the probate is to be granted with convenient speed, without any frustratory delay.

If a probate have been granted by the wrong jurisdiction, it is cause of reversal, or nullity, according to the distinction before stated. (¿)

So if the will be fraudulently proved, either in the common form, that is to say, by the oath of the executor, or more solemnly by the examination of witnesses, on such fraud being shewn, the spiritual court will revoke the probate. So also it may be vacated on proof of a revocation of the will on which it was granted, or of the making of one subsequent.(k) And where probate has been granted of the will of a person supposed to be deceased, upon application to the executor by motion, the judge will by interlocutory decree revoke the probate so granted in error, and upon petition of the party will decree the will and cancelled probate to be delivered out to him. (7)

An appeal (m) in regard to probates, by statute 24 Hen.8, [74] c. 12, lies from the court of the archdeacon, or his official (if the matter be there commenced), to the bishop of the diocese; and by virtue of the same statute, from the bishop diocesan, or his commissary, to the archbishop of the province, within fifteen days next after sentence. When the cause is commenced before the archdeacon of the archbishop, or his commissary, by the same statute there may be an appeal within the same period to the court of arches, or audience of the archbishop; and from the court of arches or audience, within fifteen days next after sentence given to the archbishop himself; and in case the king himself be a party in such suits, the appeal shall be within fifteen days next after sentence given to all the bishops of the realm, in the upper house of convocation assembled. By that statute, and also by statute 25 Hen. 8, c. 19, appeals to the pope are

(i) Off. Ex. 48. Vide supra, 53. (k) Ibid. 48.

(1) In re Charles James Napier,

1 Phill. Rep. 83.

(m) Com. Dig. Prerogative.

prohibited, and by the latter statute are given from the archbishop's court to the king in chancery, where a commission shall be awarded under the great seal, to certain persons to be named by the king for the determination of the appeals; and those commissioners are called delegates, inasmuch as they are delegated by the king's commission. And further, although this last cited statute declares the sentence of the delegates definitive, the king, on complaint to him made, may grant a commission of review to revise the sentence of the delegates; (n) because the pope, as supreme head by the canon law, used to grant such commission; and [75] such authority, as the pope heretofore exercised, is now annexed to the crown by statute 26 Hen. 8, c. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito justitiæ, but merely a matter of favour, which is never granted but under special circumstances. (o)

Before revocation of a probate, the court will not grant a new one. (p)

Where probate granted by the special court is affirmed on an appeal to the arches or delegates, the usage is to send the cause back. But when the first sentence is reversed, the court below shall be ousted of its jurisdiction, and the court which reverses it shall grant probate de novo. (q)

SECT. X.

The effect of a probate.-Loss of the same. What is evidence of probate.-Effect of its revocation.

THE probate thus passed, although it does not confer, yet authenticates the right of the executor, for courts of law or

(n) Off. Ex. Suppl. 127, 129. 3

Bl. Com. 64-67.

(0) 3 Bl. Com. 67. Matthews v. Warner, 4 Ves. jun. 205.

(p) 4 Burn. Eccl. L. 193. Rains

v. Comm. of Dioc. of Canterb., 7 Mod. 146.

(9) 11 Vin. Abr. 76. Com. Dig. Admon. B. 2. 2 Roll. Abr. 233.

equity take no judicial notice of any executor until he has proved the will. But it shall have relation to the time of the testator's death. (r) The will is therefore no evidence of the title of an executor: the probate must be produced. (rr)

[76] If the will be proved in common form, it may at any time within thirty years be disputed; if in the more formal mode, and all persons interested are made parties to the suit, and there be no proceedings within the time limited for appeals, it is liable to no future controversy. (s)

So long as the probate remains unrevoked, the seal of the ordinary cannot be contradicted, for the temporal court cannot pass a judgment respecting a will in opposition to that of the ecclesiastical court; (t) and therefore if a probate under seal be shewn, evidence will not be admitted that the will was forged, or that the execution of it was procured by fraud, or that the testator was non compos mentis, or that another person was executor; for these are points which are exclusively of spiritual cognizance; but it may be shewn that the seal was forged, or that there were bona notabilia, for such evidence is no contradiction to the seal, but admits, and avoids it. (u)

Such then being the nature of a probate, inasmuch as it is a judicial act of the court having competent authority; and is conclusive till it be repealed, and a court of common law cann ot admit evidence to impeach it; it was determined in a recent case, in opposition to some old decisions (v) that pay[77] ment of money to an executor who had obtained probate of a forged will, was a discharge to the debtor of the intestate,

(r) 11 Vin. Abr. 205. Off. Ex. 49. Henslor's case, 9 Co. 38. Comber's case, 1 P. Wms. 767. Hudson v. Hudson, 1 Atk. 461. Ca. in Ch. 2 pl. 56. Smith v. Milles, 1 T. Rep. 480. Rex v. Netherseal, 4 T. Rep. 260. Woolley v. Clark, 5 Bar. & Ald. 744. S. C. 1 Dowl. & Ryl.

409.

(rr) Pinney v. Pinney, 8 Barn. & Cres. 335.

62.

(s) 4 Burn. Eccl. L. 207. Godolph.

(t) House v. Lord Petre, 1 Salk. 311. Griffiths v. Hamilton, 12 Ves. jun. 298. See also 1 P. Wms. 388, 548, in note.

(u) Marriott v. Marriott, Stra. 671, 672. 4 Burn. Eccl. L. 196.

(v) 1 Roll. Abr. 919. Anon. Com. Rep. 152. Vide 11 Vin. Abr. 89.

although the probate were afterwards revoked and administration granted to the next of kin. (w)

And on the same principle it is holden, that pending a suit in the spiritual court respecting the validity of a will, an indictment for forging it ought not to be tried; and it is the practice to postpone the trial till that court has given sentence. (x)

But a payment of money under probate of a supposed will of a living person would be void, because in such case the ecclesiastical court has no jurisdiction: and the probate can have no effect. The power of the ordinary extends only to the proving of wills of persons deceased. (y)

Where the probate is lost, the spiritual court never grants a second, but merely an exemplification of the probate from its own records, and such exemplification is evidence of the will having been proved. (≈)

The copy of the probate of a will of personal property [78] is evidence, inasmuch as the probate is an original taken by authority, and of a public nature. (a)

The register's book, or, as it is sometimes styled, the ledger-book, in the spiritual court, is evidence that there was such will, in case of its being lost. (b)

A copy of the ledger-book seems also to be sufficient proof for the same purpose; since such book is a roll of the court, and therefore a copy of it is not a copy of a copy, as hath been erroneously supposed. (c)

If issue be taken on a probate of a will, it shall be tried by a jury. (d)

The probate, or, as it is sometimes called, the letters tes

(w) Allen v. Dundas, 3 Term Rep. 125.

(x) 3 Bac. Abr. 34. Rex v. Vincent, 1 Stra. 481. Rex v. Rhodes, 2 Stra. 703,

(y) Allen v. Dundas, 3 Term Rep.

130.

(z) Shepherd v. Shorthose, Stra. 4 Burn. Eccl. L. 219.

412.

(a) 3 Salk. 154. Hoe v. Nathorpe, Ld. Raym. 154. Law of Ni. Pri. 245, 246. 4 Burn. Eccl. L. 219.

(b) 4 Burn. Eccl. L. 218. St. Legar v. Adams, Ld. Raym. 731. (c) L. of Ni. Pri. 246.

(d) Off. Ex. Suppl. 9. Case of Abbot of Strata, 9 Co. Rep. 31.

tamentary, may be revoked either on a suit by citation, or on appeal to reverse a sentence by which they are granted; and, in case of revocation, all the intermediate acts of the executors shall be void.

But where a widow possessed herself of the personal estate as executrix under a revoked will, and paid debts and lega[79] cies without notice of the revocation, she was allowed those payments in equity; but leases which she had granted were ordered to be set aside. (e)

Where B., a married woman, who was the sole executrix of her late husband A., made a will merely executing a power given to her by a marriage settlement, but appointed C. executrix generally, and the ecclesiastical court granted probate of her will in the general form; it was held, that the general probate of the will of B. transmitted to C. the representation of B. without an administration de bonis non. (ƒ)

[80] CHAP. III.

OF THE APPOINTMENT OF ADMINISTRATORS.

SECT. I.

Of general administrations,―origin thereof,-who entitled.Of consanguinity.

In case a party makes no testamentary disposition of his personal property, he is said to die intestate; (a) the consequences of which are now to be considered.

In ancient times the king was, on such event, entitled to

(e) 3 Bac. Abr. 50. 1 Chan. Ca. 126.

(f) Barr v. Carter, 2 Cox's Rep.

429.

(a) 2 Bl. Com. 494.