wholly ceases, and the representation of the testator devolves as Chap. XX. if he had not been appointed executor; though, in a proper case, a co-executor who has renounced may be allowed by the Court to retract his renunciation. It follows that if he be the only person appointed executor, the case is the same as if no executor was appointed, and administration cum testamento annexo will be granted to another. If an executor once administers, he may be compelled to prove the will. He is considered to have When exeadministered if he does any act which would, if he had not been appointed executor, have made him executor de son tort; or if he deals with the goods and effects of the testator in such a manner as to show an intention of taking on him the executorship; as, for instance, if he receives or releases debts due to the testator, or takes and converts to the use of himself or others the goods of the testator.4 6 cutor must prove. Down to the time when the Court of Probate Act 5 passed, Court of wills of personalty were required to be proved in the court of the Probate. ordinary of the place where the testator dwelt, i.e., the court of the bishop of the diocese. Some few places, called Peculiars,8 were exempt from the jurisdiction of the bishop, and had an ordinary of their own. A royal peculiar is one in which the jurisdiction was formerly in the Pope, and was vested in the Crown by 25 Hen. VIII. c. 19. If the deceased had, at the time of his death, bona notabilia, i.e., effects of the value of 51. or upwards, in a diocese or peculiar other than that in which he died, his will had to be proved in the "Prerogative" Court of the Archbishop of the Province of Canterbury or York, as the case might be.10 If he had goods in both provinces it was necessary 1 20 & 21 Vict. c. 77, s. 79; Re Reid, [1896] P. 129; 21 & 22 Vict. c. 95, s. 16. Re Stiles, [1898] P. 12. 3 Graysbrook v. Fox, 1 Plow. 280 a; Hensloe's Case, 9 Rep. 36 b. See the cases in the Year Books collected, 1 Roll. Ab. 917. 5 20 & 21 Vict. c. 77. 6 The "ordinary " is "a bishop or any other that hath ordinary jurisdiction in causes ecclesiastical"; Co. Litt. 96 a. 72nd Instit. 398. See Marriot v. Marriot, 1 Stra. 666. It is an ancient privilege of the See of Canterbury that any manors belong G.P.P. ing to the See become peculiars of that 10 4th Instit. 335. See, as to the 24 Chap. XX. to take out probate in each province. By the Court of Probate Act, 1857,1 all jurisdiction as to granting probate of wills and letters of administration of the effects of deceased persons was vested in Her Majesty to be exercised in the Court of Probate. The jurisdiction of this Court was transferred to the High Court of Justice by the Supreme Court of Judicature Act, 1873, and was assigned to the Probate, Divorce, and Admiralty Division.3 Probate of willevidence. Executor's title by will, not probate. If an executor has occasion to assert his right as executor in any Court he must show that he has proved the will, which he does by producing a copy of it (called the probate) under the seal of the Court in which it was proved. The probate, or (if no executor is appointed or his appointment fails) letters of administration, with the will annexed, are the proper legal evidence of the will in any question relating to personalty. The original will is deposited in the custody of the Court. The will of a person dying before the commencement of the Land Transfer Act, 1897 (1st Jan., 1898), so far as it deals with real property, does not require probate, and the will itself is the proper evidence of a devise of real property, though by the Court of Probate Act, 1857, it may, subject to certain conditions, be proved by the probate copy; but, in the case of the will of a person dying after the commencement of that Act, it would seem that probate will always be necessary and will be the proper evidence of a devise." 6 8 In order to construe a will, however, the Court may look at the original will as well as the probate copy." 10 But the will, not the probate, gives authority to the executor; the goods of the testator vest in him from the testator's death,11 and the probate is said to relate back to the death.12 Before probate the executor may do any acts incident to his office, 120 & 21 Vict. c. 77. 2 36 & 37 Vict. c. 66, s. 16. 3 Ib. s. 34. Rex v. Netherseal, 4 T. R. 260; Whicker v. Hume, 7 H. L. C. 124. See Dan. Ch. Pr. Ch. XII., s. 2 (2); Pinney v. Pinney, 8 B. & C. 335; 32 R. R. 400. 20 & 21 Vict. c. 77, s. 66. 6 60 & 61 Vict. c. 65, s. 1. 76 Cruise, Dig. p. 6, pl. 10; M. L. R. P. 414, 418. 8 20 & 21 Vict. c. 77, ss. 62, 64. See Barraclough v. Greenhough, L. R. 2 Q. B. 612. 9 Ss. 1-3. 10 Re Harrison, 30 Ch. D. 390. 11 Hensloe's Case, 9 Rep. 38 a; Graysbrook v. Fox, 1 Plow. 281; Smith v. Milles, 1 T. R. 480; Woolley v. Clark, 5 B. & Ald. 744; 24 R. R. 546; New York Co. v. Att.-Gen., [1899] A. C. 62. 12 Ingle v. Richards, 28 Beav. 366. except some which relate to actions, and the acts so done are Chap. XX. good even where he dies without proving the will, if probate or letters of administration cum testamento annexo are ultimately granted. As a general rule, if an executor sues in his representative character, or relies on his right to possess as executor, he must prove that he is executor by production of the probate at the hearing or earlier. Of course, if the executor has obtained possession of the goods, he may maintain an action (formerly trespass or trover) in respect of the injury done to his possession without proving that he is executor. It must, however, be noted that an executor may before probate maintain an action of any nature, provided he obtains probate before it is necessary to produce it; 5 for, as above stated, the probate relates back to the death of the testator. An executor named in a will can be sued as such if he has either administered, that is, intermeddled with the estate, or has proved the will by obtaining probate, but not otherwise. While the validity of a will is being disputed, an administrator appointed pendente lite can be sued by a creditor.7 Although probate granted in England does not enable the executor to sue in the colonies or in a foreign country, yet it is sufficient evidence of his being executor to enable him to sue in an English Court in respect of movable personal property of the deceased wherever situated.8 Powers and fore probate. liabilities be Assets in foreign countries. The law of the place where a man is domiciled at the time Domicile. of his death regulates the form of execution of his will, so far as regards movable personal property, and every circumstance on which its validity may depend.10 Where a man dies domiciled abroad, leaving a will by which he 1 Wankford v. Wankford, 1 Salk. 299 ; Co. Litt. 292 b; Middleton's Case, 5 Rep. 28 b; Wills v. Rich, 2 Atk. 285. 2 Brazier v. Hudson, 8 Sim. 67; 42 R. R. 106; Dy. 367 a; Rex v. Stone, 6 T. R. 295; Fenton v. Clegg, 9 Ex. 680; Johnson v. Warwick, 17 C. B. 516. 3 Webb v. Adkins, 14 C. B. 401. + See Pinney v. Pinney, 8 B. & C. 335 ; 32 R. R. 400; and ante, p. 18. Wills v. Rich, 2 Atk. 285; 1 Roll. Ab. 917. 6 Plow. 280; Douglas v. Forrest, 4 Bing. 704; 29 R. R. 695; Blewitt v. Blewitt, 1 Younge, 541; Mohamidu v. 7 Re Toleman, [1897] 1 Ch. 866. 8 Whyte v. Rose, 3 Q. B. 493. 10 Westlake, Internal. Law, 3rd ed., Chap. XX. appoints executors, which will has been proved by them in the proper Court of the country in which the testator died domiciled, the Court in this country will give to them ancillary probate of a duly authenticated copy to enable them to obtain that part of the personal estate which is situated here without requiring further evidence of the validity of the will; for probate or letters of administration prove title only as to personal estate within the jurisdiction of the Court by which the probate or letters of administration are granted. Scotch and Irish probates may be sealed by the English Court, and when so sealed have the same effect as if probate or administration had been granted in England.3 Colonial probates. Lord Kingsdown's Act. 6 5 By the Colonial Probates Act, 1892, an Order in Council may direct that probate or letters of administration granted by a Court in a British possession, or by a British Court in a foreign country, may, on being produced and a copy thereof being deposited with the Probate Division, be sealed with the seal of the Court, and thereupon shall have the like effect as if granted by the High Court. The Act contains provisions for securing the payment of probate duty in respect of that part of the estate which is subject to duty in the United Kingdom, and for payment of debts due to creditors in the United Kingdom. By an Act commonly known as Lord Kingsdown's Act, a will is not to be revoked, nor the construction of it altered by any subsequent change of domicile of the testator. By the same Act every will made out of the United Kingdom by a British subject, whatever be his domicile at the time of making it or at his death, shall, as regards personal estate, be held to be well executed for the purpose of being admitted to probate, if made according to the forms required by the law of the place where it was made, or by the law of the place where the 1 Per Westbury, C., Enohin v. Wylie, 10 H. L. C. 14. 2 Foote, Private International Jurisp., 269; Re Vallance, 24 Ch. D. 177; Att.Gen. v. Bouwens, 4 M. & W. 193; 51 R. R. 517. 3 As to Scotland, 21 & 22 Vict. c. 56, s. 12, as amended by 39 & 40 Vict. c. 70, ss. 41, 44; as to Ireland, 20 & 21 Vict. c. 79, s. 95. 4 55 Vict. c. 6. 5 Ib. s. 2. See Re Smith, (1904) P. 114. 6 Ib. s. 3. 7 24 & 25 Vict. c. 114, s. 3. The Act does not apply to the wills of aliens; Re Von Buseck, 6 P. D. 211; Bloxam v. Favre, 9 P. D. 130. 8 24 & 25 Vict. c. 114, s. 1. 9 This includes a naturalized subject; Re Gally, 1 P. D. 438; Re Lacroix, 2 P. D. 94. testator was domiciled at the time of making it, or by the law Chap. XX. then in force in that part of His Majesty's dominions where he had his domicile of origin; and there is a similar provision1 as to wills made within the United Kingdom by a British subject according to the forms required by the law of that part of the United Kingdom where the will is made. A will, though it may be valid under the provisions of Lord Kingdown's Act, cannot operate as the exercise of a power of appointment by will unless it is executed in accordance with the provisions of the Wills Act, 1837.3 Exercise of power of appointment. women. The former practice of the Probate Court was to grant probate Married of the will of a married woman to the executors in respect of such personal estate as she had power to dispose of by will, and to grant letters of administration cæterorum to the husband; but the present practice is to grant probate or administration cum testamento annexo in ordinary form without any limitation or exception.* Since the Married Women's Property Act, 1893,5 the will of a married woman made during coverture need not be re-executed or re-published after determination of the coverture, whether it was made before or after the passing of that Act. It takes effect as if it had been made immediately before her death.7 9 In ancient times when a man died intestate the King, as parens Intestacy. patriæ, used by his ministers to seize his goods to the intent that they should be preserved and disposed of for the burial of the deceased, the payment of his debts, to advance his wife and children, if he had any, and, if not, those of his blood. Afterwards this jurisdiction was transferred to the ordinary, except in some places where it was vested in the lord of the manor. The ordinary was rendered liable by the Statute of Westminster the Second 10 to pay the debts of the intestate in the same manner that executors would be bound if he had left a will. By 31 Ed. III. stat. 1, c. 11, in case of a man dying intestate, the ordinary was 1 24 & 25 Vict. c. 114, s. 2. 2 Ib. ss. 1, 2. 3 1 Vict. c. 26, ss. 9, 10. Re Kirwan, 25 Ch. D. 373; Hummel v. Hummel, [1898] 1 Ch. 642. See Re Huber, [1896] P. 209. Per Cotton, L.J., Smart v. Tranter, 43 Ch. D. 587, 591; Re Atkinson, [1899] 2 Ch. 1. But see Re Leman, [1898] P. 215. 56 & 57 Vict. c. 63, s. 3. For the previous law, see Bilke v. Roper, 45 Ch. 6 Re Wylie, [1895] 2 Ch. 116. 8 Hensloe's Case, 9 Rep. 38 b. 9 Ante, p. 369, n. 6; Graysbrook v. Fox, 1 Plow. 277; Marriot v. Marriot, Gilb. 203. 10 13 Ed. 1, c. 19. See Snelling's Case, 5 Rep. 82 b. |