Probate in facsimile. Probate of dictions, by reason whereof the proving and registering the said Will, and the granting administration of all and singular the said goods, chattels, and credits, and also the auditing, allowing, and final discharging the account thereof, are well known to appertain only and wholly to us, and not to any inferior Judge; and that the administration of all and singular the goods, chattels, and credits of the said deceased, and any way concerning his Will, was granted to C. D., the sole executor named in the said Will, he having been already sworn well and faithfully to administer the same, and to make a true and perfect inventory of all and singular the said goods, chattels, and credits, and to exhibit the same into the registry of our said Court, on or before the day of next ensuing, and also to render a just and true There has already been occasion to explain the nature of a probate in fac-simile, and the occasions on which such a probate is granted (k). The operation of it will be further considered hereafter, together with the subject of the effect of probate, and letters of administration generally (1). If a Will be in a foreign language, the probate is granted reign language. of a translation of the same by a Notary Public (m). But it (j) The time of the death is required to form part of the oath, and to be inserted in the margin, on the ground that, if the time of the death has long past, it becomes reasonable that some inquiry should be made why the grant was not sooner taken out; for the delay raises something of a suspicion requiring explanation: By noting the time of the death in the margin, debtors to the estate, whether public bodies, as the Bank, or private individuals, have their attention directly drawn to it, and are enabled more easily to ascertain that the payment is made to the right person: In the goods of Darling, 3 Hagg. 563. Ante, p. 292. (k) Ante, p. 298. (1) Post, Pt. 1. Bk. VI. Ch. 1. (m) Toller, 72, should seem that the Temporal Courts are not bound by it, and may themselves correct any inaccuracy in it (n). Where the probate is lost, the Spiritual Court never grants a second, but merely an exemplification of the probate from Lost probate. their own records, and such exemplification is evidence of the Will having been proved (o). Revocation ef probate on The probate may be revoked either on suit by citation (e. g. where the executor, after proof in common form, is cited to prove the Will in solemn form, or even after proof citation or in solemn form, where the probate is shown to have been appeal. obtained by fraud, or the Will of which it has been granted is proved to have been revoked, or a later Will made) (p), or on appeal to a higher tribunal. But it will be more convenient to consider the mode of such revocation, and it's consequences, at a future stage, conjointly with the revocation of grants of administration (q). SECTION VIII. Of Mandamus to compel Probate. Although, as there has already been occasion to show (1), the Ecclesiastical Courts have exclusive jurisdiction in matters testamentary, yet these courts are subject to the superintendence and control of the superior courts of law at Westminster; and if the Ordinary shall exceed his authority, or decline to exercise the authority he possesses, the Courts of law will interfere by prohibition or mandamus. Thus the Ordinary is bound to grant probate of an instrument which is undisputedly the Will of the deceased; and if the executor accepts the office, and desires probate, and is refused by the Ordinary, a writ will go from the Temporal Courts to compel him (s): for although the Spiritual Court (n) L'Fit v. L'Batt, 1 P. Wms. 526. Post, Pt. 1. Bk. VI. Ch. I. (0) Shepherd v. Shorthose, 1 Stra. 412. Bull. N. P. 246. (p) Wentw. Off. Ex. 111, 112, 14th edit. (q) Post, Pt. 1. Bk. vI. Ch. II. (s) Luskins v. Carver, Style, 7. lis pendens a good return: but not that executor is insolvent and refuses to give security: or that a commission of appraisement has issued. is to determine whether there be a Will or no Will, yet if there be a Will, the executor has a temporal right, and the Ordinary cannot put him to any terms but what are mentioned in the Will: and therefore if he will not grant the. probate, where it is admitted that there is an executor, a mandamus will go (t). Hence, although it is a good answer by the Ordinary to such mandamus, that a suit is depending before him concerning the validity of the Will, and not yet determined (u), yet, as it has already appeared, it is no good return that the person appointed executor in the Will is insolvent, and that he refused to give security to pay the legacies: for the Ordinary has no authority to interpose and demand security of the executor, where the testator himself required none (x). Where the return of the Judge of the Spiritual Court to the mandamus, stated that by the custom and practice of his Court, if any creditor of the deceased entered a caveat against granting probate, and swore himself to be a creditor, there went out a commission of appraisement; till the return whereof the Judge had not used nor ought to grant probate ; and then it set out that two creditors, who swore to their debts, entered a caveat, and prayed such a commission, which was decreed, and issued, and was not yet returnable; the Court of King's Bench held the return to be ill: for that the Judge could only stay probate where there is a contest about the validity of the Will; and the Ecclesiastical Court could not be suffered to set up their practice against the law of the land (y). (t) Per Curiam in Marriot v. Marriot, 1 Stra. 672. (u) Rex v. Dr. Hay, 5 Burr. 2295. Lovegrove v. Bethel, 1 W. Black. 668. (x) See ante, p. 205. Rex v. Raines, 1 Lord Raym. 361. S. C. 1 Salk. 299. 3 Salk. 162. 1 Stra. 672. Carth. 457. Holt, 310. Hathornthwaite v. Russell, 2 Atk. 127. S. C. Barnard. Chan. Cas. 334. See 4 Burn. E. L. 315. Phillimore's edition. (y) Rex v. Bettesworth, Stra. 857. See also stat. 21 Hen. VIII. c. 5, s. 3. SECTION IX. Of what Instruments Probate is necessary. If an instrument be testamentary (2), and is to operate on personal estate, whatever may be it's form, probate of it must be obtained in the proper Ecclesiastical Court; otherwise its existence cannot be recognised in any Court of law or equity. A codicil, not containing any disposition of property, but simply revoking all former Wills, is of a testamentary nature, and, if proved, ought to be admitted to probate (a). So if the executor, after probate, discovers any testamentary paper, he ought to bring it into the Ecclesiastical Court, even though it be a mere confirmation of the Will already proved (b). Where, however, a Will clearly respects land only, and no personal property, it ought not to be proved in the Spiritual Court (c); and if there be a suit to compel any to prove such a Will in that Court, a prohibition lies (d). But if a Will is a mixed Will concerning both lands and goods, it must be proved entirely in the Spiritual Court (e): yet the probate will not prejudice the heirs, inasmuch as it will not be evidence of the Will as to the land; nor will the examination of the witnesses in the Ecclesiastical Court be evidence in the Courts of Common Law (f). (2) As to what is a testamentary instrument, see post, Pt. III. Bk. v. Ch. II. and ante, p. 89, et seq. (a) Brenchley v. Still, 2 Robert. 162. (b) Weddall v. Nixon, 17 Beav. 160. (c) Anon. 3 Salk. 22. Habergham v. Vincent, 2 Ves. jun. 230, by Buller, J. (d) Netter v. Brett, Cro. Car. 395, by Berkley, J. (e) Partridge's case, 2 Salk. 553. Formerly the practice was to issue a prohibition quoad the lands: Coombe v. Coombe, 2 Sid. 143. 2 Roll. Abr. 315. pl. 3. Lady Chester's case, 1 Vent. 207, by Hale. See also the observations of Lord Ellesmere, in Mr. Fraser's edition of Coke's Reports, 6 Co. 23, b. in a note on Lord Winchester's case. (f) Cro. Car. 395, by Berkley, J. Probate must be obtained of mentary instrument operating on personal every testa estate. A codicil, merely revok ing or confirm ing former Wills, should be proved. A Will of lands only Spiritual lands and Therefore, in the case of such a mixed Will, if there be occasion to prove the devise of the land, in a suit concerning it, in any of the temporal Courts, it is necessary to give the Will itself in evidence: and it is usual, on trials at nisi prius, to procure for that purpose the attendance of the proper officer of the Ecclesiastical Court, who produces the original Will from the Registry, in which, after probate, it has been deposited. And it appears, that at one time the Ecclesiastical Registrars in all cases refused to deliver out Wills of land, in order to be proved at trials, or on commissions, and order of Court insisted on being paid for attending with them (g): But according to the present practice, the Court of Chancery will, on a proper occasion, order, on motion, that the original of the Ecclesi Will shall be delivered out of the Ecclesiastical Court, by the proper officer, to the solicitor or agent of the party proposing to establish it, upon giving security to return it, within a certain time, not erased or defaced (h). So, it seems, the Court of Chancery will, where necessary, make an order upon the Prerogative Court to deliver a Will to the Registrar's Office in Chancery, to lie there till the Court of Chancery shall have done with it (i). of Chancery that such a Will shall be delivered out astical Court: But Lord Chancellor Eldon, though he made several orders of the former description, in accordance with the established practice, has often expressed his surprise that such a jurisdiction should have been exercised (k): and on one occasion his Lordship observed, that he never could answer the question, what he could do to the officer, if he refused to obey the order (1). (g) Morse v. Roach, 2 Stra. 961. see Wells v. Corbyn, 3 Anstr. 648. (i) 1 Atk. 628: Such an order was made by Lord Macclesfield, who said at the same time, with some warmth, that he thought his officers of equal credit, and as fit to be entrusted with the custody of the Will, as theirs, or any office whatever: Ibid. (A) 6 Ves. 134. Ibid. 802. |