.d As to how far probate or letters of administration, when produced by the plaintiff, are conclusive upon the defendant, see Williams Exors. & Adm. Place of deposit of original wills. Judge to cause calendars to be made from PLACE OF DEPOSIT. LXVI. There shall be one place of deposit under the control of the Court of Probate, at such place in London or Middlesex as her Majesty may by order in council direct, in which all the original wills brought into the court or of which probate or administration with the will annexed is granted under this Act in the principal registry thereof, and copies of all wills the originals whereof are to be preserved in the district registries, and such other documents as the court may direct, shall be deposited and preserved, and may be inspected under the control of the court and subject to the rules and orders under this Act. No change has at present been made in these particulars; wills are deposited and may be inspected as before the act. LXVII. The judge shall cause to be made from time to time in the principal registry of the Court of Probate, time to time calendars of the grants of probate and administration in b Cox v. Allingham, Jacob, 514. Cr. C. 25, n. d Catherwood v. Chabaud, 1 B. & C. 150. See also Gradell v. Tyson, 2 Stra. 716. e Pt. V., Bk. 1, cap. 1. the principal registry, and in the several district registries of the court, for such periods as the judge may think fit, each such calendar to contain a note of every probate or administration with the will annexed granted within the period therein specified, and also a note of every other administration granted within the same period, such respective notes setting forth the dates of such grants, the registry in which the grants were made, the names of the testators and intestates, the place and time of death, the names and descriptions of the executors and administrators, and the value of the effects; and the calendars to be so made shall be printed as the same are from time to time completed. transmit printed copies to cer tain offices. LXVIII. The registrars shall cause a printed copy of Registrar to every calendar to be transmitted through the post or otherwise to each of the district registries, and to the office of her Majesty's prerogative in Dublin, the office of the commissary of the county of Midlothian, in Edinburgh, and such other offices, if any, as the Court of Probate shall from time to time by rule or order direct; and every printed copy of a calendar so transmitted as aforesaid shall be kept in the registry or office to which it is transmitted, and may be inspected by any person on payment of a fee of one shilling for each search, without reference to the number of calendars inspected. LXIX. An official copy of the whole or any part of a will, or an official certificate of the grant of any letters of administration, may be obtained from the registry or district registry where the will has been proved or the administration granted, on the payment of such fees as shall be fixed for the same by the rules and orders under this Act. For the amount of fees payable, see the Appendix. Official copy part of will tained. of whole or may be ob ADMINISTRATION PENDEnte Lite. tion pendente LXX. Pending any suit touching the validity of the Administra will of any deceased person, or for obtaining, recalling, lite. or revoking any probate or any grant of administration, |