the validity of the Will of a British sub ject, merely re sident abroad, here on foreign law, though made abroad. own probate (c). However, in Larpent v. Sindry (d), Sir J. Nicholl said, that the question how far other Courts of Probate were to be governed by the decision of the Court of Probate where the deceased was domiciled, had never been expressly determined: And on a subsequent occasion, in a case where the deceased had died domiciled in India, and probate of the Will had been granted at Madras to his widow as "universal legatee and constructive executrix," the same learned Judge pointed out the inconvenience of the practice, and again expressed his doubt how far the Court was bound to follow the Indian probate; and he ultimately refused to grant probate to the widow "as constructive executrix" (in which character she would have been exempted from giving any security), but allowed administration, with the Will annexed, to pass to her as "relict and principal legatee," upon her giving security (e). It is clear however, that the mere residence of a British subject in a foreign country, at the time of making his Will and his decease, will not cause its validity to depend upon does not depend the law of the country, where he so resided. Thus the Duchess of Kingston, who had taken up her residence in France, (where she died,) under letters patent, registered in the Parliament of Paris, made a Will at Paris, which (being neither holographic nor executed in the presence of two witnesses and one notary, but in the presence of three witnesses merely) according to the then custom of Paris (1786) was absolutely null and void: But the testatrix being by birth an Englishwoman, and the Will being in English, and duly executed according to English forms, it was not only admitted to probate here, but was also deemed valid in France (f). The law, on this subject, was fully considered (c) Ante, p. 322. Larpent v. Sindry, 1 Hagg. 382. In the goods of Cringan, 1 Hagg. 549. See also In the goods of Rioboo, 2 Add. 461. Viesca v. D'Aramburu, 2 Curt. 277. In the goods of Henderson, 2 Robert. 144. In the goods of Smith, Ibid. 332. (d) 1 Hagg. 382. (e) In the goods of Read, 1 Hagg. 474. See 4 Mylne & Cr. 84. 7 Sim. 102. In the goods of Smith, 2 Robert. 335. (ƒ) 2 Add. 21. a Will. in the Privy Council in the case of Croker v. Marquis of The Wills' Act Hertford (g), where it was decided that the provisions of the applies to such New Wills' Act (1 Vict. c. 26) apply to testamentary Papers made in a foreign country by a domiciled Englishman. The rule above laid down applies, lastly, to the case of the instance of a person not a native of this country, but domiciled here at the time of his death: In this case, the law of England is to regulate the decision as to the validity of a Will of personal estate, or what are the rights under it (h). So where a native of Scotland, domiciled in England, executed, during a visit to Scotland, and deposited there, a Will of personalty prepared in the Scotch form; it was held that the Will must be construed, not according to the Scotch, but the English law (i). Will of a per son not a na tive, but domiciled here. The rules of law for ascertaining the domicil, are con- Rules for ascertaining sidered in a subsequent part of this Work, conjointly with domicil. the rules of law as to the distribution of the effects of deceased persons, who have died domiciled in a foreign country (k). It must be here observed, that where a Will is made, disposing of personal property situate in this country, under Will made conformably to under a power the terms of the power, but a power of appointment, and it is duly executed in compliance with the requisites of the power, it has been held not conformably to the that such a Will ought to be admitted to probate in this law of the place of domicountry, notwithstanding it be not properly executed cil. according to the forms prescribed by the testamentary law of the country in which the testator was domiciled at the time of his death (1). (g) 4 Moo. P. C. 339. See also De Zichy Ferraris v. Croker, 3 Curt. 468, 486. (h) Price v. Dewhurst, 8 Sim. 279. S. C. 4 Mylne & Cr. 76, 82. Yates v. Thompson, 3 Cl. & Fin. 544. (i) Anstruther v. Chalmer, 2 Sim. 1. (k) Post, Pt. III. Bk. IV. Ch. 1. § v. (1) Tatnall v. Hankey, 2 Moore, P. C. C. 342. In what cases costs decreed out of the estate of the deceased. Security for costs required from bankrupt. Probate of a part granted and in part refused: SECTION VII. Practice of the Spiritual Court in certain other particulars as to granting Probate. It is only under special circumstances that the Ecclesiastical Court directs costs to be paid out of the estate of the deceased: Indeed, it is only in modern times that the Court has found itself authorised to do so (m). It does not follow that a party is entitled to his costs out of the estate, because there was "justa causa litigandi" (n): but the principle which guides the Court in decreeing such costs is, that the party was led into the contest by the state in which the deceased left his papers (o). A legatee, performing the duty of an executor in proving the Will, is entitled to his costs out of the estate (p). But the rule as to a legatee having his costs out of the estate on establishing a codicil, is not so general as in the case of a Will (q): And if they are occasioned by his own delay in producing the paper, he must pay his own costs (r). Where a party propounding a Will becomes a bankrupt, the Court will direct him to find security for costs (s). It is a necessary consequence of some of those rules of Will may be in Courts of Probate, which there has already been occasion to notice, that a Will may be in part admitted to probate, and in part may be refused. Thus, if the Court shall be satisfied that a particular clause has been inserted in a Will, by fraud, without the knowledge of the testator in his life time (t) or by forgery after his death (u), or, it should seem, if he has been induced by fraud to make it a part of his Will (w), probate will be granted of the instrument with the reservation of that clause. So, since part of a Will may be established, and part held not entitled to probate, if actual incapacity be shown at the time of the execution of the latter part, the Will shall, in such case, be engrossed without it, and so annexed to the probate (x). But the but the Court Court cannot, even by consent, order a passage of the Will to be expunged, which the testator, being of sound mind, intended to form part of it (y). But though the Court cannot expunge any words from the original Will, it has, it seems, allowed offensive passages, such as scurrilous imputations on the character of another man, to be excluded from the probate and copy kept in the Registry (z). cannot ex punge. granted in his right name to an executor wrongly named in the Will: In a case where the executor and universal legatee had Probate been, by a mistake of the solicitor who drew the Will, described therein by a wrong name; (riz. "my nephew Barton Nicholas Shuttleworth" instead of " Barton Nicholas Bayley") probate was granted to him in his right name, the testator's next of kin consenting (a). But the Court cannot, even by consent, alter the Will by substituting one name for another, however cogent the evidence of mistake may be (b). Nor has the Court, under any circumstances, power to nor cancelled make any alteration in papers of which probate has been (t) Barton v. Robins, 3 Phillim. 455, note (b). (u) Plume v. Beale, 1 P. Wms. 388. (w) Allen v. McPherson, 1 H. of L. 191. (x) Billinghurst v. Vickers, 1 Phillim. 187. Wood v. Wood, ibid. 357. Ante, p. 39. (y) Curtis v. Curtis, 3 Add. 33. The words sought to be expunged in that case were in the Will of a husband, reflecting severely on the conduct of his wife. So where a legatee, at the request of the tes tator, signed her name to the Will, () In the goods of Wartnaby, (a) In the goods of Shuttleworth, 1 Curt. 911. (b) In the goods of Collins, 7 Notes of Cas. 278. but the Will cannot be altered: in part. Probate of a lost Will: or of a Will cancelled or destroyed by fraud, or become illegible: granted. Therefore, where the Vice-Chancellor of England had ordered, that two promissory notes, which, with certain testamentary endorsements on them, had been admitted to probate, should be paid in a certain way, and, that having been done, he further ordered that the notes should be cancelled, Sir H. Jenner Fust refused to direct that this order should be carried into effect (c). It is laid down by Swinburne, that if a testament be made in writing, and afterwards lost by some casualty, if there be two unexceptionable witnesses who did see and read the testament written, and do remember the contents thereof, these two witnesses, so deposing to the tenor of the Will, are sufficient for the proof thereof in form of law (d). In such cases the Court will grant probate of the Will “as contained in the depositions of the witnesses" (e): And, at this day, it is quite clear that the contents or substance of a testamentary instrument may be thus established, though the instrument itself cannot be produced, upon satisfactory proof being given that the instrument was duly made by the testator, and was not revoked by him; for example, either by showing that the instrument existed after the testator's death (ƒ), or that it was destroyed in his lifetime, without his privity or consent (g). Thus, 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 (c) In the goods of Hughes, 2 Robert. 341. (d) Swinb. Pt. 6, s. 14, pl. 4. In a modern case, probate of a lost Will was applied for, merely upon the affidavit of the parties interested; but the Court preferred granting administration with the Will, as contained in the affidavits, annexed, limited till the original was produced, the administrator giving security: Vallance v. Vallance, 1 Hagg. 693. Where the Will has been lost and the contents are un known, such administration will be granted to the widow on justifying securities: In the goods of Campbell, 2 Hagg. 555. (e) Trevelyan v. Trevelyan, 1 Phillim. 154. (f) Martin v. Laking, 1 Hagg. 244. (g) Davis v. Davis, 2 Add. 224. Ante, p. 137, 138. In the goods of Thornton, 2 Curt. 913. As to the necessity of citing the next of kin, see In the goods of Denston, 3 Curt, 741. |