claim the probate, in case of the ordinary's refusal to grant it, a writ of mandamus may issue from the court of King's Bench to compel him: (e) for although the spiritual court is to determine whether there be a will or not, yet, if there be a will, the executor has a temporal right, nor shall any terms be imposed on him except such as the will prescribes. (ƒ) But if the will be litigated, the bishop may, in his return to the writ, state that a suit is depending before him in regard to the same, and not yet determined. And such return will be sufficient. (g)

This jurisdiction the metropolitan or ordinary may exercise either himself, or by his official; for it is merely a ministerial act, and concerns him not in his spiritual capacity. (h)

The power of granting probates is not local, but is annexed to the person of the archbishop or bishop; and therefore a bishop, or the commissary of a bishop, while absent from his diocese, [67] may grant probate of wills respecting property within the same; or if an archbishop or bishop of a province or see in Ireland happen to be in England, he may grant probate of wills relative to effects within his province or diocese. (¿)

If the see be vacant, or in case of the suspension of the bishop or archbishop, the dean and chapter are to grant the probate. (k)

The proving of a bishop's will, although he left goods only within his own jurisdiction, belongs to the archbishop. (1)

If there be several executors, and one take probate, he takes it with a reservation to the rest. If another apply for that purpose, an engrossment of the original will is to be annexed to the second probate in the same manner as to the first, and in the second grant the first grant is to be recited.

(e) 4 Burn. Eccl. L. 204.

(f) Rex v. Raines, Ld. Raym.361. Marriott v. Marriott, Stra. 672.

(9) Sir Rich. Raine's Case, Lord Raym. 262. Rex v. Hay, Burr, 2295. 4 Burn. Eccl. L. 205.

(h) 3 Bac. Abr. 39. Archbishop of Canterbury v. House, Cowp. 140.

(1) 3 Bac. Abr. 39. 11 Vin. Abr. 78. Cro. Car. 53.

(k) 3 Bac. Abr. 39. Roll. Abr. 908. 11 Vin. Abr. 74, 75, 77. Young v. Case, Lutw. 30.

(1) 11 Vin. Abr. 74. 4 Inst. 335. Supra, 53.

And so of the rest. And this is styled a double probate. (m)

Where several executors are appointed, as formerly mentioned, (n) with separate and distinct powers, yet, as there is but one will, one probate shall be sufficient. (o)

[68] Where probate of the will of a married woman is granted to her executor, if he be not her husband, it is limited to the property over which she had a disposing power: and the instrument from which such power is derived must be produced; unless the husband, either in person or by proxy, consent to a general probate's being granted to her

executor.

If a will be limited to any specific effects of a testator, the probate shall also be limited, and an administration cæterorum granted.

The interest vested by the will of the deceased in the executor may, if he take out probate, be continued and kept alive by the will of the same executor, so that the executor of A.'s executor is to all intents and purposes the executor and representative of A. himself, (p) and may be directly so named in legal proceedings. (q) For the power of an executor is founded on the special confidence, and actual appointment of the deceased. Such executor, therefore may transmit that power to another in whom he has equal confidence. And, so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator, in however numerous a succession. [69] Nor is a new probate of the original will in any of the subsequent stages requisite. (r)

Where A. appointed executors who proved his will in the prerogative court, and B. the surviving executor died, having

(m) 4 Burn. Eccl. L. 201.

(n) Vide supra, 36. (0) 3 Bac. Abr. 30. Off. Ex. 13. (p) 2 Bl. Com. 506. Com. Dig. Admon. B. 6. 11 Vin. Abr. 63, 90. 107. Off. Ex. Supp. 140. Plow.

F

525. Shep. Touch. 464.

(q) Com. Dig. Admon. G. 1. Powley and Sear's Case, Leon. 275. (r) Wankford v. Wankford, 1 Salk. 309.

appointed C. his executor, and C. proved B.'s will in the consistory court of Landaff, the Master of the Rolls held that C. was the personal representative of A. (rr) But the Vice Chancellor in a subsequent case said, that before he acted on that case, he should direct a case for the opinion of a court of law. (ss)

If there be several co-executors, and they all prove, the interest goes only to the executor of the last survivor; and although such survivor refused to prove in the lifetime of the other executors, he may take out probate after their death; and in that case the interest will be equally transmitted to his executor. But if such surviving executor renounce after their death, administration shall be granted, and then his executor will have no title to the original executorship. (s)

If A. appoint B. and C. his executors, and die, and B. make J. S. his executor, and die, and afterwards C. dies intestate; the executor of B. shall not be the executor of A., because the executorship vested solely in C. as survivor; and as he died intestate, administration must be taken out to A. (t)

Wills which concern the personal estate only, are subject to the jurisdiction of the ecclesiastical courts. (u)

Where the will respects lands merely, the spiritual court ought not to grant probate; and if there be a suit to compel [70] it, a prohibition will lie. (v)

But when the will is of a mixed nature, that is, relates both to real and personal property, the probate of it shall be entire in the spiritual court. (w)

A will may be proved with a reservation as to a particular legacy. And in such case, if there be a decree against such legacy as a forgery or interpolation in the ecclesiastical

court, the will shall be engrossed without it, and so annexed to the probate. (x)

The will of a party who has been long absent from this country may be proved, if he be generally understood to be dead, and the executor will take upon himself to swear that he believes him to be so. (y)

If the executor named in the will be unknown or concealed, administration may, after due process, be granted till he appear and claim the probate. (*)

[71] If the will be lost, two witnesses, superior to all exception, who read the will, prove its existence after the testator's death, remember its contents, and depose to its tenor, are sufficient to establish it. (a)

So, where the testator had delivered his will to A. to keep for him, and four years afterwards died, when the will was found gnawn to pieces by rats, and in part illegible; on proof of the substance of the will by the joining of the pieces, and the memory of witnesses, the probate was granted. (b)

A will is to be construed by the court without regard to the instructions given for preparing it. (c)

If the testator resided in Scotland, and left effects there and in England, the will is proved in the first instance in the court of great sessions in Scotland, and a copy duly authenticated being transmitted hither, it is proved in the prerogative court, and deposited as if it were an original will.

So in such case, if the testator resided in Ireland, the will is proved in the spiritual court of that country; or if in the East or West Indies, in the probate court there, and a copy transmitted, proved, and deposited in the same manner. Where the testator was resident in England, not merely

(a) 4 Burn. Eccl. L. 209. Plume

v. Beale, 1 P. Wms. 388.

(y) Off. Ex. Supp. 63. Swinb. Part. 6, s. 13.

(z) 4 Burn. Eccl. L. 202. Roll. Abr. 907, and vide infra.

(a) 4 Burn. Eccl. L. 209.

(b) Off. Ex. Supp. 215. 7 Bac. Abr. 320, in note.

(c) Murray v. Jones, 2 Ves. and Bea. 318.

as a visitor, and has left property in the plantations, the [72] judge of probate in the plantations is bound by a grant of probate by the prerogative court here, and ought to make a similar grant to such grantee. (d)

If a will be made in a foreign country, disposing of goods in England, it must be proved here. (e) But if the effects were all abroad, and the will be proved according to the custom of the country where the testator died, it is sufficient. And the executor may plead such matter to a bill filed against him by the administrator, for an account of the deceased's personal estate. (ƒ)

If a will be in a foreign language, the probate is granted of a translation of the same by a notary public.

SECT. IX.

Of caveats, revocation of probates, and appeals.

WHEN the will is opposed, it is the practice to enter a caveat in the spiritual court to prevent the probate. And it is said that, by the rules of that court, the caveat shall stand in force for three months, and that, while it is pending, probate cannot be granted; but whether the law recognises a [73] caveat, and allows it so to operate, or whether it does not regard it as a mere cautionary act by a stranger to prevent the ordinary from committing a wrong, is a point on which the judges of the temporal courts have differed. (g)

Probate of a will is suspended by appeal, but it cannot be stayed at the suit of a creditor, till a commission of appraisement issued be returned; () for by the statute 21 Hen. 8, c. 5,

(d) Burn v. Cole, Amb. 415. (e) 11 Vin. Abr. Vide infra. (f) 11 Vin. Abr. 59, 69. Jauncy v. Sealey, 1 Vern. 397.

(g) 3 Bac. Abr. 41. Offley v. Best,

1 Lev. 186.

(h) 11 Vin. Abr. 63. 4 Burn. Eccl. L. 230. Rex v. Bettesworth, Stra. 857.