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And no subsequent change of domicile is to render the will invalid (2).
3. The appointment of the executor.-In every will by which personal estate is bequeathed, an executor onght regularly to be appointed (a), although he is capable of being appointed either by express words or by clear implication (b). For the executor is he to whom the testator commits the execution of his last will and testament. All persons are capable of being executors who are capable of making wills, and many others besides ; for infants,-nay (it is said) even an infant en ventre sa mère (©),—may be made executors ; likewise married women, although, in their case, the husband might have refused to allow his wife to act, by reason of the liability which (prior to the Married Women's Property Act, 1882) he himself incurred for her devastavits (d), a reason which has now practically ceased to exist.
4. The probate.—The probate is the authentication of the will; and such authentication is essential to the completion of any title to be made under the will to the personal estate (including chattels real) comprised therein (e). In which respect a will of personal estate formerly differed from a will of real estate, no probate of the latter being required (4). But now, under the Land Transfer Act, 1897 (g), as regards the real estate (other than copyhold and customary-hold) to which the testator was entitled in fee simple for his own benefit, and under the Conveyancing Act, 1881 (h), as regards his
(2) 24 & 25 Vict. c. 114, s. 3; 24 & 25 Vict. c. 121.
(a) Went. Off. Ex. ch. 1 ; Plowd. 281.
(b) Re William Bradley (1883), 8 P. D. 215.
(c) West. Symb. p. 1, s. 635.
(1858), 1 Ell., Bl. & Ell. 1056 ; 45 & 46 Vict. c. 75, ss. 18, 23.
(e) Doe v. Mew (1837), 7 A. & E. 240 ; Matson v. Swift (1845), 8 Beav. 368.
(f) Barraclough v. Greenhough (1867), L. R. 2 Q. B. 612.
(g) 60 & 61 Vict. c. 65, s. 1.: (h) 44 & 45 Vict. c. 41, s. 30.
trust and mortgage estates, the will must be admitted to probate, in order that these estates respectively may vest in the executor ; and probate (and letters of administration) may now be granted in respect of real estate only, although there is no personal estate.
The executor, if he accepted the office,--for of course he might in his discretion refuse to accept the office, that is to say, renounce the probate (i)—was required until recently, that is to say, until the Court of Probate Act, 1857, to prove the will (i.e., obtain probate of the will) before the ordinary. And such proof was either in common form, which was upon the executor's own oath, before such ordinary or his surrogate ; or per testes, in more solemn form of law,—which was only necessary when the proof was contested, by the entry of some caveat. For, in the absence of any contest, the probate was granted ex debito justitiæ (k). And when the will was so proved, the original was deposited in the registry of the ordinary; and a copy thereof on parchment was made out under his seal, and delivered to the executor, together with a certificate of its having been duly proved before him. And that official copy of the will was the probate thereof, as such term was commonly understood.
It is to be observed, however, that probate before the ordinary was, in general, the proper course, only in case all the goods of the deceased lay, at the time of his death, within one diocese. For if the deceased had bona notabilia (i.e., chattels to the value of a hundred shillings) in two distinct dioceses, then the will had to be proved before the metropolitan of the province, by way of special prerogative (1), whence the courts of the metropolitan wherein
(i) Venables v. East India Company (1848), 2 Exch. 633; 20 & 21 Vict. (1857) c. 77, s. 79 ; 21 & 22 Vict. (1858) c. 95, s. 16.
(k) Godolph. vol. 1, ch. 20, s. 4; 3 Bl. Com. 98.
(l) 4 Inst. 335; 2 Bl. Com. p. 509 ; Gurney v. Rawlins (1836), 2 M. & W. 87; Easton v. Carter (1850), 5 Exch. 8; and 10 & 11 Vict. (1847) c. 98, s. 6.
such will was proved, and the offices of such courts, were called respectively the prerogative courts, and the prerogative offices, of the provinces of Canterbury and York respectively. And hy means of such courts, the necessity for as many separate probates as there were dioceses was saved.
But, under the present system, the law as to bona notabilia is disused, the effect of the Court of Probate Act, 1857 (by which the jurisdiction of the Ecclesiastical Courts in these matters was taken away), being, that the whole jurisdiction and authority in relation to granting probates, and the depositing and preserving of the original wills, is now exercised without reference to the locality in which the property of the deceased may lie (m), though the distinction still obtains between proving a will in common form, and proving it in a case of contention (n). For there are subordinate jurisdictions throughout the country called “ District Probate Registries," appointed severally for the districts set forth in a schedule to the Act, and each of them presided over by a “ District Registrar ” ; and, in general, at the option of the parties interested, a will may be proved (or administration granted) either in London, or in the registry of the district in which the deceased had, at the time of his death, a fixed place of abode. But if the grant involves any matter of contention, then recourse must be had to the principal court itself (o). For the purpose of obtaining a grant of probate in common form, the applicant must now usually lodge the original will, an engrossment thereof to constitute the probate, an affidavit of estate (including real estate), and oath of executor, whereby he swears duly to administer.
And here we may conveniently observė, that even under the Court of Probate Act, 1857 (p), a devise of real estate
(m) 20 & 21 Vict. c. 77, s. 4. . (n) Moore v. Holgate (1866), L. R. 1 P. & D. 101 ; Peacock v. Lowe (1867), ib. 311.
(0) 20 & 21 Vict. c. 77, ss. 2, 46-48. .
(p) 20 & 21 Vict. c. 77, s. 62.
might also be authenticated by the probate of the will ; for if the will was proved in solemn form, then the probate was made conclusive evidence of the devise. And the Land Transfer Act, 1897, s. 2 (2) now provides, that all enactments and rules of law relating to the effect of probate and letters of administration as respects. chattels real, and as respects the dealings with chattels real before probate or administration, and as respects the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties and liabilities of personal representatives in respect of personal estate, shall apply to real estate, so far as the same are applicable, as if that real estate were a chattel vesting in them or him ; save that it shall not be lawful for some or one only of several joint personal representatives, without the authority of the court, to sell or transfer real estate.
Every probate (or now the affidavit used on the application for the grant) must be stamped with the proper stamp duty ; and this stamp duty is now, by the Finance Act, 1894 (57 & 58 Vict. c. 30), converted into a duty called Estate Duty, as is more fully explained in the chapter on Death Duties in Volume I.
III. Our third head of enquiry is, the manner of granting administration. Until the change in the law to which we have already, more than once, adverted, if the deceased died intestațe, then letters of administration were granted by the ordinary or else by the metropolitan, according to the distinctions with respect to bona notabilia already stated. But the grant is now made under the provision for that purpose contained in the Court of Probate Act, 1857, s.t; and as to the person to whom the office of administrator is to be granted, the court follows, except under special circumstances, certain rules, which used to be obligatory also on the ordinary, that is to say, —
1. Administration of the goods and chattels of the wife
must be granted to the husband or his representatives (9) ; and administration of the husband's effects must be to the widow, or next of kin, but the court may grant it to either, or both, at its discretion (r). The court prefers, however, a sole administrator (s); and will not, as a rule, pass over the widow (t). 2. Among the kindred, those are to be preferred that are the nearest in degree to the intestate ; but of persons in equal degree, the court may take which it pleases, and in general it will prefer males to females (u). 3. This nearness or propinquity of degree is reckoned according to the computation of the civilians, as expressed in the annexed Table (x); which allows one degree for each person in the line of descent, exclusively of him from whom the computation begins, and, in the direct line, counts the degrees from the deceased to his relative, but between collaterals, the sum of the degrees from the deceased to the common ancestor, and from the common ancestor to the relative. In which computation the civil law differs (as regards collaterals) from the canonists, who begin from the common ancestor and reckon downwards, and in whatever degree the two persons, or the most remote of them, is distant from the common ancestor, consider them as related in that degree to each other (y). [And, therefore, in the first place, the children, or (on failure of children) the parents of the deceased are entitled to the administration : for though both children and parents are in the first degree, yet, with us, the children are allowed the preference (2). Then follow brothers and
(9) Johns v. Rowe (1628), Cro. Car. 106; Statute of Frauds (1677), s. 25 ; Squib v. Wym (1717), 1 P. Wms. 381.
(r) Fautry V. Fawtry (1692), 1 Salk. 36 ; Stra. 532. *
(8) Re Newbold (1866), L. R. 1 P. & D. 285.
(t) Re Middleton (1888), 14 P. D. 23.
(u) Iredale v. Ford (1859), 1 Swab. & Trist. 305.
(2) Prec. Chan, 593 ; Gilb. Tem. 9; R. v. Dr. Hay (1767), 1 W. Bl. 641.
(y) Toller, Executors, 87–90, 2nd ed.
(z) Godolph. p. 2, ch. 35 ; Toller, Executors, ubi supra.