Jurisdiction to grant probate.

estates of persons dying intestate, has indeed, as to personal estate, rested exclusively with those courts, except in some instances in which it has by custom been exercised by lords of manors. Upon the deaths of persons dying possessed of personal estate, application is made to these courts for probates of their wills, if they have died testate, or for letters of administration of their estates, if they have died intestate (a).

The jurisdiction to grant probate is regulated by the place of the testator's death, and the local situation of his effects at the time of his death; if, for example, he die in one diocese, and leave bona notabilia, that is goods to the value of 51. at the time of his death, in another diocese in the same province, the jurisdiction belongs to the metropolitan.. If he have also, at the time of his death, effects to the above amount in more than one diocese of the province, the archbishops shall, in each province, grant a probate according to the bona notabilia within their respective jurisdictions. The probate is granted in respect of the effects that are within the jurisdiction of the spiritual judge at the time of the testator's death, and the jurisdiction

(a) Some particulars respecting the variety and nature of the Courts of Probate, and the circumstances upon which the different jurisdictions of them depend, will be found in the Fourth Report of the Commissioners on the Law of Real Property, pp. 42-54. It is proper to observe, that for some time it has been under the consideration of the legislature to abolish the testamentary jurisdiction of the Ecclesiastical Courts, and to transfer it to a single Court, to be established for that purpose in London. It is also proposed to establish district offices to which application may be made for probate or letters of administration only in the case in which the testator or intestate may have a fixed place of abode at the time of his death within the district, and in which his personal property is sworn under 1,500-Second Report, Chancery Commissioners, January, 1854.

is exercised in respect of these effects only (b). If the executor thinks fit, he may remove them from jurisdiction to jurisdiction; but that does not affect the right of granting probate, which is regulated by the local situation of the effects at the testator's death; and if they are removed by the executors into another jurisdiction, it is not necessary to obtain any sanction or authority from such jurisdiction.

Where a diocesan probate is proper with reference to the situation of the assets at the death, it remains so, notwithstanding they may afterwards be rightfully or wrongfully removed out of the diocese (c).

money out of

Where a person had at his death, and when Paying letters of administration were granted, bona nota- court. bilia in one diocese only, the subsequent payment of a portion of them into the Court of Chancery does not render a prerogative probate necessary to obtain payment out of court (d). Where, therefore, an intestate was at his death entitled to legacies under two wills which had been proved in the Contistory Court of Chester, in which diocese the executors and trustees of both wills were also living at the death of the intestate, and letters of administration to the intestate, who died abroad, were granted by the same court, and afterwards the trustees of one of the wills paid the money into the Court of Chancery under the Trustees Relief Act, 11 & 12 Vict. c. 96, it was held that the diocesan letters of

(b) Attorney-General v. Dimond, 1 Cr. & Jerv. 356; 1 Tyrw.

243.

(c) Re Spencer, 9 Hare, 410. See 1 De G. Mac. & G. 311; 16 Jur. 233; 21 L. J., Chan., 314.

(d) Re Knowles, 1 De G. Mac. & G. 60; 15 Jur. 1163; 21 L. J., Chan., 142.

Bona notabilia.

Probate of will in respect of shares.

administration were sufficient to authorize the administrator to receive the money out of court (d).

The subject of bona notabilia has given rise to much technical learning, into which it is not deemed necessary to enter. It may be proper, however, to observe that debts owing to the testator are bona notabilia. Simple contract debts, as those due on bills of exchange, make bona notabilia where the debtor lived at the testator's decease; whereas specialty debts, as bonds, constitute bona notabilia where the specialty happened to be at the death of the testator or intestate. Judgments, statutes, or recognizances are bona notabilia where they are recorded. An annuity for years out of a parsonage shall be bona notabilia where the parsonage is. A lease for years of the value of 51. constitutes bona notabilia where the land lies (e). A mortgage of tolls and toll-houses, in the form prescribed by 3 Geo. 4, c. 126, s. 81, is considered bona notabilia where the road and toll-houses were situated, and not where the deed was at the mortgagee's death (f).

Where shares are personal estate, and the railway or other work runs through different dioceses, it will be a matter for consideration in what court probate of will or letters of administration are to be obtained. Where a canal was situate in both the nrovinces of York and Canterbury, but the office for transacting the business of it was in that of Canterbury, the court held that probate of the will of a shareholder in the province of Canterbury was

(d) Ib. See In Re Spencer, 1 De G. Mac. & G. 311; 16 Jur. 233; 21 L. J., Chan., 314.

(e) See 1 Wms. Executors, pp. 263, 264, 4th ed. post, p. 25. (f) Reg. v. Trustees of Balby and Worksop Roads, 22 Law J., Q. B., 164.

sufficient (f). An act for making a navigable canal provided that the shares should be deemed personal estate, and be transferable as such. The canal passed through parishes in the diocese of Worcester, and other parishes in the diocese of Lichfield and Coventry. The transfer of shares in the canal were filed at the public office of the company in the latter diocese, where the dividends were also paid and books of account kept—it was held, that the right of a shareholder to a share of the profits, being personal profits, might be considered as locally situate in the diocese of Lichfield and Coventry for the purpose of probate, and that a probate granted by the consistorial court of that diocese was sufficient (g).

Where a person dies possessed of money in the public funds, it is considered bona notabilia in the diocese of London, but in such cases a prerogative probate or administration is almost universally taken out (h).

Even the Prerogative Courts of Canterbury and York have no jurisdiction, except within their own respective provinces, and if therefore the deceased died in London, having shares in railways in the north, it would be necessary to take out probate or administration, either diocesan or prerogative in both provinces.

If probates of wills or letters of administration of void grants. the estates of persons deceased be granted by any of the diocesan or inferior courts, and it appears that the deceased was possessed of bona notabilia

(f) Smith v. Stafford, 2 Wils. Ch. R. 166.

(g) Ex parte Horne, 7 B. & C. 632; S. C. nom. Rex v. Worcester Canal Company, 1 Man. & R. 529.

(h) Scarth v. Bishop of London, 1 Hagg. 625; Rex v. Capper, 5 Price, 262.

Course of

cases of

testacy.

out of the diocese or district, but within the same province, the probates or letters of administration so granted are absolutely null and void ab initio (i). If there should be no bona notabilia, a probate granted by the Prerogative Court is only voidable, and consequently every act done by virtue of it before the avoidance is held to be valid (k).

In case of testacy, if there is no contention as to proceeding in the validity of the testamentary instrument, the course of proceeding in Doctors' Commons is substantially as follows:-The testamentary instrument is brought to a proctor, whose duties are carefully to examine it, and to see whether any alterations have been made in it, whether it is apparently executed according to the statute 1 Vict. c. 26, as amended by 15 & 16 Vict. c. 24, whether the attestation is perfect, whether any cancellation or interlineation or erasure has taken place. The proctor has also to see whether there is a regular formal appointment of executors, or if not, whether there is one by implication from the contents of the will, technically called an appointment of executors "according to the tenor;" whether the instrument refers to any other paper, testamentary or not, and where there are several papers, whether one revokes another. If there is no appointment of executors, or the executors renounce, the proctor has to look for the residuary legatee, if there be one, and if not he has to inquire and ascertain who is entitled as next of kin or otherwise to the grant of administration with the will annexed. Affidavit is also made by the executor or party applying for the grant of

(i) Second Report, Chancery Commissioners, pp. 13, 14. (k) See Wms. Executors, p. 266, 4th edit.