both If he die before executor shall probate, his not be executor to the first tes But tator. If an executor dies before probate, although, as already mentioned, the acts which he may legally do before probate stand firm and good, yet his executor may not prove Wills, and so become executor to both the testators (f). administration of the goods of the first testator, with the Will annexed to it, is to be committed to the executor of the executor, if the first executor be residuary legatee of the first testator; or to such other person as may be so appointed; otherwise to the next of kin of the first testator (g). (f) Isted v. Stanley, Dyer, 372, a. Hayton v. Wolfe, Cro. Jac. 614. S. C. Palm. 153. Hutton, 30. Wentw. Off. Ex. 82, 14 edition. Day v. Chatfield, 1 Vern. 200. Wankford v. Wankford, 1 Salk. 308, in Lord Holt's judgment. (g) Dyer, 372, a. Wentw. Off. In general, a Will is to be CHAPTER THE SECOND. IN WHICH OF THE ECCLESIASTICAL COURTS THE WILL IS TO BE THE next inquiry is, in which of the Spiritual Courts the Will is to be proved. Regularly, the person before whom the testament is to be proved before proved is the Ordinary of the place wherein the testator dwelt; i. e. generally speaking, the Bishop of the diocese (a). And if all his goods and chattels lie within the jurisdiction of the bishop of the diocese within which he died, a probate before that bishop, or his officer, is the only proper one (b). the bishop of the diocese, where the testator dwelt. Peculiais. A Peculiar, in the ecclesiastical acceptation of the word, is a district exempt from the jurisdiction of the Ordinary of the diocese in which it lies (c): and it is called a Peculiar because it is excluded from the common Ordinary, and under a peculiar and special Ordinary of its own (d). Consequently, in all these districts such special Ordinaries have respectively a power, even of common right, to grant probate of the testaments, and administration of the goods, of those who die within them leaving no bona notabilia out of their limits (e). (a) Godolph. Pt. 1, c. 22, s. 2. 2 Inst. 398. Com. Dig. Administrator, (B. 5.) (b) 2 Black. Comm. 508. (c) 2 Gibs. Cod. 978, n. (b). Aughtie v. Aughtie, 1 Phillim. 201, n. (a). (d) Denham v. Stephenson, 1 Salk. 41, by Salkeld arguendo. 2 Gibs. Cod. 978, n. (b). Parham v. Templer, 3 Phillim. 245. (e) 1 Salk. 42, arguendo. Peculiars are of several sorts. 1. Peculiars of the archbishops exclusive of the bishops and archdeacons, which sprung from a privilege they had to enjoy jurisdiction in such places where their seats and possessions were. Within the province of Canterbury there are more than a hundred such Peculiars: but the term κατ' ἐξοχὴν is applied to thirteen parishes within the city of London, and the several parishes composing the deaneries of Croydon in Surrey, and Shoreham in Kent: of these the Dean of the Arches is judge: in the other Peculiars, the jurisdiction bishop's prerogative where the testator notabilia in has left bona another dio cese or pecuwherein he liar than that But if the deceased, at the time of his death, had effects The archto such an amount, as to be considered notable goods, usually called bona notabilia, within some other diocese or Peculiar than that in which he died, then the Will must be proved before the metropolitan of the province, by way of special prerogative (ƒ): whence the Courts where the validity of such Wills is tried, and the offices where they are registered, died. are called the Prerogative Courts and the Prerogative Offices of Canterbury and York. Which Prerogative is grounded upon this reasonable foundation; that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are, in effect, no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased, other than such as lay within their own dioceses, beyond which their episcopal authority extends not: But it would be extremely trouble is exercised by Commissaries; from whose sentence an appeal lies to the Arches: 2 Gibs. Cod. 978, n. (b). Aughtie v. Aughtie, 2 Phillim. 201, note by the learned reporter. 2. Peculiars of Bishops, exclusive of the jurisdiction of the bishop of the diocese in which they are situated : of which sort the bishop of London has four parishes within the diocese of Lincoln: Gibs. Cod. ubi supra. 3. Peculiars of bishops exclusive of archidiaconal jurisdiction. 4. Peculiars of deans, and of deans and chapters, prebendaries, and the like, who have power to appoint commissaries for probate of Wills, &c.: 2 Gibs. Cod. ubi supra. Archdeacons have no power to grant probates quatenus archdeacons, although they may do so as the bishop's Commissaries for their respective archdeaconries, or by reason of Peculiars, belonging to the fourth class of those above enumerated. See Adams v. Savage, 6 Mod. 134. There is also another (f) 4 Inst. 335. some, if as many administrations were to be granted as there are di ceses within which the deceased had bona notabilia, besides the uncertainty which creditors and legatees would best in case different administrators were appointed, to ertain the fand out of which their demands were to be pa A prer gative is, therefore, very prudently vested in the metropolitan of each province, to make, in such cases, De aimmstration serve for all. This accounts very satisSarly Se the reason of taking out administration to estates that have large and diffusive property, in the Tenciare Court: And the probate of Wills naturally 12ws the power of granting administrations; in order to *. was the Orinary that the deceased has, in a legal Later, by appointing his own executor, excluded him and isers from the privilege of administering to the The on vince of York contains the bishoprick of the county def Chester newly erected by King Hen. VIII. mmitted by him to the archbishoprick of York), of the Pug Palaute i Durhan, of Carlisle, and of the Isle of Natanabe 2e the province by Hen. VIII.): but a greater Lunar 26 Kabhe anciently had, which time hath The prender of Canterbury includes all the other bishop25ks of Fugland and Wales. 11th respect to the value to which goods must amount in ender to be considered bona notabilia, there was, it is said, formerly much diversity of opinion, some holding that they must be of forty shillings value, some one hundred shillings, (g) 2 Black. Comm. 510. In Searth e. Bp. of London, 1 Hagg. 632, Sir John Nicholl intimated his opinion, that the principle of all Prerogative Probates was, to save the necessity of two grants. Several (h) Co. Lit. 94, a. changes of province, diocese, archdeaconry, and other jurisdiction will be effected by the stat. 6 & 7 W. IV. c. 77: but by sect. 22, the existing law of bona notabilia shall remain unaltered for one year after the passing of the Act. Since which time the operation of the Act has been prevented by a series of statutes. The stat. 18 & 19 Viet. c. 75, has continued the suspension till Aug. 1856 and the end of the then next session of Parliament. some 101., some that the value of a penny sufficed to draw it to the archbishop from the particular bishop (i). But that difference of opinion has long ago been cleared by a canon made in the first year of the reign of King James I., at a convocation then held, whereby it is established, that 51. shall be the sum or value of bona notabilia; yet therein is this proviso, that where by composition or custom in any dioceses bona notabilia are rated at a greater sum, the same shall continue, and shall not be altered (k). No judge of shall cite any person to take probate, &c., unless the de ceased possessed goods, &c., diocese or This canon (the 93rd) is headed, “The rate of bona nota- Canon 93. bilia liable to the Prerogative Court," and contains these words: "No judge of the archbishop's prerogative shall henceforward cite or cause to be cited ex officio any person whatsoever to any of the aforesaid intents, (riz., for the probate of Wills or grant of administrations), unless he have knowledge that the party deceased was, at the time of his death, possessed of goods and chattels in some other diocese or dioceses, or peculiar jurisdiction within that province, than in that wherein he died, amounting to the value of 51. at the least: decreeing and declaring, that whoso hath not goods to the said sum or value, shall not be accounted to have bona notabilia. Always provided that this clause here, and in the former constitution mentioned, shall not prejudice those dioceses where, by composition or custom, bona notabilia are rated at a greater sum ” (1). (1) Wentw. Off. Ex. 105, 14th edition. (k) Went. Off. Ex. 106, 107, 14th edition. In the diocese of London, bona notabilia are so rated at 107. 1 Oughton, tit. 6, n. (a). pl. 3. (1) Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele, interprets the hundred shillings to signify solidos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles, or 167. 13s. 4d. He in some other dioceses, &c., wherein he than that died, to the value of 51. |