been executed in the presence of and attested by some commission or warrant officer of his majesty's navy, commission officer of royal marines, physician, surgeon, asssistant-surgeon, agent or chaplain to some naval hospital, or some commission officer, physician, surgeon, assistant-surgeon, or chaplain of the army, or any notary public.

But no will of any seaman, contained, printed, or written in the same instrument, paper, or parchment, with a letter of attorney, shall be good or available in law, to any intent or purpose whatever.

And all captains and commanders of ships shall, upon their monthly muster-books or returns, specify which of the persons mentioned in the said returns have made or granted any will during that month or other space of time from the preceding return, by inserting the date thereof opposite the party's name, under the head of " Will."

But before any such will shall be attempted to be acted upon or put in force, the same shall be sent to the treasurer of the navy, at the navy pay office, London, in order that the same may be examined by the inspector of seamen's wills, who, or his assistants, shall immediately on receipt of every such will, duly register the same, in a numerical and alphabetical manner, in books to be kept for that purpose, specifying the date of such will, the place where executed, and the name and addition, names and additions of the person or persons to whom or in whose favour, as executor or executors, the same shall have been granted or made; and also the names and additions of the witnesses attesting the same, and shall mark the said wills, with numbers corresponding with the numbers made on the entries thereof in the said books; and the said inspector shall take all due and proper means to ascertain the authenticity of every such will; and in case it shall appear to him, or he shall have reason to suspect that any such will is not authentic, he shall forthwith give notice in writing to the person or persons to whom or in whose favour such will shall have been made, as executor or

executors, that the same is stopped, and the reason thereof, and shall also report the same to the treasurer or paymaster of the navy, and shall enter his caveat against such will, which shall prevent any money from being had and received thereon, until the same shall be authenticated to the satisfaction of the said treasurer or paymaster; but if upon such examination and inquiry it shall appear to the said treasurer, paymaster, or inspector, that such will is authentic, the said inspector, or his assistant, shall sign his name to such will, and also put a stamp thereon in token of his approbation thereof.

Where any petty officer, &c. who shall have belonged to any ship or vessel of his majesty, his heirs or successors, has died, or shall hereafter die, having left a will or testament appointing any executor or executors therein, no pay, &c. which may have been due or owing to such testator at the time of his death, shall be paid over to or recovered by such executor or executors, except upon the probate of such will, to be obtained in the following manner; videlicit, after such will shall have been so transmitted, registered, inspected, and approved, as hereinbefore directed, the inspector of seamen's wills shall issue or cause to be issued, to the person named and described as executor or executrix of such will, a check in lieu thereof, containing directions to return the same, upon the testator's death, to the treasurer or paymaster of his majesty's navy; the form of which check is set forth in the act.

And in the event of the testator's death, the minister, officiating minister, or curate of the parish in which the executor or executrix may then reside, shall, upon being applied to for his signature to the certificate at the foot of the check, examine such executor or executrix, and such two inhabitant householders of the parish, as may be disposed to sign the first certificate on the check, touching the claim of the executor or executrix; and being satisfied of his or her being the person described as executor or executrix in the check,

the executor or executrix shall subscribe the application subjoined to the check (the blank therein being first filled up agreeably to the truth), in the presence of the said minister, officiating minister, or curate; and the said two inhabitant householders shall also subscribe the said first certificate on the check (the blanks therein being first filled up agreeably to the truth) in the like presence; for which respective purposes the executor or executrix, and the householders, shall attend at such time and place, times and places, as the minister, officiating minister, or curate shall appoint: and the minister, officiating minister, or curate shall sign the second certificate on the check (the blanks therein, and in the description thereunto subjoined, being first filled up agreeably to the truth); and the executor or executrix shall, before his or her examination, or his or her signing the said application, pay to the minister, officiating minister, or curate, a fee of two shillings and sixpence for his trouble on the occasion; and the application and certificates, being completed according to the directions therein given, shall be transmitted by the minister, officiating minister, or curate, by the general post, addressed to the treasurer or to the paymaster of the navy, London; and the original will having been passed and stamped in the manner directed by the act, the inspector of seamen's wills, or his assistant, shall note thereon the amount of the wages due to the deceased, as calculated on the search sent to the inspector from the navy office, and shall forward such will to a proctor in Doctors' Commons, in order to his obtaining probate thereof: And in case the executor or executrix shall not reside within the bills of mortality, the inspector shall also forward to such proctor a letter addressed to the minister, in the form or to the effect stated in the act. And such proctor having received the will and the letter so written by the inspector (in case such letter shall be necessary), shall immediately sue out the previous commission or requisition, or take such other proper and legal steps as may be necessary towards enabling the executor or execu

trix, so applying for probate of the will, to obtain the same; and shall enclose in the letter such previous commission or requisition, or other legal or necessary instrument, with instructions for executing the same, and also a copy of the will; and the letter and inclosures shall be forwarded to the minister by the general post, agreeably to the address put thereon by the inspector of seamens' wills.

The minister immediately upon the receipt of such previous commission or requisition, or other instrument, is to take such steps as to him may seem proper or necessary for procuring the execution of such previous commission or requisition, or other instrument, directed by the proctor employed in Doctors' Commons to be executed, and the same being so executed, he is to transmit the same to the treasurer or to the paymaster of his majesty's navy, London; and if the person applying for such probate of will, shall be and reside at a distance from the place where wages, prize-money, or other allowances of money due to the deceased are payable, he is to specify and describe the receiver general of the land tax, collector of the customs, collector of the excise, or clerk of the cheque, who may be most convenient or nearest to the person applying for such probate; and the said treasurer, paymaster, or inspector, shall, immediately upon receipt thereof, send the said previous commission or requisition, or other legal instrument, executed by the person applying for the probate as aforesaid, to the aforesaid proctor in Doctors' Commons, who, in pursuance thereof, is forthwith to sue out and procure such probate.

And if any proctor or officer of the ecclesiastical court, shall take more for his charges than the sums by the act directed to be taken in the different events therein specified, he shall forfeit fifty pounds; or if he shall be aiding or assisting in procuring probate of a will, or letters of administration, for the purpose of enabling any person to receive such wages, prize-money, or allowance of money, otherwise than in the manner prescribed by these acts, such proctor

or other officer shall forfeit five hundred pounds, and for ever after be incapable of acting in any capacity in any ecclesiastical court in Great Britain.

[65] SECT. VIII.

Of the probate under special circumstances.

If the executor be infirm, or live at a distance, it is usual to grant a commission or requisition to the archbishop, or bishop, in England or Ireland (as the case may be), or if in Scotland, the West Indies, or other foreign parts, to the magistrates or other competent authority, to administer the oath to be taken previous to granting probate of the will. (a) Otherwise if the executor do not within a reasonable time appear voluntarily, he may, as I have already mentioned, pursuant to the statute 21 Hen. 1, c. 5, (b) be cited by the ordinary ex officio to prove or refuse the testament. In case of nonappearance on the process he may be excommunicated, and the goods of the deceased sequestered until the probate; (c) or administration with the will annexed may be granted, in pain of his contumacy, provided an intimation to that effect be contained in the process.

But the practice of issuing such citations is now become obsolete, unless at the suit of the parties interested: if, however, the executor act, and neglect to take probate within [66] six months after the death of the testator, (d) by the above-mentioned statute of 37 Geo. 3, c. 90, he incurs the penalty of fifty pounds.

On the other hand, the ordinary is bound to grant probate of the will: and if the executor accept the office, and

(a) Vide 4 Burn. Eccl. L. 208. (b) Supra, 41.

(c) Vide 4 Burn. Eccl. L. 204. (d) Supra, 43.