/^^iU.Uto-^ MVwv&u m iWfO^VVU, ^•,rvv W«S*^W Pirn OVJO,",'?! - r ■J, 7ZI0 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 i IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIR^T DEAN .OF THE fiCKOOL V .!■_ By hisiWife and Daughter A. M. BOARDMAN and ELLBN D. WILLIAMS i Digitized by Microsoft® Cornell University Library KD 7210.B88 3 1924 021 727 940 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® .O /^ A'- LONDON : FEINTED BY 0. KOWOETH AND SONS, NEWTON BTEBBT, W-O. Digitized by Microsoft® (&^m Wutk (BT PEBUiaSION) RESPECTFULLY DEDICATED TO SIR JAMES HANNEN, THE JUDGE OF THE COURT OF FROBATE, THE AUTHOR. a2 Digitized by Microsoft® Digitized by Microsoft® PREFACE. Tee right of property is the earliest characteristic of civilization, and the next step in progress is the right of directing its disposal after the death of the owner. Although, in respect of real property, some modern nations, as for instance France, have inter- fered with this right in the supposed interest of the community at large, it is questionable whether such interference is not prejudicial to the very interests it is supposed to favour, by undoubtedly lowering the value of the property meddled with, reducing the estate of each owner, to a certain extent, to a mere life interest. In England, from very early times, the right and freedom of disposal of most kinds of property has existed, and the last traces of restraint have now for some time been removed. The only restriction that the law imposes on the power of willing is, that it should be exercised with certain formalities, and in default of such formalities the law itself, as it were, makes a will for the de- ceased. The machinery, therefore, which regulates the transmission of property on the decease of the Digitized by Microsoft® VI PREFACE. owner, is obviously one of the most important in the commonwealth, as it would seem, judging from the ordinary duration of human life, that it must deal with the transmission of the entire property of the kingdom in the course of a period between thirty and forty years, unless we except that insig- nificant portion of real property which passes by heirship. The following work is an attempt to elucidate the principles and practice of the Court which puts in motion and regulates this machinery. The practice of the Court of Probate is usually divided into two branches,, the voluntary or non- contentious, and contentious business; and the statutes and rules recognize this distinction. So far as relates to the statutes and rules the distinction may be. easily kept up, but in a work professing to treat of the present; prqcedure qf the Court some difficulty arises. For instance, the question whether a will has been sufficiently executed or witnessed may be affected by cases drawn equally from the contentious or non-contentious practice of the Court., The ordinary practice of the Court is, therefore, quite as essential as the contentious pro- cedure. The author has, therefore, limited the latter strictly to those points which are of a merely practical or formal nature, and dealt with the prin- Digitized by Microsoft® PEEFACE. Vli ciples of the Court in the first part of the work. The volume will be found to contain in the Appen- dices the statutes, rules and forms at present in force. There are also some examples of bills of costs, which, however, are intended more as sug- gestions than as absolute guides or precedents, as so much must always depend on the particular cir- cumstances of each case. 8 January, 1873. 1, Elm Coitet, Temple, E.C. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. PAGE List op Cases xiii The Cottbt i Constitution of t . . . . , , , , , , , , , ^ j Jurisdiction of . . . . . . . , . . , , . . 2 Will — What is 5 Form of . . . . . . . . . . . . , . _ _ g Who may make . . . . . . . . . . . , . . ij Capacity defectiye by Nature 18 by act of others 3X l>yl'aw 35 Subject-matter of . . , . . . , . . . . . . . 4x Where Deceased died . . . . 49 Where made . . . . . . . , . . . . . . . . 54 Execution of before 1838 . . . . . . . . . . . , 53 since 1837 64 Exceptions 7g Kevocation of before 1838 80 since 1837 82 Peobate 101 in Solemn Form a, in Common Eorm 102 Incorporation of Documents 104 of less than the written Will 117 InterUneations . . . . . . . . . . , . . . 121 Fac-simile 126 to whom granted 128 Practical Directions for obtaining 147 ADMUnsTEATlON with Will annexed 150 in what Cases granted 151 to whom 153 when granted 161 Administration (Simple) 162 to whom granted .. .. ,. .. .. .. 163 Practical Directions 196,196 Sureties 202 Powers and Duties of a Personal Eepreseutatire . . . . 206 Digitized by Microsoft® X CONTENTS. PAGE Limited Gbants 214 in Estate 215 in duration of Time .. ■• .. •■ •• 224 to a particular Object .• .. .. .. •• 237 Cseterorum . . . . . . . . • ■ . . • . 241 Save and except 242 Supplemental . . . . . . ■ • • • • > • • ii. Alteration in Grants . . . . . . . . . . . . 243 Kevocation of Grants 244 Probate Duty 246 Succession 247 Contentious Business 248 Parties ..- .. ., .. ,. .. .. .. iii. Caveat 262 Citation.. .. 268 Appearance . . . . . . . . . . . . . . 277 AfSdavit of Scripts 280 Pleadings 281 Interest Causes 287 Mode of Trial 289 Act on Petition 293 Motions 296 Summons . • . . . . , . . . . . . . . , 296 Amendment . . . . . . . . . . , , , , , . ib. Abatement . . . . . . . . . . . . . . . . 297 Staying Proceedings ■ . . . . . . . . . . . 298 Compromise 299 Evidence . . . . . . . . . . . . . . . . 300 Affidavits a. Witnesses . . . . . . . . . . . . . . 302 Discovery 303 Commissions . , . . . . . . . . . , , . 304 Trial and Hearing . . . . . . . . . . . . . . 313 at Assizes .. .• .. .. .. .. ., 314 County Court 321 New Trial 322 Appeal a. Enforcing Orders .. .. .. .. 323 Costs 326 Appendix I. Statutes relating to Wills . . . . , . . . . . , , 343 29 Car. 2, c. 3 ij. 25Geo. 3,0.6 345 1 Vict. c. 26 349 15Vict. c. 24 359 Digitized by Microsoft® • CONTENTS. xi Appendix L— Statutes relating to "Wills— oontinued. page 24 & 25 Vict. c. lU 360 24 & 25 Vict. c. 121 361 28 & 29 Vict. c. 72 362 relating to Executors and Administrators— 22 & 23 Car. 2, c. 10 365 1 Jac. 2, c. 17 368 38 Geo. 3, c. 87 i6. 31 & 33 Vict. c. 90 371 relating to Probates and Letters of Administration — 20 & 21 Vict. c. 77 (C. P. A. 1857) 372 21 & 22 Vict. c. 95 (C. P. A. 1858). 409 21 & 22 Vict. c. 56 (Confirmation, Scotland) . . . . 417 20 & 21 Vict. c. 78, ss. 94, 95 424 23 Vict. c. 5 (Indian) 425 Appendix n. Eules in Non-Contentions Business, Principal Registry (P. R. Non-C.) 428 Eules, Orders and Instructions in Personal Applications . . 442 Eules in District Kegistries (D. R.) 44i Rules, &c. for Personal Application in District Registries . . 459 Rules under Debtors Act, 1869 • 462 Rules for County Courts 464 Directions for describing Intestates . . . . . . . . 466 Rules and Orders in Contentions Business (C. B.) .. .. 468 Forms of Instruments — in Non-Contentious Business in Principal Registry (P.. R. Non-C.) 483 in District Registries (D. R.) , . 503 in County Courts . . . . . . , . . . . . 526 in Contentious Business (C. B.) .. .. .. .. 528 Precedents 541 Appendix in. Duties on Probates, &c 646 Pees in Non-Contentious Business, Principal Registry (P. R. Non-C.) 550 in District Registries (D. R.) . . .• .• .. .. 558 in Personal Applications (P. R. and D. R.) additional . . 665 in County Court 570 Seamen and Marines . . • • . • • • . . . . ib. in Contentious Business (C. B.) 572 Costs in Non-Contentious Business (NonrC.) in Principal and District Registries 576 in Contentious Business (C. B.) 586 Do. for use of other Persons (C. B.) 589 in County Court 591 Taxation in County Court 596 Digitized by Microsoft® Xll CONTENTS. • Appendix IV. page Examples of Bills of Costs 597 Lists of Foems— in Non-Contentious Business, Principal Registry (P. R. Non-C.) .,, 653 Set out iti Statutes — in District Registries (D, R.) 654 , in County Courts . . . . . . . . . . . . 656 in Contentious Business 656 Digitized by Microsoft® LIST OF CASES. PAGE 243 291, 296 .. 268 80, 104 .. 136 26,31 ..30 231, 232 .. 175 33 105, 106, 115 ..292 ..257 . . 25 .. 148 . . 56 .. 112 ..222 .. 105 Abbott V. Abbott , Abingdon v, Ridgway Ackerley v. Parkinson Adam, Wilkinson ». . Aird, Re . . . Airey v. Hill . . Aldenham, Rex v. Alderson, Wheeler v. , Alford II. Alford Alien, In goods of . •—— V. Macpherson V. Maddock , Norris v. Allenson, Dixon v. . . Alleyne, Walcot v. . . Allchin, In goods of . . Allison, In goods of . . Allnutt, In goods of . . Almes V. Almes Almosuino, In goods of Anderson, In goods of 89, 119, 173 , Hunt V 303 , I/anetirville V. .. 51 Andrews «). Murphy .. ..183 Anonymous .. .• 41, 173 Antrobus ». Leggatt . . 278, 281 Appleby ». Appleby and Jackson 229 Arbery v. Ashe . . . . 257 Archer v. Burke . . . . 337 Ash, Kipping v. 251, 265, 270 Ashe, Arbery D. .. .. 257 Ashwell, Wyman v. . . . . 256 Astell, In goods of . . . . 1 93 Atkins, Brown V. .. .. 179 ■ , Smith V. . . . . 323 Atkinson v. Baker . . . . 43 V, Bernard . . 154, 155 Att.-Gen. w. Bouwens ,. .. 47 V. Brunning .. 247 V. Cockerell . . 48 — — — V. Dean of Windsor . 17 — ^^— V. Pamther . • 25 , Partington!). .. 246 PAGE Att.-Gen. v. Ryves . . . . 304 Aubrey, France v. . . . . 265 B. Badenach, In goods of . . 138 Bagnall v. Dowling . . . . 6 Bailey, In goods of . . . . 154 , Lait V. . . . . 261 Bainbridge.Goodburn ». .. 276 Baker, Atkinson v. . . . . 43 V. Baker . . . . 324 ■ , Thomas » 219 Baldwin v. Durrant . . . . 255 Ballingall, In goods of 186, 204 Banks, Sprigg v. . . . . 275 Bannatyne v. Bannatyne . . 20 Barber, In goods of . . , . 1 20 Harford, Does. .. ..80 Barnes v. Durham . . . . 342 . V. Headley . . . . 320 ■ ; RatclifFe v. . . 142, 340 D.Vincent .. .. 216 Barrow, Hawkesley v. ., . . 91 Barry 1). Butlin .. .. 314 Barsham, Casborne v. •• . . 318 Barton v. Robins . . ..117 Bascomb v. Harrison . . . . 250 Bateman, In goods of . . .. 187 Bates, Greenhalgh v. . . . . 223 Bawden v. Bawden . . . . 260 Baxley v. French . . . . 241 Bayldon, Fowler « 239 Baylis, In goods of .. 130,135 Beaufort (Duke), Wellesley v. . 230 Beckar S.Howe .. .. 68 Beddard, Wilson o. . . . . 65 Bedwell, In goods of . . • . 300 Beech t). Rathbone .. ..291 Belbin v. Skeats and Ward . . 305 Bell, Jane, In goods of .. 170 — ^ t). Tinniswood .. ..166 , Tyer v 48 Digitized by Microsoft® XIV LIST OP CASKS. PAGE Eellamy, In goods of .. ..123 Bellew V. Bellew . . . . 234 Beloe, Newcombe «. .. 161,179 Benbow, In goods of .. .. 153 Bennett, In goods of . . . . 308 , Mountain v. .. . . 31 Benson v. Benson . • • . 82 Bernard, In goods of , . . • 301 , Atkinson ?;. ,. 154,155 V. MinshuU . . . . 36 Bernes, Stanley v. . . 234, 237 Best ». Finlay 304 , Newton v. .. . . 30 Bettesworth, Rex t). .. 156,168 Betts, Lydia, In goods of ••132 Bevan, In goods of .. ..177 Bewsher v. Williams . . . . 329 Biancbi, Louis, In goods of . . 185 Biggs, In goods of . . 140, 178 Bignell, Phillips » 207 Billinghurst v. Vickers . . 27, 177 Binfield, In goods of .. .. 230 Bingham, Portland (Duke of) v. 101 Binns, Nicholls v. 24, 254, 255, 333 Bircham, Currie «. . . . . 48 Birks V. Birks 106 Bishop, In goods of . . . . 308 Black V. Jobling . . 82, 96 Blackburn, Guardhouse t). .. 118 Hobson V, Blake, In goods of , Doyle V, . • B.Johnson .. Blane, Johnson v. Blenkhorn, Bushell v. . . Bloomfield, In goods of Blythe, Savage «. . . Bockett, Cooper v, . . Bodkin, Skipper b. . • Body, In goods of .. 15 175, 184 .. 136 .. 26 .. 25 .. 292 .. 156 .. 222 .. 123 .. 333 .. 120 Bond V. Bond 235 Bone V. Whittle . . . , 339 Boreham, Hamer V. .. .. 260 Borlase v. Borlase . . . . 26 Bourget, In goods of .. ..26 Bouverie and Lefevre i>. Max- well 199 Bouwens, Att.-Gen. B. .. 47 Boxley B. Stubington .. 217 Boyle, In goods of . . . . 141 Bradbury, Harris B. •• 283,324 , John B. .. ..175 Braine B. Braine . . , . 326 Bramley and another b. Bram- ley 336 B. Haines . . . . 34 Brandreth v. Brandreth Breckiiell, Davies v. . . 287 290 .. 321 ■ B. Atkins - B. Brown ■ B. Nicholls - B. Wildman PAGE Brenchley ». Still .. .. 10 Brett, Netter b. . . . . 41 Brewis, In goods of . . . . 108 Brewster b. Spooner . . . . 62 Bridges b. King . . . . 22 Briggs B. Roope .. ..183 Brigham, Goodhill b. . . . . 36 Bright, Eaton B. .. ..289 Brighton, In goods of . . .. 170 Broadbent b. Hughes . . . . 333 Brooke B. Kent .. ' 82, 121 Brooks and Marshman v. Brooks 205 Brooks, Marsham v. .. . . 325 Brotherton b. Hellier . . . . 251 Brown, In goods of . . ,,99 ' , Mary Anne, In goods of 1 84 .. 179 .. 304 .. 158 183, 274 Brownbill, Farrell B 184 Browning, James, In goods of . . 172 Brunning, Att.-Gen. v. . . 247 Bubbers v. Harby . . . . 165 Bull B. Bull 315 Bullar, In goods of . . . . 186 Buller, In goods of .. .. 161 Burch, Eleanor, In goods of . . 186 Burgess, In goods of . . . . 192 , GlenB. .. .. 282 Burke, Archer b. . . . . 337 Burls B. Burl-s . . . • . . 829 Burnell, Rawlinson B. . . .. 183 Burrell, Evans b. . . 47, 274 , Mary, In goods of 191, 202 Burroughs b. Grifhths and Hall 178, 257 Burrows v. Burrows . . . . 62 Burt, In goods of . . , , 105 Burton B. CoUingwood .. 13 Bushell B. Blenkhorn . . . . 292 Butcher, Lizard B. .. .. 315 Butler B. Vinnicombe . . . . 74 Butlin, Barry B. .. ., 314 ButterfieldB. Scawen .. .. 34 Buxton B. Lawton .. ,, 319 Cadge, In goods of .. 124, 157 Cadogan (Lord), Wright B. .. 35 Cadywold, In goods of .. 81 Calembourg, Hibben v. 251, 289, 298 Campbell, Re 224 B. Lucy . . . . 42 Digitized by Microsoft® LIST OF CASES. PAGE Cannon, Onslow V 334 Canterbury (Archbishop of ) «. House .. .. .. 164 Cardale v. Harvey . . . . 221 Carless v. Thompson . . . . 329 Caroon's case .. .. 166, 167 Carr, In goods of . . . . 221 Carter, Roadnight o. . . . , 299 Cartwright v. Cartwright . . 26 Casborne B. Barshara .. ... 318 Casmore, In goods of . . . . 69 Cassidy, In goods of . . . . 227 Casson v. Dade . . . . 35 Cathrell ». Jefifree . . . . 260 Catto ». Gilbert .. 87,102 Cattral, In goods of . . . . 68 Cawthron, In goods of . . . . 14 Chamberlain, In goods of 250, 257, 270 ■ , Pegg». .. 215 Chanter, Davies v. .. . . 240 Chappell V. Chappell . . . . 172 , In goods of . . 136 Charlton v. Hindmarch . . 72 ». Hindmarsh .. 322 Cheetharo, Isherwood v. . . 284 Cholwill, In goods of . . . . 191 Christmas v. Whingates . . 93 Chune, In goods of .. .. 181 Clark, Dew v. . . 23, 173, 265 , Hublew. .. ..62 , Twells V. .. . . 297 Clarke, In goods of .. 66,143 , MordauntB. .. 137,324 Clarkington, In goods of 182, 241 Clarkson v. Clarkson . . . . 97 ». Waterhouse .. 327 Claxton, Ware v 297 Clayton v. Davies . . . . 339 ». Nugent . . . . 320 Cleare v. Cleare . . 29, 339 Cleaver, Kinleside V. .. ••169 ». Next of kin of M'Kenna 180 Clements, Summerell v. . . 336 Cleverly and another v. Glad- dish 203 Clogstonn v. Walcott . . • . 96 Cock V. Cooke . . . • . . 7 , Northey » 233 Cockerel], Att.-Gen. v. . . 48 Cockrofts V. Bawles .• .. 33 Coles, In goods of .. ..181 V. Coles 305 V. Coles and Brown . . 305 , Macnin u. .. .. 179 Collet, In goods of . . . . 149 ». Collet .. ..274 Collier, In goods of CoUingwood, Burton v. Collinson »• Mawe Colman, In goods of , Colquhoun, In goods of FAGG 15, 226, 237 . .. 13 • • 220 .. 126 • • 132 Colvin V. Fraser 141, 256, 280 Combe's case . . . . . . 22 Combs, In goods of V. Combs Constable v. Steibel . . Coode, In goods of Cook V. Cowper . . , Hughes V. Cooke, In goods of . . , Cock V. V. Lambert Coombs, In goods of . • H.M.'s proctor 179 179 60 47 166 203 190 7 66 71 171 Cooper, In goods of •. 159, 189 ti. Bockett .. •• 123 ti. Green . . . . 271 and another t). Moss .. 291 Cope, In goods of . . . . 303 Coplestone and wife v. Nicholes 255 Corcoran, Divenny «• . . . . 58 Cordeux v. Trasler • . . . 295 Cordcw !). Trasler .. 174,314 CorBcld, Darnell « 28 Corner v. Parnell and others . . 255 Corry, Marsh v. . . . . 283 , Smith «. .. .. 245 Corser, In goods of . . 173, 187 Corsers, In goods of •• .. 178 Cosnaham, In goods of . . 52 Cotter !)• Layer .. .. 80 Court, In goods of .. .. 130 Coventry ». Williams .. 10,12 Coward, In goods of .. •■ 89 Cowcher, Reay b. . . 61,281 Cowper, In goods of .. .. 152 , Cooku 166 Cox, Hallet v 274 Cozens, Greenwood ». Crause, Jane, In goods of Cresswell v. Cresswell . . Cringan, Re Crispin v. Cumano ■ . V, Doglione V. Doglioni 95,96 .. 170 .. 155 ..131 ..323 252, 291, 341 . . 49 ..335 Critchell v. Critchell . . Croft V. Croft 76 , Mudway v. . . . . 20 Crosby ». Noton . • . • 279 Crosley v. Archdeacon of Sud- bury 23.7 Cross II. Cross •. 314,331,340 V. Cross & others . . 330 , Cunliflfe v. . . . . 284 Digitized by Microsoft® XVI LIST OP CASES. PAGE Crowtlier, Thomas v. .. . . 326 Crump, In goods of .. ..231 Cubbon D. Steele .. ..52 Cumano, Crispin v. . . . . 323 Cunha, Re Countess de 164, 237 Cunliife !J. Cross .. 28,284 Cunningham, In goods of . . 125 Currie ti. Bircham . . . . 48 D. Da Costa, Elme ». '.. ..178 Da Cunha (Countess), Re 53, 54 Da Silva, In goods of . . •• 103 Dade, Casson v. . . . . 35 Daines v. King's Proctor . . 8 Dallow, In goods of .. 109,129 , Evans » 92 Darcy's Case . . . . . . 40 Darke, In goods of .. .. 129 Darley, In goods of . . . . 142 V. Martin . . . . 86 Darnell v. Corfield . , . . 28 Davidson, Fowlis v. . . 23, 24 Davie, Clyde v. . . . . 276 Davies, In goods of . . . . 172 V. Breoknell . . . . 321 , Clayfone 339 ' V. Devereux . . . . 299 , Williams v. . . 325, 327 Davis, In goods of 137, 138, 139 V. Chanter . . . . 240 — II. Davis . . . . 278 , Owen V 284 Dawson, Farencev. .. .. 277 Day V. Thompson . . . . 223 De Angulo y Urruela . . . • 247 De Chatelain t). De Pontigny 216, 232 D'Eteve de Pradel, In goods of 39 De la Farque (Louisa Maria), In goods of .. .. .. 204 De Pontigny, De Chatelain ti. 216, 232 De Vigny, In goods of . . 54 Deane, Simmons v. . . • • 325 , Walker ». .. ..35 Deare v. Elwyn . . . . 31 Delevicleuse, Dessit t). .. 182 Dendy, Young «. ., .. 322 Denning, Taylor v 65 Dent, Palmer «. .. .. 279 Dessit «. Delevicleuse.. .. 1S2 Devereux, Davies »■ . . . . 299 Dew 11. Clark .. .. 23,173 and Clark . . 265 Dickens, In goods of . . Dickenson, Downward v. V. Stidolph V, Swatman Diplock, Taylor v. Divenny v. Corcoran . . Dixon, In goods of V. Allenson and wife PAGE .. 117 159, 181 .. 108 .. 99 .. 155 .. 58 .. 183 257 13 215, 239 Dobson, In goods of Dodgson, In goods of Doe «. Barford . . . . . . 80 d. Evers o. Ward . . 86 d. Ree4 «. Harris . . 81 d. Tatham o. Wright . . 19 Doglione, Crispin v. 252, 291, 341 Doglioni, Crispin v. Dolman, Hole v. Dolphin, Robins v. Domville v. Domville Donaldson, In goods of Douce, In goods of Douglas V. Forrest Downing, Bagnall v, Downward v. Dickenson Doyle V. Blake . . Draper, Grimani i). V. Hitch Drax, Sutton ». Drewe v. Long . . Drinkwater, In goods of Drummond, In goods of V. Parish Duane, In goods of Duchesse d'Orleans, I of Duggins, In goods of , Dundas, In goods of . Dunlop, Hawarden v. , Hawarden (V: tess) V. Dunn V. Dunn .. Dunphy v. Dunphy Duprez «. Veret Durham, Barnes v. Durrant, Baldwin v. . Dutton, In goods of . Dyce Sombre, Princep Dyer, Re Dyke, Perry «... Dyke «. Walford , 49 .. 169 .. 332 .. 255 .. 77 .. 66 .. 136 .. 6 159, 181 .. 136 .. 25 .. 309 249, 331 .. 198 .. 190 .. 41 .. 77 .. 118 goods 164 72 116 57 iscoun- 299 290, 292, 315 .. 164 236, 298 .. 342 .. 255 .. 96 20,21 63, 103 .. 196 1 E. Earl, In goods of .. ..194 Eaton ti. Bright and another . . 289 Eckersley v. Piatt and others . . 99 Digitized by Microsoft® LIST OF CASES. PAGE Edward, Fincliam 0. .. .. 30 Edwards v. Edwards . . . . 207 V. Harben .. .. 139 , Lovekinv. .. .. 261 B. Martin . . 279, 280 1). Payne , . . . 326 ' Eeles, In goods of .. .,93 Elcock, In goods of .. .. 67 Ellice, In goods of . . . . 96 Elliott o. Gurr 168 Elme v. Da Costa .. ..178 Elms R. Elms 94^ Elwyn, Deare o. .. .. 31 Eraberley v. Trevanion 256, 335 England v. Wall . . . . 202 English, In goods of .. 8,310 Enohin v. Wylie . . . . 49 Escot, In goods of .. .. 193 Euston (Earl) v. Seymour (Lord Henry) .. .. 76 Evans ». Burrell . . . . 274 e. Dallow .. ..92 V.Jones 303 V. Saunders ,. .. 300 O.Tyler 128 Evers, Doe d., v. Ward . . 86 Ewing, Re 229 F. Fairtlough «. Fairtlougfa . . 29 Fairweather, Thomas, In goods of 179,190 Fane, Ex parte .. 36,116 Faraday, In goods of .. ..170 Farler I/. Farkr .. 281,338 Farque (Louise Maria de la). In goods of . . . . . . 204 Farquhar, In goods of.. .. 77 Farrell ». Brownbill .. ..184 Faulder v. Silk 20 Fawkener v. Jordan . . 229, 230 Fell t). Law 258 Fendall, Pyttu. .. ,.137 Fenwick, In goods of . . •• 84 Ferard, Griffin v 9 Fernie, In goods of .. ..129 Ferrie, Young v. . . 254, 265 Ferrier, In goods of . • . . 245 Ferry I). King 335 Field, Purdey ». ,. 237,256 Fielder ». Hangers • . , . 168 Finch w. Finch 312 Fincham v. Edward . . . . 30 Findley, Southwells. .. 178,192 Finlay, Best v 304 Fitzroy, In goods of . . . . 84 B. Fludberg, Haddon v. . . Forbes, Middleton v. • . Force and Hambling's case Ford, Iredale v. 167, , Stretton v. . . Forrest, Jane, In goods of , Douglas ». Forster v. Forster Foster v. Foster -, James v. Fowler v. Bayldon Fowlis ti. Davidson . • Foxwell V. Poole . • Fozard, In goods of . . France v. Aubrey . . Francis ». Grover . . Frank v. Frank Fraser, In goods of 10, , Colvin V. Frederici, Vincenze v. French, Baxley ». Frith, In goods of Fry, Re.. Fyson v. Westrope , PAGE .. 38 .. 34 16, 80 175, 202 .. 235 .. 119 .. 136 .. 305 .. 148 290, 291 .. 239 23, 24 . .• 334 243, 244 .. 265 .. 125 20, 320 90, 134, 190, 203 141,280 .. 155 .. 241 .. 72 .. 133 Gaillard, King v. Gaisford, Jenkins v. . . Gale, In goods of Galloway, Linthwaite v. , Thnaite ». .. Gard, Mitchell v. Gardner, In goods of .. Garland, Ledgard v. . . Gausden, In goods of.. Gaynor, In goods of .. Gaze, Love v. . . Geere, O' Dwyer v. . • Gent,*In goods of George III., In goods of George, Leman v. •• Gibbs, In goods of Gibson, In goods of .. Gilbert, Catto o. Gill, In goods of , Re Gladdish, Cleverly v. . . Glen V. Burgess Glyde v. Davie .. Godfrey, In. goods of .. Goldie V. Murray Goodacre v. Smith . . Goodban, Lemage t>. . . Goodburn v. Bainbridge Goodenough, In goods of 112, .. 329 .. 66 30, 134 156 155 35, 332 311 217 66, 130 221 210 42, 153 201 17 338 148 141 87,102 154, 169 155 203 282 276 180 340 29 86 276 89 Digitized by Microsoft® LIST OF CASES. PAGE Goodenougli, Rogers ». •• 100 Goodhill V. Brighara . • ^ . S8 Goodman I). Goodman . . .. 153 Goodrick, Jones o. . . • ■ 340 ,West«. .. 321,339 Goodwin, Present B. .. •• 157 Goodworth, In goods of . . 1 35 Gordon, In goods of .. •• 55 , Woolleyi) 239 Goude, Rochell « 114 , Williams v. ■ . . • 331 Gould, In goods of . . . . 206 Graham, In goods of . . . . 87 Grant B. Grant . . .. 237,310 Graves, Re 236 , In goods of .. .. 241 V. Price . . • . 88 Gray, In goods of . . . . 88 Greaves, In goods of . . . . 109 Green, Cooper v. .. • • 274 V. Proctor and Newey . . 326 , Symes «. .. .• 18 Greenhalgh 1). Bates .. ..223 Greenwood v. Cozens and others 95 Greeves, Inkson v. .. . . 288 Greig, In goodsof .. 120,151 Greville D. Tyler .. ..123 , Warwick (Earl of) ». 173, 174 Griffin «. Ferard .. .. 9 Griffiths, Burroughs ». 178, 237 Grimani V. Draper .. .. 25 Grimwood t>. Cozens . . . . 96 Groom v. Thomas . • • • 24 Grover, Francis ». .. ..125 V. Levi . . . . 239 Grundy, In goods of .. .. 223 Guardhouse i>. Blackburn .. 118 Gudolle, Ingoodsof .. ..216 Gullan, In goods of .. 95,312 Gurr, Elliott 1). .. ..168 Guttierez, In goods of ..*. 50 H. Habergham ». Vincent 6,41 Hackett, In goods of . . . 146 Haddon ti. Fludbury . . . 38 Hagger, In goods of •• . 229 Haines, Bramley v. . 34 Hale, In goods of . 244 Hall V. Hall . 31 Hallet V. Cox and others . 274 Halliburton, In goods of . 51 Hambling's case . 16 Hamer v. Boreham . 260 Hammond, In goods of . 76 Hampson, In goods of Hancock v. Lightfoot . Hangers, Fielder v. . . Hannay v. Taynton Harben, Edwards r. • • Harby, Bubberso. Harding, Martin v. Hardstone, Re . . .• Hardy, In goods of Harenc v. Dawson Hargreaves ». Wood . Harrigan, In goods of . • Harris, In goods of V. Bradbury . . , Doe d. Reed v. V. Milburn . . , Spratt V. . . Harrison v. Harrison . . : — , Bascomb v. . . — — , Kinleside ». , Maskelyne v. Harvey, Cardale v. Hastilow v. Stobie .. Havers v. Havers Hawarden (Viscountess) Dunlop ... Hawke v. Wedderburne Hawkes v. Hawkes Hawkesly and another ». Barrow PAGE 152, 226 194 168 227 139 165 256 203 125 277 141, 300 .. 203 91, 96, 126, 130 283, 324. .. 81 .. 237 .. 48 .. 323 ., 200 19,30 .. 233 .. 221 28, 284 .. 166 ■». 57,299 160, 173 .. 62 91 Hay, In goods of 37, 171, 197, 280 11. Willoughby and Hill .. 225 Hayes, In re .. .. ..78 Haygarth, Taylor «. .• .. 210 Hayman, Tugwell «... . .. .. 68 Howell «. Metcalfe .. .. 239 Hubbard, In goods of 10, 118 Huble V. Clark 62 Huckvale, In goods of .. 70 Hughes, In goods of .. ., 221 , Broadbent« 333 V. Cook and others . . 203 V. Ricards . . . . 229 . , Young « 199 Huguenin, Meddowcroft ». ..102 Hull ». Warren .. ..25 Humpage V. Rowley .. .. 317 Humphreys, Richards v. . . 327 Hunt, In goods of . . . . 106 and Golbed ». Anderson . . 303 B.Hunt .. .. 71,107 Hunter, Patteson V. .. .. 214 Hurst; Leake V. .. .. 282 Hutcheson, In goods of . . 56 Hutchinson v. Lambert 155, 249 Hutley, In goods of •• .. 270 Ingram v. Strong . . . . 262 V. Wyatt . . . . 34 Inkson v. Greeves and others.. 288 Iredale v. Ford .. 167, 175^ 202 Ireland V. Rendall .. ..338 Irving, In goods of . . . . 206 ■ V. Irving . . 206, 267 Isaacks v. Whaley . . . . 290 Isherwood V. Cheetham .. 284 Isted t>. Stanley .. ..218 J. PAGE Jackson, Charlotte, In goods of 147 t). Jackson , . . , 204 ». Whitehead .. ,.137 Jacobson, Walton ». .. .. 163 James, In goods of 91, 125, 127 B. Foster . . 290, 29 1 Jauncey v. Pealey . . . . 48 Jeffery v. JefFery . . . . 326 Jeffree, Cathrell v 260 Jenkins, In goods of . . 240, 259 V. Gaisford . . . . 66 Jenner, Tyrrell « 260 Jessop ». Watson .. .. 213 Jobling, Black v. . . 82, 96 John ». Bradbury .. ..175 Johnson, In goods of .. 132, 184 , Blake v 26 V. Blane . . . . 25 ». Lyford . . 90, 94, 313 , Middlehurst v. 28, 284 B.Todd .. ..318 ». Weldy 275 Johnstone, In goods of . . 54 Jones, In goods of 54, 70, 133, 188 , John, In goods of . . 202 , William, In goods of . . 205 , Re 260 , Evans ». . . . . 303 ». Goodrick . . . . 340 B.Jones .. ., 298 , Southall ». ., .. 14 , Staines v. . . . . 298 , Thomas v. . . 36, 39 ■ V. Williams and others 252 Jordan, In goods of . . . . 42 , Fawkner b. . . 229, 230 Joys, In goods of . . 43, 87 Jukes, Williams B 179 K. Keane, In re . . . ■ ..175 , In goods of . . . . 226 , Mary, In goods of .. 184 Keats, Whittle v 234 KebelB. Philpot .. ..319 Keene, In goods of .. 188, 215 Kellick, In goods of . . . . 73 Kelson, Warren v. . . . . 153 Kenebel b. Scrafton and others 81 Kenny b. Kenny . . . . 208 Kent, Brooke B. .. 82,121 Kenworthy v. Kenworthy . and Watson 274 b 2 Digitized by Microsoft® LIST OF CASES. PAGE Killiean v. Lord Parker .. 280 Kimpton, In goods of . • . . 69 Kinaston ti. Mills .. .• 139 Kingi Prydges ». . . . . 22 , Ferry J), .. .• .. 335 ». Gaillard .. ..329 , In good^ of .. •• 301 King's Proctor v. Daines . . 8 Kinleside v. Harrison . . 19, 30 Kinlinde ». Cleaver .. .. 169 Kinsey, Hayiyard v. . . • ■ 208 Kipping ». Ash .. 265,270 1). Barker .. ..251 Klingeman, In goods of .■ 312 Knight, Hobbs v. .. 82,127 , Major 1). .. .. 333 L. Lainson V. Naylor .. •• 275 Lait V. Bailey 261 Lakin,. Manley V. .. ..62 Lambert, In goods of .. 67, 301 , Cook V, ., .. 66 , Hutchinson v. 155, 249 Lancaster, In goods of .. 113 Lane, In goods of .. .. 131 Laneurville v. Anderson .. 51 Langford, In goods of . . .. 132 Lanoe, Parsons t>. .« 12,15 Lansdowne (Marquis of), In goods of .. .. .. 116 Lashmar, Tborncroft v. 9, 330 Latham, In goods of •• 73, 146 Law, Fell v 258 Lawton, Buxton V. .. ..319 Lay, In re .. .. ..78 Layer, Cotton v. . . . . 80 Leake.v. Hurst . . . . 282 Lean v. Vines and another . . 275 Ledgard V. Garland .. .. 217 Leese, In goods of . . . . 88 Leeson, Joseph, In goods of .. 185 Leggatt, Antrobus V. .. 278,281 Leite, Velho J) 129 Lem^ge V. Goodban .. .. 86 Leman V. George and Rosser . . 338 Levi, Grover v. . , . . 239 Lewis, In goods of . . 72, 92, 226 Lightfoot, Hancock v. . . 194 Lighten, In goods of .. ,. 132 Linch, In goods of .. .. 218 Linthwaite V. Galloway .. 156 Listers. Smith,. ..11,256,314 Lizard V. Butcher .. ..315 Llanwarne, In goods of .. 189 Lloyd ,v. Lloyd 225 — t). Stoddart ., .. 219 PAGE Loftus, In goods of . . 140, 248 Long, Drewe ». .. ..198 V. Story 238 and anpther ». Symes and another .. .. .. 137 Lord,. Moorbouse v. .. . . 86 Lorimer, In goods of . . • • 218 Love V. Gaze .. .. .. 210 Lovekin V. Edwards .. .. 261 Lowe, Jn goods of , , . . 88 -, Peacock ». . . 265, 303 Lucas V. Lucas . . . . 225 Ludlow, In goods of • . . . 2 Luke, In goods of .. ..Ill Lyford, Johnson v. . . 90, 94, 313 M. Mab^Jy, Masterman v. . . 6 McCabe, In goods of .. .. 100 M'Donald, In goods of . . 203 McKenna (next of kin), Clea- ver V. . . . . . . . . 1 80 Maclean, Palmer ti. .. .. 314 Macleur V. Macleur .. .. 332 McMahon, Rawlins v. . . 239 McMurdo, In goods of . . 77, 79 Macnin v. Coles and others . . 179 McPherson, Allen ti, .. .. 33 V. Farnell . • . . 304 M' Vicar, In. goods of .. .. 84 Maddock, Allen v. 105, 106, 1 15 Magrath, Watson v, . . . . 86 Main, In goods of .. .. 307 Major V. Knight .. ., 333 Manley V. Lakin .. ,, 62 Manly, In goods of .. .. 134 Mann, In goods of . . , . 69 Manuel, deceased. In goods of 164 Marava (Donna de). Re • . 53 Maridan, In goods of . . .. 8 Marsh e. Corry 283 ». Marsh .. 75,101 ». Tyrrell .. ..22 and Hardman 32 and others ». Marsh and others .. .. ., 101 Marshall, In goods of . . . , 67 , Shawt) 335 Marshman v. Brookes . . . . 325 Martin, In goods of . . 13, 220 " , Darleyo. .. .. 86 , Edwards v. . . 279, 286 V. Harding . . . . 256 Martindale, In goods of 159, 165 ,John J., Ingoodsof 166 Maskelinev. Harrison.. .. 233 Mason, In goods of . . 43, 83 Digitized by Microsoft® LIST OF CASES. XXI PAGE Massie, Reanie « 827 Masterman, Maberly ». ..6,62 Mathiasj In goods f>f . . . . 107 Matthews, Haynes 1) 106 Maugham, Wallis I) 27 Maule I). Young and another ..271 Mawe, CoUinson » 220 Maxwell, Bouverie «... . . 199 May, In goods of .. ..101 , Slater « 225,227 Meddowcroft v. Huguenin . . 102 Medley, Wood v HI Melville, Preston ». .. .. 51 Menzies ». Pulbrook .. .. 251 Mercer, In goods of .. ..104 o. Morland .. 175,176 Merryweather v. Turner 245, 253 Metcalfe, Howell v 239 Mette V. Mette 83 Michell, Thomas v 28 Middlehurst B. Johnson .. 284 MiddJeton, In goods of 98, 222 , Ee 154 11. Forbes . . . . 34 Milburn, Harris v 237 Milles, Smith v. . . . . 206 Milligan, In re .. .. 78 Mills, Hill » 128 , Kinaston t). .. ..169 Minshull, Bernard v. . . . . 36 Mitchell V. Gard . . 35, 332 Mitcheson, In goods of . , 94 Monday, In goods of .. ..115 Moore ti. Whitehouse .. ..120 and another v. Holgate and wife .. .. , . 254 Moorhouse v. Lord . , . . 86 Mordaunt v. Clarke Mordaunt 137, 324 and others 260 Morell V. Morell . . . . 78 Morgan, In goods of ..6, 131, 301 - 1 , Drake v. . . . . 2 B.Thomas .. ..207 Morick, Straubenzee V. .. 110 Morland, Mercer V. .. ..176 Morley, In goods of .. .. 186 Morris, In goods of .. 229, 245 t). Owen . . . . 292 Morse, Nathan v. . . ..117 Mortimer v. Paull . . . . 233 Morton, In goods of .. .. 10 «. Thorpe . . , . 279 Moss, Cooper D. .. ..291 Mountain v. Bennett . . . . 81 Mudway v. Croft . . . . 20 Muir, In goods of . . . . 56 Munday, In goods of . . . . 7 Murphy, Andrews v, Murray, Goldie v. Myner v. Robinson N. Nash V. Yelloly Nathan v. Morse Naylor, Lain^on v. V. Stainsby Netter v. Brett . Neville, In goods of .. NewboJd, In goods of . . Newcombe v. Beloe . . Newsom, In goods of .. Newton v. Best . . V. Pelhara Taylor v. FACE .. 183 .. 340 .. 32 330 117 275 135 41 79 172 161,179 .. 251 .. 80 .. 9 . , - . . 208 Nicholes, Coplestone v, . . 255 Nicholl, In goods of . . . . 146 N ichoUs V. Binns 24, 254, 255, 333 , Brown i>. .. ..158 a. Nicholls .. .. 10 and another ». Binns . . 333 and Freeman v. Binns 255 Nickalls, In goods of .. .. 103 Nicks, In goods of . . . . 75 Norris, In gppds of . . . ■ 307 V. Allen . . . . 292 Northey v. Cook . . . . 233 Nosworthy, In goods of . . 35 Noton, Crosby v 279 Nugent, Clayton a 320 Nurse, Thomas » 322 O'Brien, In goods of .. 53, 185 O' Byrne, Re 204 O'Dwyer ». Geare .. 42,153 Oliphant, In goods of 134, 156, 248 O'Loughlin, Ingoods of .. 157 Oldison ti. Pickering ., .. 213 Onslow and another v. Cannon . 334 V. Wallis .. ..210 Oranmore (Lord), In goods of 171, 175 Orleans (Duchess), In goods of 54 Ormond, Re 161 Ouchterlony, In goods of .. 115 Oughton 258 Owen i>. Davis ■. .. .. 284 , Morris v 292 B.Williams .. ..305 Owston, In goods of .. .. 29 Oxley, Young », •• .. 199 Digitized by Microsoft® LIST or CASES. p. PAGE Palmer and Brown ». Dent . , 279 V. Maclean and another. 314 Pamela, In goods of . . • • 36 Panchard v. Weger . . • • 288 Parish, Drummondti. .• .. 77 Park, In goods of . , . . 140 Parker (Lord), Killican v. . . 280 , In goods of 8, 78, 200, 204 B. Hick 324, ' !>. Hickmot .. .. 125 Parkinson, Ackerley v. . • 268 V. Thornton . . . . 325 Parnell, Corner V. .. .. 255 , M'Pherson » 304 s. Parnell .. ..260 Parnther, Att.-Gen. v. . . 25 Parsons v. Lanoe .. 12,15 Partington ». Att.-Gen. . . 246 Parton v. Johnson . • • ■ 252 , Rayson v. . . 326, 329 Pascall, In goods of .. ..Ill Patteson v. Hunter and another 214 Paull, Mortimer v. Payne, Edwards b. Peacock v. Lowe Pealey, Jauncey v, Pearse, In goods of Pearson, In goods of Pechell V. Hilderley 11. Jenkinson Peck, In goods of Peel, In goods of . . Pegg 1). Chamberlain .. Pelham ». Newton Pennington, In goods of Perry, In goods of V. Dyke . . Petre (Lord), House v. Pettifer B. James Phillips, In goods of . . V. Bignell , Read v. . . B. St. Clement Danes Philpot, Kehel v. Phipps, In goods of . . Pickering, Oldison ». . . Pincke, Shove v. Pine, In goods of Pipon V. Wallis Pitt V. Woodham Piatt, Eckersley b. Podmore v, Whatton .. 233 .. 326 255, 303 .. 48 .. 110 .. 74 .. SO 121, 273 182, 309 310 Poole, In goods of , Foxwell B. Porter, In goods of Portland (Duke of) «. Bingham 101 215 9 121 219 196 218 172 231 207 61 59 319 77 213 SI 159, 165,189 ,. 186,245 ..208 ..99 81,94,119, 120, 158 ..152 .. 334 15 PAGE Potts, In goods of . . . . 201 ». Potts 273 Powell, In goods pf ■• ..71 , Re 237 ■ ». Powell , Robertson b. Powis, In goods of Prendergast, Re Presant ». Goodwin Preston b. Melville V. Preston 97, 282 84,86 .. 200 .. 76- .. 157 .. 51 .. 257 20,21 50, 170 .. 326 Prinsep v. Dyce Sombre Probart, In goods of . . Proctor, Green ». Procurator-General v. Williams 234 Pryce, Smith ». .. .. 179 Puddephatt, In goods of . . 69 Pulbrook, Menzies V. .. .. 251 Pullen V. Pullen and others . . 95 Pulman, In goods of .. ..131 Purdey v. Field . . 237, 256 Pynn, Stretch b. ., ..178 Pytt B. Fendall 137 Q. Queen's Proctor, Coombs v. . . 171 B. Wallis .. 283 B. Williams 283, 291,313 Quick V. Quick 240, 260, 290, 313 R. Radnall, In goods of . . . . 240 Raine, In goods of 16, 126, 127 Rainer, Rex B. . . .. .. 144 Ratcliffe b. Barnes and another b. Barnes Rathbone, Beech «. Rawles, Cockroft o. Rawlins b. McMahon , Shipton B. , Rawlinson v. Burnell Rayson v. Parton Bead, In goods of B. Phillips Reay, In goods of o. Cowcher Reed b. Reed . . Rees, In goods of Reeves b. Ward Reffell B. Reffell Reg. B. Whitehead Reid, In goods of Kendall, Ireland v. 142 340 .. 291 .. 33 .. 239 .. 240 .. 183 326, 329 .. 49 .. 61 .. 37 61, 281 .. 325 .. 75 .. 207 .. 310 .. 171 83, 108 .. 338 Digitized by Microsoft® LIST or CASES. xxm PAGE Rennie ti. Massie . . . . 327 Uepington v. Holland • • . . 7 Repton, White v. .. . . 77 Rex V. Aldenham . . . . 39 v. Bettesnorth .. ..168 II. Reiner . . . . . . 144 D.Wright 19 Rhoades, In goods of . . . . 176 Rhodes, Scott V. .. .. 61 Rieards, Hughes v, .. .. 229 Rice, Timbrell w 179 Richards, In goods of .. 174, 220 n — V. Humphreys . . 327 Richardson, In goods of . . 140 Ridgway v. Abingdon .. . 290, 296 Rippon, In goods of . . . . 55 Risdon, In goods of . . 180, 223 Ritherdon, Stockwell v. 98, 104 Roadnight v. Carter . . . . 299 Roberts, Hannah, In goods of 189, 203 V. Roberts 12, 13, 16, 207 Robertson v. Powell . . 84, 86 V. Smith . . . . 9 Robins, Barton v, .. ..117 D. Dolphin .. ..332 and Paxton v. Dolphin . 332 Robinson, In goods of 11,12,277 , Myner «... . . 32 Robson V. Robson •• ..341 Rochell ». Goude •• ..114 Rogers v. Goodenough . . .. 100 , Wright V. . . 234, 306 Rooke, Thorne w. .. 249,331 Roope, Briggs v. . . • . 183 Rosbotham and others v. Ros- botham 281 Rosser, In goods of •• 141,194 Rowley, Humpage ». .. ..317 Russell, In goods of . . 141, 148 Rutherford, Wright v 251 Ryde, In goods of . . . . 56 Ryder, In goods of .. •• 131 Ryves and Ryves v. Att.-Gen. . 304 V. Ryves . . 259, 275 S. Sadler, Sutton «. .. .• 18 Saunders, In goods of . . 78, 134 , Evans «i 300 Savage, In goods of . . . ■ 82 . ^t). Blythe .. .. 222 Sawbridge V. Hill .. ,.158 Sawtell, In goods of .. ..151 Scarborough,. In goods of .. 156 Scawen, Butterfield v 34 Schmidt, Strauss » 12 PAGE Scott V. Rhodes . . . . 61 Scrafton, Kenebel v. . . . . 81 Seaton t>. Sturch and another . 336 Seymour (Lord Henry), Euston (Earl)» 76 Seymour's (Lord Hugh) case.. 78 Sharland D. Sharland .. ..ISO Sharman, In goods of . . . . 157 Shawe and another v. Marshall and others . . . . . , 335 Shearman, In goods of .. 119 Sheldon I). Sheldon .. ..106 Shepherd v. Shepherd . . . . 80 Shiell, Herbert v. . . 204, 274 Shipton v, Rawlins . . . . 240 Shove ». Pincke .. .. 81 Sibthorp, In goods of . . .. 117 Silk, Faulder v. ., . . 20 Silver v. Stein 239 Simmons V. Deane .. .. 325 Simpson, Todd » 297 Sims, Tn goods of .. ..114 Sindrey, Larpent t). .. ..53 Skeats, Belbin v 305 Skelton, Young ij 198 Skipper v. Bodkin . . . . 333 «. Skipper .. .. 313 Slater ti. May .. .. 225,227 Slumbers, In goods of . . .. 192 Smethursti). Tomlin .. ..128 Smith, In goods of 15, 37, 127, 133, 157, 190, 194 V. Atkins . . . . 323 I). Cbrry . . . . 245 , Goodacre v. . ■ . . 29 V. Hoad . . . . 290 , Lister ». 11,256,314 V. MlUes . . . . 206 ». Pryce .. .. 179 , Robertson «... . . 9 V. Smith 73, 331, 336 , Sutton V. 16, 214, 233 D.Tebbitt .. 21,252 Smithson, In goods of . . . . 182 Smyth, In goods of . . . . 308 . V. Wilson .. .. 331 Snapee. Webb .. ..160 Solicitor-General, Wedderburn ». 1 02 Southall «. Jones .. .. 14 Southmead, In goods of 231,331 Southwell ». Findlay .. 178,192 Sparrow, In goods of . . . . 63 Sperling, In goods of .. .. 71 Spillesy, In goods of . . . . 301 Spooner v. Brewster . . . . 43 Spratt ». Harris . . . . 48 Sprigg ». Banks . . . . 275 Sprigge II. Sprigge . ■ . . 82 Digitized by Microsoft® XXIV LIST OF CASES. PAGE St. Clement Danes, Phillips v. , 59 Stack, In goods of .. ..204 Stackpoole, In goods of 201, 247 Staines u. Jones .. •• 298 V. Stewart and another 313 Stainsby, Naylori). .. .■ 135 Stainton, In goods of . . .. 160 Stanhope (Lord), Thynnew. -. 97 Stanley v. Bernes . . 234, 237 , Istedv 218 Steadman, In goods of . . 224 Steele, Cubbon v 52 Steibel, Constable B 60 Stein, Silver 0. .. .,239 Stephenson, In goods of .. 171 Stewart, In goods of 107, 183, 241 , Staines t). .. .. 313 Stidolph, Dickinson tJ. .. 108 Still, Brenchley t!. .. .. 10 Stobie, Hastilow ». .. 28,284 Stockwell V. Kitherdon 95, 104 II. Ritturdon.. .. 104 Stoddart, In goods of . . . . 147 , Lloyd » 219 Story, Long »." 238 - • " 15, 16 .. 235 .. 176 .. 110 .. 12 .. 121 .. 178 .. 262 .. 217 .. 336 Stracey, In goods of Stratton v. Ford V. Tinton Straubenzee v. Morick Strauss v. Schmidt . . . . Streaker, In goods of .. . . Stretch «. Pymm ■ • . . Strong, Ingram v. .. Stubington, Boxley v. .. . . Sturcb, Seaton V. Sudbury (Archdeacon of), Crosley b 237 Sumraerell v. Clements . . 336 Sunderland, In goods of .. 114 Surtees, In goods of 232, 276 Sutherland, In goods of 164,166 Sutton V. Drax . . . . 249, 331 B. Sadler .. .. 18 V. Smith 16, 214, 233 Swatman, Dickenson b. ..99 Sweetland B. Sweetland . . 70 Swinfen v. Swinfen . . . . 332 Swinford, In goods of . . . . 74 Symes B. Green .. .. 18 , Long B. .. .. 137 Tath am, Doe d., B. Wright .. 19 Taylor b. Dening . . . . 65 ■ B. Diplock ., ,, 155 B. Haygarth .. .. 210 B. Newton . • . . 208 Taylor b. Taylor •, Woodgate b. Taynton, Hannay o. Tebbit, Smith b. Thomas B. Baker B. Crowther. , Groom v. -, In goods of . B. Jones , Mitchell B. , Morgan b. V. Nurse B. Wall Thompson, Carless b. . , Day B. — — • , Wood B. . Thomson, In goods of . Thorncraft b. Lashmar Thorncroft b. Lashmar Thome b. Rooke -, In goods of 21, PAGE . 235 . 260 227 252 .. 219 .. 326 .. 24 .. 75 36,39 .. 28 .. 207 .. 322 .. 61 .. 329 .. 223 .. 319 .. 310 .. 330 .. 9 249, 331 13, 78, 79 .. 325 Thornton, Parkinson b. Thorold, In goods of .. .. 160 Thorpe, Morton b 279 Thwaite B. Galloway .. ..155 Thynoe (Lord) B. Stanhope .. 97 Tichborne v. Tichbome 233, 284, In goods of. 235, 331 .. 235 Timbrell v. Rice and another Tinniswood, Bell b. .. Tinton, Stratton b. Tippett B. Tippett Todd V. Simpson Tomkins, Watson v. .. Tomlin, Smethurst i>. .. Toony, In goods of Topping, In goods of Townley b. Watson Trasler, Cordeux v. , Cordew b. 179 .. 166 .. 176 .. 333 .. 297 .. 324 .. 128 .. 183 253, 341 .. 90 .. 295 .. 174 256, 335 Trim- Trevanion, Emberley o. Trimlestown (Lord) v lestown (Lady) .. .. 266 Truro (Baroness), In goods of 107 Tucker, Hingeston B. .. .. 251 , In goods of . . . . 47 Tugman b. Hopkins . . . . 42 Tugwell B. Hayman . . . . 207 Turner, In goods of .. 144,306 , Merryweather v. ..245, 253 B.Turner .. .. 173 Twells B. Clarke . . . . 297 Tyer B.Bell 48 Tyler, Evans B. .. .. 128 , Greville b. . . . . 123 Tyrrell, Jenner b. . . . . 260 , Marsh v. . . 22, 32 Digitized by Microsoft® LIST OF CASES. V. Vallance v. Yallanoe . . Vanhagen, Re .. Vega, In goods of Velho V. Leite . . Vere, Wellesley v. Veret, Duprez ». Veryard, Zeally v. Vickers, Billinghurst o. Vincent, Barnes v. , Habergham ». . . Vincenze v. Frederici . . Vines, Lean o. • . Vinnicombe v. Butler . . Vinyor's case .. PAGE .. Sll .. 63 .. IIO .. 129 .. 18 236, 298 .. 322 27, 117 .. 216 ..6,41 .. 155 .. 275 .. 74 .. 16 W. Wainwright, In goods of . . 309 Walcot ». Alleyne . . 25, 27 Walcott, Clogstoun «... . . 96 Walford, Dyke ». .. .. 1 Walker, In goods of . . . . 70 V. Deane . . . . 35 , Hillam v. 251, 330, 340, 341 «?. WooUaston . . . . 233 Wall, England ». .. ..202 , Thomas v, ., . . 61 Wallick, In goods of . . . . 130 Wallis v. Maugham . . . . 27 , Onslow*. .. .. 210 , Piponii. .. 186,245 , Queen's Proctor v. . . 283 Walton «. Jacobson .. 163,165 Wankford v. Wankford 206, 219 Ward, In goods of .. .. 12 , Doe d., Evers v. . . 86 , Reeves v. . . . . 207 Ware and Grove v. Claxton . . 297 Waring v. Waring . . 23, 27 Warren, In goods of .. 161,165 ,Hull«. 25 «. Kelson .. .. 153 Warwick (Earl of) v. Greville 173, 174 Waterhouse, Clarkson o. . . 327 Watkins, In goods of .. ..113 , Jessopv. .. .. 213 Watson, In goods of .. -.216 — — — , Jenny, deceased, In goods of .. .. 158 V. Magrath . . . . 80 «. Tomkins .. ..324 ' V. Townley . . . . 91 Watts, In goods of . . 216,' 224 , Ee 153 B. PAGE Weaver, In goods of .. .. 52 Webb, In goods of . . . . 9 , Snape « 160 Webster, In goods of . . . . 58 Wedderburn, Hawke v. 160, 178 ■!), Solicitor-Gene- ral 102 Weger, Panchard v 288 Weir, In goods of .. 171,244 Weldy, Johnson v. . . . . 275 Wellesley v. Duke of Beaufort 230 ». Vere .. .. 18 Wells t). Wells 286 Wenham v. Wenham . . . . 258 West, In goods of . . . . 67 V. Goodrick . . 321, 339 V. West 284 V. Willby 160 ■ " .. 98 .. 328 .. 290 .. 120 .. 89 81, 94, 119, 158 .. 309 .. 30 .. 93 .. 52 123,191 .. 77 .. 33 285 137 171 120 139 339 Weston, In goods of Westrope, Fyson v. Whaley, Isaacks ». Wharran v. Wharran . Whatman, In goods of Whatton, Podmore v. Wheeler, In goods of . . II. Anderson . . Whingates, Christmas v. Whiston, In goods of . . White, In goods of V. Repton D. White and Cato Whitehead, Jackson v. ■ , Reg. V. . . Whitehouse, Moore v. • . Whitham, In goods of. . Whittle, Bone v. V. Keats Widdrington, In goods of Wilby, West v... Wildman, Brown v, Wilkinson v. Adam . . Williams, Bewsher v. .. ». Coventry . . ■». Davies B. Goude .. 108 .. 160 183, 274 80, 104 .. 329 10,12 325, 327 .. 331 - V. Henry -, In goods of -, Jones V. - V. Jukes -, Owen V. -andBennet24,33 319,330 71, 143, 184 .. 252 .. 179 .. 305 -, Procurator-General ». 234 , Queen's Proctor v. 283, 291, 313 Willmott, In goods of . . ..Ill Willoughby, Hay t) 225 C Digitized by Microsoft® XXVI LIST OF CASES. PAGE Wilmot, Horton v, .. .. 332 Wilson, In goods of . . . . 7.3 V. Beddard .. .■ 65 , Smyth t) 331 Winchester's (Marquis of) case 22 Windsor (Dean of), Attorney- General V. .. .. , . 17 Wingate, In goods of . . . . 56 Winter, In goods of . . . . 48 Wire, In goods of . . . . 201 Wiseman u. Wiseman . . . . 337 Witts, Horrella. ... ..233 WoUaston, In goods of .. 38 Wood and others v. Thompson 319 , Hargreaves v. 141, 300 e. Medley .. ..141 1). Wood . . 90, 94 Woodgate J). Taylor .. .. 260 Woodham, Pitt v 208 Woodly, In goods of . . . . 68 Woods, In goods of .. 109,129 Woodward, In goods of . . 92 Woollaston, Walker v. . . 233 Woolley ». Gordon .. .. 239 Worman, Maria, In goods of .. 170 Wright, Doe d., Tatham v. . . 19 , In goo^s of . . . . 71 Wright V. Lord Cadogan , Rex V. . . V. Rogers V, Rutherford Wyatt, In goods of , Ingram v. Wychoff, In goods of Wyckoff, In goods of Wylie, Enohin v. Wyman v. Ashwell Yelloly, Nash v. Young V. Dendy V. Ferrie V. Hughes -, In goods of -, Maule II. - V. Oxley - V. Skelton Z. PAGE .. 35 .. 19 234, 306 .. 251 .. 124 .. 34 .. 216 .. 193 .. 49 .. 256 .. 330 .. 322 254, 265 199 191, 206 .. 271 .. 199 .. 198 Zeally v. Veryard 322 Digitized by Microsoft® jnmipks anb "^xKdxa THE COURT OE PEOBATE. THE COURT. "^ Origin of.'\ — At what time, or in what manner the jurisdiction in cages either of testacies or intestacies was originally acquired by the church does not distinctly appear. Previously, however, to the reign of Edw. I. this juris- diction had become generally vested in the clergy and usually in the bishop of the diocese where the goods were situate, although, in many cases, it was exercised up to the year 1857 by lords of manors and others. The bishop, being the usual judge in such cases, was, from this circum- stance, styled the ordinary, by way of distinction from his extraordinary or peculiar jurisdiction (a). Constitution o/".] — The court consists of a judge (6), or the judge of the High Court of Admiralty (c) sitting for him ; of three registrars, two record keepers and one sealer for the principal registry ; one district {d) registrar for each district registry, and clerks and other officers as the judge may think fit (e). (a) Dylte v. Walford, 6 Moore, (c) Court of Probate Act, 1858, P. C. C. 490. s. 1. (h) Court of Probate Act, 1857, (<«) Ibid. 1857, a. 14. B. 5. («) IWd. B. 14, B B. Digitized by Microsoft® Districts. Counsel. CONSTITUTION OF THE COURT. The districts are set out in the schedule to the Court of Probate Act, 1857, see Appendix: I. Barristers and advocates are equally admitted to practise in the court, and have amongst each other the same pre- cedence as before the Judicial Committee of the Privy Council (/). Under this section it was held that a barrister, who had not been admitted as an advocate, was not entitled to be heard in non-contentious matters (^). This disability is now removed (A). All motions required to be made before the court must be made by counsel (i). Attorneys, &c. Attorneys and solicitors have the power to practise in the court, and the commissioners for taking oaths in Chancery are also commissioners in this court (A) ; and attorneys and solicitors are subject to the authority of the court as in the equity or common law courts (I). Commis- sioners. Jurisdiction of.] — The voluntary and contentious juris- diction and authority in relation to the granting or re- voking probate of wills and letters of administration of deceased persons now vested iu, or which can be exercised by, any court or person in England, together with full authority to hear and determine all questions relating to matters testamentary, shall belong to and be vested in her Majesty, and shall, except as hereinafter is mentioned, be exercised in the name of her Majesty in a court to be called the Court of Probate {m). The exception alluded to refers to suits for legacies and the distribution of residues, which were formerly entertained by the eccle- siastical courts, but are expressly exempted from the (/) Court of Probate Act, 1857, P. & M. 3. »■ *0. (A) Court of Probate Act, 1857, Cg) Ludlom, In goods of, 27 L. s. 45. J., P. & M. 7. (I) Court of Probate Act, 1858, Qi) Coui-t of Probate Act, 1858, s. 36. s- 2. (to) Court of Probate Act, 1857, (i) Drake v. Morgan, 27 L. J., s. 4. Digitized by Microsoft® JURISDICTION OF THE COUKT. jurisdiction of the present court (w) by the 23rd section of the act. The Court of Probate shall be a court of record, and such court shall have the same powers, and its grants and orders shall have the same effect, throughout all England, and in relation to the personal estate in all parts of Eng- land of deceased persons, as the prerogative court of the Archbishop of Canterbury, and its grants and orders re- spectively, now have in the province of Canterbury, or in the parts of such province within its jurisdiction, and in relation to those matters and causes testamentary and those effects of deceased persons which are within the jurisdiction of the said prerogative court ; and aU duties which, by statute or otherwise, are imposed on or should be performed by ordinaries generally, or on or by the said prerogative court in respect of probates, administrations, or matters or causes testamentary within their respective jurisdictions, shall be performed by the Court of Probate ; provided that no suits for legacies, or suits for the distri- bution of residues, shall be entertained by the court, or by any court or person whose jurisdiction as to matters and causes testamentary is hereby abolished (o). The suits Suits fori for legacies and distribution of residues is therefore now "*^' left entirely to the Court of Chancery, or in some possible cases to the common law courts. A large proportion of the before-mentioned jurisdiction may be and is exercised without question. A testator may make his will and all parties concerned may acquiesce in his right and capacity to do so, but before the will can be formally approved, it must receive the stamp and authority of the Court of Probate, which has to be judicially satisfied that the will propounded is really a wiU and the will of the deceased. Of course where no question is raised by any- one, the proceedings are generally easy and simple ; such proceedings are called Non-contentious, Common form or (») Court of Probate Act, 1857, 3. 23. (o) Ibid. b2 Digitized by Microsoft® JUBI8DICTI0N OF THE COURT. Non-con- tentiona business. Contentions business. Voluntary, meaning the same thing, and defined to be the. business of obtaining probate and administration where there is no contention as to the right thereto {p), including the passing of probate and administrations through the Court of Probate in contentious cases where the contest is terminated, and all business of a non-contentious nature to be taken in the court in matters of testacy and intestacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or administra- tion; nevertheless, in these cases questions of diflSculty sometimes arise. If such arise in the course of obtaining probate or administration in the principal registry, the registrar may and generally does direct it to be brought before the judge in open court on motion. Should it arise in the country the district registrar is not allowed to decide it himself, but he is directed to " transmit a statement of the matter in question to the registrars {i. e. the principal registrars) of the court, who shall obtain the relation of the judge thereto" {q). But matters do not always run so smoothly. Dis- appointed relatives may contest the will propounded, on various grounds, incapacity, undue influence, informal execution, subsequent revocation, &c. &c. ; or, if the deceased die intestate, a contest may arise as to whom the letters of administration should be granted. The pro- ceedings taken in such cases are called Contentious business. And so various are the questions thus arising that the statute has not attempted to -define them specifically, but has included under this term everything that is not com- mon form, except the warning of ca,veats. This warning of caveats, therefore, stands in solitary grandeur, and is neither contentious nor common forms, as far as the statute is concerned, though in the rules it is included with non- contentious business (?•). The statute imposes on the court the " voluntary and ip) Court of Probate Act, 1857, 8.2. (2) Ibid. s. 60. (?•) See statement at commence- ment of Rules, 1862. Appendix n. Digitized by Microsoft® JURISDICTION OP THE COURT. contentious jurisdiction and authority in relation to the granting or revoking probate of wills and letters of adminis- tration " (s), " together with fuU authority to hear and determine all questions relating to matters and causes testamentary," except as to the suits for legacies and dis- tribution of residues (<). The question, therefore, arises in what cases the court can exercise its jurisdiction, either to grant probate or administration with the will annexed, if there is a will, or to grant letters of administration if there is not, or to revoke the same when granted ; and this depends on the following considerations : — WILL. I. What is a will? n. The subject-matter of the estate, i. e., of what it consists. III. Where the estate is situate. rV. Where the testator or intestate died. V. Where the will (if any) was made. The first and last of these points apply to those cases only where a will exists, or is alleged to exist ; the others to cases whether there be a will or not, I. What is a Will ? A testament is defined by Swinburne as follows: — " testamentum est voluntatis nostra justa sententia de eo quod quis post mortem suam fieri voluit :" or, as he explains his definition, " a testament is the fiill purpose of our will touching that which we would have done after our death." 1. It must be "justa" as he defines it, "just " meanmg lawM, solemn tod complete. 2. It must be "sententia," the advised purpose or destination of the testator's mind. (s) Court of Probate Act, 1857, s. 4. 't) Ibid. s. 23. Digitized by Microsoft® 6 WILL. What is a will. 3. It must be voluntatis nostras, " of our free will," not urged by violence or threats, or misled by fraud. Lastly, it must be to take effect on our death, " for the testament respecteth that which is to be performed after the death of the testator, and, therefore, so long as he liveth, the testament is of no force ; but doth take his strength and is confirmed by the testator's death" (m). In the course of this work we shall find instances of wUls attacked on each of the above grounds, besides those other grounds which have resulted from the requirements of our common law and acts of parliament. Form of document. Torms entitled. Form. An instrument in any form, whether a deed poll or an indenture, if the obvious purpose is not to take place till after the death of the person making it, and till then is revocable, shall operate as a wUl {x). Where a paper contained a direction to executors under the will of the deceased, it was held to be testamentary on the ground that it was to take effect after death (y). When a paper is not intended as a will, but as an in- strument of a different nature, if it cannot operate in the latter, it may in the former character ; for the form does not affect its title to probate, provided it is to carry into effect the intention of the deceased after death (z). Where the deceased executed on the same day three indentures, described as deeds of gift, by which he assigned to trustees all his property for the benefit of his three children : — Held, that as it appeared from the contents of such documents, that they were to take effect only on the death of the deceased, they ought to be admitted to pro- bate, as together containing the wiH of the deceased (a). (m) Swinburne, vol. 1, part 1, Lee, 3. ^- ^- («) Masterman v. Maberly, 2 (ai) Sabergham v. Vincent, 2 Hag. 247. Ves. jun. 232. («) Morgan, In goods of, 36 L. KV) Sagnall v. Downing, 2 J., P. & M. 98. Digitized by Microsoft® WILL. 7 Where the deceased executed in the presence of two Forms entitled witnesses a paper to the effect " I wish my sister to have *° V^°^^^- my savings bank book for her own use;" on the same day she gave her sister the book and authorized her to draw out all the money in the bank, but from some in- formality, that was not done, in the deceased's lifetime : — Held, that from the terms of the paper itself and from the declarations of the deceased at the time she executed it, the court was satisfied that the deceased intended it should operate on her death, and that it must be admitted to pro- bate (5). Where B., on his death bed, dictated a writing in the form of a letter, but attested by two witnesses, requesting C, the devisee for Hfe of certain estates under B.'s wiU, to consent to charge them with 10,000?., to be raised as soon as possible after B.'s death, adding that he knew the request was not legal: the court decreed probate of the paper on motiouj in order that the question of construction might be brought before a court of equity (c). Where the deceased, who was a soldier, wrote to his mother, "I have been very successftil, and it is now in my power to do what I always desired, that is, to enable you to Hve comfortably the remainder of your life : as we have been in continual war, here, I have made my will, so that if any misfortune should happen to me, besides the one-half of my fortune, which you know who has a right to, I leave you the other, except a few legacies to my brothers and sister: — Held to be testamentary (d). This was before the Wills Act, but the principles are the same if the preliminaries as to attestation had been observed; it might also even now be good as the will of a soldier engaged in active service. So where A., a mariner, by a will duly executed in (J) Cock V. Coolie, 36 L. J., P. & deceased, 2 Sw. & Tr. 119; 30 L. J., M. 6. P- & M. 85. (c) In the goods of E. Mvm&y, (d) Meprngtony. SoUana,2Lee, 107. Digitized by Microsoft® 8 WILL, Forms entitled January, 1857, bequeathed to B. a share in the residue of to probate. j^-^ pj.(5perty, and appointed S. and R. his executors; in November, 1857, being then with his ship at. Port Ade- laide, he wrote a letter to S., relating to business, which contained the following passage : " Mem. — I desire, if it should please God to take me before I see you again, that you and E.. will prevent B. or his children, from ever having a fraction of my property ;" on the death of A., Held, that, under 1 Vict. c. 26, s. 11, this letter was entitled to probate as a codicil, though it did not relate exclusively to matters of a testamentary nature (e). If there is proof either in the paper itself, or from clear evidence dehors, 1st, that the writer intended to convey the benefits by it, which will be conveyed, if the paper be considered testamentary ; 2ndly, that death was the event to give it effect, an instrument, whatever be its form, may be admitted to probate (/). And the application of the rules of evidence at common law to the Probate Court, have made no difference in this respect, for the testamen- tary character of a paper writing may, in the present court, be proved by parol evidence {g). Where the internal defects are supphed by evidence the instrument will be entitled to probate ; as where B., having been informed that he could not recover from the illness he then laboured under, expressed a wish that his wife should be in a position to receive at his death certain sums of money in savings banks, and signed, in the pre- sence of witnesses, two orders on a savings bank, to pay to his wife, at any time she might apply for the same, any money ; B. died on the following day : the court granted administration with the two orders, as together containing the win of B. annexed, to his widow (Ji). So where a testator, shortly before his death, executed («) Pm-lter, In goods of, 28 L. J., {g) English, In goods of, 3 Sw ^- ^ M- 91- & Tr. 586; 34 L. J., P. & M. 5. (/) King's Proctor v. Baines, (Ji) In the goods of Peter Mars- 3 Hag. 221. ge„^ dcc.eased, 1 S\v. & Tr. 642. Digitized by Microsoft® WILL. 9 a paper whicli began, " I hereby make a free gift to A. B. Forms entitled of," &c., tbe court being satisfied that he intended the *°P™^^*«- operation of the paper to be dependent on his death, granted probate of it^as a codicil to his will (J), A married woman, who by her marriage settlement had a power of appoiatment over certain personal property, executed on the same day two instruments on separate papers : — by the first, she gave all her property to her sister for her sole use fi:om the date thereof; by the second, after referring to the first as a deed of gift and reciting its contents, she expressed her confidence that her sister would fiilfil her wishes as to certain specified be- quests; immediately after execution, she gave, both in- struments to her sister, who kept them until after the deceased's death ; upon proof that the deceased had always treated these instruments as her will, and that she retained the control over her property until her death, the court admitted them to probate (k). Where a testatrix directed her executors to dehver certain sealed up parcels unopened to certain persons named, the court decreed these parcels to be opened in the presence of the registrar, a schedule to be made of the contents, and to be proved as a codicil (Z). Of course this could not now be done on account of the operation of the WiUs Act. On the other hand, where a person claims probate of a Forms not en- paper signed and attested, but not on the face of it clearly ^^^ "P"^"" testamentary, the burden of proof is on that person to satisfy the court that it was executed animo testandi (rn). And where a paper is not dispositive on the face of it, nor shown to be so by extrinsic evidence, it is not entitled to probate (ji). (i) Bobertmn t. Smith, 39 L. J., {m) Thorneroft and another y. P. & M. 41. Laslmar, 2 Sw. & Tr. 479; 31 L. (Ji) Weib, In goods of, 33 L. J., J., P. & M. 150. P. & M. 182. (») Qriffin and another v. Fe- (T) Pelhatn y. Newton, 2 Lee, rard, 1 Curt. 97. 46. Digitized by Microsoft® 10 WILL. Forms not en- titled to pro- bate. Mere revoca- tion. A testamentary paper not disposing , of personalty or appointing executors, but simply appointing a guardian of the testator's children, is not entitled to probate {p). Where a paper is propounded as a codicil, and is not per se of a testamentary character, and the internal defect of the instrument is not supplied by evidence, it wiU be rejected {q). It has been held that a mere reyocation may be entitled to probate. Thus a codicil, not containing any disposition of property but simply revoking all former wills, was held to be of a testamentary character, and, if proved, to be entitled to probate (r). Even though not a codicil; as where on the death of H. his will was found cancelled, and beneath the signature there appeared this memorandum, which was duly executed, " This my last will is hereby cancelled, and as yet I have made no other :" the court admitted the memorandum to proof («). But these cases, which always seemed questionable, are now virtually overruled, for Lord Penzance has held in a recent case(f) that an instrument which disposes of no property, but simply declares an intention to revoke a previous will, is not a wiU or codicil, and is, therefore, not entitled to probate ; " The statute draws a distinction between will and codicils and 'some writing:' I am clearly of opinion that this is ' some writing,' declaring an intention to revoke a previous wiU, and, being only a writing of that character, cannot be called a wiU." — Lord Penzance. Even though the paper appear in the form of a will, yet, if not executed animo testandi, it wiU be set aside (m). Again, a duly executed paper, testamentary on the face (p) Morton, In goods of, 33 L. J., P. & M. 87. (j) Coventry v. Williams, 3 Curt. 787. (?•) Brenohley v. Still, 2 Roberts. 162. (s) Hicks, In goods of, 38 L. J., P. & M. 65; see also Hwiiard, In goods of, 35 L. J., P. & M. 27. (t) Fraser, In goods of, 39 L. J., P. & M. 20. (tt) Mcliolls V. MchoUs, 2 Phill. 180. Digitized by Microsoft® WILL. 1 1 of it, is not entitled to probate if it is clearly proved, by Forms not en- parol cYidence, that it was executed by tbe deceased with- ^^^^ *° P'^°" out any intention that it should affect the disposition of his property after death; the Court of Probate, however, will not hold itself bound by the verdict of a jury to that effect, but will itself weigh the evidence on which such verdict was founded (x). The test of the testamentary character of a paper is, Irrevocable, is it revocable? if it is irrevocable it is no testament, as it must, in that case, clearly have an immediate effect, and the essence of a will is, that it is ambulatory during the lifetime of the maker ; as where the deceased executed, in the presence of two witnesses, a document called an agreement between himself and his grandson; by this docimient he agreed to let and the grandson to take on lease certain lands on certain conditions; the agreement contained a clause by which it was directed, that in case the deceased died before the expiration of the lease, the rents should be paid to his executors for the benefit of all his grandchildren, and that, on the termina- tion of the lease, the executors should dispose of the land as therein directed ; the deceased never spoke of this docu- ment as a will or codicil or testamentary paper: — Held, that inasmuch as this document was not revocable, and was intended to have an immediate operation, it was not testamentary and could not be admitted to probate (y). Even though the wiU itself declares that it is irrevocable, it is still revocable; "the reason," says Swinburne, "is, because the clause derogatory of the power of making testaments, is utterly void in law ; nor can a man renounce the power or liberty of making testaments ; neither is there any cautel under heaven to prevent this liberty, which also endureth whilst any life endureth" (z). The rule seems to be, that if a paper purports of itself to (a;) Zister and others v. Smith, (y) JSoHnson, In goods of, 36 L. 3 Sw. & Tw. 282 J 33 L. J., P. & M. J., P. & M. 93. 29. («) Swinb. 504. Digitized by Microsoft® 12 WILL. Forms not en- titled to pro- bate. Contingent. be testamentary, the party who opposes its admission to probate must, in order to get rid of it, show to the court that it was not made animo testandi ; if the purport be equivocal, it must be shown by the party setting it up, that it was made animo testandi (a). A will may be made contingent on an event. Then the non-happening of the event amounts, as it were, to an imphed revocation, as where a testator's will commenced, " In case I die before I return from the journey I intend ;" this was held a contingent wUl, and avoided by the testa- tor's return (b). An unattested letter, purporting to dispose of realty and personalty, and conditional on the deceased's dying during a visit to Ireland, was not admitted to probate in common form (the parties prejudiced being minors), the deceased having returned from Ireland, and having subsequently executed a wiU attested by three witnesses, disposing of land (purportiug to be bequeathed in the letter), and ap- pointing an executrix and guardian of his children, but not referring to the letter nor to his personalty (c). A will commenced thus: — "This is the last will and testament of me G. T. E., that in case of anything hap- pening to me during the remainder of the voyage, &c., I give and bequeath," &c. Held, that it was a contingent wiU((^). Where a testator made a will in case of a contingency, " Should anything happen to me on my passage to Wales or during my stay," and returned to his home safely ; the court held that the will was conditional, and the contiu- gency not having occurred, that it was ineffectual (e). Courts, however, are cautious how they construe condi- tions of this sort (/). (a) Coventry Y.WilliamSyZCvitt. 791. (J) Pa/rsons v. Lanoc, Ambl. 657. (o) Ward, In goods of, i Hag. Ecc. E. 179. (, 32 L. J., (s) Miohell v. Tlwmas, 5 No. of P. & M. 68. Ca. 610; affirmed on appeal, ib, («) ffastilom y. StoHe, 35 Ij. S ., 614. P. & M. 18. (<) MiddUhnrst v. Johnson, 30 Digitized by Microsoft® WILL. 29 its contents stated to her : — Held, that there was evidence Knowledge of to go to the jury that A. knew and approved the contents °°"'^°'^- of the will, and the jury having so found the court pro- nounced for the will ; the will so made being unsuccess- fully opposed by the next of kin, the court, taking into 'consideration the circumstances under which it was made, that there was evidence of declarations of the testatrix in favour of the next of kin, and that the next of kin had not been allowed by B. and C. to see the testatrix during her last illness, allowed the costs of the next of kin out of the estate (ar). The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding it(y)- A person who is deaf and dumb may make a will (z). Deaf and " It is essential in law that the instructions should be signi- ^"'^"• fied, but it is not essential that they should be signified in words : thus, a person bom deaf and dumb, or become deaf and dumb after birth, may convey his meaning by signs " (a). But where a testator who was deaf and dumb made his wOl by communicating his testamentary instructions to an acquaintance by signs and motions, who prepared a will in conformity with such instructions, which was afterwards duly executed by the testator ; the court required an affi- davit from the drawer of the will, stating the nature of the signs and motions by which the instructions were com- municated to him, and ultimately refused to grant probate on motion (6). And where probate was sought of the wiU of a testator who was deaf, dumb and illiterate, the court required evi- dence on affidavit of the signs by which the testator had (a!) Ooodacre v. 8mit%, 36 L. J., {a) Fairtlougli v. Fairtloiigh, P. & M. 43. Milw. Ir. Ecc. E. 491. (y) Cleare v. Cleare, 38 L. J., P. (S) Omston, In goods of, 2 Sw. & & M. 81. Tr. 461 ; 31 L. J., P. & M. 177. (%) Co. Litt. 42 b. Digitized by Microsoft® 30 WILL. Deaf and dumb. Blind. Illiterate. Old, Drunk. signified that he understood and approved of the provisions of the will before making the grant (c). The rules direct the registrars not to allow probate of the will of blind persons to issue unless they have pre- viously satisfied themselves that the will was read over to the testator before its execution, or that he had at such time knowledge of its contents (ef). The district registrars are directed when information is deficient on these points to communicate with the principal registry (e). The principle of these rules is the same as that which guided the extinct courts (y). Where the sight had wholly failed and the use of speech was almost lost at the time of execution of a codicil, such portions of it as were proved to have been read to and approved by the testator were decreed for ; the remainder being condemned for want of knowledge (ff). As to illiterate persons, they are included in the rules in the same category as the blind; see Rule 71, P. K., and Eule 81, D. E. Great age " raises some doubt of capacity, but only so far as to excite the vigilance of the court ; for the law allows a person at any age (h) to make a will, provided he retains the disposing faculties of his mind " (i), " Intoxication is, in truth, temporary insanity : the brain is incapable of discharging its proper functions, there is temporary mania ; but that species of derangement, when the exciting cause is removed, ceases; sobriety brings with it a return of reason" {h). — Sir John NichoU. Where a testator was proved to have been not pro- perly a madman, but an habitual drunkard, who, under (o) Geale, In goods of, 33 L. J., R. 170. P. & M. 125; a Sw. & Tr. 430. (A) This must be understood as ((f)Rule71, P.E., Non.c.;Eule, any age after twenty-one, I Vict. 81,D.E. c. 26, s. 7. (e) Rule 81, D. R. (i) Kinleside v. -ffaj'more.SPhill. (/) Mncham v. Edward, 3 Curt. 461. ^3- (*) Wheeler and another v. AU (g) Newton-j. 5es<,Milw.Ir. Ecc. derson, 3 Hag. Ece. R. 602. Digitized by Microsoft® WILL. 31 the excitement of liquor, acted in all respects very like a Drunk, madman ; on it beiag shown that at the time of making the will the testator was not under the influence of liquor, the will was supported (Z). 2. Capacity defective hy the act of others.^ — The party propounding a will must show it is the act of a " free and capable testator." — Parke, B., in Barry v. Batlin (m). Of course if actual force is used the execution of a wUl, Force, like every other act which presupposes volition, is of itself void. " If it should be demonstrated that actual force was used to compel the party to make the will, there can be no doubt that, although all the formahties re- quired had been complied with, such a wiU could never stand " (m). But it is not requisite that actual force should be used, and then the cases melt imperceptibly through the diffe- rent shades of violence, of noise and clamour, of impor- timity and the like, till they come to be classed under the general head of undue influence. It cannot be doubted on the one hand that a person. Undue in- who is barely testable if left to himself, may be of such j "^'^'^®' ^ ^ impaired strength of mind as renders him incapable of offering resistance to designing persons among whom he is thrown; any more than it can be denied on the other hand, that not all kinds of influence, acting on some degree of mental sluggishness or even weakness, wUl sufiice to displace a last will, provided there remain sufiicient appre- hension of the thing done and there exist a purpose of doing it (o). A pressure of whatever kind, whether it acts on the fears or the hopes of an individual, if so exerted as to overpower the volition, without convincing the judgment, is a species of restraint under which no valid wiU can be made (p). (I) Aw-ey V. Sill, 2 Add. 206. (o) Bearey. Mlmyn, 1 No. of Ca. (jn) 1 Cnrt. 638. Ui. (n) MountaAn v. Bennett, 1 Cox, (^) Hall v. Hall, 37 L. J., P. & Ch. Ca. 355. M. 40. Digitized by Microsoft® 13. 32 WILL. Undue in- Where there is a great change of disposition and a total fluence, what departure from former testamentary intentions long ad- hered to, it is material to examine the probability of the change, especially if, at the time of making the latter dis- position, the capacity is doubtful ; still more if the person in whose favour the change is made, possessing great influence and authority, originates and conducts the whole transaction {q). A person who can understand and answer questions rationally, may still not be capable of making a will for all purposes: the rule of law is that the com- petency of the mind must be judged of by the nature of the act to be done and from a consideration of all the cir- cumstances of the case (?•). Where the will of a married woman (obtained while she was in an extremely weak state, nine days before death, by the active agency of the husband, the sole executor and universal legatee) wholly departed from a former will, deliberately made a few months before, the presumption is strong against the act; and the evidence not being satis- factory, the will was pronounced against, and the husband was condemned in costs («). Where a will was made by a single old woman of weak mind, though not an idiot or imbecile, in favour of a person with whom she was living, an arbitrary and im- perious woman of strong understanding, who had acquired that degree of influence over her which has been found to exist ia other cases, and which has on some occasions been ascribed to magic, namely, the power which a strong mind exercises over a weak one : though there might have been communication held with the deceased, which would have enabled her to make a valid will; yet with respect to the will in question their lordships held that Mrs. Eawles (the party with whom deceased lived) se scripsit hceredem (?) Marsh T. Tyrell and Hard- {s) Myner v. Rolinson, 2 ing, 2 Hag. Ecc. E. 87. Ecc. R. 179. (r) lb. 122. Digitized by Microsoft® WILL. 33 and that there was not sufficient evidence that the deceased Undue in- was a free agent in the matter (t). fluence. On the other hand, the influence to vitiate an act must What ia not. amount to force and coercion, destroying free agency, and there must be proof that the act was obtained by this coercion (m). No influence which she may have gained over him, by making herself useftil, nay necessary to his existence^ or by ingratiating herself through any attractions which she might possess, or by constantly watching his inclina- tions, or even turning his weaknesses to her account, would be sufficient to displace a will made tmder the influence of such appliances, provided there existed the discerning understanding and the willing mind {x). If a testator be circumvented by fraud the testament Praud, loseth its force (y). Under a plea of undue influence, evidence cannot be given that the execution of a will was obtained by the plaintiff instilling into the mind of the deceased, fatee and delusive notions as to the conduct of the defendants: such evidence is admissible only under a plea of fraud ; the court will at the trial allow pleadings to be amended by adding a plea on the terms of adjournment, if desired by the other side, and payment of the costs of the day {z). A false representation respecting the character of an individual to a weak old man, for the purpose of inducing him to revoke a bequest made in favour of the person so calumniated,'is a strong instance of fraud (a). "Where it appeared that an old and infirm testator, who had bequeathed a legacy to A. B., had been induced, by false and fraudulent representations with reference to the (<) CoaTtrofts v. RarvUs, i No. of (y) Swinb. Part 1, sect. 3, plac. Ca. 237. 32. (k) Williams v. Oondeand Ben- (a) White v. White, 31 L. J., P. net, 1 Hag. Ecc. K. 581. & M. 215. (^\ j|j_ (a) Allen v. WPherson, 1 H. of L. Ca. 207. D Digitized by Microsoft® 34 Praud. WILL. Instructions. Error. conduct of A. B., made to him for the purpose by C. D., to make a subsequent codicil revoking that legacy and substituting for it a much smaller legacy, the effect of which, would be to give a larger share to C. D. than he otherwise would take, the Ecclesiastical Court would not, under such circumstances, grant probate of the revoking codicil (J). Mere evidence of execution of a will and codicil by a person of weak and inert mind, appointing his attorney and agent sole executor and almost universal legatee of a large property, is insufficient without proof of instructions by the deceased, instructions for the will being given to the soHcitor who prepared and attested it by and in the handwriting of the executor's father (also the deceased's co-agent and attorney), the codicil being prepared exclu- sively for his own benefit by the executor, in whose house the deceased was living apart from his family; and other circumstances strongly inferring fraud and circumven- tion (c). Though instructions are not necessary where the capa- city is not doubtful, yet where imposition and custody are suspected, the defect of instructions is extremely material, more especially where the writer (of the wiU.) makes himself executor. — Per Sir William Wynne in Middleton V. Forbes (d). Where a married woman makes a wiU on the erroneous presumption that her husband is dead, and probate of it is granted, the husband, on proof of his identity, is entitled to call in and revoke the grant (e). Testator duly executed two inconsistent wiUs on the same date, and written on different sides of the same sheet of paper; evidence was admitted to show that the deceased signed one of them only as her wiU, and signed the other (i) Sutterfieldy. SoawenjqpiOiiA. in 1 H. of L. Ca. 208. (o) Ingramy. Wyatt,\ Hag.Ecc. E. 384. ((Z) Cited in Ingram t. Wyatt, 1 Hag. Ecc. E. 398. (e) Bramhy v. Saineg, 1 Lee, 120. Digitized by Microsoft® WILL. 35 by mistake; the court granted probate of the paper signed Error, by the deceased with the intention that it should operate as her will, and not of the other paper (/). In the absence of incapacity, undue influence or fraud. Mere omission, the omission to insert in a will certain legacies for which a testator had given instructions, does not invalidate the wiU, if at the time of its execution its contents are known to the testator {g). 3. Capacity defective hy operation of Law. ^ By 34 & Married 35 Hen. 8, c. 5, s. 14, aU wills or testaments made of any ^°™*°' manors, lands, tenements or other hereditaments, by any woman covert, shall not be taken to be good or effectual ia law. By the Wills Act, 7 WiU. 4 & I Vict. c. 26, s. 8, no win made by any married woman shall be valid, except such as might have been made by a married woman before the passing of that act. A feme covert, where lands are conveyed to trustees, may have the power of appointing the disposition of such lands held in trust for her after her death, which appoint- ment must be executed like the wiU of a feme sole (A). A deed of appointment by a feme covert, was held suffi- cient indication of her intention that property should con- tinue personalty against her heir claiming it, as ineffectually disposed of (e). And where a woman was entitled to the trust of a rever- sion in fee of lands, and reserved to herself, by articles previous to her marriage, a power of disposing of all her estate to such uses as she should think proper : and she afterwards made an appointment in favour of her husband and children ; this appoiatment was held good, although no conveyance of the reversion was ever executed {k\ (/) Nosmorthy, In goods of, 34 Ca. 99. L. J., P. & M. 145. (*) Walher t. Beane, 2 Ves. {g) Mitchell T. Gard, 32 L. J., 169. P. & M. 129. (fi) Wright v. Lord Cadogan, 1 (A) Casson v. Bade, 1 Bro. Ch. Bro. P. C. 486. D 2 Digitized by Microsoft® 36 WILL. Married woman. Assent of husband. The meaning of the 8th section of the.Wills Act, 1 "Vict. c. 26, is that " a married woman shall not make a will dis- posing of any property, except such property as she was competent to dispose of before the passing of the act" (m). —Wood, V.-C. And a general devise by will, executed after the 1st January, 1838, operates as an execution of a power of appointment rested in the testator after the execution of the wiU, and the 8th section does not prevent a general devise by a married woman from operating as such an appointment (w). But when the fee simple is conveyed to a feme covert, her power of disposition over it seems gone. For where there was a devise in fee to a feme covert, with a power to dispose of the estate without the control of her husband, it was held, such a power was void, as. being inconsistent with the fee given her in the first instance (o). She may make a will by her husband's assent. Where a married woman, having power to dispose of a fimd by will, made a will disposing of that fund and also of another ftind over which she had no power, and ap- pointed her husband her executor, and he proved her will , generally : — Held, that as to the latter fund the will was vahd as being made ex assensu viriyp^, A married woman made a will appointing executors, and died in the lifetime of her husband, who, by deed, confirmed the will, and consented to the same being proved; the court granted to the executors administration with the wiU annexed {q). So where by settlement previous to the marriage of A., the income of certain personalty was settled to her separate use for life, with a power to appoint the principal by will ; during her lifetime she invested the savings of the pro- Cm) Bernard v. Minslmll, Johns. & P. 192. ^^^- (i*) Ex parte Fane, 16 Sim. (n) Thomas v. Jones, 31 L. J., 406. *-""• '^^^- (?) Patnela, In goods of, 31 L. (o) GoodhiUf. Brigham,l'Bos. J., P. & M. 158. Digitized by Microsoft® WILL. 37 perty in stocks and shares in her own name, and died in Married the lifetime of her husband, having, with his express con- '^°'"''"- ^ sent, made a will disposing of all her property, settled and assent. unsettled, and appointing executors; her husband died shortly afterwards, without having revoked his consent; after his death probate of A.'s will was granted to her executors by a district registrar, Kmited to such property as she had by the settlement power to appoint, and had appointed; the court, with the consent of the personal representative of the husband^ revoked the limited probate, and granted general administration, with the wiU annexed, of her effects to the executors (r). E. S. died on the 19th of January, 1858, two days after EepuWication her husband's death, leaving a wiU made during her cover- ^^^^^ "^ ^" ^ ture, which had not been repubhshed after her husband's death ; K. S. had no power under any instrument to make a will during coverture; at the time of the death of her husband and herself there was invested in the husband's name, in the 3/. per Cent. Annuities, with monies of his, a sum of money which had always been treated by the husband and wife as her separate property, the same being the savings of the wife of presents made to her by her hus- band ; by his will the husband declared that the said sum was the sole property of his wife: — Held, that the said monies were the separate estate of the wife, her husband being, as to them, a trustee for her, and consequently might be disposed of by a will made during her coverture ; but that, as she survived her husband, probate should be granted limited to such property as she had power to dispose of («). If a married woman make a will, even with the consent of her husband, and survives him, it must be republished to become entitled to a general probate. For where by ante-nuptial settlement personalty was settled in trust for A., the intended wife, if she should survive her husband, (r) Reay, In goods of, 31 L. J., («) Smith, In goods of, 1 Sw. & P. &M. 154. Tr. 125. Digitized by Microsoft® rate. 38 WILL. Married and in Case she should die in his lifetime^ in trust for such woman. person or persons and for such intents and purposes as she, notwithstanding her coverture, should by wiU appoint : A.J in the lifetime of her husband, duly executed a will, purporting to be in exercise of the power given by the settlement, and of every other power enabling her in that behalf: she survived her husband, and died without having republished her wiU: the court refused upon motion to grant general probate (f). Lmngsepa- In 1817 a husband and wife verbally agreed that they would divide their furniture and effects and live separate ; that the wife should maintain herself, and that the husband should allow her to enjoy her earnings for her separate use, and that neither should interfere with the other : in pursuance of this agreement they divided their effects and separated; the wife engaged in business and died in 1856, leaving a will, bequeathing money which she had acquired in her business since the separation : in a suit instituted for a grant of administration against the executors named in the wife's will, an allegation was given in by the latter, pleading the above facts : the admission of this allegation being opposed, it was held to be admissible, inasmuch as, under the circumstances stated in it, the property acquired by the wife after the separation became her separate pro- perty, and as such might be bequeathed by her (m). See now also the Married Women's Property Act, 1870. A Frenchman and an Englishwoman, in anticipation of a marriage which was afterwards celebrated between them in France, entered into a contract, one of the conditions of which was, that the survivor should enjoy the usufruct of one-half of the goods of the predeceased: subsequently a separation was decreed between the parties by the proper tribunal of the country of their then domicile : the wife, being resident in this country, executed a wiU in accordance with the law of tliis country, by which she disposed of the (t) Wollaston, In goods of, 32 L. («) Saddon v. Fludlurv, 27 L. J., P. & M. 171. J., p. & M. 21. Digitized by Microsoft® WILL. 39 whole of her property : the husband was still living : — Married Held, that the court could decree probate of such wiU, "^°™«"- but Kmited to such property as the deceased had a right to dispose of (lo). The wife of a convicted felon is a feme sole as to her Wife of felon, testamentary capacity, and a will made by her, whilst her husband is undergoing his sentence, is therefore entitled to probate (x). " That no will made by any person under the age of Infant, twenty-one years shall be valid " (y). This section annuls all wills -made by persons under age from the time of their being made {z'). As, however, the statute does not extend to wills made before 1838, such wills would be now good, provided the infant was, if a male, above the age of fourteen, and, if a female, of twelve years. With respect, however, to a devise of lands, in- fants were intestable, previous to 1838, by the Statute of Wills (a). A felon may make a will ; for the executor of the will I"elon. of a person found felo de se by the verdict of a coroner's inquest, is entitled to probate thereof, though the effect of the verdict is to work a forfeiture of the personal property of the deceased to the crown ; for there is a distinction between the operative effect of a testamentary paper and its title to probate (5). And where a coroner's inquest having found a man felo de se, his executors moved that they might traverse the iaquisition, which was granted (c). Although, therefore, the felony may work a forfeiture of the goods and chattels of the deceased felon, so as to prevent the will operating upon them, yet, where a felon (w)) B'Meve de Pradel, In goods («) Thomas v. Jones, 2 Johns. & of, 37 L. J., P. & M. 2. H. 475. (») In goods of Coward, de- {a) 34 & 35 Hen. 8, c. 6, s. 14. ceased, 34 L. J., P. M. & A. 120. (J) Saily, In goods of 2 Sw. & (V) 1 Vict. c. 26, s. 7. Tr. 156; 31 L. J., P. & M. 178. (o) B. V. Aldenham, 2 Lev. 152. Digitized by Microsoft® 40 WILL. Felon. is executor of a previous testator, or entitled to trust pro- perty, which is unaffected by the forfeiture, probate or administration may become necessary, and the character of executor or administrator to a deceased felon has been recognized in the Courts of Chancery () Sect. 3. 18 & 19 Vict. c. 63, s. 31. Digitized by Microsoft® WILL. . 47 the nature of tlie simple contract debts, but are merely Locality of es- evidences of title, the debts due on these instruments were **'®' assets where the debtor lived, and not where the instrument was found" (§'). — Lord Abinger, C. B. The court has, as a general rule, no jurisdiction to grant letters of administration, unless the deceased leaves personal property in this country (r). And where it appears, on the papers before the court, that the only property of which a person died possessed is not in this country, the court wiU decUne to grant adminis- tration of the goods of the deceased («). Similarly a will disposing only of property in a foreign country is not entitled to probate in this country (t). Where the deceased, a married woman, died intestate in France, leaving personal property there, but none in this country ; her husband, who survived her, was by the law of France unable to obtain possession of the deceased's property without first obtaining letters of administration in England : — Held, that, as the deceased left no personal property in England, the court had no jurisdiction to grant to her husband administration, limited to the purpose of substantiating in France his title to the property there situate (m). And the court has, on several occasions, refused to grant probate of the will, or letters of administration of the estate, of a person who died resident abroad, where it did not appear, on the affidavits on which the application was made, that the deceased left personal property in this countiy, until an affidavit to that effect was filed {x). But it is otherwise if the deceased were domiciled in Law of domi- England at the time of his death ; for as personal property, "' " (?) Att.-Oen. V. Bowivens, i M. (0 In goods of Coode, 1 L. R., P. & W. 191. 4*9; 36 ^- J-. P- & M. 129. (r) Means T. Burrell, 28 L. J., («) Tucher, in goods of, 34 L. J., P. & M. 82. P. & M. 29. («) In goods of FiUocJi, 32 L. J., (ic) 28 L. J., P. & M. 83 ; see P. & M. 157. note (1). Digitized by Microsoft® WILL. 48 wherever situate, follows the person, the court will grant tatef ' ^ ° ^^" probate of a document, though it purports to deal only with property out of its jurisdiction (y). A., resident but not domiciled in France, makes a testa- mentary paper relating to personalty in France and to personalty and realty in England, and a second paper solely relating to personalty in France and disposing of the whole of it to a woman with whom he cohabited, but appoints no executor in either paper, nor residuary legatee nor devisee of his property in England, — ^his widow is entitled to ad- ministration with both papers annexed («). Where a testator dies leaving no estate in England, it is not necessary that the will should be proved here (a). But according to the usual practice among civilized nations, called the comity of nations, each country can only recognize the officers of its own tribunals ; therefore, if a party, having obtained probate from a foreign court, seeks to appear in an English tribunal in the character of an executor or administrator, he must first clothe him- self with that character by proving the will in Eng- land {b). Indian. Where the vndow of an officer, who died intestate in India, obtained letters of administration of her husband's effects there, and remitted the proceeds thereof in govern- ment bills to her agent in England, and a creditor of the intestate took out letters of administration of the intestate's effects in this country, and brought an action against the vridow's agent for money in his hands as part of such effects : — Held, that the letters of administration in India prevailed over those granted in this country, and that the action would lie only at the suit of the widow as adminis- tratrix (c). (y) Winter, In goods of, 30 L. 397; 11 Vin. Abr. 59, 69. J., P. & M. 66. (J ) Att.- Gen. v. CocTterell, IPrice, (2) Sjpratt T. Harris, 4 Hag. Ecc. 179; Tyer y. Bell, 2 Myl. & Cr. 89. K. 4:05. (c) Cm-rie v. Bircliam, 1 Dow. (a) Jauncetj v. Pealey, 1 Vcrn. & Ry. 35. Digitized by Microsoft® WILL. 49 IV. Where the Testator or Intestate died. " It is not fully decided whether this court is bound in Place of all cases, and under all circumstances, to follow the grant Sh?"^'^ of probate made by a court of competent jurisdiction" — Sir John MchoU. Therefore where the court at Madras had granted probate of an informal paper to the widow, as ) " universal legatee and constructive executrix," under the circumstances the Ecclesiastical Court here allowed ad- ministration with the paper annexed, to pass to her as "relict and principal legatee "(«Z). ) This seems now however pretty clearly decided, for the , judgment of the court of the domicU. of a deceased party, at the time of death, is binding on the court of a foreign country, in all questions as to the succession and title to personal property, whether under testacy or intestacy, ) where the same questions between the same parties are in issue in the foreign court, which have been decided by the court of the domicU (e). " Beyond aU possibiliiy of question, the administration of Will to be the personal estate of a deceased person, belongs to the court of do- court of the country where the deceased was domiciled at ™i<=il- his death : all questions of testacy and intestacy, belong to the judge of the domicU ; it is the right and duty of that judge to constitute the personal representatives of the deceased : to the court of the domicil belongs the inter- pretation and construction of the will of the testator ; to determine who are the next of kin or heirs of the personal estate of the testator, is the prerogative of the judge of the domicil ; in short the court of the domicil is the forum concursus to which the legatees under the wiU of a testator or the parties entitled to the distribution of the estate of an intestate, are required to resort" (/). — Lord Westbury. ( d) In goods of Read, 1 Hag.Ecc. 301 ; 35 L. J., P. & M. 129. jj 474 (/ ) Enohin v. Wylie and others, (e) Crispin v. Boglioni, 3 Sw. 10 H. of L. Ca. 13. & Tr. 96 ; affirmed, 1 L. R., H. of L. B. E Digitized by Microsoft® 60 WILL. Law of domicil. Law of one country only regarded. Estate to be administered by court where estate is situate. Testator, a Spaniard, died at BUboa in Spain : on the day of his death he caused a document to be prepared by a notary, purporting to give autliority to his wife to make a will on his behalf; in pursuance of this authority, she made a will on his behalf after his decease, and appointed herself executrix; the court, being satisfied from the affidayit of a Spanish advocate, that such a will was valid according to the law of Spain, decreed probate Qi). The deceased and her husband had their domicil at the Cape of Good Hope, and, in accordance with the laws of that colony, previous to their marriage, they executed a deed of non-community of property, and such deed was duly registered; the Court of Probate granted adminis- tration to the brother and next of kin of the deceased, to the exclusion, and without the citation, of the husband (z). But the court can have regard to the law of one country only at a time ; as where testator made a wiU in India and added a codicil at Florence ; they were not witnessed and were invalid both by the law of England and Italy ; he wrote on the back of the wiU at Genoa a second codicil, which was also not witnessed, but which was well executed, though not valid, according to the law of Italy : — Held that in determining the question whether a paper is vaUd as a testamentary instrument under 24 & 25 Vict. c. 114, the court can have regard to the law of one country only at a time ; it therefore declined to regard so much of the Italian law as held the second codicil well executed, and then, recurring to the English law, to apply the principle of confirmation, and refiised probate of all three papers (Ji). But if any part of the property be in England, probate or administration must also be taken out here ; for though the law of the domicil of a deceased person governs the succession to his personal estate wherever situated, the estate itself must be administered in the country in which (70 Guttierez, In goods of, 38 L. J., P. & M. 48. (i) In tlie goods of Prolart, 30 L. J.,P. &M. 71. (Ji) PeoluiU T. Hilderley, 88 L. J., P. & M. 66. Digitized by Microsoft® WILL. 51 possession is taken of it under lawful authority (Z). The Law of duty of the English court would in such a case be, as it '^°™i<=''- were, ministerial merely, to grant ancillary probate or administration. Thus where an executor is appointed by a foreign will, the nature and extent of the office conferred by the ap- pointment are regulated by the law of the testator's domicil, and not by the English law, even as to the pro- perty situate in England ; if by the law of the domicil, the executorship lasts only for a limited period, the Court of Probate cannot, after that period has expired, grant pro- bate to the executor. Where a domiciled Frenchman by his wUl appointed A. his executeur testamentaire, and B. his uniTersal legatee ; a French court having decided that A.'s executorship had expired, and that he had no longer any right to intermeddle with the estate of the testator either in France or England, but that such right belonged exclusively to the representatives of B.; the Coiurt of Probate, holding that it was bound by that deci- sion, refused to grant probate to A., and granted adminis- tration with the will annexed to the representatives of B. {m). But where a domiciled Scotchwoman executed in Scot- Married land, in the EngHsh form, a codicil which purported to be ^°^^^_ ""'^^'^ made in the exercise of powers conferred by an English set- tlement and an EngHsh wiU : — Held dubitanter, upon the authority of In the goods of Alexander (n), that the codicil, as it purported to be made under a power, was entitled to probate, although invalid by the law of the domicil of the testatrix (o). And the Court follows the grant of the court of the testator's domicil, as to the document which that court (Z) Preston v. Melville, 8 CI. & (») 29 L. J., P. & M. 93. ]?_ 1_ (o) UalVylii/rton, In goods o/,35 (m) Zaneiirmlle t. Anderson, 30 L. J., P. & M. 122. L. J., P. & M. 25. e2 Digitized by Microsoft® 52 WILL.- Law of has admitted to probate, but not as to the person to whom domicil. ^^^ ^^^^ is made ( ^ ) (but see below). Followed as to Thus, where admiaistration of the estate of an intestate ^^tTtT' '""' who dies domiciled abroad, is granted by the foreign court grantee, sed to a person entitled in his own right to administration, the quare. Court of Probate will foUow the foreign grant ; but it will not do so, where the foreign grant is made to a nominee of the person entitled, except upon the express consent of the latter (q). In the Isle of Man, officers called sumners are appointed in each parish by the bishop of the diocese, whose duty it is, inter alia, to take upon themselves grants of administra- tion with the wills annexed, in the event of executors refusing to act or being unable to. give security to the Ecclesiastical Court of the diocese. A. died in the Isle of Man leaving a will whereof he appointed executors : the executors being unable to give security to the Ecclesiastical Court of the diocese, administration with the will annexed was then granted to B., siimner for the parish in which A. died : — The executors having been cited and not ap- pearing, the court upon an affidavit as to the circum- stances under which the grant was made to B., and upon B.'s consent being filed in the registry, granted adminis- tration with the will annexed, to the residuary legatee (r). By an ordinance of British Guiana, the Administrator General is empowered to administer to the estate and effects of every person who shall die intestate, and whose heir ab intestato shall be unknown, or, if known, shall be absent without having an attorney or agent in the colony to represent him; A. died in the colony, a bachelor and intestate, and having there no known relation, by virtue of the said ordinance the Administrator General took pos- session of the estate of the deceased in the colony, and ap- {p) Cosnaliam, In goods of, 1 P. & M. 41. L. R., Prob. 183 i 35 L. J., P. & M. (r) Oalbon v. Steele and another, 76. In goods of Whiston, 30 L. J., P. & (q) Weaver, In goods of, 36 L. J., M. 192. Digitized by Microsoft® WILL. 53 pointed B. his attorney to take out administration to the Law of estate in England ; upon motion for a grant of adminis- ''"'"'^ti- tration to B,, the court directed that the next of kin should be cited, and that the usual notice to the Queen's Proctor should be given, and afterwards, upon one of the next of kin appearing to the citation and consenting, the grant was made as prayed (s). Administration limited to the receipt of dividends in the Followed as Enghsh funds, was granted to a minor residuary legatee, '° S^*"**^- the wife of a minor, both subjects of and resident in Portugal, on a certificate being produced that, by the law of Portugal, she was entitled {t). This certificate, it is presumed, would not now be re- ceived in evidence, as the evidence must now be according to the Common Law. Probate of the will of a married woman, a native of and domiciled in Spain, was granted, according to the law of Spain, to one of her sons as executor, on affidavit as to the law of Spain, and the identity of the parties (u). In decreeing probate, the Court is usually regulated by the grant of the Court of Probate where the party was domiciled ; i. e., the competent jurisdiction — in this in- stance, the Court of Supreme Judicature at Fort William, Bengal {x). So where A. died domiciled in America, and by her will appointed B. her father sole executor and residuary legatee ; B. died leaving part of the estate unadministered ; on the application of his executors, who were all domiciled in America, administration of the unadministered estate of A. was granted to C. by the Court in America; the Court following the American grant allowed a grant of administration (with the will annexed) of the personal estate of A. in this country to go to C. (i/). . ( s) O'Brien, In goods of, 31 Jj. J., Hag. Ecc. E. 498. P. & M. 194. {'>') Larpent r. Slndry, 1 Hag. it) Me Countess da Cwnha, 1 Ecc. R. 382. . Hag. Ecc. R. 237. iv) -^^W, In goods of, 39 L. J., (■m) Re Donna de Maraven, 1 P. & M. 52. Digitized by Microsoft® 54 WILL. Foreign grant followed as to grantee. And administration of the personal estate in England; of a domiciled Scotchman was granted to A., appointed by the Court of Session in Edinburgh, /acf or loco tutoris to the infant children of the deceased {z). But the law of the place of domicil wiU not, however, be followed where it would, hj so doing, be acting in con- tradiction to the law of this country (a). V. Wheee the Will was made. Before probate in common form of a foreign will can be obtained, it is necessary to show, either that the will has been recognized as valid by a court of the foreign country, or that it is a vahd will according to the law of the foreign country, and that the testator was domiciled in the foreign country; in order to show that a foreign wiU has been recognized as vahd by a court of competent juris- diction of the foreign country, a notarial certificate is not sUificient; a duly authenticated copy of the act or sentence of the foreign court, recognizing its vaHdity, should be pro- duced: if probate is sought of a foreign will, originally written in the English language, as having been recognized as valid by the court of the foreign country, a retranslation of the translation so recognized in the foreign country should be produced ; but if probate is sought of such a wiH as being valid according to the law of the foreign country, a copy of the original should be produced (6). Previous to the year 1861, many nice questions arose as to how far wills were valid where a change of domicil, sub- sequent to the making of the wUl, had occurred. These questions however now, as far as British subjects are concerned, are put an end to by the 24 & 25 Vict. c. 114, («) Jones, Win,., In goods of, 28 L. J., P. & M. 80. See also John- ston, In goods of, 4 Hag. Ecc. R. 182. (a) In goods of Her Royal Migliness the Duchess of Orleans, 1 Sw. & Tr. 253; and 28 L. J., P. & M. 129; but see lie Ooimtess Da Citnha, supra. (i) De Vigny, In goods of, 34 L. J., P. & M. 58. Digitized by Microsoft® WILL. 55 ■«?liich renders valid -wills, if they were valid, first, by the 24 & 25 Vict. law of the place where they were made ; or second, by the °" law of the testator's domicil at the time of the making ; or third, by the law of the testator's domicil of origin. It further enacts (sect. 2), that all wills made within the See. 2. United Kingdom shall be admitted to probate in England and Ireland, and to confirmation in Scotland (which is the Scotch term for probate), if made according to the law of the place where they were executed, whatever may be the domicil of the testator at the time of his death ; that is, a will made in Ireland according to the Irish law, may be proved in England or Scotland without being first proved in Ireland, although the testator died domiciled in France. The third section prevents a change of domicil, occurring Sec 3. subsequently to the execution of a will, having any effect on it. The effect of this statute in relieving the court from trying difficult questions of domicil and in carrying out the real wishes of testators, has been most beneficial ; for under it, where a testator dies abroad leaving a wiU executed in England according to the English law, it becomes no longer material to inquire whether or not he has acquired a foreign domicil (c). Formerly much difficulty was experienced in getting Grants under ^ representatives of a deceased domiciled in England, Scot- c. ee. land or Ireland appointed, when he died possessed of pro- perty in either or both of the other two countries where he was not domiciled, besides his property in the country where he was domiciled, as the three countries were foreign countries to one another. This has now been much facili- tated by the operation of the 20 & 21 Vict. c. 79 (relating to Ireland), and the 21 & 22 Vict. c. 56 (relating to Scot- land). These acts, however, have not a retrospective effect, at least the latter act does not apply to a confirma- tion granted previous to its operation (e?). Nor does it (c) In goods ofMippon, deceased, {d) Gordon, In goods of, 2 Sw. & 32 L. J., P. M. & A. 141. Tr. 622. Digitized by Microsoft® 56 WILL. 21 & 22 Vict, apply to eiks or additional confirmations which do not v-^t ' ■^'79° ^^ confirm the executors in respect of personal estate situate in Scotland, hut only in respect of personal estate situate in England (e) ; nor generally to eiks (/). But where on the death of the testator, a domiciled Scotchman, his widow filed in the Commissary Court at Jedburgh an inventory of his estate, distinguishing which part of his estate was situate in Scotland, and which ia England, and the value of each, and she was decreed and confirmed executrix dative to the deceased and the con- firmation was sealed in England under this statute, and subsequently additional e^ate was discovered in England, and thereupon the executrix filed a fresh inventory of such estate in the Commissary Court and obtained an eik or additional confirmation, the court ordered the eik to be sealed in the registry (g). In this case it will be observed that although the eik related only to property in England, the original confirmation had been already sealed in the Enghsh registry. It was formerly held that the note or memorandum on a probate that the deceased died domiciled in England, men- tioned in sect. 14 of this act (A), must be written before the probate issues ; therefore, when A. died domiciled in Eng- land, possessed of personalty in Scotland, and probate of his wiU was issued, without a note that the deceased' died domi- ciled in England written on it, the court refiisedto allow such a note to be made on it, and also reftised to revoke the pro- bate, that a new one might be granted stating such fact (z). But this case is now overruled and the note or memo- randum may be written afl;er the probate has issued (J). The form of a testament testamentar, or confirmation of (e) Wingate, In goods of, 2 Sw. (A) 21 & 22 Vict. c. 56. & Tr. 625. (i) Muir, In goods of, 28 L. J.^ (/) EJtutoheson, In goods of, 3 P. & M. 49. Sw. & Tr. 165. (_;■ ) Alluon, In goods of, U L. J., (?) ^y^e, Irt goods of, 39 L. J., P. & M. 20. P. & M. 49. Digitized by Microsoft® WILL. 57 an executor nominate contained in schedule (E.) of tlie 21 & 22 Vict. Confirmation and Probate Act, 1858 (21 & 22 Vict. *"■ ^''• c. 56), recites that the executor nominate has given upon oath an inventory of the personal estate and effects of the deceased at the time of his death situated in Scotland, or " At the time England, or Ireland. A confirmation was tendered for ° '* "' sealing fi-om which the words at the time of his death were omitted: — Held that those words had been properly omitted since the passing of the 23 Vict. c. 15, and the 23 & 24 Vict. c. 80, and the confirmation was ordered to be sealed (A). The seal of the court to Irish or Scotch grants must Scotch or Irish be aflBxed by, and application must be made to, the ^'^*" ^' principal registry. No appHcation of that description can be made to a district registry (Z). For the necessary affidavit and steps to be taken where a grant of probate or administration under the 21 & 22 Vict. c. 56, is required for the whole personal estate and effects of a deceased within the United Kingdom, see Kule 74 of the Principal Registry (Non-c), and Kule 86 of the District Registry. The object of the 12th section of the Confirmation and 21 & 22 Vict. Probate Act, 1858, is to render unnecessary a second "'•'■• application for probate ; the interlocutor of the commissary is not, therefore, conclusive evidence of domicU when that question is raised in another court. When probate has been granted in common form, and a contest is discovered after it has been sealed, but before it has left the office, the court will not allow it to be taken out of the registry (to). The executors of a Scotch wUl, having sent the original confirmation granted by the Commissary Court to the Colony of Victoria, obtained a duphcate confirmation from that court, and applied under the 12th section of the 21 & 22 Vict. c. 56, to have the seal of the Probate Court (J) May, In goods of, 33 L. J., (m) Bamarden v. Dmlop, 31 P. & M. 25. L- J-. P- & M- 17. (0 Eule 87, D. R. Digitized by Microsoft® 58 WILL. c, 20 & 21 Vict t. 79, =. 95, 21 & 22 Vict, affixed to it ; the court ordered the seal to be affixed, on 56, s. 12. ^j^g ground that it was bound to give faith to the commis- sary's certificate, and could not take into consideration the facts that the confirmation was a duplicate (n). Irish grant. Where A. died in Ireland, possessed of personal pro- perty in England, and the Irish Court of Probate granted administration of his effects to B., no will having been found ; afterwards C. propounded in this court a will of the deceased ; B. opposed it, and obtained a verdict upon issues raised by him : upon the application of B. the court ordered the Irish grant of administration to be delivered out of the registry, in order that it might be resealed by this court under the 20 & 21 Vict. c. 79, s. 95 (o). Nuncupative Prior to the 1st of January, 1838, the solemnities 1838. required for making a valid will of personalty were very diifereht to those required by the present law. The 5th section of the Statute of Frauds, which required a signa- ture by or on behalf of the testator, and an attestation by three or more credible witnesses, only applied to real estate, such as was then devisable. As far as personal estate was concerned, the will needed not even to have been ia writing ; but if it disposed of property exceeding 301. in value, it must have been proved by three witnesses that were present at the making of it, and the testator must have bidden the persons present or some of them to bear witness that is was his will, or to that effect ; and it must have been made in his last illness^ and in his own house or in a house where he had been resident for ten days or more before the making of such wiU, except he were surprised or taken sick, being from his own home, and died before he returned to the place of his dwelling. But if not ia writing, and the deceased lingered on for six months, or if six months elapsed by any means before the evidence of the witnesses could be talcen, no testimony of it could be (re) Webster, In goods of, 29 L. (o) Divenny v. Corcoran, 32 L. J., P. & M. 66. J., P. & M. 26. Digitized by Microsoft® WILL. 59 received, unless such testimony were committed to writing Nuncupative wills I 1838. within six days after the making of the win(jo). It ^'"^ before could not be proved till after the lapse of fourteen days from the death of the testator, and process must first issue to cite the widow and next of kin {g). Neither could such a will operate to set aside a previous wiQ, which was in writing (r). These preliminaries have always been construed strictly : where one of the three witnesses died before he could give his evidence, the will was held to be invalid (s). The requisites to make a vahd will therefore were — 1st. The words must be spoken animo testandi. 2nd. Testator must require the bystanders to bear wit- ness — called in these courts rogatio testium. 3rd. The will must be made at home or among his family or friends, unless by unavoidable accident. 4th. It must be in his last sickness. 5th. The proof of the three witnesses must be given before six months have passed since the speaking of the words. 6th. Probate must be applied for after the lapse of fourteen days from the death of the testator, and after citing the widow and next of kin. Thus, although the statute of Car. 2 did not in words enact that aU wills should be in writing, it imposed so many restrictions (aU which were construed strictly) on wills con- . sisting of mere words spoken, that long before the present Wills Act such testaments had become quite obsolete, and the practice was to commit them to writing. Wills executed before the statute of Victoria are now frequently brought for probate, and as they are not affected by that statute, the requisites for admitting them to probate are quite distinct from those of wills executed subsequently to that act. On reference to the rules respecting the probate of wills, {p) 29 Car. 2, c. 3, s. 20. («) Philips v. St. aement (a) lb. s. 21. Danes, 1 Abr. Eq. Ca. 404. (»•) lb. s. 22. Digitized by Microsoft® 60 WILL. Made before 1838. Unsigned will. Will in tes- tator's hand- writing. Circumstances of corrobora- tion. &c. relating to personalty and dated before the 1st January, 1838, whicli are in fact an epitome of the law as it stood previously, it will be seen that no signature by the testator or attestation by witnesses, is necessary to make such a will valid, but in such cases the intention of the testator that it should operate as such, must be clearly proved by circumstances (t). The " circumstances" which prove or disprove the inten- tion of the testator are the following : — 1. The place of deposit. 2. Reading over the alleged will by or to the deceased. 3. Execution prevented by act of God. 4. The writing of the will itself. 5. Subsequent recognition. 6. The form of the instrument ; and the like. If the will is in the handwriting of the testator it is not sufficient, but "the inclination, amounting almost to a settled principle of Courts of Probate — founded perhaps on the facility with which handwriting may be imitated, — has been not to pronounce for a disputed paper on evidence of handwriting alone, but to require some corroborating circumstance" (m). And it is conceived that the point on which the court requires corroborative proof is, that the document was written animo testandi, and not as a mere meiporandum for further reflection as in Rymer v. Clarh- son {w); since the presumption of law is against such a document, as the law would presume from the fact that such a wiU was written that it was intended to be exe- cuted. The circumstances of corroboration of a will in the handwriting of the testator but unsigned are various. Where the document was read over by the deceased to his housekeeper as his will, and found in a place where he (i) Knle 17, P. K. Non-c; Rule 22, D. R. (?f) Constable v. Steibel and an- other, 1 Hag. Ecc. R. 60. (w) 1 Phill. 22. Digitized by Microsoft® WILL. 61 had deposited it, but unexecuted and unsubscribed : — Held Made before avalidwiU(a;). If^- ^ _, T -1 • 1 1 • 1 • 1 Place of de- Where a codicil unsigned, and witn an attestation clause posit and unattested by witnesses, was read over to the deceased and brfore^deafh deposited with a duly executed will by his direction, but he was too iU to sign the codicil : — Held a valid codicil (y). Where the paper, was drawn out in the handwriting- of Execution the deceased, with an attestation clause, but was neither t^e^a°|.'of ^ signed nor attested, and the deceased died suddenly before God. he could have the wiU executed and attested : — Held well estabhshed, as the ftdl execution was prevented by the act of God {z). Where there is an attestation clause, and there are no Unattested witnesses, the presumption is against the document, as ""t} J^aL^ " however clear the proof may be that at the time the clause, deceased wrote he intended to dispose of his property by will, yet it being equally clear that in order to give eifect to the instrument, he intended to do the further act of signing in the presence of witnesses, the law requires it to be shown, why the further act was not done " (a). The presumption is that a codicil disposing of realty as Unexecuted weU as personalty, unattested, only signed by initials, P"*?®^- and with many interlineations, is unfinished and prepara- tory ; and then it must be shown the deceased thought it would operate in its actual form, or was prevented by a suflScient cause from executing it (b). When a paper is unfinished the presumption of law is strong against it ; especially when it is to alter an executed instrument, stiU more when to revoke a disposition of the bulk of the property to the deceased's own family and transfer it toa stranger (c). But where there is final intention proved, and execution Unexecuted will. (w) Bead T. PUUips, 2 Phill. («) Scott v. Bhodes, 1 Phill. 19. J22 (*) Beat/ V. Comeher, 2 Hag. Cv) Thomas v. Wall, 3 Phill. Ecc. R. 249. 23. {fl)Ib.254. (j) Scott T. BJiodes, 1 Phill. 12. Digitized by Microsoft® Ill I ' \ 62 WILL. Made before prevented by the act of God, the mere want of execution ^^■'^" does not invalidate an instrument disposing of personalty ; the disposition has the same legal effect as if the instru- ment had been actually signed and attested (d). Prevented by Where a testator executed a will and two codicils, and e act o . afterwards had a new will and certain bonds prepared, which were, in conjunction, to dispose. of his property, on the same principle as his former will, and died when pre- paring to sign the new wiU ; first, the execution being thus finally determined on and prevented, the new will is entitled to probate ; and, secondly, the new will never being intended to operate independent of the bonds, the court is bound, in order to carry his intentions most nearly into effect, to grant probate of the new wOl, and of the unexe- cuted bonds, as together containing his will ; and to revoke a probate of the former papers (e). Intention of Even instructions for a wiU, containing the fixed and final intentions of the deceased, were held to be valid, if the formal execution is prevented by death (/" ). And letters containing final testamentary intentions are valid as a wOl, the deceased considering no further act necessary ; nor wiU they be invalidated, by the deceased not having subsequently disposed (as she had purposed) of a small part of her property (^). "Where a testator left a paper with certain names and sums opposite to them, and accompanied by bank notes of corresponding amount, such a paper was held to be of testamentary validity (A)» Pencil writing. The prima facie presumption is that pencil alterations are deliberative, and those in ink final; when they are of both kinds in the same instrument the presumption is strengthened ( 2 ). ((?) Masterman v. Maberly, 2 {g) Manley v. Lakin, 1 Hag. Hag. Ecc. E. 247. Ecc. E. 130. (e) lb. 235. (A) MnhU T. ClarTt, lb. 118. (/) Burrom v. Burrows, 1 (i) HaroTies v. Hmvltes, 1 Hag. Hag. Ecc. E. 109. Ece. E. 321. Digitized by Microsoft® WILL. 63 But in one case probate was granted in common form of Made before a will written entirely in pencil by the deceased, who, a ^®^^' few days before death, declared she wished it to operate, unless altered (A). Where a paper had an attestation clause in the plural Subsequent number, but only one witness, and the date of the year ^®'^°s°i'i°°- ■i^ ^1.^1 Attested by written on an erasure ; on amdavit oi the executor to a re- one witness cognition, and from the attesting witness to the time and ^iJi^arniTm- intention of executing, probate of such paper in common ber). form was decreed, though one of four persons entitled in distribution refused to consent, but had entered no caveat (Z). And probate in common form was decreed of a paper, with an attestation clause in the plural number and only one witness, on affidavit of an implied recognition (»n). Similarly, probate in common form of a paper with an Attestation attestation clause and witness, was decreed to the only wftnel's"'' person entitled under an intestacy, on affidavit of recog- nitions of it as his will by the deceased (n). Previous to 1 Vict. c. 26, wills affecting real estate were Realty, regulated by the 5th section of the Statute of Frauds (29 Gar. 2, c. 3), by which three or four credible witnesses were required; and this is stiU the law as to all devises of land made previous to 1838, so far as the same are to affect realty. Over wills operating only on realty the court has no jurisdiction, but if there be any portion of the will affecting personalty then the jurisdiction of the court arises. Over wiUs, therefore, made prior to 1838, the court would have no jurisdiction if they relate to realty only; if, on the other hand, a wiU made prior to 1838 related to personalty as well as realty, the court would grant probate of such a wiU if sufficient to pass the personalty, without inquiring how (k) Be Dyer, 1 Hag. Ecc. E. (m) In goods of Sparrow, 1 219. Hag. Ecc. R. 479. (0 Re VanhagentlHag. Ecc. E. («) Re Jerrans, 1 Hag. Ecc. E. 478. 660. Digitized by Microsoft® 64 WILL. Made before far it would stand valid as a devise of realty. It would ^^^^' seem, therefore, that the subject of real devises made prior to 1838, is foreign to a work treating of the practice of the present Probate Court. Wills execated If the date of the will be subsequent to the 31st Decem- ccmber/i83^ ber, 1837, it must be shown to have been executed accord- ing to the form prescribed by the WiUs Act, sect. 9, (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknow- ledged by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be neces- sary (o). The 9th section is subsequently amended by a later statute (p). Every will shall, so far only as regards the position of the signature of the testator or of the person signing for him, be deemed to be valid within the said enactment as explained by this act, if the signature shaU be so placed at, or after, or following, or under, or beside, or opposite to, the end of the wiU, that it shall be apparent on the face of the will, that the testator intended to give effect by such his signature to the writing signed as his will; and no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the wiU, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow, or be after, or under the -clause of attestation either with or without a blank space intervening, or shall follow, or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance (o) 1 Vict. c. 26, s. 9. (j>) 15 Vict. c. 24, s. 1. Digitized by Microsoft® WILL. " 65 that the signature shall be on a side or page or other por- 15 Vict. c. 24, tion of the paper or papers containing the will, whereon ■*■ " no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written, to contain the signature, and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the wiU is made. This act has a retrospective effect, and affects every will, unless such a will or property under it, has been dealt with by some court of competent jurisdictidn (g). This is, therefore, the general form in which every Execution of will must be executed, but there are two classes of ex- ^ srcec?"*"' ceptions. i^^^- 1. Wills executed previous to the operation of the act. Exceptions. I. e. wills executed prior to the 1st January, 1838, already considered, 1 Vict. c. 26, s. 34, and 2. The wills of soldiers in active service and sailors at sea, which we will hereafter consider, 1 Vict. c. 26, s. 11. Testator's Signature.'] Of course a mark by a testator Mark, is a sufficient signature, even though the testator be an educated person and able to write well (r). Where a testator unable from illness to sign his wiU, had his hand guided in making his mark— held a suffi- cient signature within the Statute of Frauds (.s). Where B., by the direction and in the presence of A., who wished to execute a testamentary paper, affixed and impressed at the foot of such paper the signature of A., (2) 15 Vict. c. 24, s. 2. (») Wilson v. Beddard, 12 Sim. (r) Ta/ylor v. Vening, 8 A. & E. 28. 94. B. ^ Digitized by Microsoft® 66 WILL. Testator's sig- nature. Mark. Wrong name against the mark. Wrong descrip- tion in will. Signature affixed. by means of a stamp or an engraving, which A., being paralysed, had had made for his ordinary use, and A. afterwards acknowledged the signature and asked wit- nesses to attest, it was held, that the affixing a stamp was equivalent to making a mark, at the direction of the testator, and that the making a mark was a signature (t). But the court declined to grant probate on motion (u). A will purporting in the commencement and testimo- nium clause, to be that of S. C, was executed by a mark, against which was vyritten the name S. B., and was handed by S. C. as her wUl to one of her executors, shortly before her death ; B. had been the maiden name of S. C. : it was held, that as there was sufficient evidence that the mark was that of S. C, the execution of the will by her was not vitiated by another name having been written against her mark (x). So, where A. put his mark to a testamentary paper, in which he was described throughout as B. ; the court being satisfied on affidavit that A. duly executed the paper by mark, animo testandi, granted probate thereof as his will (y). Where the signature of a testator and the attestation clause were written on a piece of paper, bearing a biU stamp, pasted at the foot of the parchment upon which the wiU was written ; it was held a good execution, since it was apparent on the face of the instrument, that the testator intended to give effect to it by his signature (2:). Where the signatures of the testator and attesting wA- nesses, were written on a separate piece of paper, which had been previously wafered to the foot of the will: — Held that the will was duly executed (a). (f) Jenhyns v. Oaisford, 3 Sw. & Tr. 93; 32 L. J,, P. & M. 122. (m) 32 L. J., P. & M. 71. (as) Clarke, In goods of, 27 L. J., P. & M. 18. {y) Douce, In goods of, 2 Sw. & Tr. 693; 31 L. J., P. & M. 172. U) Oausden, In goods of, 31 L. J., P. & M. 63. (a) Cook V. Lambert, 32 L. J., P. & M. 93. Digitized by Microsoft® wiHi. 67 But the court refused to grant probate of the document Testator's sig- .• /,N nature. on motion (o). For probate to be granted on motion it must appear that the paper was attached before execution : For where after the death of A. there was found a will in her handwriting, which filled the four sides of a sheet of paper; to the bottom of the second side was attached by wafers, a piece of paper upon which was written a formal clause of attestation and the signatures of the deceased and of two witnesses; one of the witnesses was dead, and the other proved that the paper was duly signed and attested; but was unable to say, whether, before execution, it was attached to the will; the court refused to grant probate on motion (c). Where the signature of a testator, who is too ill to write Bj some other himself, is signed in his presence and that of the attesting presence'and witnesses, by a third party, such signature must, neverthe- ^ ^^ ^^'^*'=- less, be accompanied by some act or word on the part of the testator, to show that it was made at his request (d). But where it appeared on affidavit, that the testator had frequently afterwards confirmed a will so signed, and that the next of kin did not object, the court granted pro- bate (e). A. asked B. to witness his will ; he subsequently asked " Or acknow- C. if he would sign a paper (not mentioning its character) testator. for him, and said he should wish B. to be also present at the same time ; a few evenings afterwards they met by appoint- ment, A. produced a paper from his pocket and (alluding to the death of his wife) observed, " They were aware that there had been a change in his circumstances which in- volved an alteration in his afiairs ;" he then so folded the paper that they could not see his signature or any other (i) Lamlert, In goods of, 31 id) Marshall, In goods of, 13 L. J., P. & M. 118. L- T., N. S. 643. (c) West, In goods of, 32 L. J„ («) McocA, In goods of, 20 L. T., P. & M. 182. N- S- 757. f2 Digitized by Microsoft® 68 "WILL. Testator's sig- writing upon it ; but they believed they were signing his nature. will:— Held, that the circumstances warranted the pre- sumption that the signature of the testator was on the paper when the witnesses signed, and that there was a sufficient acknowledgment of it (/). " Foot or end." Where the testator's signature was written partly across the last line but one of the will and entirely above the last line, with the exception of one letter, which touched the last line, it was held that the will was signed at the foot or end thereof (ff). Where the testator duly executed his will, which was written on the first and on part of the second page of a sheet of paper ; beneath the subscriptions of the witnesses there was a clause appointing an executor, and beneath this and also on the third page were several alterations in the dispositions of the testator's property, apparently written from time to time ; at the end of the whole and on the third page, the testator signed his name in the' presence of witnesses who duly subscribed: — Held, that the pre- sumption was that the testator intended his signature at the end, to apply to all that preceded it, and that as there was nothing to rebut such presumption, the whole was entitled to probate (A). A will and one codicil were written upon the three first pages and the top of the fourth page of a sheet of paper, the beginning of a second codicil was written at the bottom of the fourth page, and the end of the codicU with the attes- tation clause and the signatures of the testatrix and the attesting witnesses, on the upper part of the same page beneath the end of the first codicil : the court granted probate of the second codicil, including the portion which appeared on the lower part of the page, being satisfied that it had been written before the concluding portion and (/) SecJier v. Borne, 39 L. J., & Tr. 429; 33 L. J., P. & M. 154. !■■ & M. 1. (A) Cattral, In goods of, 33 (?) Woodle^j, In goods of, 3 Sw. L. J., P. & M. 106. Digitized by Microsoft® WILL. 69 the attestation clause and signatures, wHcli appeared on Testator's sig- .1 J / .\ nature, the upper part (z). . The name of the testator was at the foot of the will, but Testator's sig- below the names of the attesting witnesses ; both witnesses t^oge of the were dead, and there was no evidence of the order in witnesses, which they and the testator signed the will, but a due exe- cution was to be inferred from the attestation clause : the court decreed probate of the wiQ (k). ■ The testatrix signed her wUl below the signatures of the attesting witnesses, but before they signed ; she afterwards executed a codicil, but signed it after the witnesses who attested it, though on the same occasion: — Held the will was entitled to probate, but the codicil was not (Z). A. made his will on a printed form ; after he had written Testator's his name in the attestation clause, he asked the witnesses: among'words to subscribe and attest the will, which they did in his pre- of testimonium sence ; he then wrote his name underneath their signature, and remarked that they were witnesses to his will : — The court being satisfied on the evidence that he intended, by signing his name in the attestation clause, to execute the win, ordered probate to issue without the signature of the. deceased written under the names of the witnesses {m). ; A testimonium clause was as follows, " In witness whereof I, Martin Hall Mann, have hereunto set my hand :" the whole of this was in the testator's writing, and his name written as he usually signed it, but the wiU was not otherwise signed by him : — Held that the will was duly executed, the signature being placed " among the words of the testimonium clause" within the meaning of the above section (w). Similarly where the testator wrote out his own wiU, vrith an attestation clause, in which his name appeared, but was (i> Mmpton, In goods of, 33 X, P. & M. 158. L. J. P. & M. 153. (") Casmore, In goods of, 38 ih) Puddephatt, In goods of, 89 L. J-, P- & M. 54. L. J. P. & M. 84. (") ^o^'iM^ I'X' goods of, 28 L. J., (?) SosMns, In goads of, 82 L. P. & M. 19. Digitized by Microsoft® 70 WILL. Testator's sig- not written at the foot or end or otherwise than in the nature. attestation clause, it was held a valid execution (o). Where the only signature of the deceased, attached to the will, was squeezed iato what had been a blank space in the attestation clause, and the witnesses were asked by the deceased to sign her will, but she wrote nothing in their presence, nor did they or either of them notice her signature: — The court, being satisfied from the circum- stances of the case, that she had signed her name before the witnesses subscribed, decreed probate {p). Position of tes- The signature to a will, required by the WiUs Act, nature insnffi- must be at the foot or end of the whole of that which the cient. deceased intended to execute as his will ; if it is at the foot or end of a portion only of that which he intended to execute, no portion of the will is entitled to probate {q). " Beside or A codicil written on half a sheet of note paper occupied opposite to the , . . i r ,-i • , p end." SO much space as not to leave room lor the signatures oi the testator and of the witnesses in the ordinary form ; beneath it were the signatures of the two witnesses, and on the right side of the paper, in a blank space between its edge and the codicil, the signature of the testator was written at right angles to the codicil ; the testator signed in the presence of the witnesses, who duly subscribed: — Held that the codicil was duly executed, within the meaniag of the 15 & 16 Vict. c. 24, s. 1, the signature of the testator being " so placed beside or opposite to the end" of the codicil, that it was apparent on the face of it that the testator intended to give effect, by such signature, to the writing as his codicil (r). So where a will filled the first and third pages of a sheet of foolscap paper, leaving no room at the bottom of the third pages for the signatures of the testator and attesting (o) WalTier, In goods of, 2 Sw. & Icmd ^ anor., 34 L. J., P. M. & A. Tr. 354; 31 L. J., P. & M. 62. 42. {p) JSmhvale, In, goods of, 36 (r) In the goods of Jones, de- L. J., P. & M. 84; \ L. E., Pro. 375. ceased, 34 L. J., P. M. & A. 41. (j) Smeetland ^ anor. v. &meet- Digitized by Microsoft® WILL. 71 witnesses, whicih were written crossways on the second Testator's sig- page, it was held the will was duly executed (s). "^'"'^*" So where awiU filled two pages of a sheet of note paper, "beside," leaving no room on the second page for the signatures of the testator and attesting witnesses, which were written along the sides of the wiU upon the third page, it was held a due execution {t). So where a testator wrote on three sides of a sheet of note paper, the attesting clause and names of the attesting witnesses were at the bottom of the second side, a disposi- tive clause was written on the third side, and aU the letters of the testator's signature, excepting the two last, which extended over to the third side, were on the second side (m). Where a will was written on the first two sides of a sheet " or opposite to " of paper, the lower half of the second side was left blank, ' and on that blank space there was ample room for the testimonium and attestation clauses, and for the signatures of the deceased and attesting witnesses ; these were, how- ever, written on the third side, the signature of the deceased being opposite the first Kne of the concluding sentence of the will, which was the ninth line fi-om the bottom :*-Held that the will was duly executed (x). Where a will ended in the middle of a third page of a ('on a page sheet of foolscap paper, the lower half of the page being J^^^^f" left blank, and the attestation clause and the signatures were written at the top of the fourth page, it was held duly executed (y). Where an attesting witness to a will, instead of writing witness's sig- his name, wrote " servant to Mr. S.," believing that to be °*'"'^^' the proper mode of subscribing the wiU, the attestation and subscription were held sufficient (z). (s) Coomis,ln goods of, S6Jj. J., («) Williams, In goods of , 35 P. & M. 25; 1 L. E., Pro. 302. L. J., P. & M. 2. (t) Wright, In goods of, iSw.Sc (y 1 Himt y. Hunt, 1 1j. 'R., Fro. Tr. 36; 34 L. J., P. & M. 104. 209; 35 L. J., P. & M. 135. (u) Powell, In goods of, i Sw. & («) In the goods of Sperling, Tr. 34; 34 L. J., P. & M. 107. deceased, 33 L. J., P. M. & A. 25. Digitized by Microsoft® 72 Witnesses' sig- nature. " In the pre-, sence of." WILL. The hand of L., one of the attesting witnesses to a will, who was unable to write, was, at his request, held and guided by the other witness, and so L.'s name was sub- scribed; it was held the will was duly attested and subscribed by L.,' under section 6 of the WiUs Act (a). Where the names of two attesting witnesses to a will, who were unable to write, were written by another person, whilst they held the top of the pen; it was held the will was duly attested (6). To constitute a subscription by the attesting witness to a wUl, under 1 Vict. c. 26, s. 9, the witness, if he does not sign his name, must make- some mark on the will, with the intention that that mark shall represent his signature, as attesting the execution (c). An attesting witness must himself subscribe the will; it is not essential that the witness should sign his own name, provided it is clear that his subscription is intended as an act of attestation ; the name of A., an attesting witness to a will, was, at his request, subscribed by B., who was present at the execution: — Held that as A. had not subscribed, and B.'s subscription was not intended as an act of attestation, the will was not duly executed {d). Deceased, in the presence of two witnesses, wrote some- thing at the bottom of her will; she then placed a piece of blotting paper over the attestation clause, in which alone her name appeared, and asked the witnesses to sign their names at the side, which they did; they did not see the deceased's signature, nor did she acknowledge it in their presence ; the will terminated with a ftiU attestation clause in the deceased's handwriting : — Held that, as from the circumstances, the court was satisfied that the deceased wrote her signature in the presence of the witnesses. (ffi) M%th, In goods of, 27 L. J., (c) Charlton v. Eindmarch, 28 P. & M. 6. L. J., P. & M. 132. Xb) Lewis, In the goods of, 31 {d) Duggins, In goods of, 39 L. J., P. & M. 153. L. J., P. & M. 21 Digitized by Microsoft® WILL. 73 although they were not aware of it, the execution was "Tntliepre- valid(e). senoeof." " An act can hardly be said to be done by one person in the presence of another, unless at the time each is aware of the presence of the other." Wilde, J. O. A codicil which had preyiously been signed by a tes- tatrix, was signed by the attesting witnesses in a sitting room, the door of which was opposite to the door of a room where the testatrix was lying in bed; at the time, both doors were open, and the testatrix might, by raising her- self in bed, have seen the witnesses sign ; it did not appear that she had done so, and the witnesses neither saw her, nor heard her voice: — Held the codicil was not duly attested (_/). When the attestation clause to a will is insufficient, the Attestation court will not dispense with the affidavit of the attesting wit- sufficient.™" nesses as to due execution, which the registrars are directed by the rules in such case to require ; the attestation clause to a will executed abroad, being insufficient, the court refused to grant probate without an affidavit by the attesting witnesses, as to due execution, although it appeared from a certificate of the British consul indorsed on the wUl, that the attesting witnesses had on oath proved due execu- tion (^). Where the deceased wrote on the first side of a sheet of foolscap paper, his intended will, and his signature at the end of it ; by the side of the signature was the word " witness," and one name subscribed ; at the top of the second page, the deceased wrote a memorandum describing his leasehold property, but not testamentary; this was subscribed by three persons, whom in the wOl the deceased had nominated as trustees : — Held that as only one person attested and subscribed the will, the execution was in- valid (A). (e) Smith T. Smith, 35 L. J., P. («') Latham, In goods of, 33 & M. 65. L- J-. P- & M. 186. (^f) In the goods of KelUcli, Ae.- (h) Wilson, In goods of, 361,. J., ceased, 84 L. J., P. M. & A. 2. P. & M. 1. Digitized by Microsoft® due execution. 74 WILL. " ^^ ^^^^ f^^- Where a testamentary paper, which, upon the face of it, appeared to have been duly executed, was not signed in the presence of the attesting witnesses, nor did tiiey when they signed see any writing : — Held that it was not duly executed (i). Presumption of A testator wrote with his own hand on the back of his will, which was duly executed, a codicil headed " Memo- randum dated the 25th of April, 1863 ;" it purported to have been executed on the 31st of August, 1863, and the attestation clause was perfect, save that it did not state that the testator had signed his name or acknowledged his signature in the presence of the witnesses ; the witnesses could not say whether he did either one or the other in their presence ; they did not see his signature when they signed, nor the will on the other side, and nothing was said as to the character of the paper ; the court refused probate of the codicil on motion, but allowed the parties interested, if they thought fit, to propound it (A). In questions as to due execution, the presumption " omnia rite esse acta," applies with more or less force, according to the circumstances of each case ; when there is a regular attestation clause, and the will, upon the face of it, appears to have been duly executed, the court will presume that the requirements of the Wills Act have been complied with, although the memory of the witnesses may have failed; when the attestation clause is informal, the pre- sumption is less strong, but the leaning of the court, in such a case, is not to allow the testator's intention to be frustrated, by lapse of time and failure of the memory of the witnesses, especially when it appears that the testator signed the paper, and the witnesses were summoned for the express purpose of witnessing a will ( I). To the will of T., dated in 1842, there was no clause of attestation, but there were subscribed the names of three (i) Pearson, In goods of, 33 L. J., P. & M. 38. L. J., P. & M. 177. (I) Vinnicomie v. Sutter, 34 (70 Sminford, In goods of, 38 L. J., P. & M. 18 j 3 Sw. & Tr. 580. Digitized by Microsoft® WILL. 75 attesting witnesses; the only one of the witnesses who Presumption survived T. deposed that he witnessed the testatrix exe- "jon^ cute the will, but that no one else was present, and he then told her that the presence of another witness was requisite : — Held, in the absence of evidence as to the circumstances under which the other two witnesses signed, that it might be presumed that the testatrix had acknowledged her signature in their joint presence (m). "Where the attestation clause to a will is informal, and the attesting witnesses identify their signatures, and that of the testator, but have no recollection of the circum- stances under which the will was executed, the presump- tion, in the absence of evidence to the contrary, is, that the win was duly executed (w). Where one of the attesting witnesses was dead, and it appeared that it would be difficult, if not impossible, to dis- cover the other, and the only parties interested in the estate consented, the court granted probate of the wiU, though in the attestation clause it did not appear under what circumstances the attestation clause had been made (o). Where a wiE is written on several sheets of paper, and the last sheet only is duly executed, although the attesting witness did not observe the others, the prima, facie pre- sumption is, that they all formed part of the wiU at the time of its execution ; but where there is evidence from the provisions and structure of the wiU and other sources, tending to rebut or confirm this presumption, the question must be decided upon that evidence (p). Where after the death of A. a codicU was found written by him on the first side of a sheet of paper, and beneath it was : — " For my signature and witnesses see next side ;" on the fourth side, and level with the bottom of the (m) In the goods of Jane Tliomas, (o) In the goods of Wichs, de- deceased, 28 L. J., P. & M. 33. ceased, 34 L. J., P. M. & A. 30. (n) In the goods of Mees, de- (p) Mwrsh ^ org. v. Marsh ^ ceased, 34 L. J., P. M. & A. 95. ors., 30 L. J., P. M. & A. 77. Digitized by Microsoft® 78 WILL. Presumption of codicil, when the sheet was open, were the signatures of due execution, j^ ^^^ ^^ ^^^ attesting witnesses ; when the witnesses signed it, the paper was folded and they were unable to see whether there was any writing on the first side: — Held that in the absence of evidence that the codicil was written before the execution, it was not entitled to probate ; Semble that if there had been such evidence, the codicil was duly executed under 15 & 16 Vict. c. 24 (q). Execution by Q^ ^^^ other hand, where attesting witnesses to a will, testator not . /. • , i i 3 i ^ j presumed. upon its lace appearing to have been duly executed, swore positively that the testator had neither signed nor acknow- ledged his signature in their presence, and that when each of them signed, the other was not present: the court would not presume due execution, fi:om the facts that there was a formal attestation clause to the will, and that prior to its execution, testator had received instructions as to the proper mode of executing it (r). Soldier in Exceptions/] Provided always, that notwithstanding service™^ "^ this Act, any soldier, being in actual military service. Mariner or sea- or any mariner or seaman heing at sea, may dispose of his man eing a moveables, wages and personal estate as he or they might have done before the making of this Act (s). Provided always, that any soldier heing in actual military service, or any mariner or seaman being at sea, may dis- pose of his personal estate as he might have done before the making of this Act (J). These terms, "soldier" and "mariner or seaman," in- clude aU members of these professions, fi:om the highest to the lowest (m). " Soldier." The word includes soldiers who were in the service of the East India Company (.r), even non-combatant officers, {q) Hammond, In goods of, 32 (m) Ea/i-l of Euston v. Lord L. J., P. & M. 200. Henry Seymo^ir, 21 July, 1802, (?•) Oroft V. a-oft, 34 L. J., cited 3 Curt. 339. P. M. & A. 4:4. (iB) Re Prendergait, 6 N. of C. (s) 29 Car. 2, c. 3, s. 23. 92. it) 1 Vict. c. 26, s. 11. Digitized by Microsoft® WILL. . 77 as surgeons In the East India Company's service (y) ; and Minor. the party, even though a minor, has the power of making a will, if he be within the words of this section {z). What constitutes " actual military service," was fully "Actual discussed in Drummond v. Parish, and that the words, '^^^ ^^' as respects the British soldier, are confined to those who are on an expedition: where, therefore, Major-General Drummond died at Woolwich, 1843, and at the time of his death was an officer holding a commission in her Majesty's army, filling the office of Director-General of the Royal Artillery and on full pay; he was held not to be in " actual military service" (a). Similarly, the will of a soldier made when quartered in New Brunswicki and who died there, was not admitted to probate; he being held not to be at the time "in actual military service" (h). Sir Herbert Jenner seemed to doubt that "our regi- ments in the colonies or in garrison at home are in actual military service;" this was in 1839, in time of peace (c). But where a surgeon in the East India Company's ser- vice, whilst on board ship on his way out to join his regi- ment in India, wrote out his will, and died after arriving in Calcutta ; he was held to be in " actual military service " when the will was written (d). So where an officer went with his regiment to Africa, for the purpose of joining a military expedition into the interior, before the expedition left the British settlement for the interior, he signed a testamentary paper; the court held that the testator was on actual military service at the (y) Donaldson, In goods of, 2 Cnrt. 522. Cnrt. 386. (J) White t. Mepton, 3 Cnrt. (z) Fwrquhar, In goods of, i N. 818. of Ca. 651; McMwrdo, In goods of, (c) PUpps,In goods of, 2 Cnrt. 37 L. J., P. & M. 14; 1 L. R., Pro. B68. 540. (<^) Donaldson, In goods of, 2 (as) Drummond v. Parish, 3 Cnrt. 386. Digitized by Microsoft® 78 WILL. Actual mili- tary service. " Mariner or seamen." Merchant sea- men. Purser. " Being at Minor " being at sea." time when the paper was signed, and that it was entitled to probate, though not attested by two witnesses («). The words mariner or seamen include seamen in the merchant service; at least, similar words in the Statute of Frauds were held to include them ; for the court granted administration with a nuncupative will annexed (as con- tained in an affidavit of three witnesses), holding that the 29 Car. 2, c. 3, s. 23, applied to merchant seamen (_/). A purser in a man-of-war comes within the descrip- tion {g). Where a surgeon in the navy was invalided when on foreign service, and on his voyage home in a passenger ship, after being so invalided, he wrote a letter signed by him, but not in the presence of two witnesses, giving di- rections as to the disposition of his personal estate after his death, and died before reaching England; it was held, that the letter was entitled to probate, as the wiU of a mariner or seaman being at sea (A). Where a seaman went on shore and there died by an accident, his will was allowed to pass as that of a "seaman "being at sea" {i\ A letter written by a merchant seaman in the Margate Hoads was admitted to probate under this section (A). So also where the master and part owner of a trading vessel arrived at Port Adelaide, whence he wrote and for- warded by post a letter, some sentences of which were testamentary; it was held that he was a mariner at sea, and consequently that such a letter, being in his hand- writing and testamentary, was entitled to probate (Z). A mate, whilst on board her Majesty's ship Excellent, (e) Tlwrne, In goods of, 34 L. J., P. & M. 131. (/) Morell y. Morell, 1 Hag. Ecc. E. 51. (17) Hayes, In re, 2 Cnrt. 338. (7t) Saunders, In goods of, 35 L. J., P. & M. 26; 1 L. E., Pro. 16. (i) Lay, In re, 2 Curt. 375; see also Lord Hugh Seijmow'g case, cited 2 Cart. 375. (4) Milligan, In re, 2 Eobert. 108. (J.) Parker, In goods of, 2 Sw. & Tr. 375; 28 L. J., P. & M. 91. Digitized by Microsoft® WILL. 79 which was permanently stationed in Portsmouth Harbour, Minor being at and when under age executed a will, of which probate was granted to one of the executors named in it ; on an appKca- tion to revoke the probate, the court held that the de- ceased came under the exception contained in the statute as a seaman at sea; and, although a minor at the time, that he had legally executed a will (m). Probate has been allowed to pass in common form, upon Practice. an affidavit from a clerk in the War Office, that the parties deceased were, at the time their wills were made, in actual military service (w). But a mere averment that the deceased held such a rank in his regiment, was in such a place, and was in actual military service at the date of writing the paper in ques- tion, is not necessarily enough to entitle such paper to be treated as a soldier's testament; but the affidavit should contain a statement of the circumstances, full enough to enable the court to judge whether the case falls within the meaning attributed by previous cases to 1 Vict. c. 26, s. 11 (o). Probate of a will made by a soldier in actual military Si^ature of service, signed but not attested, will not be granted, unless ™^ ' ^"^^ ^' the signature be proved to be in the handwriting of the deceased, by the affidavits of two disinterested persons; it is not sufficient that the affidavits state that the whole paper writing is in the handwriting of the deceased, but they should in terms state that the signature is in his hand- writing ; the form for an affidavit of handwriting, given in the rules, should be strictly followed {p). The rule of court {q) which directs that " the registrars " are not to allow probate of the will, or administration " with the will annexed, of any obviously illiterate person {m) MoMwdo, In goods of, 37 ip) Nemlle, In goods of, 28 L. J., P. & M. 14; 1 L. K., Pro. 540. L. J., P. & M. 52. (m) 2 Curt. 368, note. C?) Enle 71, P. E., Nou-C. ; Eule (o) Thorne, In goods of, 4 Sw. & 81, D. R. Tr. 36; 34 L. J., P. & M. 131. Digitized by Microsoft® 80 WILL. Military will. Navy and marines. Of will made before 1838. " to issue, unless they have previously satisfied themselves " that the will was read over to the deceased before the " execution, or that the deceased had at such time know- " ledge of its contents," applies to a will made by a soldier in actual military service and executed by mark (r). In order to prevent the numerous frauds to which sea- men were peculiarly liable, the legislature has enacted the Navy and Marines (Wills) Act, 1865 (s). It wiU be ob- served that this statute applies only to the inferior officers and ordinary seamen, and is directed principally, though not entirely, to affect wages, prize-money and the like. The statute will be found in Appendix I. Kevocation. Before the 1 Vict. c. 26, s. 18, marriage and the birth of a chUd, even posthumous, operated as a revocation, whether there was intention to revoke or not, and such is stiU the law in reference to wills made before that statute. Marriage alone was not, in the case of a man, a revoca- tion (t). But it was, in the case of a woman (m). "Where a will was made after marriage, the subsequent birth of a child was not of itself sufficient (u). Where a man married and afterwards made his will, and devised to his niece and afterwards died, leaving his wife enceinte with a daughter, which was unknown to him: — Held the birth of the daughter was not a revocation of the wiU (a:). Where C, in 1828, made his wiU in contemplation of marriage, whereby he appointed E. S., his intended wife, executrix, and made provision for her and the issue of the • marriage, and shortly after married her and had children {r) Haohett, In goods of, 28 L. J., P. & M. 42. («) 28 Sr 29 Vict. c. 72. (t) Watson V. Magrath, 1 Rob. 680; Wilkinson v. Adam, 1 Ves. & Bea. 466. (u) Forse ^ Hemliling's case, 4 Rep. 61; Cotter v. Layer, 2 P. Wms. 624. (v) Shepherd t. Shepherd, 5 T. R. 15, note. {x) Doe v. Barf or d, 4 M. & Sel. 10. Digitized by Microsoft® WLL. 81 by her; in 1857 C. died:— Held, that the will was re- Before 1838, voked by the marriage and birth of a child (y). mlS^ ^^ But where A. by will provided an annuity for B., with whom he cohabited, and directed his trustee and executor out of his real estate, in case he should have any child or children by B., to raise £3,000 to be paid to and amongst his said children, and devised the remainder of his estate over to several of his relatives; afterwards he married B. and had several children by her: — Held, that such sub- * sequent marriage and births did not revoke his will, the objects having been therein contemplated and provided for (z). At common law, a wiU might be revoked by any act of By any act. the testator, which showed his intention, without the use of any words whatever (a). When the substance of a wiU is propounded, the first By destruction, point to be ascertained is, whether such a will was duly executed; if that is estabKshed, the next point is, whether it was in existence at the death of the deceased; if it was not, then the prima facie presumption that it was destroyed by the deceased, with intention to revoke, arises, which may be rebutted by further evidence (5). A deed intended to operate as an appointment of uses. By deed, but not sufficient for that purpose, might have the effect of revoking a will, if the party appeared to have had that intention (c). But as to devises of lands, &c., they were only revocable Devises of in the manner pointed out by the 29 Car. 2, c. 3, s. 6, and the effect of the statute of 1 Vict. c. 26 seems to be principally to extend the method of revocation there to all wUls, whether of personalty or realty. Notwithstanding sect. 34 (d), wUls executed prior to (y) Cadynold, In goods of, 27 Ad. & E. 1. L J P & M 36 (*) Po^'fi^re v. Whatton, 3 Sw. '(z{ Kenelel v. Scrafton and & Tr. 449; 33 L. J., P. & M. U3. otlierB, 2 East, 530. («) Sho^' ^- ^»''''«' ^ T. R. 124. (a) Doe dem. Reed v. Harris, 8 (^) 1 Vict. c. 26. B. *^ Digitized by Microsoft® 82 WILL. Before 1838, 1838 are within the revocatory sections of the statute, revocation. .vvrliether by obliteration (e) or tearing or otherwise destroy. By mutilation, Testator made his will in 1834, and upon his death in dlte!"^''"" °^ 1870, the will was found among his papers with the signa- ture cancelled: — Held that it lay on the party, who alleged the revocation of the instrument by cancellation, to prove that the cancellation took place before the Wills Act came • into operation (^). Onus of The onus of proving a testamentary paper lies on the cation of T°' V^^7 propounding it; once proved, the onus of showing will whether ^}ia,t it has been revoked, on the party alleging the revoca- 1 Vict. c. 26. tion. Where S. duly executed his will, and five years afterwards became insane, and died in a lunatic asylum, the wiU was seen in his custody two months after its exe- cution, but it could not be found at his death: — Held that there being satisfactory evidence of the due execution of the will, the onus of showing that it was destroyed by S. when of sound mind, lay upon the party alleging its re- vocation (/»). Unrevoked Where the testator made a codicil to his wiU, and gave it to his son to keep ; on his death, the will was not forth- coming : — Held that the codicil not having been revoked by any of the modes indicated in the statute, it was en- titled to be admitted to proof (z). Since 1 Vict. Since the 1st January, 1838, a will is revoked by mar- "' ^ '^ riage {k) (except certain wiUs made in the exercise of a power of appointment), or by another will or codicil, or by a writing executed like a will, or by burning, tearing or otherwise destroying the same (?). These are now the only methods by which a will can be revoked. By Marriage, 1 Vict, c. 26, s. 18.] To revoke a will (e) Brooke v. Xent, 3 Moore, P. & M. 4. P. C. C. 334. (i) Savage, In goods of, 39 L. J., (/) EoUs V. Knight, 1 Curt. P. & M. 25 ; JBlaoli v. 768. affirmed, 38 L. J., P. & M. 74, (g) Benson v. Benson, 40 L. J., (li) 1 Vict. t. 26, s. 18. P. & M. 1. (0 Ibid. s. 20. (Jt) Sprigge v. Sjirigge, 38 L. J., Digitized by Microsoft® WILL. 83 by marriage, the marriage must be a marriage valid by Since 1838,. rc- the laws of this country, and there is no distinction, in bandage. ^ such a case, between a testator, who is a natural born and one who is a naturalized British subject {m). Where a testator, being domiciled in Scotland, in anti- cipation of his marriage, which subsequently took place in Scotland, executed a deed of settlement, which he also intended should operate as his will ; by the law of Scotland such a document, as a disposition of property at death, would not be revoked by the marriage of the contracting parties ; the testator after his marriage became domiciled in England: — Held that as the settlement was valid by the law of domicil as a testamentary disposition, at the time of execution, as also subsequently to the marriage, and at the moment when the testator left the country, it continued valid notwithstanding the change of domicil (k). Where the will of A., by which he exercised a power of Exception, appointment, and also disposed of his own personal estate, having been, as to his own estate, revoked by his subse- quent marriage, the court granted letters of administra- tion of his effects, save as to such of them as he was en- titled to appoint by will (o). So where A., under his marriage settlement, had in the - event of his surviving B. (his wife) a power of appointing by deed or wiU amongst his childen certain trust monies, and, in default of such appointment, the monies were to be equally divided amongst them ; A. survived B. and by a will, executed in 1847, he being then a widower, directed the then unappropriated portion of such monies to be equally divided amongst his sons (a portion having been previously assigned to his daughter on her marriage) ; A., in 1855 contracted a second marriage, and died in 1858 without having executed any other will or any further ap- pointment of the trust monies:— Held that the will of (m) Mette y. MeUe, 1 Sw. & Tr. P. & M. 43. ^jg (o) Mason, In goods of, 30 L. J., (») Eeid, In. goods of, 35 L. J., P. & M. 168. g2 Digitized by Microsoft® 84 WILL. Since 1838, re- 1847, SO far as it was an execution of the power of ap- maMage-eK- pointment, was not revoked by A.'s second marriage, ception. though the same persons would take under the settlement, in default of appointment, as would have taken in case of an intestacy under the Statute of Distributions (/>). Where a married woman, in pursuance of the powers giv§n to her under a particular deed, executed a will and codicil, by which she disposed of aU the property referred to iQ such deed ; her marriage was subsequently dissolved by a decree of the court for divorce and she remarried ; after her second marriage she executed another will, by which, without referring to any power, she disposed of all her property, but she did not therein appoint an executor : — Held that the first will was not revoked by the second marriage, as it came under the exception contained in 1 Vict. c. 26, s. 18 ; nor by the second will, as the two were not inconsistent with one another ; probate was granted of all the papers, as together containing the will of the deceased, to the executor named in the first will (q). A. by his will gave a power to B. to dispose by will of certain property, which, in default of appointment by her, was to devolve on the person or persons who, at her decease, should be her "next of kin;" B. in pursuanceof such power executed a will in favour of C, whom she afterwards married, but who died in her lifetime: — Held that B.'s will fell within the exception of the 18th section of the "WUls Act, and was therefore not revoked by her subsequent marriage (r). JBi/ another Will or Codicil, 1 Vict. c. 26, s. 20.] In inter- preting a win and a codicil, the general rule is, that the whole will takes effect, so far as it is not inconsistent with the codicil («). Where therefore a testator executed a codicil to his last will, and by such codicil absolutely re- (p) Fitzroy, In goods of, 1 Sw. (?•) W Vicar, In goods of, 38 L. ^ Tr. 133. j._ p. & m;_ 84_ (?) Fenmick, In goods of, 36 L, («) Rolertson v. Porvell 2 H & J., P. & M, 64, C. 762j 33 L. J., Ex. 34. Digitized by Microsoft® WILL. 85 voked and made void all bequests and dispositions in the Since 1838, re- wiU, and nominated executors, but did not in direct terms another will, revoke the appointment of executors and guardians in the *"• will ; it was held that the will was not revoked (i). A testator devised nine houses to his son A. for life; and after his death to his children who should attain a certain age ; but in case all such children should die under that age, then to trustees to permit his three daughters B., C. and D. to receive the rent during their hves in equal shares, and after their decease, to their children in fee ; he afterwards made a codicil in these words : — " I " hereby revoke that part of my last will and testament, " whereby I give the nine houses unto my son and to his " heirs ; and my will is that my daughters C. and D. " should enjoy them ; I give and bequeath the freehold " ground and houses to my daughters- C. and D. equally " and jointly between them, and to the survivor of them, " and after their decease to their child or children equally ; " and if they should die, leaving no child or children, then " the freeholds to go as ordered by my will." C. and D. died leaving no child ; A., the son, died leaving a daughter his only surviving child, who was bom in the lifetime of the testator, and attained the required age' ; but A. had had another daughter bom in the lifetime of the testator, who had married and had a son, but both she and her son died in the lifetime of her father; the testator's daughter B. was also dead, but leaving two children :— Held that, not- withstanding the general words of the commencement of it, the codicil operated only as a partial revocation ; that it operated as a revocation only so far as to effectuate the intention of the testator, as declared in the codicil, to pre- fer his daughters C. and D. and their children to his son A. and his children ; that it operated nothing more, and that failing the objects of the preference, the testator's declared intention was that the will should operate as if there had (f) Howard, In goods of, 1 L. E., Prob. 636; 32 L. J., P. & M. 32. Digitized by Microsoft® 86 WILL, Since 1838, re- been no revocation ; and therefore that the daughter of A. InothMwUl, was entitled to a moiety of the houses (tt). &c. ' So where A. bequeathed leasehold premises to his daughter M. for her life, and after her death to and amongst her lawM issue equally share and share alike, with benefit of survivorship; and "in default of such issue," to his son G. for life, and after his death to his children equally share and share alike, with benefit of survivorship ; by a codicil, the testator recited that he had by his will bequeathed to his son G., after the decease of his, the tes- tator's, daughter M., " and in default of her leaving lawful issue," the leasehold premises; and stated that in case his son should not indemnify his estate from a debt incurred by the testator for the accommodation of his son, such bequest in the wUl in favour of his son should be revoked : — Held that the codicil did not revoke the will, but showed the sense in which the testator used in the wiU the words " in default of such issue " (ar). So a wiU disposing of the whole of the testator's pro- perty will act as a revocation of a will disposing of a part only (y). But if the subsequent testamentary paper is only partly inconsistent with one of earlier date, the earlier in- strument is only revoked as to those parts where it is incon- sistent, and both papers are entitled to probate (z). As in interpreting a will and codicil, the general rule is that the whole will takes effect so far as it is not inconsistent with the codicil; and if the devise in a will is clear, it is in- cumbent on the party who contends that it is not to take effect by reason of a revocation in the codicil, to show an intention to revoke equally clear with the original intention to devise (a). And the mere execution of a subsequent will, com- (u) Doe dem. Even v. Ward, 21 Ch. 295. L. J., Q. B. 145j 18 Q. B. 197. (z) Lemage v. Ooodian, 1 L. R., (») Barley t. Martin, 13 C. B. Prob. 57; 35 L. J., P. & M. 28. 683; 22 L. J., C. P. 2i9. (a) Mobertton v. Powell, 2 H. & (y) MoorlwMe v. Lord, 32 L. J., C. 762; 33 L. J., Ex. 34. Digitized by Microsoft® WILL. 87 mencing with, tlie words " this is my last will and testa- Since 1838, re- ment," does not render it a revocatory instrument, as those another^wiU words do not necessarily import that such instrument con- &c. tained a different disposition of property, and that to render it a reYOcation of a former wiU, it must be proved that the contents of the latter instrument were different from the former; and where such subsequent will was not forth- coming, and its contents were unknown, the presumption of law was that it was destroyed by the testator animo revocandi, and that it did not revoke a prior will uncan- celled (6). Where A., a married woman, made a wOl in 1848, in execution of a power of appointment, and in 1857 made another in execution of another power of appointment, the later will contained a general revocatory clause, but it did not refer to the will of 1848, or to the power in execution of which it was made, or to the property thereby appointed: — Held that the wiU of 1848 was not revoked (e). Where A. by her will gave certain property, over which she had a power of appointment, to her four sons, and ap- pointed B. executor; and by a subsequent will, which con- tained no clause of revocation, she gave aU the property of which she might die possessed to three of her sons, and appointed C. her executor: — Held that the second wiU did not revoke the first, but that both were entitled to pro- bate {d). So where A., by his will made ia 1853, gave aU his real and personal estate to B., and appointed B. sole executor, and by a subsequent wiU, which contained no clause of re- vocation, he gave two houses to C, and appointed C. sole executor: — Held that the latter wiU was not inconsistent with the earlier, and therefore did not revoke it, and that (J) Catto T. GUtert, 9 Moore, P. & M. 169. P C. C. 131. C*^) Graham, In the goods of, 32 (c) Joy», In goodi of, 30 L. J., L. J., P. & M. 113j 3 Sw. & Tr. 69. Digitized by Microsoft® 88 WILL. Since 1838, re- B. and C. were entitled to probate of both instm- Tocation by . another wiU, ments (e). *"■ A testator by his will disposed of aU bis real and personal estate, and appointed B., C. and D. executors ; by a sub- sequent testamentary paper, which contained no clause of revocation, he disposed of his personal estate only, and ap- pointed B. and C. executors: — Held that the appointment of executors in the first testamentary paper was not re- voked, and that the executors named in the second will were entitled to probate of both testamentary papers as together containing the wiU of the testator, leave being re- served to the other executors named in the first papers, to come in and take probate {f). But where testator, having by his wiU appointed A. and B. executors, and by a codicil he appointed his wife sole executrix of his will: — Held that the appointment of the executors by the will was revoked {g). Testator made a will in 1831; a few years before his death, in 1863, he produced, to two acquaintances, a paper dated 4th June, 1847, which he alleged to be his will, and got bne of them to make a copy of it ; this paper was in substance the same as the will of 1831; it had the name of the deceased, and the names of two attesting witnesses, at the bottom of it; but neither of the persons to whom it was shown could speak to any of the signatures; the copy which the deceased signed in their presence was forthcoming, but the original document could not be found : the court held, that there was no evidence of its existence as a will, and granted probate of the wiU of 1831 (Ji). By subsequent Where A. executed a wiU and codicil, which had been prepared by her solicitor, bearing date the 14th of February, 1856 ; on the 10th of November, 1858, she copied the will, omitting several legacies, and executed the copy and (e) GraA>es v. Price, 32 L. J., (j,) Lowe, In goods of, 33 L. J., !•• & M. 113. P. & M. 155. (/) Leese, In goods of, 31 L. J., (A) Gray, In goods of, 39 L. J., f.&M, 169. P.&M.42. Digitized by Microsoft® codicil. ■WILL. 89 a codicil of the same tenor as the previous one; in 1861, Since 1838,re- she instructed her solicitor to prepare a further codicil, and subsequent he, not knowing that the wiU and codicil of 1858 had been codicil. made, drew up a codicil, which purported to be a codicil to the deceased's " last wiU and testament, bearing date the 14th of February, 1856," and the deceased duly- executed it ; after her death, the wiU and codicil of No- vember, 1858, and the codicil of 1861, were found toge- ther, and, in another place, the will and codicil of February, 1856, from which the deceased's signature had been torn off; the court, being satisfied that the deceased intended the last codicil to be a codicil to the will of 1858, held, that the words "bearing date the 14th of February, 1856," as they were merely words of description, might be disre- garded, upon the principle yaZsa demonstratio non nocet si de corpore constat, and granted probate of the wiU and codicil of the 10th of November, 1858, and of the codicil of 1861 (0. But where a codicil commenced " this is a codicil to my last will made on the 30th of June, 1858." The only will then in existence, was a wiU made on the 15th of April, 1859, but the testator had previously executed a will on the 30th of June, 1858, which had been destroyed when the later wiU was executed. There was nothing in the provi- sions of the codicil to show that the testator had intended it to be a codicil to the later wUl. There was evidence of declarations of the testator, before and after the codicil was executed, tending to show that he had meant it to be a codicil to the later wiU : — Held, first, that these declarations were not admissible for the purpose of showing the testator meant to refer to the wiU of 1859; secondly, that as the •codicil in no way referred to the will of 1859, it could not be presumed that the reference to the other will was by mistake, and that the will of 1859 was consequently re- voked {k). (i) Whatman, In goods of, 34 (J) Goodenough,Ingoodsof,iO L. J., P. & M. 17; see also Aiider- L. J., P. & M. 166. son. In goods of, 39 L. J., P. & M. 55. Digitized by Microsoft® 90 WILL. By lost -will. On the death of the deceased, a duly executed will was found and probate thereof obtained; in a suit to revoke such probate, it was proved by parol evidence that a wiU of later date not forthcoming, had been in existence and duly executed, and had contained a clause of revocation of former wills ; no copy of this last will had been made, and no written instructions had been given for it: — Held that the deceased had died intestate {l). Deceased made a wiU in 1840, and in 1867, while on a visit to a friend, he employed himself much in writing, and stated he was writing out his wUl, and he gave his friend a paper writing, which he said was a copy of his will which he was going to execute ; shortly after he duly executed a wUl, which, however, could not be found; the paper writing revoked all former wills: — Held that the will of 1840 was revoked by a wiU made in 1867, which, not being forthcoming, must be presumed to be revoked by destruc- tion, and an intestacy was decreed (»?). Revocation by " Or hy some writing declaring an intention to revoke ??.^® » g the same, and executed in the manner in which a will is wntingj ' &c. ^ hereinbefore required to be executed." 1 Vict. c. 26, s. 18. This writing need not be a will. " The statute draws a distinction between wills and " codicils and ' some writing ;' I am clearly of opiaion that " this is ' some writing' declaring an intention to revoke a " previous will, and, being only a writing of that character, " cannot be called a will" (n). — Ld. Penzance. A married woman, even though incompetent to make a will, may execute "a writing" of this description, by which she can revoke a will made dum sola. " Ifo principle, " authority or dictmn of a legal tribunal was offered to this " feourt, for the proposition that a married woman is legally " incapacitated from the revocation of a testamentary in- " strument in any of the modes pointed out by the 20th (0 Wood V. Wood, 35 L. J., P. P. & M. 65. & M. 34. («) Fraur, In goods of, 39 L. J., (m) Johnson v. Lyfurd, 37 L. J., P. & M. 20. Digitized by Microsoft® WILL. 91 " section of the "Wills Act; and as one of those modes is Revocation by " by another will, or hy some writing declaHng an intention -vrriting » &c. " to revoke the same, and executed in the m,anner in which " a will is required to be executed, it is not even necessary " in this case (so far as Revocation is concerned) that the " paper of the 25th August, 1864, should have been a " will at all; for it is a writing duly executed as a will " should be, and it does in terms revoke all former wiUs " and appointments " (o). — Ld. Penzance. By Obliterations, §"0.] Obliterations and alterations, in order to operate as a revocation under this section, must be accompanied vdth the animus revocahdi, and the testa- tor must not merely have intended a Substitution (jo). The obliteration, in order to be effective, " so far as the words or effect of the will before such alteration shall not be apparent," must be such that none of the parts oblite- rated can be distinguished upon the fac6 of the will, by the aid of magnifying glasses, or evidence of that nature : and extrinsic evidence, to make the previous effect of the will apparent, is inadmissible {q). Tearing, Burning, or otherwise Destroying.] Where a By mutilation, testatrix duly executed a will contained in six; sheets of paper, and signed her name at the bottom of each of the first five sheets ; she afterwards cut off these signatures and struck through the signature at the end of the will with a pen, and wrote after it the word " cancelled," with her initials and the date; the court, being satisfied that the will had been thus mutilated animo cancellandi, held that it had been revoked; a codicil executed before the revocation of the will and independent of the will was admitted to probate (r). Testator duly executed his will in 1828 ; it was written (fl) Hamkesly and another v. 761 j and see James, In goods of, Barrow, 35 L. J., P. & M. 69. 7 Jur., N. S. 62. ( p') Tomnley v. Watson, 3 Curt. (r) Harris, In goods of, 33 L. J., 761. P. & M. 181 (j) Townley v. Watton, 3 Curt. Digitized by Microsoft® 92 WILL. Since 1838, re- q^ ggygjj sheets of brief paper and each sheet was signed vocation by ■, ■, \ ■ -i j.i jnntilation. by the testator and the three attesting witnesses ; on the testator's death in 1870, the will was found in a chest in which he kept papers of importance, with about eight lines at the top of the first sheet torn off; in all other respects the will was perfect, and there was no evidence as to the circumstances under which the mutilation was effected : — Held that part revocation of the instrument was only in- tended, and probate accordingly decreed of the wiU in its mutilated state (s). The signatures of the attesting witnesses to a will, being an essential part of the will, the tearing them off by the testator, animo revocandi, revokes the will ; where a will, of which the testator had the custody, is found so mutilated after his death, the presumption is that the mutilation was the act of the testator done animo revocandi {t). So where, on the 15th December, A. being very ill, made his wUl, and gave it to his mother to take care of; on the 21st, at his request, she gave it back to him ; on the 22nd he died, when the will was found under the bolster of the bed on which he died, the attestation clause and signatures of the attesting witnesses having been torn off: the wiU was held to be revoked (m). Where a will, in the custody of the testator, is found after his death mutilated, the presumption in the absence of evidence is that it was mutilated by him after its exe- cution, and, if there be a codicil, after the execution of the codicil ; a testatrix wrote her will upon the four pages of a sheet of paper and upon the first page of another sheet, and in the presence of the attesting witnesses signed it at the bottom of that page and also at the top of the next page and underneath the latter signature the attesting witnesses signed their names; she afterwards duly exe- cuted a codicil on the second page, referring to the wiU ; (s) Woodward, In goods of, 40 P. & M. 128. L. J., P. & M. 17. (?/.) Lemis, Tn goods of, 27 L. J., (t) Evans v. Dallon; 31 L. J., P. & M. 31. Digitized by Microsoft® ■WILL. 93 after her death both sheets of paper were found in a box Since 1838, re- inclosed in separate envelopes, but the top of the second mntilationf sheet and with it the signature of the deceased was cut off, the signatures of the attesting witnesses remaining ; there was no proof that any writing besides the testatrix's signa- ture had been cut off, though this appeared probable from the fact that the conclusion of the first sheet referred to a certain disposition of property as following, which was wanting in the second sheet: — Held, 1st, that in the absence of evidence it must be presumed that the deceased mutilated the wiU after the execution of the codicil; 2nd. That when the codicil was executed, the will and codicil formed but one testament ; 3rd. That the manner in which the wOl was cut, the preservation of both sheets, and other circumstances, showed that the testatrix in- tended not to revoke the wiU altogether, but only such part as was cut of, and therefore that the remaining part of the will and the codicil were entitled to probate {x). Where a testator cut out of his will the names of the attesting witnesses, giving as his reason that he had some idea of altering it and having a new will made, and after- wards, on the same day, replaced the piece so cut out, say- ing that the wUl would do for the present ; the court upon motion, with the consent of the persons interested in case of intestacy, granted probate (y). In order that a will may be revoked by tearing, it must be shown that the testator intended that which he actually did, of itself to have had the effect of revoking it, without more : if he commences tearing it, with the intention of revoking it, and being about to tear further, stops in medio, the act not being complete, the will remains valid. A. having commenced tearing his will, which was ad- mitted to have been duly executed, with the intention of revoking it, had nearly torn it in two pieces, when he (;b) Christmas y. WUngates, 32 (y) Eeles, In goods of, 32 L. J., L. J.,.P. & M. 73. P. & M. 4. Digitized by Microsoft® 94 WILL. Since 1838, re- stopped ; there was some eyidenoe to leatd to the conelu- mutUationf sion that he Was about to tear ftirther, and that he stopped at the entreaty of a bystander ; the court being satisfied that the will had been duly executed and not satisfied on the evidence that it had been revoked, granted probate : when a duly executed wiU is propounded in a mutilated state there is a prima facie presumption that it was put in that state by the testator animo revocandi, but when evi- dence is given for the purpose of showing that such is not the case, the matter is at large, and the presumption must be disregarded, and a court or jury should decide on the evidence alone, and shotdd not, if they are in doubt on the evidence, find against the wiU, by calling in aid the pre- sumption (z). When a will has been proved to have been once duly executed, and at the death of the testator cannot be found, the general presumption is, that it has been destroyed by the testator animo revocandi (a). Thus where A. in 1856 duly executed a will, of which he kept possession : in 1861 a Iresh will was drawn up for him, but was never finally settled; he subsequently re- ferred to the executed will as being then in existence, and afterwards expressed his intention to destroy it, and to settle the new one, but died without having done so : after his death, the draft prepared in 1861 was found, but not the executed will: — Held that the executed wiU was re- voked (S). Gr. in 1855 wrote his will on six or seven un- attached pieces of paper; at the foot of each sheet, he signed his name in the presence of two witnesses, who also subscribed their names in his presence : after G.'s death, two only of these sheets, viz. the 3rd and 4th, could be found, but they contained a disposition of part of G.'s (z) aims V. Elm, 27 L. J., P. P. & M. 34; Podmore v. Whatton, &M. 96; 1 Sw. &Tr. 155. 3 Sw. & Tr. 449. (a) Johnson v. Zyford, 37 L. J., (J) Mitcheson, In goods of, 32 P. & M. G5; Wood v. Wood, 35 L. J., L. J., P. & M. 202. Digitized by Microsoft® WILL 95 property; on motion for a grant of administration witli Since 1838, re- 1 -I t • 1 •^^ f r~t • vocation Dy these two papers annexed, as bemg the will oi li., it was mutilation. held, 1st, that it must be presumed that G. destroyed the lost sheets intentionally; 2ndly, that as the last sheet contained the only signatures which were in compliance with the Wills Act, the whole wiU must be presumed to be revoked (c). But the presumption of fact that a will known to have been in testatrix's custody and not forthcoming at her death, was destroyed by her animo revocandi, is a prima facie presumption only, and may be rebutted by probable cir- cumstances ; among which, declarations of unchanged affection and intention have much weight: it is not necessary for the parties seeking probate, having proved the factum of the original instrument and given sufficient secondary evidence of its contents, to show how the ori- ginal instrument was in fact destroyed or lost {d). But though a testator has the power of revoking a will by destroying it, either himself or by his commands during bis life, it seems he has no power to authorize a post mortem destruction of his will (e). A codicil \s prima, facie dependent on a will :. thus, where Effect of, on a win and codicil to it have been in existence, and the will "^^ ^" ' has been subsequently destroyed by the testator, the burden of proof is on the party setting up the codicil, to show that it was the intention of the testator that it should operate separately from the will; otherwise the presumption is that by the destruction of the wiU the codicil was revoked (/). So where A. executed a will containing certain be- quests, and subsequently a codicil purporting to be a codicil to that wiU, the provisions of which were in no way dependent upon those of the will, and in all other respects (c) ehillan,Ingoodsof,21Jj.3., (e) Stoclmell r. Eitherdon, 6 P. & M. 16. No. of Ca. 414. (). But the declarations of a testator as to his intention, where rehed on to show that the revocation was dependant, must accompany the act of destruction. For where a testatrix executed a will, which revoked an earlier will, and two years subsequently, while alone in her bedroom, she de- stroyed the later will and immediately afterwards told her daughter that she had done so, with the intention that the earlier will might take effect: — Held that the destruction of the instrument under the circumstances, amounted to an absolute revocation (y). A. drew out for the deceased, on his instructions and at different times, three wills, each of which contained a re- vocatory clause ; A. was himself benefited under the first two, but not under the last mil ; it appeared from the evi- dence of A. alone, that on an occasion, the three wills being before the deceased, the deceased selected the one of earhest date as that he desired to operate, and thereupon the other two were burnt either by deceased himself or by his orders and in his presence : it further appeared by the evidence of A., and in that he was surported by the attest- ing witnesses, that the will of latest date was not signed by the deceased, nor was his signature acknowledged in the presence of the witnesses, and that therefore it was not duly executed: — Held that the deceased died intestate; that where a testamentary paper is not in existence, and all the persons present, at an intended execution of it, (,p) Middleton, In goods of, 34 (j) Weston, In goods of, 381,. 3., L. J., P. & M. 16. p. & M. 63. Digitized by Microsoft® •WILL. agree that it was not duly executed, the court cannot, on a Revocation- mere suspicion to the contrary, decree probate of it ; in reiatfye*"' order to establish a case of dependant relative revocation, it must be shown by the evidence of disinterested witnesses, that the act of destruction of a will was referable wholly and solely to an intention to set up some other testamen- tary paper (r). A. made a will in 1826, and another in 1851, incon- sistent with the former; before his death he burnt the second wiU animo cancellandi, accompanying the act with declarations which showed that he supposed the will of 1826 had thereby been revived ; it was held, first, that the earlier will was not revived, as, though made before the Wills Act, it could only be revived in the way pointed out by the act and not by the declarations of the testator ; secondly, that the doctrine of dependant relative revocation did not apply to the burning of the later will, but that it was absolutely revoked : — Semble the doctrine of depen- dant relative revocation only applies where the revocation' is to be dependant on a future event (*). Revival.'] A will now, when once revoked, can only be revived in the manner pointed out in the WiUs Act (7 WilL 4 & 1 Vict. c. 26, s. 22), either by re-execution or by the execution of a codicil showing an intention to revive it. B. in 1846 made a wUl, which he revoked by another wiU made in 1855 ; on his death the former will was found, but not the latter ; it was held, first, that it must be presumed the deceased destroyed the missing will animo revocandi; secondly, that parol evidence of the contents of the missing wiU was admissible; thirdly, that the earher will was not revived by the destruction of the will which had revoked it (J). Where a testator made a will dated the 30th of June, {r) EcTtersley v. Piatt and others, L. J., P. & M. 84. 36 L. J., P. & M. 7. (t) JBroron, In goodt of, 27 (s) DicJienson v. Snatman, 30 L. J., P. & M. 20. h2 Digitized by Microsoft® 100 WILL. Eevival. 1858, and destroyed it upon executing a second will ill 1859, and afterwards made a codicil intending it to be supplementary to the wiU of 1859, but expressing it to be a codicil to my last will made on the 30th of June, 1858, the court granted probate of the wiU of 1859 and the codicil ; there can be no revival of a will which has ceased to have both a physical and legal existence; qucere : first, whether a will can be revived which is no longer in esse ; secondly, whether evidence is admissible to explain the mistake or supposed mistake of a testator {u\ A testator by will made on the 30th of April, 1857, devised a fireehold house to A. for life, and by a codicil thereto, made in September, 1857, he bequeathed her in addition a legacy of 200Z., and by another codicil made on the 13th February, 1858, he bequeathed her a leasehold house and the furniture and effects therein ; on the 3rd of June, 1858, he executed a wiU which differed only from that of 1857 by the substitution of another person as one of the executors and residuary devisees and legatees, and which revoked all former vdlls ; on the same day he re-executed the codicil of September, 1857, as a codicil to the Tsdll of 3rd of June, 1858 ; there was evidence that the wiU of 1858, which was not found after the testator's decease, had been destroyed by him in 1859, animo revocandi ; on the 1st of June, 1860, the testator wrote to A. a letter which was duly executed as a wiU, stating that he had made a will and left A. a freehold house and fturniture for life, and that he wrote the letter in confirmation of what he had already done. After his death the will of 1857 and the two codicils were found sealed up in an envelope endorsed in the handwriting of the testator, sealed June 13th, I860:— Held that by the letter the deceased in- tended to confirm the testamentary papers found in the envelope, and that they and the letter were entitled to probate (x). (■u) Sogers v.Goodenovg?i,Zl'L. {ic) McCabe, In goods of, 31 J., P. & M. 49. L. J., P. & M. 190. Digitized by Microsoft® WILL. 10 1 By 1 Vict. c. 26, s. 22, in order tliat a codicil shotild Eevival. revive a will wHch. in any manner has been revoked it must sliow an intention to revive the same: — Held that such intention will not be shown by a mere reference to such will by date, but the codicil must contain express words referring to a wiU as revoked, and importing an intention to revive the same, or a disposition of the tes- tator's property inconsistent with any other intention, or some other expression conveying to the mind of the court with a reasonable certainty the existence of the intention in question (y). In order that a revoked will may be revived by a codicil since the Wills Act, an intention to revive it must appear from the contents of the codicil, and cannot be established by any act dehors the codicil ; mere physical annexation, e. g., the tying the will and codicil together, is not sufiScient («). . PEOBATE HOW GEANTED. Probate may be granted either in solemn form or in common form. " In probate of wills there is one form which is slight and summary for ordinary and undisputed, cases, and another more formal by solemn decrees of the court." Sir Wm. Scott (a). In Solemn Form.] Probate in solemn form is, with Effect of pro- some exceptions, conclusive on all who are parties to the \l^^ solemn proceedings or cognizant of them. The exceptions to its conclusive effect are generally where the decree has been, obtained by fraud or collusion, or where a later will has been discovered. " A sentence obtained by fraud and collusion is no sentence ; in order to make a sentence there must be a real interest, a real argument, a real prosecu- tion, a real defence, a real decision; of all these requisites iy) May, In goods of, 37 L. J., oi-s., 30 L. J., P. M, & A. 77, P. & M. 68. («s) OuTie of Portlwnd t. Bing- {f) Marsh ^ ors. v. Marsh ^ ham, 1 Hag. Con, K. 158. Digitized by Microsoft® 102 PROBATE. In solemn form not one takes place in the case of a fraudulent and col- — coUnsior''''' lusive suit : there is no judge, but a person invested with the ensigns of a judicial office is misemployed in listening to a fictitious case proposed to him; there is no party- litigating, there is no party defendant, no real interest brought into question ; and to use the words of a very sensible civilian on this point, ^fabula non judicium hoc est; in scend, non in faro, res agitur' "(5). In the Duchess of Kingston's case, it seems the decision went on the double ground that the two suits were not between the same parties, and that evidence was admis- sible to show that the first decision was obtained by fraud and collusion (c). Subsequent Where on the 7th July, 1854, on appeal from the Pre- will discovered, rogative Court, the judicial committee of the Privy Council (reversing the decree below) decreed probate of a will dated 1825, and subsequently, on the 7th October, 1854, a will of the testator dated March, 1851, having been discovered, an application was made to the judicial committee for probate thereof; such application was re- fused, as the original suit being concluded the jurisdiction of the judicial committee was exhausted, but the com- mittee intimated that if a petition was presented to her Majesty to refer the matter specially to them, they would entertain the application ; upon such petition being pre- sented and referred, the committee revoked the probate of the win of 1825, and directed that the wiU of 1851 (which had been brought into the registry of the court for the purpose of the application), should be delivered out to the applicant, in order that she might take probate thereof in common form in the Prerogative Court of Canter- bury {d). In Common Form.] By granting probate in common (J) WedderJmrn v. Sol.- Gen. Hugueni/ii, i Moo. P. C. C. 396. in the Duchess of Kingston's case, (c) 20 St. Tr. 355. 20 St. Tr. 478 J quoted by Lord () Sims, In goods of, 16 W. R. Digitized by Microsoft® 407; 17 L. T., N. S. 619. (j) Eochell V. Goude, 3 Phill. 141. PROBATE. 1 15 will of Novemberj 1861 :— Held that the annulled will did Incorporation not raise any implied trust in favour of the said children, and that, therefore, it need not be embodied in the pro- bate (r). But where an informal testamentary paper is incor- Effect of. porated with an instrument dxily executed, the informality is cured, and the informal paper is rendered valid by the duly executed instrument (s). The points deducible from the above cases seem to be : — 1st. The testamentary instrument must clearly describe the document proposed to be incorporated, but the document may be identified by parol ; 2nd. The testamentary instru- ment must describe it as already existing — if defective in this, the fact cannot be supplied by parol; 3rdly. When duly incorporated, the paper, however informal, becomes equally valid with the instrument with which it is incor- porated, but it must be an operative instrument. Where probate is granted of a married woman's will, Powers of a made by virtue of a power, or administration with such will must'bV^"'" annexed, the power under which the will purports to have specified. been made must be specified in the grants (t). This rule is in accordance with the old practice. Where Will of mar- M. was alleged to have duly executed a will, during cover- "^'^ woman, ture, in pursuance of a power, and died a widow without any known relation : the crown applied for administration, with her will annexed, but because neither the power, nor a copy of it, was before the court, the motion was re- fiised (u). Where a married woman who has a power of appoint- Deeds referred ment makes a will, in which she disposes not only of the °' property which is subject to her appointment, but also of other property over which she had no power of disposition, and appoints her husband executor, the instrument, if (r) OnoUerlony, In goods of, (i) P. R-jNon-C. 15;D.R.R. 18. 32 L. J., P. & M. 140. («) Monday, In goods of, 1 Curt. («) Allen V. Maddoch, 11 Moore, 590. P. C. C. 427. DigitizhSby Microsoft® 1 1 6 PROBATE. Deeds refciTed proved by her husband, will operate as to the latter pro- °' perty as a will made ex assensu viri (x). In such a case, as to the property beyond her power of disposition, there can be no power (except the husband's assent) which can be specified. Occasionally, however, these rules (y) may be relaxed, where the deeds are of great length, and the embodying of them in the probate would involve great expense for little purpose. As where A. by his wiU bequeathed certain lease- holds to trustees, upon the same trusts as were declared by a settlement, with a slight exception, the whole of these leaseholds were included in the settlement, which was of great length ; the court granted probate, without requir- ing the settlement to be embodied in it, upon an affidavit being filed in the registry stating the existence of and describing the settlement (z). Nor where the document referred to refers entirely to realty, and the parties in whose hands it is refiise to pro- duce it. As where a testator devised his real estate to A. and B., to such uses, &c., as were declared by a certain deed of settlement, and directed that they should stand possessed of his leasehold estate for such trusts, &c., as should as nearly correspond with the uses declared as to his real estate, as the different tenure and quality of the premises and the rules of law would permit ; the deceased left no leasehold estate, and the trustees of the settlement refused to produce it:— Held that probate of the will might be granted without including in it any portion of the settle- ment (a). A testator bequeathed the residue of his estate to trustees, upon the same trusts as those contained in a deed of settle- ment made between third persons, and in which the testator (a>) Ex parte Fane, 16 Sim. 406. goods of, 32 L. J., P. & M. 121. iy) Eules 12, 13 and 26, P. R., (a) Jhmdas, In goods of, 32 Non-C; Rules 15 and 16, D. R. L. J., P. & M. 165. (is) Marquis of Lansdomne, In Digitized by Microsoft® PROBATE. 117 had no interest. The court, upon an affidavit that the Deeds refen-ed persons, in whose possession the deed was, refused to pro- duce it, decreed probate without requiring a copy of the deed to be inserted therein (b). And where reference was made in a will to a deed of trust so as to make it part of the will of the testator, audit was necessary that the deed should be retained in the pos- session of the trustee, who was also the executor, to enable him properly to execute his trust, a notarial copy was directed to be left in the registry, and probate was granted of the wiU, and of a notarial copy of the deed (c). On the other hand, as the court only grants probate of Not of all the the will of the deceased, it does not necessarily foUow that ^™ °^" probate is granted of aU the writing on the testamentary paper. Where a clause was introduced into the instruc- * tions for the will, by the express direction of the testator, but by the time it was added he was dead. Sir J. NichoU struck out the clause, and the wiU was proved without it {d). , Part of a wiU may be established, and part held not to be entitled to probate (e). This was a case prior to the present WiUs Act, when the formahties required by that statute were not necessary; still it is possible that cases might occur, even sLuce the statute, of a similar nature, although such cases must now be comparatively scarce. Where an old woman had nearly lost her eyesight, and Clause intro- the attorney who drew the wiU fraudulently inserted the "'^^ ^ ™" ' residue to himself, and under different pretences kept the will back from the testatrix, the court, on receiving parol evidence of the facts, ordered the clause as to the residue to be struck out (/"). Where a clause is introduced in a testamentary paper Per incuHam. (J) SiUlwrp, In goods of, 35 529. L. J., P. & M. 73. (e) Billinghurst v. Viokers, 1 , (c) Dickens, In goods of, ZCwxt. .Phill. 187. 60. (/) Barton v. Robins, 3 Phill. (d) JVathan v. Morse, 3 Phill. , 455. Digitized by Microsoft® 118 PROBATE. Of less than per incuriam, and the deceased executes the paper, not e v.n mg. having giving any instructions for, and being ignorant of the existence of such clause, it forms no part of the will of the deceased, and probate will be granted of the remainder Codicil written of the paper omitting the clause (g). But in the absence mistake. ^ ^^ fraud, the execution of a will by a competent testator is conclusive evidence that he approved the contents thereof, if at the time of execution they were brought to his notice. A competent testatrix executed a codicil which had been previously read to her, containing a clause which the sohcitor, who prepared the codicil, stated that he inserted inadvertently and without instructions from the testatrix : — Held that the court had no power to exclude the clause from the probate (A). Where, however, at the foot of a deed, to which the deceased was a party, but which disposed of no property after her death, the follow- ing document, duly executed as a will, was written : — " I do " add unto my willthis codicil, hereby revoking any other " codicil or codicils heretofore made by me : I constitute " and appoint my said son, A. G., a trustee under the deed, "my sole and only trustee and administrator under my " win." When the deceased executed this document, she said, pointing to the deed, " this is my will." Upon motion for a grant of probate of the deed and codicil to A. G., as executor: — Held, first, that the deed, as it was not of a testamentary nature, was not entitled to probate ; secondly, that as there was no wiH, A. G. was not executor ; thirdly, that as the codicil, though it disposed of no property, re- voked other codicils, administration with it annexed should be granted to the nest of kin (i). A residuary legatee, who was present at the execution of a wiU in which no executor was appointed, wrote her name, after the instrument had been signed by the testator ig) In the goods of Tkos. 35 L. J., P. & M. 116. Duane, 2 Sw. & Tr. EOOj 31 L. J., (*) Hubbard, In goods of, 35 1^ & M. 173. L. J., P. & M. 27. (h) Guardhouse v. Slackburn, Digitized by Microsoft® PROBATE. 119 and attesting witnesses, underneath the attestation clause. Of less than at the request of one of the witnesses : — Held that the court ° "'" '°^" having to determine to whom the grant of administration, with the win annexed, should go, it was the duty of the court to inquire in what character the legatee had signed the paper ; and the court being satisfied from the evidence Signature of that she had not signed the will as a witness, her signature omitted from was omitted from the grant ; but the court required, before Probate. making an order for the omission of her signature from the probate, that a notice to show cause should be served upon the next of kin (A). Where B. made her wiU in the presence of C. and D., who subscribed the same; subsequently E., an executor and legatee in the will, at the request of the testatrix, signed his name, to signify, as suggested, his acceptance of the executorship ; the court rejected a motion praying to omit E.'s name in the probate (Z). But where testator executed a will on February 13th, Mistake in 1864, and another on June 24th, 1865, revoking all former wills, he afterwards executed a codicil which purported to be a codicil to his wlQ, dated February 13th, 1864, and, after devising some property, confirmed his said wiU ; the solicitor who prepared the codicil had inserted the date of the first will under the supposition that it was the last will ; there was nothing iu the codicil which showed an inten- tion to revive the first will: — Held that the second wiU and codicil were entitled to probate (/n). The court granted probate of the draft of a lost will, being Of lost will satisfied by the evidence produced that it was in existence ^^^^ at the time of the death of the testatrix, and that it had been either suppressed or destroyed by the next of kin, who opposed the application for probate, and condemned the next of kin in costs (w). (J) In the goods of Shearman, 200. 38 L. J., P. & M. 47; 1 L. R. Prob. (m) Anderson, In goods of, 39 166. L. J., P. & M. 55. (l) In the goods of Jane Forrest, in) Podmore v. Whatton, 33 2 Sw. & Tr. 334; 31 L. J., P. & M. L. J., P. & M. 143. Digitized by Microsoft® 120 PROBATE. Lost will. But the court will not grant pi'obate of tHe contents of a lost will, unless there is very cogent evidence that such a will did exist, and that it was in existence at the time of the death of the testator (o). Semble, that probate will not be granted of an alleged copy of a will, which has been intentionally destroyed since the death of the testator, upon the evidence of the person who is solely interested in establishing it, and who himself destroyed the original {p). Nor will it be granted on motion of a draft of a will, which has been intentionally destroyed {q). As a general rule, the court will not grant probate on motion of the draft or contents of a missing wiU. But where it clearly appeared on affidavit that the testator had duly executed a will, of which a draft was in existence ; that the will had been destroyed without any fault of the person who had the custody of it, and the persons who were entitled in distribution filed a proxy of consent ; the court on motion granted probate of the draft (r). Of codicil to Probate will be granted of a codicil to a will, when the wiE cannot be found, if the court is satisfied by the dispo- sitions of the codicil that the testator intended that it should operate independently of the will (s). Interlineations, §•<;.] For those interlineations and alterations which appear in wUls, dated prior to the 1st January, 1838, see Rules 25, P. E., Non-C, and 30, D. R. It will be seen that owing to the operation of the statute (?) there are very important distinctions in the effect of inter- lineations, &c., made prior to the statute firom those made subsequently, ' If the will is dated before 1838, and the interlineation, (o) Wliarran v. W7iarran, 33 (»•) Sarher, In goods of, SeJj. J., L. J., P. & M. 75. P. & M. 19. ip) Moore v. Wldtehouse, 34 (s) Gh'eig, In goods of , 35 1,. J., L. J., P. & M. 81. P. &M. 113. (?) Sody, la goods of, 34 L. J., (i) 1 Vict. c. 26, ss, 9 and 21. P. & M. 55. Digitized by Microsoft® lost will. PROBATE. 121 &c., is also shown, or can from the circumstances be pre- Interlineations sumed to be before that year, then the will is subject to j'^vict. c. 26 ' Eules 25, P. R., Non-C, and 30, D. R. The important s. 21. " " object to ascertain is the date of the interlineations ; for even if the will is dated before, and the interhneation, &c., is after, the statute apphes, as obliterations and alterations made subsequently to the 1st January, 1838, ia a will of previous date, are within the provisions of this section (u ). But unattested alterations in the handwriting of the tes- tator, in a will made before the 1st January, 1838, were, in the absence of any evidence as to their date, presumed to have been made before the act came into operation (a:). In the case of these wills, where the will and inter- lineation, &c., existed before the 1st January, 1838, such interlineation, &c., will operate: — 1. Where made by the testator himself, as no signature or attestation is requisite for these wills, it is imma- terial when the testator made the interlineation, &c., provided it be before the 1st January, 1838. In this case, however, the handwriting must be proved by the affidavit of two witnesses: 2. When made by another person and known to and approved of by the testator. This must be proved by affidavit : 3. Where they existed in the paper at the time it was found in the repositories of the testator. The rules in this case are more guarded, and only say that proof by affidavit of this fact may, under circumstances, be sufficient (y). As to interlineations, alterations, erasures and oblitera- tions which appear in wills dated since 1st January, 1838, see Eules 8, 9, 10 and 11, P. E., Non-C, and 11, 12, 13 (m) Brooke v. Kent, 3 Moore, Peeliell t. Jenkirmon, 2 Curt. 273; P. C. C. 334; see also Rule 25, T. E., Pennington, In goods of, 1 No. of NoD-C; Knle 30, D. K. Ca. 399. (a) Strealter, In the goods of, (y) See Enle 25, P. R., Non-C. ; 28 L. J., P. & M. 60; see also D. E. 30. Digitized by Microsoft® 122 PROBATE. Interlineations and 14, D. K., and 1 Vict. c. 26, s. 21. With respect to shice ms!^'^ these wills the law is very different, owing to the express provision of the statute, as well as the general scope of recent legislation in providing one uniform method of exe- cution for all wills. , If the interhneations or alterations have been made sub- sequently to the execution of the wUl, they are invalid, and probate will be granted as though they did not exist ; that is to say, they will not appear on the face of the probate, except in three cases : — 1. Where the interlineations or alterations have them- selves been afterwards executed and attested in the same way as the original will : 2. Where the wOl has been executed again subsequently to their having been made (in this case they can hardly be said to have been made subsequently to the execution of the will): 3. Where a codicil has been subsequently executed. In all these cases the interhneations and alterations be- come a part of and incorporated with the wOl, — in fact, they are the wUl. If, however, they existed in the wiU at the time of its execution, they are as much a part of the wiU as any other; but this must be shown, and it may be done, either by affidavit of their having existed in the wUl before its execution, or by such interlineations or alterations being duly executed, or being recited or otherwise identified by the attesting clause. This stringent rule does not apply where the alterations are merely verbal, or where they are of small importance and evidenced by the initials of the attesting witnesses {z). Interlineation, The mere circumstance of the amount, or the name of a legatee, being inserted in different ink and in a different hand- writing, does not alone constitute an obliteration, inter- lineation or other alteration within the meaning of the what is. "a {z) Rule 11, p. K., Non-C; Rule 14, D. R. 1862. Digitized by Microsoft® PROBATE. 123 statute, nor does any presumption arise against a will being Intei-Henation, duly executed as it appears. The case is different where „ 1 • 1 f r T ^^^ ^ Erasure, there is an erasure apparent on the iace oi the will, and that erasure has been superinduced by other writing; under such circumstances the onus probandi lies upon the party who alleges such alteration to have been done prior to execution, to prove by extrinsic evidence that the words were inserted before execution, and that they had the sanction of the testator (a). Wbere a wiU contained alterations and erasures affect- Presumption, ing the amount and objects of the testator's bounty, the explanation, existence of which at the time of the execution the attest- ing witnesses could not depose to in the absence of aU direct evidence as to the alterations and erasures, the pre- sumption of law is that such alterations and erasures were made after the execution of the wiU (b). Where a will seemed to have been first written in pencil Pencil writing, and afterwards traced in ink, but not completely, words in some places being written in ink above, and apparently in substitution for the pencil writing, and in other parts the pencil writing standing alone, the court declined to include the pencil writing in the grant (c). Where A. after the 1 Vict. c. 26 made a will, which was written on the first and third pages of several sheets of note paper ; at the bottom of one of these pages were the words and mark : " I leave the whole of my property to the following religious societies, viz., X to be divided in equal shares among them." On the top of the opposite page was a similar mark to that following the viz., and the names of four religious societies. There being no evidence that the names of the societies were written before the execution of the wOl, the court, considering them to be interlineations, excluded them fi-om probate (rf). (a) Grevillev. Tyler,! Moore, (e) Bellamy, In goods of, 14 P. C. C. 320. W. R. 501. , (J) Cooper V. Buchett, 4 Jloore, {d) White, In goods of, 30 L. J., P. CO. 449. P. &M. 55, Digitized by Microsoft® 124 PEOBATE. Iliterlineation. Alteration on face of will. Where a will contained several unattested interlinea- tions, most of them of single words, each of which was required to complete the sentence to which it belonged ; they were apparently written with the same ink and at the same time as the rest of the will, but at the time of execution the body of the wiU was covered up by the tes- tatrix, so that the witnesses could not see whether the interlineations were there or not ; the court held that it was not bound to presume that these interlineations were made after execution, and included them in the pro- bate (e). Where some trifling alterations and interlineations appear on the face of a holograph will, and there was no evidence whether they were written before or after the execution, except the affidavit of an expert that, in his opinion, they were written at the same time as the rest of the wiU, the court admitted them to probate {f). Where A. on the 28th of April, 1847, executed a draft win, in which after his death were found interlineations and cancellations, some in ink and some in pencU; in May, 1847, he executed an engrossed will, and in 1854 he executed a codicil which purported to be a codicil of the will of April, 1847; it appearing that the engrossed will was copied from the will of April, 1847, and that it corresponded with it as altered in ink, and consequently that the latter wiU was so altered before the date of the codicil, the court granted probate of the will of April, 1847, as altered in ink, and of the codicil of 1854 (g). Where, on the testator's death, an alteration appeared in a will, which, during his lifetime, was in the custody of the writer (one of the executors), who swore such altera- tion was made with the testator's concurrence, but gave no ftirther explanation and declined to propound the will (e) Cadge, In goods of, 1 L. K., Pro. 543 j 37 L. J., P. & M. 15; 16 W. R. 406; 17 L. T., N. S. 484. (/) Hindmarsli, In goods of, 1 L. R, Pro. 307; 36 L. J., P. & M. 24. (g) Wyatt, In goods of, 31 L. J., P. & M. 197. Digitized by Microsoft® PROBATE. 125 SO altered, the court assigned the executors to take pro- Alteration, &c. bate of the will in its original state: the residuary legatees on being personally cited to propound the wiH, or to show cause, &c., not appearing (A). Where some alterations, having been made in a will Alteration and subsequent to execution, the testator and attesting wit- nesses traced the former signatures with a dry pen, and the attesting witnesses wrote their initials in the margin opposite each alteration : — the court held that these initials were no evidence of a due execution of the altera- tions, and refused to admit them to probate ( f). A line drawn through with pencil is not an obliteration. Obliteration, but is merely regarded as something deliberative (A). '' Where the testatrix, after the execution of her will, erased certain parts thereof, substituting in their places other words, probate was granted of the will with those parts erased in blank, the original words not being dis- cernible on the face of the paper (Z). Upon the death of A., a will was found in which a legacy to B. was erased, but so as to be legible ; one of the attesting witnesses stated that the erasure was made before the execution of the wiU : the other witness had no recollection on the subject ; and evidence was given tend- ing to show that the erasure was made after execution. The court upon the balance of the evidence, being of opinion that the erasure was made after execution, granted probate, without the erasure : gucere, whether declarations of a testator made after the execution of a will are ad- missible in evidence to show that an erasure was made after execution (jk). Where the testator, after the execution of his wiU, ob- literated the name of the executor, and substituted another, having previously expressed his intention so to do, and (A) Parker v. Hiclimiot, 1 Hag. 39. Ecc. R. 211. (0 •^'^ yoods of Miz. S. Ja/ities, (i) Cunningham, In goods of, 29 deceased, 1 Sw. & Tr. 238. L. J., P. & M. 71. (to) In the goods of Hardy, de- (;6) Francis v. Grover, 5 Hare, ceased, 30 L. J., P. M. & A. 142. Digitized by Microsoft® 126 PUOBATE. Alteration, &c. the alteration was not attested, the court directed the original name to be restored to the probate, having been satisfied by evidence aZzMwrfewhatthe oiiginalname was(m). Where the name of one of the attesting witnesses to a will was written on an erasure, but it appeared that the will had been duly executed and attested, and that sub- sequently the attesting witness's name had been erased by the testator and had at his request been re-written by the attesting witness, the court, on motion, granted pro- bate to the widow on afiidavits that she and two infant children were the only persons entitled in distribution, and that notice had been given to the children (w). Facsimile. Sometimes also obliterations and the like appear on the face of the original, and it is directed by the court that the probate be given in facsimile, that is, the peculiarity, whatever it may be, is imitated on the face of the probate. Where three persons were present and saw the deceased sign a will and codicil, and two of them signed as attesting witnesses : immediately after they had signed, the signa- ture of one of them was struck through, and the deceased acknowledged his previous signature and the third person signed as an attesting witness; it was held the name, which had been struck through, could not be omitted from the probate, and probate was ordered in facsimile {o). The court is sometimes unable to distinguish how much of the alleged writing constitutes the actual wiU of the deceased. In such cases it is usual to allow the probate to be drawn in the form exactly similar to the alleged writing, in what is called facsimile. As where a wiU, on the face of it, had been executed in 1858, and subscribed by two legatees named in it as witnesses, and was re-exe- cuted in 1860, and attested by different witnesses, and after the death of the testatrix was found with the first attestation clause and the names of the witnesses to it can- Cm.) Harris, III goods of , 29 L. J., L. J., P. & M. 170. P. & M. 79; 1 Sw. & Tr. B36. (o) M the goods of Ilaine, de- C») Colman, la goods of, 30 ceased, 34 L. J., P. M. & A. 125. Digitized by Microsoft® PROBATE. 127 celled, but there was no evidence to show the date of the Facsimile. cancellation: the court refused to exclude the part can- celled from probate, and directed the probate to go in fac- simile (^p"). Again, where E,. executed his will and a codicil thereto in the presence of three witnesses, two of whom subscribed their names as such to both instruments ; immediately afterwards, before any person had left the room, E. having been informed that one of such subscribed witnesses would forfeit her interest under the will, ordered her name to be struck through, and the third witness to sign the wUl and codicil, which was done : — Held that the court could not allow the probate to issue with the omission of the name struck through, but might permit it to be taken in fac- simile (g). Where a testatrix, after the execution of her will, erased certain parts, substituting in their places other words, probate was granted of the will with those parts erased in blank, the original words not being discernible on the face of the paper, and there being no evidence to show what they were {r). As the statute 1 Vict. c. 26 caused a great alteration Appearance of in the form required for revoking a will, different rules P"P'^'^' are applicable to wills made prior to that act, which have an appearance of an attempted cancellation, from the rules (*) which are applicable to wills made since ; pro- vided such attempted cancellation took place prior to the statute, as it was not the intention that wills executed before the 1st January, 1838, should be exempted from the provisions of the statute with respect to any act done to such wiUs after that date (i). (p) Smith, In goods of, 3 Sw. Tr. 238. & Tr. 589; 34 L. J., P. & M. 19. («) Before 1838, Rule 24; since (?) Maine, In goods of, 34 L. J., 1838, Rule 14, P. K., Rule 30, D. R. P. & M. 125. (t) Soils T. Knight, 1 Curt. (»■) James, In goods of, 1 Sw. & 768. Digitized by Microsoft® 128 PROBATE. The next questions which arise are: — 1, To whom is the grant of probate to be made ? 2, When? 3, How or the manner and practice by which probate is obtained ? Who may To whom.] The persons entitled to probate are those P™^^" and those only who are appointed executors. The restric- tions as to what persons the law refuses to allow to become executors are very few : felons (m), bankrupts (a:), femes covert (y), infants {z) even in ventre sa mere! {a), may all be executors ; though with regard to infants the 38 Geo. 3, c. 87, s. 6, provides that if an infant be appointed sole executor he is disqualified during his minority, and ad- ministration, testamento annexo, is to be granted to his guardian, or such other person as the court thinks fit, until the executor reaches the age of twenty-one. Executors' (lis- ' Practically, the only persons who are incapable of being qua 1 ca ions, gj-ecutors are lunatics and idiots, as well because they are unable properly to discharge the duties of the office, • as also to determine whether or not they wiU take on them- selves the burden of it {¥). However, mere weakness of mind, especially if such were known to the testator, is insufficient (c). The appointment of executors may be either nominate, i. e., by name, or according to the tenor, i.e., by inference. Executor Where a testator in India included amongst the persons he appointed executors of his will, a firm in England of C. & Co., consisting of four members, which fii-m had subsequently, prior to his decease, been dissolved and re- formed, and finally dissolved: — Held that the appoint- ment was of the firm individually not collectively, and that (u) Smethurst v. Tomlin, 2 Sw. (a) Swinb. pt. 5, s. 1, pi. 6. & Tr. 143. (a) Godolph. pt. 2, c. 9, s. 1. (a) mil T. Mills, S. a 1 Salk. (b) Godolph. pt. 2, c. 6, ». 2. 36. (c) M.-ans v. Tyler, 2 Robert. (2/) Godolph. pt. 1, bk. v. s. 3. 132. Digitized by Microsoft® nominate. PROBATE. 129 each of the members was entitled to be joined in the To whom. probate {d). "Where the executor named in a will is a corporation Executor cor- aggregate, administration with the will annexed wiU be ^°^ granted to their syndic, i. e., a person specially appointed by the corporation for the purpose (e). A domiciled Portuguese by his will appointed A. and Executors B. his executors in Portugal, and C. and D. his executors in England:— Held, that as one of the latter executors was resident in Portugal, the words in England and in Portugal were equivalent to for England and for Por- tugal respectively {f). Where a will contained a reference to executors " hereinafter named," but did not appoint executors, and a clause appointing executors was written immediately underneath the testator's signature, it was held, that the reference in the will was not such a reference to the clause appointing executors, as a document in existence at the time of the execution, as to incorporate it or to justify the Court in receiving parol evidence that it was written before the will was signed (ff). Where the deceased left in her will one sovereign to the executor and witness of my wDl for their trouble to see everything divided justly, no person was named as exe- cutor in the wiU, but opposite the names of the attesting witnesses, and beneath the signature of the deceased, were the words " witnesses and executors," which words were written by one of such witnesses by direction of the de- ceased previous to the execution of the wiU : — Held, that the deceased had failed to make her lawftil appointment of executors (A). Where a wiU contained the following appointment of {d) In goods of Fernie, de- P. & M. 107. ceased, 6 No. of Ca. 657. (?) Dallom,In goods of, 1 L. E., (e) Darlte, In goods of, 29 L. J., Prob. 189. P. & M. 71. (A) Woods, In goods of, Sill.]., (/) Velho V. LeUe, 33 L. J., P. & M. 23; 1 L. E., Prob. 56. B. K Digitized by Microsoft® 130 PROBATE. To whom. executors — " I appoint A. as my executor vvith any two of my sons ; " the testator died leaving three sons : the Court declined to grant probate to A. and two of the sons (z). Where a testator made a will in England appointing A. and B. his executors ; he afterwards made a codicil in India, in which he desired that his affairs might not be placed in the hands of the Administrator-General, but might be managed entirely by C. and D., whom he ap- pointed his executors in that country: — Held that C. and D. were not entitled to probate in England (A). Where the testator died leaving two wills, one limited to property in England, the other to property in Tas- mania, and he appointed different executors in each ; the Court granted probate of both papers, as together consti- tuting the wiU of the deceased, to the executors named in the English will (Z). . Where a testator appointed as executrix of his will " my wife M. G.," it was held that this was no falsa demonstratio , though she was not wife of the testator, as the pretended marriage was void on the ground of affinity (jn). An illiterate testator appointed his widow and his son residuary legatees, and named them " whole and sole exe- " cutrix; " the Court inferred that his intention was to include them both, and made a joint grant of probate to them (w). Testator appointed A. his sole executor in England, and B. and C. executors of his will in India; probate was granted in England to A., reserving power of making a like grant to B. and C, and was accepted by A; an application by A. that the grant should be altered by striking out the reservation of power to B. and C. as (i) Baylis, In goods of, 31 P. & M. 48. L. J., P. & M. 1 19. (m.) Gausden, In goods of, 31 (k) Walliok, In goods of, 33 L. J., P. & M. 53. L. J., P. & M. 87. (n) Court, In goods of, 31 L. J., (I) Harris, In goods of, 39 L. J., P. & M. 61. Digitized by Microsoft® PROBATE. 131 having been Improperly inserted, was refused upon the To whom, ground that such reservation, if improperly inserted, in no way prejudiced A. (o), A married woman, by virtue of certain powers given to her, which were particularly set out, executed a will in which she appointed three persons executors : she after- wards, by a second testamentary paper, disposed of other property which had been left to her for her separate use : in this she nominated one of the above persons sole exe- cutor ; probate was granted of both papers, as together containing her wiU, to the three executors named in the paper of earlier date {p). The power of appointing an executor may be delegated Delegated by the testator ; as where a person dying in Scotland by his wiU directed that the legatees should appoint two persons to execute his testamentary bequests, probate was granted to the nominees as executors {q). A testatrix concluded her will thus — "I must beg A. to appoint some one to see this my will executed : " — Held that A. might appoint himself (r"). A testator appointed his son sole executor, but in the Substituted event of his going abroad, or being and remaining abroad for upwards of two calendar months, then he appointed B. his executor : the son, after the death of the testator, went abroad without taking probate, and there remained : the Court granted probate to B., but reserved power to the son to prove the wiU («). Testator appointed A,, an officer in the navy, his exe- cutor, " and in case of his absence on foreign duty" he appointed B. his executrix: when the testator died A. was in England, but shortly afterwards he went abroad on foreign service, and still remained abroad. — Held that B. (o) PuVman, In goods of, 33 548. L. J., P. & M. 20. (»•) Ryder, In goods of, 31 L. J., (^) Morgan, In goods of, 36 P. & M. 215. L. J., P. & M. 64. («) Lane, In goods of, 33 L. J., (j) Re Cringan, 1 Hag. Ecc. B. P. & M. 185. K 2 Digitized by Microsoft® 132 PROBATE. To whom. Substituted executor. Succeeding executor. was entitled to probate as substituted executrix, the testa- tor's intention being that she should act if A, were abroad when the necessity for proving the will arose (t). A will contained the following clause : " I appoint J. J. my executor, but should he decline or consider himself incapable of acting, then I appoint E. J. to be executor." J. J. died ia the lifetime of the testatrix : — Held that the intention of the testatrix was, that E. J. should be executor if J. J. could not or would not act, and that E. J., as substituted executor, was therefore entitled to probate (m). Where a testator appointed two executors, and pro- vided that on the death of either of them two others should be substituted : on the death of the original executor, who had proved the will, and on a proxy of consent from the other, probate was granted to one of the substituted exe- cutors, it appearing to have been the testator's intention that the substitution should take place on the death of either of the original executors, whether happening in the testator's lifetime or afterwards (u). Where " failing A.," B. was substituted executor, the court held that the condition of substitution was satisfied by A.'s refusal to act, and granted probate to B. on the renunciation of A. (x). Where A. died, leaving a will, appointing B., C, D. and E, her executors, and directing that in case B. should die, F. should be an executor in his place : all the exe- cutors proved the will : B. died,- and F. applied that a double probate should be granted to him : — Held that he was entitled to the grant without the consent of the sur- viving executors, the will showing a clear intention that he should, on B.'s death, succeed him as an executor (^). (t) Zangford, In goods of, 37 L. J., P. & M. 20; 1 L. R., Prob. 458. ( u) In the goods of Lydia Betts, deceased, 80 L. J., P. M. & A. 167. (V) In goods of Lighton, de- ceased, 1 Hag. Eeo. R. 235. (a;) Colquhoun, In goods of, 37 L. J., P. & M. 1. iy) Johnson, In goods of, 27 L. J., P. & M. 9. Digitized by Microsoft® PROBATE* 133 Executor according to the Tenor of the WillJ^ Jfa. To whom, executor need not be appointed by express words; his According to appointment may appear by construction, in which case he is called an executor according to the tenor of the will. For although no executor be expressly nominated in the will by the word executor, yet, if by any word or circumlocution the testator recommend or commit to one or more the charge and office, or the rights which apper- tain to an executor, it amounts to as much as the ordaining . or constituting him or them to be executors («). We must now consider what are the " words or circum- ' locution" which will amount to an ordaining or constituting a person executor. Directing certain persons to pay debts, funeral expenses What is not. and expenses of probate, is an appointment of such person^ as executors (a) ; but otherwise, if they are directed to pay them out of a particular fund, and not out of the general estate (fi). Nor wiU a mere direction to a legatee, to pay ,the fiineral expenses out of his legacy (c), constitute him exe^ cutor according to the tenor. When the whole personal property is left to a trustee on trust for a specific purpose, and no executor is named in the will, such trustee is not entitled to probate as exe- cutor according to the tenor {d). Where H. executed a will, in which was a clause as follows : — " I give and bequeath to A. B. and C. D., administrators and assigns, and to be disposed of by theni as trustees, all funeral expenses and others to be paid, and afterwards the residue of my personal estate to be paid to," &c.:---Held that A. B. and C. E. were not executors according to the tenor (e). Testatrix, a married woman, made her will in exercise (a.) Swinh., pt. 4, s. 4, pi. 3. P. & M. 15. (a) I}.e Fry, 1 Hag. Ec. E. 80. (i) Jones, In goods of, 2 Sw. & (J) Toony, In goods of, 3 Sw. & Tr. 155 ; 31 L. J., P. & M. 199. Tr. 562; 34 L. J., P. & M. 3. (e) Heaton, In goods of^l Jnr,, (c) Smith, In goods of, 34 L. J., N. S. 832. Digitized by Microsoft® 134 PROBATE. Exocntor ac- oY a power : the will commenced, " I direct the trustees tenor?^ ° ^ Under my marriage settlement to pay," &c. : it then set out sereral legacies, and disposed of the residue of the trust fiind, and concluded thus: — "And I give the said trustees all necessary powers of sale, and power to mort- gage all or any part of my said property, the more effec- tually to carry this my will into execution :" — Held that the trustees were not executors according to the tenor (/). UniTersal The universal legatee of a testamentary paper is entitled legatee. ^^ administration with the will annexed, but not to probate as executor according to the tenor. No trace of any different practice can be found in the registry (ff). According to On the other hand, a direction to an individual to receive the tenor, what ^^^ property and divide it, constitutes him an executor according to the tenor of the wiU (A). Where M. duly executed atestamentary paper in theform of a letter, beginning " My dear Eliza," and containing fiill information as to the amount of her property, with fuU directions as to how she wished it to be disposed of, and concluding with these words : " I know of nothing else, my dear Eliza, to trouble you with, and trust that this win not involve you in much," the Court decreed pro- bate of the paper to Eliza, as executrix according to the tenor (i). Where A. appointed B. and C. trustees to dispose of his effects as they thought fit, and to receive his life assur- ance for the benefit of his two sons, it was held that they were executors according to the tenor (A). Where B., after a direction that his debts and fimeral expenses should be paid, bequeathed to certain persons the whole of his property in trust that they should, as soon as (f) li-aser, In goods of, 40 Jnr., N. S. 1027. L. J., P. & M. 9. (i) Manly, In goods of, 3 Sw. (g) In the goods of Tliomat & Tr. 56; 31 L. J., P. & M. 198. Henry OlipJMnt, deceased, 1 Sw. (*) Gale, In goods of, 18 L. T., & Tr. 625. N. S. 696; 16 W. K. 942. (h) Saunders, In goods of, 11 Digitized by Microsoft® PROBATE. 135 miglit be after Ms death, convert into money, get in, and Executor ac- receive the personal estate, and divide it as therein tenor what is. directed, except certain furniture, which he bequeathed to his daughter : — Held that the trustees were also executors according to the tenor of the will(Z). Testatrix by her will appointed A. trustee, with power to convert the residue of her estate into money, and, after payment of her debts and funeral expenses, to dispose of the property in accordance with the directions given in such a will, and she also appointed him executor : by a . codicU, she revoked that part of her will which gave the property in trust to A., and, in lieu of him, appointed her nephews B. and C, and providing C. should not be in England, his brother D. to act in his capacity ; she also revoked the appointment as executor, and in his place ap- pointed B. and C. ; B. renounced probate of the will of the deceased, C. at the time of her death was not in England: — Held that D. was an executor according to the tenor of the win, but that power must be reserved to make a grant to C, in case he should return to this country (w). Where a testator gave a legacy to Eleanor Taylor, and other legacies to his daughter-in-law, Mary Leah, imme- diately after which legacies followed these words : " But should the within-named Mary Leah be not living, I do constitute and appoint Eleanor Taylor my whole and sole executrix of this my last will and testament, and give her the residue." Eleanor Taylor died before the testator: — Held that Mary Leah was appointed executrix by implica- tion according to the tenor (w). Testator in his will left his property, after the payment of his debts and ftmeral expenses, to certain persons, and constituted and appointed A. and B. to be his trustees, with ftdl power to dispose of all his property, and convert the same into money, to be deposited in government ftmds (0 Baylis, In goods of, 35 L. J., L. J., P. & M. 49. P. & M. 15. (■«) Naylor v. Stainsby, 2 Loe, (ro) Goodwoii:h, In goods of, 37 54. Digitized by Microsoft® lion in codicil. 136 PROBATE. Executor ac- for the purposes above stated : — Held that A. and B. were teno™^ ° * executors according to the tenor of the will (o). Implied altera- A person, appointed limited executor in a will, may be appointed general executor in a codicil by implication, without express words (p). denunciation.] " One who is appointed an executor may renounce ; it would be injustice to allow actions to be brought against one appointed executor, who never meant to act as such, before he had an opportunity of re- nouncing " (y). — Best, C. J. " No man has a right to make another an executor, without his consent ; and even if in the lifetime of the testator he has agreed to accept the oiEce, it is still in his power to recede, except so far as his feelings may forbid it; it win be very proper for him to do so, if he finds that his charge, as executor, will be different from what he con- ceived it was to be, when he entered into the engage- ment" (r). — Ld. Eedesdale. He has, therefore, the option to accept or refuse, which option contiaues until determined by acceptance or re- fusal. The acceptance is evidenced by taking out probate, or by acting as though he had done so, which is called inter- meddling. If he, therefore, deal with the estate, it is con- sidered that he has already accepted the executorship, and the court may compel him to take the grant (s). Intermeddling, Any acts which show an intention to take upon them the executorship, prevent executors renouncing; therefore, the insertion of an advertisement calling on persons to send in their accounts and to pay money due to the testator's estate to A. and B., " his executors in trust," was held to make them compellable to take probate, and to subject them personally to the costs occasioned by their resistance ; (o) Chappell, In goods of, 37 704. L. J., P. & M. 32. (,-) Bo7jle v. Blake, 2 Scho. & ' (p) Re Aird, 1 Hag. Ec. K. 336. Ler. (Ir.) 239. (j) Dovglas v. Forrcst,i'B\ng]i. (s) Wms. Exors. 265, 6tli ed. Digitized by Microsoft® what is. PEOBATE. 137 the estate being small and left for two years and a half Renunciation. . without representation (t). Intermeddling. So where an executor and trustee acts under a will, the law presumes he acts in his superior capacity, that of executor ; and where he acts as executor by discharging a debt due to the estate of the testator, his renunciation will be rejected (m). On the other hand, where an executor had taken the oath of office and given an appearance, a suit touching the vahdity of the will was allowed to be dismissed, in order that he may renounce and become a witness in the cause (y). Where a party named as executor has intermeddled he can be cited to enter an appearance and take probate, and his disobedience to do both these acts wiU be a contempt of court, but the Court wiU not attach him for diso- bedience in the first instance. For where the executors of a will intermeddled in the estate and effects of their tes- tator, without taking probate of the instrument; and a citation having been served upon them, to enter an ap- pearance and take probate, they entered an appearance but took no iurther steps in the matter; the Court re- fused tp grant an attachment against them, for contempt in not obeying the citation, but directed a peremptory order to be served upon them to take probate within ten days from the date of the order (x). There is in respect of intermeddling a great difference Difference be- between administrators and executors, for an executor who and™drnfnU^°'^ has intermeddled can be compelled to take probate, but a trator inter- person who is not an executor, though he has intermeddled, ™ "^ cannot be compelled to take letters of administration (y) ; and the reason is obvious, as the latter might be sued by (*) Zon^ ^ anor. v. Symes ^ (x) Mordannt •7. Clarke ^~ anor., amr., 3 Hag. Ecc. K. 771. 38 L. J., P. & M. 45. (?«) Pytt V. Fendall, 1 Lee, 553. (y) Davis, In goods of, 28 L. J., («) Jaclmn v. Wiitehead, 3 P. & M. 72. Phill. 577. Digitized by Microsoft® 138 PROBATE, iBtermedidling. strangers as executor de son tort, but ought not to be compelled to carry out a trust wbicli was never reposed in him, and which parties interested can carry out them- selves ; whereas an executor by intermeddling has altered and perhaps prejudiced the estate, and so far has taken on himself a portion of the trust which it is just that he should be obliged to complete (2). Refusal hy Renunciation.~\ The refusal is evidenced by filing a renunciation in the registry ; a form whereof appears among the Non-C. Forms, No. 22, P. E. It will be seen that this form contains an express statement that the party filing it has not intermeddled in the estate and effects of the deceased : where this statement is untrue, the Court, on the application of the renunciant, may declare his renunciation invalid and direct the record of it on the probate to be cancelled (a). By not appearing.] A refusal also may be evidenced by not appearing when cited to take probate (i). Time for op- But if the executor delay exercising his option he may be cited to accept or refuse probate. The time which the party is allowed for deliberation as to whether he will accept the trust or not, or, in other words, which must elapse before the issuing of the citation to accept or refuse, is uncertain and in the discretion of the Judge. Much of course depends on the nature of the estate to be admi- nistered. Sometimes it has issued vnthin the year, some- times within a month or two. The only analogy that can be given is that arising fi-ora the 55 Geo. III. c. 184, s. 37, whereby a party named as executor if he administer, i. e. intermeddle, is liable to a penalty of lOOZ. and 10 per cent, on the duty, if he omit to take probate within six months. Renunciation No person who renounces probate of a will, or letters ractcr. of administration of the personal estate and effects of a (z) Davis, In goods of, 28 L. J., Sw. & Tr. 465. P' & M. 72. (J) 21 & 22 Vict. c. 95, 3. 16. {a) Badenaclt, In goods of, 3 Digitized by Microsoft® PEOBATK. 139 deceased person, in one character, is to be allowed to take Renunciation. a representation to the same deceased in another cha- racter (c). Where an executor,' before the probate was passed, re- Eule 50. nounced ; after that act came into operation he retracted his renunciation and renounced again : — Held that he was not an executor, renouncing after the commencement of the act, within the meaning of the 79th section, which enacts that the rights of such an executor shall wholly cease and the representation go as if he had not been ap- pointed an executor (rf). Semble, that an executor cannot retract his renunciation except for the purpose of taking probate. " After looking through a great number of cases, I find none where the Court has refused to dismiss, except on the groimd of the party having intermeddled with the effects ; the reason for this is obvious, that where a party has in- termeddled, he has taken on himself the burden and ac- quired the responsibility of an executor" (e). In this is the distinction between executors and administrators : an executor who has intermeddled can be compelled to take probate, while an administrator cannot (/■): (but he may be sued as an executbr de son tort {g) ), as may indeed be gathered from the forms of renunciation by an executor and by an administrator; see forms 21 and 22, P. E. Non-C. An executor cannot renounce after he has taken pro- bate. An executor under the will of a testator domiciled in Portugal accepted the executorship in that country, and also obtained probate in England : becoming afterwards, through age and infirmity, incapable of acting, a competent Portuguese tribunal permitted him to renounce the exe- cutorship, and appointed A. to act as executor in his (c) Rule 60, P. R. Non-C; Rule (e) 1 Lee, 557, note. 61, D. R. See also C. P. Act, 1857, (/) Dami, in goodi of, 1 S. & s. 79, and C. P. Act, 1858, s. 16. Sm. 152. {d) Whitham, In goods of, 36 (?) Edwards v. Sarhen, 2 T. E. L. J., P. & M. 26. 597. Digitized by Microsoft® wife's renun- ciation. 140 f EOBATE. . Eennnciation. stead : upon application for a grant to A. of administra-> tion de bonis non with the will annexed : — Held that the. renunciation of the executor though, sanctioned by the laws of Portugal, could not be recognized in this country, and that A. therefore was not entitled to the grant prayed (K). Mere assent to Rule 50, P. R. N"on-C„ does not apply to the husband of a residuary legatee, who signed a renunciation, executed by his wife, merely to signify his assent to her act ; as a creditor he may take out administration, notwithstanding his signature to such a document (z). Where A., before the C. P. Act, 1857, renounced, as execiltor, probate of a will, and, as residuary legatee in trust, administration with the will annexed, and adminis- tration was granted to. the residuary legatee for life, it was held that, on the death of the administratrix. A, coidd not retract his renunciation in either capacity (^). Rut the next of kin may, with the consent of the Court, retract a renunciation before administration has issued to another party, though the Court is not bound to allow such renunciation (Z). And where a person has renounced probate in one character, he may be entitled to administration de bonis non in an inferior character, which did not exist when he renounced in the superior character (ni). And, where an executor, having renounced in Australia, was appointed by the executors, who proved the wiU in the colony, their agent to obtain letters of administration with the will annexed in this country, the Court held, that the rule did not apply, and made the grant to him as attorney, but required that he should file a fresh and de- finite renunciation, which, beyond all question, should strip (Ik) Vega, In, goods of, 32 L. J., Sw. & Tr. 515. P. & M. 9. {I) Park, In goods of, 6 Jur., (i) Biggs, In goods of, 37 L. J., N. S. 660. P- & M. 79. (m) Loftvs, In, goods of, 3 Sw. (*) mckardson, In goods of, 1 & Tr. 307; 33 L. J., P. & M. 59, Digitized by Microsoft® PROBATE. 141 him of the character of executor, and bring him within Ecnundation, the operation of sect. 79 of the Probate Act(w), The party entitled may depute his power of renuncia- tion : as where a party entitled, being resident out of England, had, by power of attorney, specially authorized his brother to execute for him an instrument of renuncia- tion and consent, the Court acted on a renunciation and consent so executed (o ). Forms of renunciation are for an executor or an adml- How made, nistrator given for the Principal Registry Nos. 21 and 22, Non-C, and for the District Kegistries Nos. 22 and 23 ; these should be signed and sealed, and attested by one disinterested witness : but although the form seems to re- quire seaUng it is not essential (jo) ; and the Court received and acted on an informal deed of renunciation, which stated in substance, though not in terms, that the exe- cutor had not intermeddled {q") ; but it will not recognize an agreement to renounce (r). When the document has been properly prepared, signed and attested, it must be filed with the principal or district registry, as the case may be, and the Court then receives and acts upon such renunciation. Executor^s Power. '\ The act of the executor, being the appointee of the deceased, binds aU persons interested under the will, unless collusion be shown (s), and a party may at Sk future time allege collusion (t). A next of kin, who has been cognizant of and privy to a suit between the executors and another next of kin, is bound by the decision in that suit, although he has not heen cited to see proceedings and has not intervened » (m) Bussell, In goods of, 38 (g) Oihson, In goods of, 1 L. E., L. J., P. & M. 31; 1 L. R., Prob. Prob. 105; 35 L. J., P. & M. 114. 634. ('•) Hargroaves y. Wood, 32 (o) Rosser, In goods of, 3 Sw. & L. J., P. & M. 8; 2 Sw. & Tr. 602- Tr. 490. («) Wood v. Medley, 1 Hag. ' (^) Boyle, In goods of, 3 Sw. & Ec. K. 657. Tr. 426; 33 L. J., P. & M. 109. (t) ColHn v. Fraser, ibid. 108. Digitized by Microsoft® 142 PROBATE. Executor's power. Before seven days from death. After three years from death. therein. He cannot, therefore, reopen the question of the validity of the will after its validity has been established in such suit (m). When to issue.^ By P. E. Non-C. 47, probate is not allowed to issue before seven days after the death of the testator, without leave of the judge. By Kule 49 P. E. Non-C, and Rule 53 D. K, where probate or administration is, for the first time, applied for after the lapse of three years from the death of the deceased, the reason of the delay is to be certified to the registrars, and if they are not satisfied, they (if at the principal registry) may require such proof of the alleged cause of delay as they may think fit; or if at a district registry, the alleged cause be unsatisfactory, or the case be one of personal ap- plication, the registrar is to require an affidavit, or to com- municate with the principal registry. The reason of this rule is that the Court being bound to satisfy itself that the applicant is entitled to the grant, great delay in applying, by raising suspicion, justifies it in calling for explanation {x). Probate means the certificate under the seal of the Comi; that the copy annexed to it is authentic, and that the original will has been proved and registered. And that administration of the testator's effects has been granted to the parties therein named as executors. How obtained.'\ The word probate is generally applied to the piece of parchment stamped with the seal of the Court, on which is ingrossed, in the ciu-ious handwriting affected in the offices of this Court, a statement in the nature of a record, that on a certain day the wUl of the deceased (naming the day of death and place of abode of the deceased) was proved and registered, and that admi- nistration of his effects was granted to the executor, he having first sworn faithfully to administer and to exhibit a true inventory and to render a just account when called on. (?f) Ratcliffe v. Barnei, 31 L. J., P. & M. 61. (a?) Eli%. Darley, deceased, 3 Hagg. Ecc. R. 661. Digitized by Microsoft® PROBATE. 143 In the margin are tlie words " sworn under £ ," and How obtained. " extracted by the attorney or party extracting" (see form). On perusing this, the necessary steps that must ordinarily precede the grant appear. The executor must first file the oath of office, i. e., the oath alluded to in the probate, and also the oath for the inland revenue, mentioned in the margin. Forms of these may be found in the Appendix, and may be obtained fi:om any law stationer. They are to be sworn as other affidavits (see " Affidavits and ^ow sworn"). On reference to the form of the oath for an executor, it will be seen that he swears that he believes " the paper writing hereto annexed and marked by me" to contain the true and original last will and testament of the deceased. At the time of his swearing this affidavit, the original and codicils (if any) must be annexed, and the executor must mark them, which he does by signing his name on them. The commissioner or party who ad- ministers the oath also marks the will and codicils (if any), in a similar manner, by signing his name (y). Where, however, a will with the necessary affidavits was Marking. forwarded to the executor in India ; and the several papers were returned correct in every respect, save the wiU was not marked by the person before whom the executor was sworn, as required by Rule 49, P. B,. Non-C. ; the Court, under the circumstances, dispensed with the rule and decreed probate (r). Where a will has been proved in the proper Court of the Of foreign domicil of the deceased, it is the ordinary practice of the ^ " Court of Probate in England to grant probate on a copy of the will authenticated by the authorities of the place of domicil. In the case of a Russian probate however, as the original vrUl forms part of such probate, it will accept a certified copy of the will made in this country (a). So where a certified copy of a will and codicil which had Foreign will. (y) Rule 49, P. E. Non-C; Rnle L. T., K. S. 484. 60, D. E. («) Clarke, In goods of, 36 L. J. (z) Williams, In goods of, 17 P. & M. 72. Digitized by Microsoft® 144 PEOBATE. Oath of exe- cutor. Wills before 1838. How obtained, been proved In Jamaica were sent to this country by the secretary of the island, but by mistake the probate was not sent, the Court, being satisfied by the certificate of the secretary that the copy sent was a true copy of the will and codicil, granted probate until a more authentic copy should be brought into the registry (a). The first of these oaths is required fi:om very early times by the common law ; it is a promissory oath taken by the exeputor that he will execute the office justly (b). The second oath is required by 55 Geo. III. c. 184, s. 38, in order that the proper stamp-duty may be paid to the inland revenue (see duty, infra (c)). These two affidavits are aU that are required in general; but circumstances may and frequently do arise, involving the necessity of other and further affidavits, and sometimes a modification in the form of these before probate will be granted. It must be remembered that important differences exist between the method of obtaining probate of wills executed before the "WiUs Act, and the method of obtaining pro- bate of those made since. The difference arises from the operation of the statute, 1 Vict. c. 26, before the passing of which a different mode of execution was allowed, varying according to the subject- matter of the win. The statute having, however, substituted a simple manner of execution for aU wiUs aKke, whatever may be the property disposed of by the will, has rendered the method of proof simple and uniform. The former practice becomes every day of less import- ance, as few wills are now produced for probate which have not been executed since the 31st December, 1837, (the WiUs Act applying to wiUs executed on or since the s. 38, is now modified by 31 & 32 Vict. c. 124, a. 7, whereby, when leasehold estates are the sole security for mortgage debts, the amount of such debts may be deducted from the yalue of such leasehold estates. (a) Turner, In goods of, 36 L. J., P. & M. 82. (J) Hea! T. Rainer, 1 Ld. Eaym. 363. (o) The prohibition to deduct debts made in 55 Geo. III. c. 184, Digitized by Microsoft® PROBATE. 145 1st January, 1838,) but the following observations are de- wills made voted to the method of proof of such wills. '^''^°''^ ^^^^• In the first place, it is not necessary that a will, codicil or testamentary paper, dated before the 1st January, 1838, should be signed by the testator, or attested by witnesses, to constitute it a valid disposition of the testator's personal property {d ). Kules 17 to 27, P. E. Non-C, and Eules 22 to 32, D. R., give minute directions as to what is required for the probate of such wills, &c., and are in fact an exposition of the law regulating the execution of wills prior to that date. If the testamentary paper produced bears any appear- ance of an attempted cancellation such appearance must be accounted for (e), (in the District Eegistries bi/ affidavit, and then be transmitted to the Principal Registry). This rule is different to what it would be in the case of a similar appearance in a wiU executed since 1st January, 1838, as such last-mentioned wills cannot be cancelled, except as poiated out by the statute, and any mere in- tention to cancel amounts to nothing ; but it is otherwise in wiUs executed before the act. Will since 1837.] The directions for proof of a will, exe- Proof of will cuted subsequent to the Wills Act, are given in Rules 4 to s^'^^^eTTaST' 16, P. R. Non-C, and Rules 6 to 12, D. R., both inclusive. If there be no attestation clause to a wiU or codicil pre- Attestation sented for probate, or if the attestation clause thereto be <'^''"^^- insufficient, the registrars must require an affidavit from one at least of the subscribing witnesses, if they or either of them be living, to prove that the provisions of 1 Vict. c. 26, s. 9, and 15 Vict. c. 24, in reference to the exe- cution were, in fact, complied with, and such affidavit must be engrossed and form part of the probate (/). {d) Rule 17, p. R. Non-C; Rule 29, D. E. 22, D. R, (/) Eule 4, P. E. Non-C; Rule (e) Rule 24, P. R. Non-C; Rule 7, D. R. B L Digitized by Microsoft® 146 PROBATE. Will eiuce 1837. Witness must prove mode of execution. If no attesta- tion clause, or insufficient, and witnesses dead. Testator blind or obviously illiterate. If made abroad. This rule must be strictly followed, a mere consular certificate will not be accepted in lieu of it (g). In every case where an affidavit is made by a subscrib- ing witness to a will or codicil, such subscribing witness shall depose as to the mode in which the said will or codicil was executed and attested {K). The affidavit therefore must not only state that the pro- visions of the statutes were complied with, but must show the actual manner in which the wiU was executed and attested, see Form, Appendix III. Should both the witnesses be dead, or should it not be possible to obtain affidavits from them or either of them, then resort must be had to any person who was present at the execution of the will. Should this be unattainable, then evidence must be given of the handwriting of the testator, and of the subscribing witnesses, and also of any circumstances raising a presumption in favour of the due execution of the will (i). These rules are binding on the registrars, but may be, it appears, dispensed with by the Court (J). This rule is in the same words as Rule 59 of the former Rules of 1858, and that rule was held to apply to a will made by a soldier in actual military service, and executed by a mark (A). If the testator appear to have been blind or obviously illiterate, or ignorant, the registrars will require to be satisfied that the will was read over to the testator before its execution, or that he at that time had knowledge of its contents (/). An application for probate of a testamentary instrument, executed by a person when domiciled abroad, should be (j) Latham, In goods of, 10 Jur. ( j) In the goods of Mclioll, de- 620. ceased, 34 L. J., P. M. & A. 30. (/») Rule 57, P. R. Non-C; Rule (A) Haokett, In goods of, 28 L. 70, D. R. J., p. & M. 42. (i) Rule 7, P. R. Non-C; Rule (1.) Rule 71, P. R. Non-C; Rule 10, D. R. 81, D. R. Digitized by Microsoft® PROBATE. 147 supported by evidence that, according to the law of the will siuce domicil, such instrument is good (m). But in this case ^^^^" the attention of the Court does not seem to have been called to the then recent statute 24 & 25 Vict. c. 114. Pro forma motions for probate are not uncommon, the object being to avoid misunderstanding, and possibly liti- gation, about the iastrument between legatees. As where a paper writing, purporting to be a will, appears clearly from the affidavits of the attesting witnesses to have been not duly executed, and a person appointed executor by it, is desirous of obtaining the decision of the Court that it is inoperative as a will, he may do so by moving the Court to decree probate («). Peactical Directions foe obtaining Peobate. Having got your affidavits regular take them, together with the original will and the engrossment and the stamped blank form of probate, if in London to the Principal Registry, and leave them with the Receiver of Wills, if in the country to the District Registrar; on receipt of the affi- davits and the will the officer to whom they are given will give a receipt for them. Take care of this receipt, as it is only on the production of this that the probate will be delivered to you. He will also search to see if any pro- bate or letters of administration in respect of the same de- ceased have already been issued. For the fees payable, see ■ Appendix IV. Call in a day or two, according to the length of time re- quired for making out the probate, which mostly depends on the length of the will itself, and the probate will be de- livered to you upon production of the receipt, the original will remaining in the custody of the officer. As a rule this document is never parted with by the Court, though there are exceptions, as in the following instances : — (m) Stoddwrt, In goods of, 31 L. (n) In the goods of Oiarlotte J., P. & M. 195. Jaolison, deceased, 28 L. J., P. & M. 32. Digitized by Microsoft® 148 PEOBATK. Delivenng out original will. Amending grant. Several executors. Under tlie old law, an original wiU disposing of real estate in Scotland might be delivered out of the registry in order to be proved and recorded at Edinburgh, on an authentic copy being left therein, and a bond being given that the will should be safely deposited in the registry at Edinburgh, and that a certificate' thereof should be trans- mitted to the Court (o). Where the executor is in this country the Court will allow a will, which has been brought into the registry, for the purpose of obtaining probate, to be delivered out to the executor in order that he may be sworn thereto before a commissioner, on an exemplified copy of it being left in the registry (/I ). And where in a suit for revocation of probate of a will, issue was joined on the plea of undue execution, and a com- mission issued for the examination of one of the attest- ing witnesses, who was resident in New Zealand, the Court ordered the will to be sent to New Zealand, annexed to the commission, upon an authentic copy being left in the re- gistry ig). An original will and the copy of it in the probate bore a wrong date; the Court ordered the grant of administra- tion, with the wiU annexed, to be amended, so as to show on the face of it the real day on which the will was exe- cuted (r). Whe^e several persons are named as executors, it is not necessary for all to prove together, one, even without notice to the others, may prove the will, and in such a case a power is reserved to grant probate to those persons named as executors who have not proved. In such a case, the original will being in the registry and probate in the hands of the executor who has first proved, it is obvious that to empower another or other persons to act (o) In goods of Russell, 1 Hag. (j) Foster y. Foster, 33 L. J., Ecc. E. 91. P. M. & A. 113. {p) InthegoodsofW.B. Oibhs, (?■) AllcUn, In goods of, SSL. deceased, 28 L. J., P. & M. 90. J., P. & M. 84. Digitized by Microsoft® PROBATE. 149 as executors, another probate must issue. This second Double pro- grant is called a double probate. It is not necessary that the executors should be appointed in the same manner. For instance, one may be named as executor and another may be executor according to the tenor, as where A. appointed his wife executrix during widowhood; C. and D. residuary legatees in trust " to pay debts, funeral and testamentary expenses," &c. ; the widow alone proved and died without having married again, leaving B. executor of her wiU: it was held, C. and D. were executors according to the tenor and entitled to probate of A.'s will(s). The practice in obtaining a second or double probate is Practice, the same as in obtaining the first, except in some modifica- tions necessitated by the circumstances. The original will being in the registry, the second executor has three courses open to him ; he may either attend there, and the wiU being found there and produced to him, he must there mark it, and be then and there sworn to his oath of office and his oath for the Inland Revenue before one of the registrars. 2nd, The second executor may be sworn to and mark the probate already granted, in this case he may be sworn before any person qualified to administer oaths in the court: in this case the first probate is taken into the registry and impounded; if the first executor is dead, the first probate is kept in the registry. If he be living, it is handed back to him on an examined copy of it being filed. 3rd. The second executor may be sworn to and mark an office copy of the will under the seal of the court. Corresponding changes must be made in the affidavits to suit these different cases, and the oath of the second executor must contain a statement of the will having been proved by the first executor, and that power has been re- served to the applicant of having the like grant made to him. See Form 87, Appendix III. («) Collet, In goods of, 1 Dea. & Sw. 274. Digitized by Microsoft® PKOBATE. The duties are payable only on the first grant (<). Where an executor who has obtained probate, power being reserved to a co-executor to come in and prove, refuses to produce the probate and furnish an account of the effects of the deceased, in order that the co-executor may obtain probate without paying probate duty; the Court will allow a citation to issue, calling upon him to produce such probate and furnish such account. ADMINISTEATION WITH WILL ANNEXED. The Court pays deference to the wishes of the deceased, not only in carrying them out as expressed in his will, but ia confiding this duty to the person selected by him. It, how- ever, sometimes happens that through the inadvertence of the deceased, or by circumstances subsequently happening, such as the death, incapacity or refusal to act of the per- son so Selected, there is no person who is able and willing to take upon himself the duty of executor. It then becomes necessary for the Court to clothe some person with this office. He is in a hybrid position. In so far as he is de- puted to carry into effect the wUl of the deceased, he is pro tanto an executor, but as he is not the person confided in by the deceased, but the mere nominee of the Court, in that respect he is an administrator. He is called an " administrator with the will annexed," that is to say, he is the administrator of the deceased, but to his letters of ad- ministration are annexed the wiU of the testator, and the mixed character in which he stands, occasions, when we consider his duties and rights, a proportionate mingling of the two characters of executor and administrator. The first provision for such a mode of administration is 21 Hen. 8, c. 6, j.^ ^g f^^^^ -^ gl Hen. 8, c. 5, s. 3, which provides for the single cases of executors refusing to prove, but there are many other cases in which it is necessary that the Court should appoint some person to carry out the will of the testator. (*) ^l9§ftii'Sd<^t^>MR}ii)kMW<^i- c 82, s. 36. ADMINISTRATION WITH WILL ANNEXED. 151 In what CasesJ] Administration, with the will annexed, In what cases is, therefore, granted in all cases where a will exists, and ^^^ for some reason or other there is no person capable as of right or willing to act as executor. Such as the case provided for by the statute (m), where the executor who is appointed refuses to act, or where he is incapable of acting by reason of insanity or some other cause, or where he dies during the lifetime of the testator, or after the death of the testator, but before he proves the wUl (x), or where he dies intestate after proof of the wiU, but before administering all the effects {de bonis non), or where there is an intermediate period during which he cannot act, or where no executor is appointed, or if appointed not known, and the like, together with cases coming under the operation of 20 & 21 Vict. c. 77, s. 73. Thus, where a codicil contained dispositions indepen- Will lost. dently of the wOl, and also referred to the will, which, however, could not be found, the Court granted adminis- tration with the wiU annexed (y). So, where an aged testator gave instructions that No executor William George, of 4, Finsbury Square, watchmaker, •'""wn. should be his executor, and, on the death of testator, it appeared that neither he nor his family knew any one of that name, and that no such person could be found or heard of at that address, the Court granted letters of admi- nistration, with the will annexed, to one of the residuary legatees, there being no appointment of an executor willing and competent to take probate (z). Where a person, having had a will prepared, in which Executors not an annuity (the amount being left in blank) was given to ^PP°i"'^'^- his wife, and the rest to his children, and the names of the executors were not filled in, at the instigation of those about him, executed the same in its unfinished state, at the same time remarking, that it would be no good till the (u) 21 Hen, VIII. c. 5, s. 3. 349. (a!) 21 & 22 Vict. c. 95, s. 16. (z) Samtell, In goods of, 2 Sw. \y) Greig, In goods of, 14 W.E. & Tr. 448; 31 L. J., P. & M. 65. Digitized by Microsoft® 152 ADMINISTRATION WITH WILL ANNEXED. In what cases granted. Executor bankrupt and absent. Where exe- cutor dies or refuses. Executors not appearing or renouncing. blanks were supplied: — Held that the Court could not, on affidavit, say the deceased did not execute the will animo disponendi, and it must be admitted to probate ; but that, as there was an uncertainty as to the residuary bequest, the right of the widow, under 21 Hen. 8, c. 5, s. 3, would prevail, and administration, with the will annexed, must be granted to her (a). When the executor of a will has become bankrupt, and resident in Australia, the Court granted letters of adminis- tration, with the will annexed, to one of the legatees, but re- quired, before the letters issued, that the written consent of the next of kin and the persons entitled to the undisposed residue should be brought in and filed in the registry (5). T\rhen the executor and trustee under a wiU had lent a portion of the trust fund on the security of a promissory note made payable to him as executor, and upon his becoming bankrupt the Court of Chancery had appointed a new trustee ; administration, with the will annexed, was granted to the new trustee, hmited to the interests of the cestui que trust in other money due on the promissory note (c). Whenever an executor appointed in a will survives the testator, but dies without having taken probate, and whenever an executor named in a will is cited to take probate, and does not appear to such citation, the right of such person, in respect of the executorship, shall wholly cease, and the representation to the testator and the ad- ministration to his effects, shall and may, without any fiirther renunciation go, devolve and be committed in like manner, as if such person had not been appointed exe- cutor {d). The effect of the Court of Probate Act, 1857, s. 79, and Court of Probate Act, 1858, s. 16, is that if the executors do not appear to a citation, or if they renounce, the will {a) Poole, In goods of, 35 L. J P. & M. 97. (J) In the goods of Cowper, 3: L. J., P. & M. 8. Digitized by Microsoft® (c) In the goods of Bampson, 35 L. J., P. & M. 1. ((?) C. P. Act, 1858, s. 16. ADMINISTRATION WITH WILL ANNEXED.' 153 must be read and administration granted, as if no exe- In what cases cutors had been appointed (e). — Cresswell, J. O. ^™" * " Wherever an executor has been appointed under the Executor ap- will he should be cited before administration can be ^°'° granted to any other person, and this remark applies to all persons applying for administration, where there is any- one who has a prior title (/). Although the construction of a wiU is not the office of Court follows this Court, yet it is required sometimes to do so incidentally tion'^of the"^' to its regular jurisdiction, and in so doing it will adopt that Comt of Chan- construction (if any) which has been placed on the will by the Court of Chancery. For where the prerogative Court, putting a construction on a will, made a grant of letters of administration to K. : and the Court of Chancery held that decision to be wrong, and that W. was entitled;- K. appealed to the House of Lords : W. applied for the grant to be to him, in accordance with the decree of the Court of Chancery: it was held that the proceeding in Chancery was in the nature of an appeal from the prerogative Court, and that its decision must prevail, and the grant was decreed to W. {g). To whom granted.'] A person cannot propound a will in which he has no interest either as executor or legatee (A). Neither can a party be cited to propound a will even Who may be though he be a legatee if he is not named as executor, pg^mj" ^™' For where A. left a will appointing executors and a paper ■writing purporting to be a codicil disposing of his property in a different manner, the executors, believing this not to be a genuine codicil, moved for a citation, calling upon the legatees under the alleged codicil to propound it or show cause why probate of the will only should not be granted. The Court rejected the motion (J.). (e) O'Dtvyer v. Geare, 29 L. J., P. & M. 122. P. & M. 47. (Ti) Goodman v. Goodman, 2 (/) See Re Watts, 1 Sw. & Tr. Lee, 2. 538. (t) Benbom, In goods of, 31 L. {g) Warren v. Kelson, 28 L. J., J., P. & M. 171. Digitized by Microsoft® 154 ADMINISTEATION WITH WILL ANNEXED. To whom granted. Largest interest. Direct in- terests pre- ferred. In selecting the grantee of a sinaple administration and of an administration with the will annexed, the same prin- ciple obtains, viz., that the Court commits the charge of administering the estate of the deceased to the person who is most largely interested in it, supposing, as common sense would suggest, that he who is most interested is most likely to discharge this duty best. In the former case the Statutes of Distributions (A) stand as it were in the place of a will, and points out who is the most interested, in the latter case it is the will itself which, in general, shows who is the most interested. In those cases where the wiU fails to distinguish the party, the rules for selecting an administrator, with the wiU. annexed, become the same as those for selecting a simple administrator. .Even when a married woman makes a will, and does not appoint an executor, the practice is to grant adminis- tration, with the will annexed, to the persons having the greatest interest under the wiU in preference to the hus- band (Z). "When parties claiming administration are equally in- terested or have equal rights, the Court wUl exercise discretion in the grant {m). Those, however, who have direct interests are preferred to such as claim in a representative character (w). But it seems that the administration oia,feme covert's goods, left unadministered by the husband, has been held in, several cases to belong under the 31 Edw. 3, st. 1, c. 4, and 21 Hen. 8, c. 5, to the next of kin of the wife, at the time of her death, though the right to the property is in the re- presentatives of the husband (o). This Is an exception to the general rule. (h) 22 & 23 Car. II. c. 10 ; 29 Car. II. e. 3, and 1 Jao. II. ^. 17. (i) In the goods of Bailey, 2 Sw. & Tr. 135; 30 L. J., P. & M. 190. (m) Atkinson v. Bernard, 2 Phil. 316. («) Be Middleton, 2 Hag. Ecc. R. 60. ( o) Gill, In goods of, 1 Hag. Ecc. R. 341; cases cited ibid. 344 et seq. Digitized by Microsoft® ADMINISTRATION WITH WILL ANNEXED. 155 The residuary legatee is preferred to the vddow or next To whom of kin(ji), notwithstanding that it is provided by 21 Hen. ^^^^ ' 8, c. 5, s. 3j that in case any person die intestate, or legatee, that the executors named in any testament refuse to prove it, the ordinary shall grant administration to the widow of the deceased, or to the next of kin, or to both according to the discretion of the ordinary (q). The residuary legatee has also the preference, even where there is no re- sidue, and where he is only trustee (r). Notwithstanding the statutes require that administration shall be granted to the next of kin, it has been solemnly decided, that the residuary legatee is entitled, and it has always since been the constant practice so to grant it(s). The personal re- presentatives of a residuary, legatee have the same right as the residuary legatee himself, when the latter has a beneficial interest (i); but where theresiduary legatee is only Eepresenta- a bare trustee, the usual practice, upon his death, is not to residuary grant the administration to his personal representatives, legatee, but to prefer those who take a beneficial interest (m). In- asmuch as the widow or the next of kin have prima facie the right to administration, the burthen of proof rests with those who claim as or derivatively from the residuary legatee {x). It would appear that if the residuary legatees in trust refuse to act, and there is a power of appointing new trustees in such case in the hands of the residuary legatees, who are beneficially interested, the Court will not grant administration to the substituted trustees without the consent of all parties beneficially entitled to the trust property, until the trusts are actually vested (y). (_p) Atkinson v. Bernard, 2 261. Phil. 320. (m) Hutchinson v. Lambert, 3 (y) Thwaite v. Qalloway, 1 IJee, Add. 27; Atkinson v. Sernard, 2 414. Phil. 316; Vinoenze v. M-ederiei, (r) Atkinson \. Bernard, 2 Phil. 1 E. & A. 109. 316; Hutchinson v. Lwnibert, 3 {so) Taylor v. IHploek, 2 Phil. Add. 27. 261. (s) Be Gill, 1 Hag. Ecc. E. 341. (j/) Ch'essweUY.Oi-e8sn-ell,2 Add. (<) Taylor v. Diplook, 2 Phil. 342. Digitized by Microsoft® 156 ADMINISTRATION WITH W^LL ANNEXED. To whom granted. C.P.Act,1857, S.29. Residuary legatee dis- cretionary. Residuary legatee, what The universal legatee of a testamentary paper is entitled to administration,, with the wiU annexed, but not to pro- bate (i. e., as executor according to the tenor) ; no trace of any dififerent practice can be found in the registry ; semble, the 29th section of C. P. Act, 1857, relates to the procedure of the court, not to the principles on which it is to act (z). It is not obligatory in the Court to grant administration to the residuary legatee, consequently a mandamus wiU not be granted to compel such a course (a). It would seem, however, where the same person is next of kin and residuary legatee that a mandamus would be granted (6). Where a wUl contained the foUovnng clause : — " I give and bequeath to A., B. and C. aU my personal effects and everything of every kind that I have now, or may have at the time of my decease in my apartments at 13, Plaistow Grove, or elsewhere :" it was held the residuary personal estate passed under the words '' or elsewhere " so as to carry the grant of administration with the will annexed (c). A gift to A. of the remainder of money, goods and debts due to testator, after payment of debts, constitutes A. residuary legatee {d). Where A. by his wUl, after directing the payment of his debts and certain legacies, desired that his remaining property should be placed in proper securities, and appro- priated to the education of the children of B., as should seem most meet and beneficial to them by his executors ; at the death of A., B.'s children had attained such an age as to require no further education: it was held, on the death of the executors, that B.'s children were entitled to {%,) In goods of T. 11. OViphant, 1 Sw. & Tr. 626. (a) a. T. Bettesmortli, 2 Sti'a. 956. (J>) Linthnaite t. Gallotvay, 2 Cas. temp. Lee, 414. (c) In the goods of Scarborough, 30 L. J., P. M, & A. 85. {d) Bloomfield, Zn goods of, 31 L. J., P. &M. 119. Digitized by Microsoft® I ADMINISTRATION WITH WILL ANNEXED. 157 administration as residuary legatees, the testator having To whom intended that the residue should be appropriated for their jjesiduary benefit, although, under the circumstanoes, the particular legatee, what mode in which he had intended to benefit them was inca- pable of being carried into efiect (e"). " What is left, my books and fiimiture, and aU other things" are words sufficiently comprehensive to cover the general residue (/"). Testator gave and bequeathed to his sister absolutely all his "houses and land and book debts, household furniture, plate, linen, books, china, glass, books of art, drugs, hay, straw, potatoes, and everything on the said premises, horse, gig, &c., and all other chattels :" — Held that the residue passed, "aU other chattels" being meant to supply any omission in the previous enumeration {g). On the other hand where the testator, in addition to Eesidae, what specific bequests, gave to A., the only legatee named in ^^ "° " the wiU, " also any money that may result from the sale of my effects, after paying the few small debts that I owe:" — Held not to carry the residue {h). Testatrix by a codicil bequeathed her wardrobe, trinkets and other things to her aunt. In the will and codicil she had applied expressions similar to the words other things to a portion only of her property undisposed of: — Held, upon the construction of the will and codicil, that the testatxix's aunt was not residuary legatee (i). On an application for a grant of administration, with the will annexed, to the sole legatee, on affidavit that the tes- tatrix died possessed of no other property than that speci- fically described in the will, it was held that there being no residuary clause, no reason was shown for not citing the next of kin : that they must be cited, or that adminis- (e) Presant T. Goodwin, 29 L. L. J., P. & M. 47. J. P. & M. 115. CO 0'LovglUin,'In goods of, 39 (/) Cadge, Ingoods of, 37 L. J., L. J., P. & M. 53. P. & M. 15. (») Smith, In goods of, 34 L. J., (g) Sharman, In goods of, 38 P. & M. 15. Digitized by Microsoft® 158 ADMINISTRATION WITH WILL ANNEXED. To whom granted. Eesiduary legatee esta- blishing will. Testamento annexo to un- successful op- ponent of will. Residnaty legatee for Ufe. tration might be taken limited to the property specified in the will (A). Where the plaintiff and defendant were the residuary legatees named in a will, which had been propounded by the plaintiff, the Court made a grant of administration, with the will annexed, to the plaintiff, who had established it, in preference to the defendant, who had contested its validity {I). Testator by his will divided the residue of his personal estate between his son, his only next of kin, and his three illegitimate daughters, who were minors ; they propounded the will by their guardian ; the son unsuccessfully opposed it, and was condemned in costs ; he had a larger interest in the specific legacies than the minors, and it was proved that in fact there was ' no residue : the Court refused, under these circumstances, to make the grant to the guar- dian of the minors, but decreed it to the son ; it also de- clined to make the grant to the son conditional on his payment of the guardian's costs, as by so doing it would delay the payment of the legacy to the widow {m). When there is a residuary. legatee for life and a legatee substituted, the usual course is to grant the administration to the legatee for life ; but the Court will not adopt this course, if by doing so it would involve the determination of a difiicult point in the construction of a will (w). Probate of the will of E. C. had been granted hj the Peculiar Court of W. to his executor R. S. C, Avho was now abroad, and supposed to be in Australia: E. C, at the time of his death, had assets out of the jurisdiction of the Peculiar Court of W. : a motion to grant administration with the will annexed, limited to receiving such last-men- tioned assets under sect. 88 of the Court of Probate Act, 1857, to the residuary legatee of E.. C, refiised. Semble, (h) In the goods of Jenny Wat- (to) Samiridge v. Sill, 40 L. J., son, deceased, 1 Sw. & Tr. 110. P. & M. 27. (/) Podmorey. Whatton, 3 Sw. (»j) .Bto«)» v. iVJcAoWg, 2 Robert. & Tr. 449. 399. Digitized by Microsoft® ADMINISTRATION WITH WILL ANNEXED. 159 that on the Court being satisfied that the executor of R. C. To whom was in a distant country, it would grant administration to ° his residuary legatee (o). A. died leaving a will, whereof he appointed B. executor Assignee of and residuary legatee : B. proved the will and afterwards legatee. became bankrupt, and subsequently died intestate, leaving part of the estate of A. unadministered: at the time of his bankruptcy B. was a creditor of A. ; the Court granted administration, with the will annexed, of the unadministered estate of A. to the assignee in bankruptcy of B. in the character of assignee of a residuary legatee : semble, that the assignee would also have been entitled to the grant as assignee in bankruptcy of a creditor of A. (jo). The Court wiU make a limited grant to the personal representative of a legatee, the executor being out of the jurisdiction, though the legatee only is mentioned in the statute (g"). When the wife is residuary legatee, the court will pass 20 & 21 Vict, over a husband who has no separate interest in the property • ' ■ " of his wife, and wiU, without notice to him, under 20 & 21 Vict. c. 77, s. 73, grant administration, with the will an- nexed, to the nominees of the residuary legatee (r). Where A. bequeathed the residue of his personal estate To nominee of to W., his sole executor and trustee, in trust for such per- to appoint, sons as B., a married woman, should appoint, and in default of appointment to B. absolutely : W. renounced : by deed B. appointed and assigned to M. and J., who accepted the trust, aU her interest under the will, and her right to letters of administration with the will annexed, in order that they might obtain such letters of administration. Letters of administration, with the will annexed, were granted to M. and J. (s). (o) In the goods of Rohert (r) In the goods of Pine, 36 L. Cooper, deceased, 1 Sw. & Tr. 66. J., P. & M. 95; 1 Law Kep., Prob. {p) Domnward v. Dichenson, 3 388. Sw. & Tr. 864:. («) Martindale, In goods of, 27 (g) 38 Geo. in. c. 87. In goods L. J., P. & M. 29. ofTliomas ColUer, 2 Sw. & Tr. Ui. Digitized by Microsoft® 160 ADMINISTRATION WITH WILL ANNEXED. trustee. Widow and next of kin. Administia- Where A., by his will, gave B., his wife, a life interest tiontestamento ^ ^ j^j property, and directed that at her death it should annexo to f r j ' be sold and divided amongst his six children;' he further named his wife sole executrix and appointed C, his eldest son, trustee to carry into efifect the division of the property on her death; B. disposed of the property for 600/., and this sum, with 130/. of her own, she invested in the pur- chase, in her own name, of two leasehold houses; she died intestate, leaving C. and five other children her next of kin, her surviving ; there was no other property than the two leasehold houses : the Court refused to make a joint grant of administration to C. and the nominee of the other next of kin, but made the grant to C. alone, he giving justifying security (t). Next to the residuary legatee (or those who stand in liis place) come the widow, or next of kia, but when they have no interest, administration may be granted to those who have, for instance, to creditors or legatees. In such case the widow and next of kin must of course be cited (m). But the court wiU not grant administration, vsdth the will annexed, to a creditor under 20 & 21 Vict. c. 77, s. 73, by reason of the insolvency of the estate of the deceased, if the widow and residuary legatee be willing to take it, much less wiU it do so if the insolvency is disputed (a:). The court wiU make a general grant of administration, with the will annexed, of the undisposed property under the will of a married woman, to the executor named in her will, such married woman having survived her husband and not having republished her will, provided her next of kin and the parties entitled in distribution consent (y). On the death of testator, plaintiff, at the request of the daughter and universal legatee named in the will, who To executor of feme covert. Creilitorunder- taker. (i) StaiiUon, In goods of, 40 L. J., P. & M. 26. (u) West V. Willby, 3 Phil. 381; Siiajie V. Weli, 2 Lee, 411. («) Hawke V. Wedderlnrn, 37 L. J., P. & M. 33. (y) In the goods of Thorold, 36 L. J., P. & M. 119. • Digitized by Microsoft® ADMINISTRATION WITH WILL ANNEXED. 161 afterwards became a lunatic, undertook to provide for and To whom make arrangements in respect to the ftineral: — Held that ^'""^ by reason of his services therein, and the expenses he. had incurred, plaintiff was entitled as a creditor to obtain ad- ministration of the goods of the deceased (z). The Court will grant administration, with papers annexed. Attorney. to a person as attorney of an executor according to the tenor, without requiring a regular power of attorney, such person being clearly authorized by letter from that executor to act; the executor of the residuary legatee (who was also executor, but did not take probate) having consented (a). The deceased left her property to her sister, a married Attorney of woman, for her sole use and not to be liable to the control woman. of her husband ; she appointed no executor ; the husband of the legatee refused, except on certain unreasonable terms, to consent to her taking administration or to join in the bond; the Court, under 20 & 21 Vict. c. 77, s. 73, decreed administration to the attorney of the legatee with- out the sanction of the husband (5). When the person entitled to adraiijistration is in England, a grant of administration will not be made to his attorney, unless the estate consists solely of property held in trust (c). When granted.l Similarly as m probate and simple Cause of delay. administration, after the lapse of three years from the death of the deceased the reason of the delay must be certified; and should the certificate be unsatisfactory (or, in a country case, should it be one of personal application), the Registrars are to require such proof of the alleged cause of delay as they see fit; if it be a country case, the district Registrar is directed to require an affidavit, or to com- municate with the Registrars of the principal registry {d). (z) Nmcombe t. BeXoe,3'o L. J., P. & D. 538. P. & M. 37. («) I'n *A« goods of Bullet, 39 (a) Re Ormond, 1 Hag. Ecc. E. L. J., P. & M. 26. 143. id) Eule 45, P. R., Non-C. i (fi) In the goods of Warren, 37 Rule 63, D. R. L. J., P. & M. 12j 1 Law Rep., B. M Digitized by Microsoft® 162 ADMINISTRATION WITH WILL ANNEXED. When granted. As in probate, no " letters of administration, with the will annexed, shall issue until after the lapse of seven days from the death of the deceased, unless under the direction of the Judge, or by order of two of the Registrars" (e). The practice in obtaining the administration, with the will annexed, is similar to that of obtaining probate, the administrator standing in the' place of the executor, with the important exception that he has to give security for the due administration of the estate. His affidavit also is somewhat different, see form. Appendix; he has (as an administrator has) "to clear off all persons having a prior right to the grant," that is to say, he has to show in his affidavit how these interests, which would naturally precede his, have been disposed of, so that his claim stands first or among the first (_/"). SIMPLE ADIINISTEATION. If the deceased be intestate, the course is for the next of kin to obtain administration. In ancient times the move- able, i. e., personal, property of deceased persons was in general taken care of by the bishop of the diocese. From this root grew up the various jurisdictions for granting letters of administration, which were transferred by the fourth section of 19 & 20 Vict. c. 77, to the present Court of Probate, and which are now exercised by that Court. Letters of administration are an authority granted by the Court to an individual, and are in the following form on a large sheet of parchment in a hand similar to that used for a probate, and sealed with the seal of the Court: — Form of. " Be it known that on the day of , 18 , letters of administration of all and singular the personal estate and effects of A. B., late of , deceased, who (e) Kule 43, P. R., Non-C. ; Rnle (/) Rule 37, P. R., Non-C. ; Rule 51. D- K. 43, D. R. Digitized by Microsoft® ADMINISTRATION. 163 died on 18 , at intestate, were granted Letters. by her Majesty's Court of Probate to C. T>., tie lawful widow and relict (as the case may he) of the said intestate, she having been first sworn well and faith&Uy to administer the same by paying the just debts of the said intestate, and distributing the residue of his estate and effects accord- ing to law, and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof, whenever required by law so to do. Signed, E. F., (l.s.) Eegistrar." On perusing this document with care, it will be seen, as in the grant of probate, that it does not purport or profess to be a letter or letters of administration itself, but a mere record that letters of administi-ation have been granted. No other document, however, in practice issues, and it therefore is usual to term the document itseF, above set out, as the " letters of administration." The plural number is used, probably, from an erroneous translation of the original Latin " liter a administrationisP To whom gra'nted.~\ This is divided into two heads, first, the character of the applicant as married woman, minor, &c.; secondly, his relationship to the deceased. First, as to the character of the applicant. Originally the Ordinary was himself the administrator, but this prac- tice became, in very early times, disused, and the Ordi- nary used to appoint deputies at his discretion ; to remedy this we find it enacted that the Ordinary " shall depute the next and most lawful friends of the deceased to administer the goods "(^); the "next and most lawful friends" is explained by the 21 Hen. 8, c. 6, to mean the next of kin (/t). Subsequently the discretion of the Ordinary is (j) 31 Edw. III. St. 1, c. 1. (*) Walton v. Jaeobson, 1 Hag. ' Ecc. R. 346. m2 Digitized by Microsoft® 164 ADMINISTKATIOK. To whom granted. Disqualifica- tions. Minor. Married woman. still further limited, and lie is directed to grant adminis- tration to the widow or the next of kin of the deceased, or to any or both of them at his discretion (i). But this meant a legal discretion ; for the Ordinary, when acting officially, had no private or personal discretion re- specting the grant of administration (k). , Under these statutes, the extinct jurisdictions were bound to allow the grant to the " next and most lawful fiiends of the deceased," but the present Probate Court, which inherits their power, has a further liberty granted to it, where the in- solvency of the estate, or other special circimistances, make it necessary or expedient to pass over the persons who, under the previous law, would have been entitled to the grant (Z). The personal disqualifications for the office of adminis- trator (as for that of executor) are few, but as an adminis- trator is required to give a bond as security for the due performance of his office, it follows that aU persons who are unable to execute this bond are in fact disqualified. A minor is, therefore, disqualified (wz) ; even when assisted by his uncle his curator, lawfully appointed according to the law of the domicil(w). But a grant can be legally made to a minor, although it is not the practice of the Court to do so. The cancelling of such grant is in the discretion of the Court, which will not do so Tinless there is an appearance of fi-aud in the obtaining it, or unless it would occasion irreparable injury (o). A married woman may be an administrator if her hus- band assent, for as the practice of the Court requires him to execute the bond he virtually has the power of dis- qualifying his wife; but see Sutherland, In goods of, infi-a (p). (i) 21 Hen. VIII. c. 5, s. 3. . (?t) Canterbury {Archbishop of) T. House, Cowp. 140; LofEt, 622. (0 P. C. Act, 1857, sect. 73. " (m) Manuel, deceased, In goods of, 13 Jur. 664. (ra) Duehesse d' Orleans, In goods of, 7 W. E. 269. (o) Dwryphy v. Dunphy, 3 Ir. K., Eq. 251. See also Re the Countess da Ounha, supra. (i>) 31 L. J., P. & M. 126. Digitized by Microsoft® ADMINISTRATION. ] 65 Nor will it be granted to her attorney on her proxy To whom alone, for a motion for administration, with the will an- g'^'^"*'!'^- nexed, to the attorney of a residuary legatee, a married married™^''' ° woman, upon her proxy alone, was rejected {q). woman. A. bequeathed the whole of his property to W. (whom he To assignee of. appointed his sole executor) in trust for such person as B., a married woman, should by any writing under her hand, or by her will appoint, and in default of appoint- ment forB.'s separate use absolutely: "W. renounced pro- bate of the wiU, and B., by indenture of appointment, assigned all her interest under the said wiU and her right to letters of administration, with the said will annexed, to H. and I. for the purposes in the same indenture men- tioned; the Court granted administration, with the will annexed, to H. and I. (r). In this case the husband of C. seems to have assented, or, at aU events, not to have objected to her appointment. But administration, with the wUl annexed, was granted To nominee of. (under the 73rd section of the 20 & 21 Vict. c. 77) to the nominees of the residuary legatee, who was a married woman, without notice to her husband, the residue being settled to her separate use, and at her absolute dis- posal (s). A married woman was the only legatee of a wiU, which contained no appointment of an executor; her husband refused to consent to her taking the grant of adminis- tration with the wiU annexed, or to join in the bond ; the property being left to her separate use, the Court made the grant to her attorney without the husband's consent (t). Where the husband of a married woman, who is entitled to letters of administration, refuses to execute the adminis- tration bond or to assist in her obtaining the grant, the (j) Bubters v. Hariy, 3 Curt. Prob. 388. 60. (t) In, the goods of Warren, 1 (r) In goods of John J. Mwrtim- L. E., Prob. 538; 37 L. J., P. & M. dale, 1 Sw. & Tr. 8. 12. («) In the goods of Pine, 1 L. E., Digitized by Microsoft® 166 ADMINISTRATION. To whom granted. Benunciation by wife. Lunatics, &c. Alien. Bankrupt. Court win grant administration to her, and allow a third person to execute the bond (m). On the other hand, she cannot deprive her husband of his right by renunciation ; " if a wife renounces her right to administration, the grant is made to the husband, for he has an interest, and the grant must follow the interest, and the wife cannot by renouncing deprive her husband of his right to the grant;" therefore, a husband is entitled to take out administration in right of the wife, to her next of kin deceased, intestate, and her renunciation in &vour of a third person, e. g., a creditor of the deceased, will not deprive the husband of his right (v). A wife cannot prejudice her husband's interest, by renouncing her right to administration (zc). In such a case, where the wife refused to sign a proxy, the Court admitted a proxy from her husband alone (ar). Lunatics, idiots, and the like, being incapable of con- tracting, are incapable of executing the bond, and are therefore still more disqualified for administrators than for executors. On the other hand, an alien may be an administrator (y), so may an insolvent («); but, though not incapacitated, a bankrupt or insolvent is not preferred as an administrator; and where administration was claimed by two persons in an equal degree of relationship one of whom had been twice bankrupt, and paid no dividend, the Court granted administration to the other, and condemned the unsuccess- ful applicant in costs (a). So, where a person died leaving a brother and three sisters surviving him ; the brother had been twice bank- rupt, the parties applying for administration were, on the one hand, the brother, and on the other, two of the sisters. (m) Sutherland, In goods of, 31 L. J., P. & M. 126. («) Haynes v. Matthews, 1 Sw. & Tr. 460. (m) Cooky. Coroper, 2 Lee, 390. S^x) Cooh T. Comjper, 2 Lee, 487. Digitized by Microsoft® (y) Caroon's case, Cro. Car. 8. (j) Savers t. Havers, Bamard- iston, Ch. Ca. 23. (o) Bell T. Tlnniswood, 2 Phill. 22. ADMINISTRATION. 167 with the assent of the third; it was held that the Court, To whom where it has a discretion, will, cceteris paribus, grant admi- ^'*° ® ' nistration to a male in preference to a female, but not so, when such grant is opposed by those who have a majority of interests in the property {b). With regard to felons, there seems to have been some Felons. doubts. ■ As the original statute directed administration to be given to the next and most lawful friends of the de- ceased, it appears to have been considered that a felon could not come within this definition (c). But the Con- trary doctrine appears to have been held in another case (d). These doubts, however, if any exist, would seem now to be set at rest by the 33 & 34 Vict. c. 23, at least as far aS the question of forfeiture is concerned. Secondly, the relationship of the applicant to the de- ceased. The following is the order in which next of Mn stand in Order of pre- respect of their right to obtain administration : — ference. 1. Husband or wife. 2. Child or children. 3. Grandchild or grandchildren. 4. Great grandchildreh. 5. Father. 6. Mother. 7. Brothers and sisters. 8. Grandfathers or grandmothers. y. Nephews and nieces, uncles, aunts, great grand- fathers or great grandmothers. 10. Great nephews, great nieces, &c., all being equally entitled who stand in the same degree ;- And it must be remembered that in all cases the next of kin means the next of kin at the time of the death of the deceased, not at the time of making the application for the grant. (J) Iredale y. Ford, 1 Sw. & (c) HensUe's case, 9 Rep. 36. Tr. 305. W Caroon's case, Cro. Car. 8. Digitized by Microsoft® 168 ADMINISTRATION, To whom granted. Spouse. Husband. Husband's representative. As to a husband or wife even where the marriage is voidable, the survivor, should the marriage be unquestioned during the lifetime of both parties, is entitled to the ad- ministration (e). The husband is entitled to the grant of administration it is said, by the common law, though this seems somewhat open to dispute, as originally the person who administered was the Ordinary himself, and the administrator was his deputy. See 31 Edw. 3, c. 11, Ordinaries to "depute." It is more probable that it was on the construction of the statute that the husband was held to be the next and most lawful friend. It is, however, clear that it had long been the custom previous to the enacting of the 22 & 23 Car. 2, c. 10, to grant administration to the husband, and by the 29 Car. 2, c. 3, s. 25, this custom receives a legislative sanction, since the husbands of femes covertes dying intes- tate " may demand and have administration of their rights,, credits and other personal estate, and recover and enjoy the same as they might have done before the making of the 22 & 23 Car. 2, c. 10;" and see 1 Jac. 2, c. 17, s. 5. The right of a husband to administration of his deceased wife's estate is such, that on the widower dying without taking out administration to his deceased wife, it survives, and the Court will grant administration to his representative and not to the next of kin of the wife (/). "Where, however, the husband's whole interest determines with his life, the course is to grant administration to the ' representatives of the wife, as " the grant should follow the interest " (^r). Though, a wife has a separate estate at her disposal, and makes a wUl, yet, if there be no assent of the husband, he shall have the administration Qi). But probate of the will of a, feme covert (supposed at the (e) Elliott T. Ourr, 2 Phill. 16. (^) Ibid. 770. if) FieUeryi. Hangers,3'S.a.s- (h) R. v. Bettismrth, Str. Ece. E. 769. 1118. Digitized by Microsoft® ADMINISTRATION. 169 time of the grant to have been sole) was revoked, and To whop administration granted to her next of kin, the husband S'""^!' having died after her, and his representative assenting, the administration of a feme covert's goods, left unad- mrnistered by the husband, having been held in several cases to belong, under the 31 Edw. 3, st. 1, c. 11, and 21 Hen. 8, c. 5, to the next of kin of the wife at the time of her death, though the right to the property is in the representative of the husband (i). So, where a wife died leaving a chose in action, and the husband, administrator, died without altering the property, and made a will, and his administrator, with wiU annexed, took out administration de bonis nan to the wife ; that ad- ministration was called in by the next of kin to the wife and revoked, the property not having been altered by the husband (k). So, after the death of the husband, administrator of his wife, administration de bonis non was granted to her next of kin in preference to the husband's representative (Z). This practice, however, appears to have been first settled in 1736, by the case of Hole v. Dolman (m) ; as prior to that case it seems to have been the course of the office to grant it prima petenti, indifferently to the one or the other. ; Where A. died in 1831, being at the time of her death Husband's entitled to the reversion of a share of 200/., leaving her ™P'*^''° * husband B., and several children by him, her surviving : the husband subsequently married C, and died in 1832 intestate, leaving C. and several children by his two mar- riages him surviving : D., a creditor, took out administra- tion to his effects ; in 1857, A.'s reversion came into pos- session, D. renounced his right to administer to A.'s estate ; on apphcation to the Court to grant administration (i) QUI, In goods of, 1 Hag, (2) Mnlinde v. Cleaver, 2 Hag. Ecc. K. 341, and cases there cited. Ecc. R., App. 169. (*) Einaston v. Mills, 2 Hag. (m) 2 Hag. Ecc. E., App, 165,, Ecc. E., App. 158. Digitized by Microsoft® 170 ADMINISTRATION. To whom granted. Husband passed over. Husband not cited. Husband when passed over. of it to C, as B.'s relict : — Held the cMdren by A., and not C, were entitled to the administration (w). Where the husband has survived the wife, and died intestate, without administering to her estate, his next of kin must constitute themselves his legal personal repre- sentatives, before they have any claim to administer to the wife's estates (o). Where the deceased and her husband had their domicil at the Cape of Good Hope, and in accordance with the laws of that colony previous to their marriage they exe- cuted a deedof non^iommunity of property, and such de6d was duly registered, the Court of Probate granted ad- ministration to the brother and next of kin of the de- ceased to the exclusion and vrithout the citation of the husband (jo). Where M. W., having been deserted by her husband, had obtained a protection order under 20 & 21 Vict. c. 85, s. 31, by reason of such desertion ; on her death, in the lifetime of her husband, intestate, the Court decreed letters of administration to be granted, limited to such personal property as she had acquired or become possessed of since the desertion, without specifying of what that property consisted, to one of her next of kin (g). In order to obtain administration of the effects of a married woman who dies intestate, after obtaining a pro- tection order from the Court of Divorce, it is not neces- sary that the husband should be cited (r). Administration of the effects of a married woman who had obtained a protection order under 20 & 21 Vict. c. 85, s. 21, and died in the lifetime of her husband, was granted (m) In the goods of Jane Sell, 1 Sw. & Tr. 288. (o) In the goods of Jane E. Oi-avse, 1 Sw. & Tr. Ii6. (;;) Probart, In goods of, 36 L. J., P. & M. 71. (j) In the goods of Maria Wormam, deceased, 1 Sw. & Tr. 513; see also Faraday, In goods of, 2 Sw. & Tr. 369; 20 & 21 Vict, c. 85, s. 21. (r) Brighton, In goods of, 34 L. J., P. & M. 55; Farraday, In goods of, 31 L. J., P. & M. 7, distinguished. Digitized by Microsoft® ADMINISTRATION. 171 to a guardian selected by the children, passing by the To whom husband, upon justifying security being given («). So, where a married woman obtained a protection order under 20 & 21 Vict. c. 85, and died intestate, leaving her husband and children by him, who were minors, her sur- viving ; the Court, in the lifetime of the father, who was abroad, granted administration for the use and benefit of the children to their uncle, who had been duly elected by them as their guardian for that purpose (t). Where a woman, whose marriage had been dissolved on the ground of her husband's adultery and desertion, died intestate, leaving issue of the marriage one child, a minor, the Court decreed administration to the grandmother of. the child, passing by the father, upon a copy of the decree dissolving the marriage being filed, and also copies of letters fi-om him showing that he was unfit to take the grant (m). But where a husband, by a deed of separation, has resigned aU claim to the property of his wife, it was ques- tioned how far he was thereby excluded, upon her death in his lifetime, from taking any interest, as her representa- tive : in such a case the Court wiU not grant administra- tion to the next of kin of the wife unless the husband be cited (u). The wife of a felon convict died intestate, leaving per- Husband felon, sonal property acquired by her subsequently to her hus- band's conviction : — Held, that such property belonged to the crown and not to the next of kin of the intestate to whom the grant should go. This was before the recent statute 33 & 34 Vict. c. 23, abolishing forfeiture (x). If the intestate leave a widow, she stands in the next Widow. («) In tlie goods of Stephemon, (v) Lord Oranmore, In goods of, 36 L. J., P. & M. 20. 30 L. J., P. & M. 183. (*) Weir, In goods o/, 31 L. J., (») Coomhsv. H.M.'s Proctor, 2 P. & M. 88. Kob. Ecc. Kep. 547; 19 Jur. 820; (n) Say, In goods of, 35 L. J., S^g. t. Whitehead, 2 M. C. C. R. P, &M. 3. 181; 9C. & P. 249, Digitized by Microsoft® over. 172 AUMINISTEATION. To whom relation and takes before any one else. This comes from granted. ^j^^ ^^^^^ ^^ ^^^^ 21 Hen, 8, c. 5, s. 3, wMch directs the Ordinary to grant administration to the widow, or to the next of kin, or to both, as by his discretion shall be thought good. Previous to this statute, the wife was not entitled to administration (y). If the widow die before administration is granted to her, her right is not such a one as will necessarily pass to her representatives, and hence it appears that there must be some intrinsic difference between the widower's right to administration and that of the widow. See supra, p. 168. Widow passed The Court wiU grant administration to a son, in pre- ference to a widow, who had been divorced, for adultery committed by her (z). So where a wife, separated from her husband by deed, contracted during his Hfetime a second marriage, and co- habited with the person, with whom she so contracted an invalid marriage, until the death of her real husband, she was held to have forfeited her right to administration of her deceased husband's estate, and the grant was made to his brother (a). The Court is precluded by the 21 Hen. 8, c. 5, s. 3, from making a joint grant of administration to a widow and one of the persons entitled in distribution, even with . the consent of the next of kin, and of all other persons entitled in distribution ; and the 73rd section of the Pro- bate Court Acts does not enlarge the powers of the court in such a case (S). So the Court refused to grant administration jointly to the widow and son, no special reason being given for the application, and some of the next of kin being of an age at which they were incapable of consenting to such a grant (c). (y) Hensloe's case, 9 Eep. 36. ■ (J) In. the goods of James (z) Davies, In goods of, 2 Curt. Browning, deceased, 2 Sw. & Tr. 628; see also Pcttifcr v. James, 634; 31 L. J., P. & M. 161. Bunbury, 16. (c) Nenlold, In goods of, 36 L. (o) Chappell v. Cliappell.ZCwt. J., P. & M. 14. *^'^- Digitized by Microsoft® ADMINISTRATION. 173 But the Court is not bound to give the grant to the To whom Tvidow, for the 21 Hen. 8, c. 5, s. 3, leaves it to the S^^ted. discretion of the Ordinary, to grant administration to the ^f ]^a. widow or the next of kin {d). Therefore, when it was moved for a mandamus to the official of the Bishop of Gloucester to commit administra- tion to the widow of an intestate, the Court refused the motion, saying that it would be to deprive the Ordinary of his election in granting it to her, or the next of kia (e). The next of kin has by law the same title to administra- tion as has the widow, though under ordinary circum- stances the practice is to make the grant to the widow (/). The Court will, on sufficient cause shown by the next of widow ex- kin, on motion, exercise its discretionary power, and grant "^l""^"- administration to such next of kin in preference to the widow (ff). The Court granted administration to the plaintiff, as the Children, natural and lawful child of the deceased, she having been bom six months after the marriage of her parents (A). . . The children stand in the first degree from the intestate in the same degree as the father, but the children are pre- ferred, and although the grandchild or great-grandchild is further off from the intestate than the father, yet, conform- ably with the civil law, the most remote Kneal descendant has priority over the next of kin in the ascending line, i. e., the grandchild or great-grandchild woTild be preferred to the father; they seem, indeed, to be considered as the more direct representatives of the deceased. It must also be remembered that all children stand in equal degree, a male, indeed, is preferred as being more capacitated for the office, but primogeniture gives no right (?). (d) Dew T. aarJi, 1 Hag. Ecc. & Tr. 489; 33 L. J., P. & M. U9. E. 312. CO Tnrner v. Turner, 36 L. J., (e) Anon. 1 Str. 525. P. & M. 85. (/) Corser, IngoodsofjZl'L.J., (i) Earl of Warmieh v. Gre- P. & M. 170. vllle, 1 Phill. 123. (y) In goods of Anderson, 3 Sw. Digitized by Microsoft® 174 ADMINISTRATION. To whom granted. To other next of kin. Prima petenti. Sole adminis- tration. Joint grant re- fused. Male preferred. With respect to the other next of kin they take in their order, and it is the rule of the Court, where there are several equally entitled, to make the grant to the first applicant, without requiring the consent or renunciation of those who are entitled in the same degree. The grant is made of the whole administration, and no power is reserved for other administrators to come in and join as in the case of executors. Another rule is that when several apply, the Court wiU not grant letters to more than three persons, unless, indeed, some special circumstances induce it to forego the general rule. Indeed, it prefers a sole adminis^ tration wherever possible. For "the Court prefers, cceteris paribus, a sole to a joint administration, because it is infinitely better for the estate; administrators must join and be joined in every act, which would not only be inconvenient to themselves, but what is of more conse- quence, inconvenient to those who have demands on the estate either as creditors or as entitled in distribu- tion" (A). The Court never makes a joint grant if it can possibly avoid it. For where the deceased died intestate, leaving a widow, and several minor children by a former wife; during his lifetime he had been assisted in his business by his brother ; his widow was unacquainted with its manage- ment and she was desirous that the brother (who was elected by the children their guardian for the purpose) should be joined with her in the grant ; the Court held that the circumstances did not warrant a joint grant and refiised the application (Z). ■Cceteris paribus, the male is preferred to the female in a contest for a grant of administration, but the female when prior petens, is preferred to the male(7w). Of the two rules for the guidance of the discretion of the Court in granting administration, where parties in equal (i) JEwrl of Warwick t. Gre- ville, \ Phill. 126. Q) Richards, In goodt of, 49 L. J., P. & M. 29. (m) Gordem v. Trailer, 34 L. J., P. & M. 127. Digitized by Microsoft® ADMINISTRATION. 175 degree dispute it, viz., that " cateris paribus, the male is To whom preferred to the female," and " that the grant will foUow S'^— +' ^f the majority of interests," the latter is the more strin- interest, gent (n). Administration may be granted to the nephew, on the uext of kin. renunciation of his father, the brother and sole next of kin of the deceased (o). But the next of kin cannot, as it were, indorse away their right to a nominee. For the Court refused to grant administration to a person not having any interest in the estate, merely because the next of kin had agreed to re- nounce in his faYOur(jo). A. died in 1831 an infant, leaving his father the only person entitled to his personal estate : B. died leaving a wiU, in which he named his wife C. and D.- executors, and C. universal legatee : B.'s will had never been proved. C. died leaving a will in which she named executors, and all her children, excepting E., residuary legatees : D. re- nounced probate of B.'s will, and the executors and resi- duary legatees of C. renounced their right to administer to A.'s estate, and consented to the administration going to E. : the Court held it could not make the grant to E. unless he first represented B. (§'). The next of kin of an intestate are entitled to adminis- tration in preference to creditors, and as a general rule wiU not, at the instance of creditors, be required to give justifying security (r). Where administration is contested by two persons of the Half blood. whole blood in equal degree of relationship, the rule is to grant it to the one who unites the majority of interests; but where the contest is between one of the whole blood (m) Iredale v. Ford ^ Bram- P. & M. 9T. «vorth, 1 Sw. & Tr. 305. (?) Allen, In goods of, 3 Sw. & (o) Be Keane, 1 Hag. Ecc. E. Tr. 559; 34 L. J., P. & M. 1. 692. ('■) 'fo^'o- v. Bradhv/ry, 36 L. J., {p) Blahe, In goods of, 35 L. J., P. & M. 33. ' ^ Digitized by Microsoft® 176 ADMINISTRATION. To whom" granted. Crown nominee. When intestate hastard. and one of the half blood, the one of the whole blood is to be preferred (t). The guardian of a minor of the whole blood is entitled to a grant of administration in preference to the half blood (m). Where there are no next of kin, the crown is entitled to the grant, in accordance with both the feudal principle of escheat and the maxims of the civil law. As a bastard is nulliusjilius, he can have no next of kin, unless he leaves lawful issue. When, therefore, a bastard dies unmarried, his effects revert to the crown ; but where a will does not dispose of the residue, the legatees are entitled to adminis- tration with the will annexed, limited to the property dis- posed of by the will; the next of kin without the consent of the legatees being only entitled to a grant, save and except such property, or to a cateroricm grant. If the deceased dies a bastard and unmarried, the crown takes the same grant as next of kin (a:). The practice of the crown is to divide the effects of an intestate bastard among the natural relatives, and to retain only a percentage as under (y) : — If property under £500 . . . One-tenth. „ „ 1,000 . . . One-eighth. „ ,j 5,000 . . . One-sixth. 10,000 . . . One-fourth. If £10,000 or upwards . . . One-third. The 56th section of the 11 Geo. 4 & 1 WiU. 4, c. 20, enacts, that " When any petty oflScer or seaman shall die intestate, leaving any wages, prize money or other allow- ances of money of any kind due to him in respect of ser- vices in her Majesty's navy, the same shall not be paid to (f) Merc^f V. Morland, 2 Lee, (x) In tlie goods of Rhoadei.ZZ 499. L. J., P. «5 M. 125. (?«) Stratton v. Finton, 31 L. J., (y) See Eoyal Warrant, 25 July, P. & M. 48. 1771. Digitized by Microsoft® ADMINISTRATION. 177 Ms personal representatives, except upon letters of adminis- To whom tration obtained in the following manner," &c. The sec- ^"^^ ^ ' tion then points out the course to be adopted by the person claiming administration; and the inspector of seamen's wills, on being satisfied with the claim, is directed to transmit to a proctor a certificate thereof; the crown not being expressly named in that section, it is not bound by it; and this case must be governed by the principles applicable to any other case in which the nominee of the crown applies for administration of the efiects of a bastard intestate. A general grant of administration of the eflfects of a sea- To crown, man in the navy, who died a bachelor, bastard and intes- tate, having wages or prize money due to him, will not be granted to the solicitor of the Treasury for the use of the crown, unless th^ provisions of the 1 1 Greo. 4 & 1 WiU. 4, c. 20, s. 56, have been complied with, those provisions, although they do not in terms affect the crown, being bind- ing on the Court of Probate (z). In all cases where application is made for letters of administration (either with or without a wiU annexed) of the goods of a bastard dying a bachelor or a spinster, or a widower or widow without issue, or of a person dying without known relation, notice of such application is to be given to her Majesty's procurator-general (or in case the deceased died domiciled within the duchy of Lancaster, to the solicitor for the duchy in London), in order that he may determine whether he will interfere on the part of the crown ; and no grant is to be issued until the officer of the crown has signified the course he thinks proper to take (a). In the case of persons dying intestate without any known When no re- relation, a citation must be issued against the next of kin, °'''°" °°^°' if any, and all persons having or pretending to have any interest in the personal estate of the deceased, and the (z) In the goods of Bevan, 35 (a) Kule 75, P. R., Non-C. L. J., P. & M. 25. B. N Digitized by Microsoft® a felon. 178 ADMINISTKATIOIS'. To whom service thereof upon them shall be effected as required by granted. jj^^jg 70, P. E. Non-C. Such citation must also be served upon the Queen's proctor, or upon the solicitor for the duchy of Lancaster, as the case may require (6). When deceased The recent statute, by abolishing forfeiture (c), seems to have put an end to all the old law on how far adminis^ tration could be taken out to a deceased felon's effects, and to place them on the same footing as other persons. To creditor. \ person, who is entitled to administration as next of kin, cannot take the grant as a creditor (d). But it was held that a husband may take a grant, with the will annexed, as creditor, although he has signed a renunciation executed by his wife as residuary legatee (e). Eight of ere- « The right of a creditor is only this ; he cannot be paid his debt till a representation to the deceased is made ; he can then call on aU who have a right to administer ; before an administration is granted, if a will be produced, the creditor has no right to contradict or deny it ; for if there is a will, or a next of kin claims administration, then a person offers to make himself a representative, and the creditor gets aU that he has a right to" (_/). Creditors have no right to interpose in the grant of an administration between a widow and the next of Mn; the practice is to grant administration to the widow, unless some objection exists against her (ff). Again, the Court will not grant administration, with the win annexed, to a creditor by reason of the insolvency of the estate of the deceased, if the widow and residuary legatee are wUling to take it ; much less wiU it do so if the insolvency is disputed (h). Therefore it is not competent to a creditor to dispute the articles of a will (z). (J) Rule 76, P. R., Non-C. (/) Mme y. Da Costa, I Phill. (c) 33 & 3+ Viet. c. 23, s. 1. 177. id) Corsers, In goods of, 31 L. {g) Stretch t. Pynn, 1 Lee, 30. J., P. & M. 170. (A) Hawke v. WedderMrne, 37 (e) Siggs, In goods of, 1 L. R., L. J., P. 85 M. 33j 16 W. R. 712. P. & D. 595. But see Southwell v. (i) Burrovghs y. Griffiths ^ Flndley, 33 L. J., P. & M. 21. another, 1 Lee, 544. Digitized by Microsoft® ADMINISTRATION. 179 A creditor, however, is entitled to an inventory of the To whom effects of an intestate (J). And it is suflficient if the credi- Slanted, tor swear to a particular sum and upwards being due to Mm, as the Court will not try the validity of the debt {k). But, though he has a right to call for an inventory, the court has no jurisdiction at his suit to examine the par- ticulars of an account (?). Administration with the will annexed was granted to a Creditor, -who person, as creditor for funeral expenses, who had under- -^^^^^ accruing taken the funeral of the deceased at the request of the after death, universal legatee named in the will, on his giving justifying security (m). So a surety who, after the death of the principal, pays off the debt is (in case of intestacy) entitled to administra- tion as a creditor (n). But administration of an intestate's estate will not b.e granted to a person who, after the death of the intestate, buys up a debt due from him (o). Even When debt if his debt is barred by the Statute of Limitations, a ere- gtatnte It ditor is allowed to cite the next of kin to accept adminis- Limitations. tration or to show cause why it should not be granted to him ( jo). And, on their not appearing, he is entitled to the grant, but the bond must contain a condition that he distribute the assets rateably amongst all the creditors (g). Where an application is made for a grant of administra- tion to the secretary of an association, on the ground that the deceased was indebted to the association, the Court ought to have such information of the constitution of the association as would show that the secretary can be treated as-a creditor (r). Administration of the effects of a pauper, who died {j) Timbrell t. Rice ^ another, 1 (o) Macnin v. Coleg ^ others, 33 Lee, 471. L. J., P. & M. 175. {k) Smith T. Pryee, 1 Lee, 569. (i>) Combs, In goods of, 35 L. J., \l) Brown t. AtUns, 2 Lee, 1. P. & M. 78; 1 L. E., Prob. 193. (m) Neneombey. Beloe,\'L.'Si., (?) Combs v. Combs, 35 L. J., Prob. 314; 36 L. J., P. & M. 3T. P. & M. 21; 1 L. E., Prob. 288. («) Williams v. Jukes, 34 L. J., (r) In the goods of Thomas P. & M. 60. Fairneather, 2 Sw. & Tr. 588. n2 Digitized by Microsoft® 180 ADMINISTRATION. To whom granted. 16 & 17 Vict. c. 97, s. 104. Administra- tion to poor law gnardians refused. Husband of deceased cre- ditor. Creditor's mortgagee. Creditor, official assignee of. chargeable to a union, was granted to the guardians of the union as creditors under 12 & 13 Vict. c. 103, s. 16 (s). The deceased was a pauper lunatic, and from 1862 until his death in 1870 the cost of his maintenance in the county asylum was paid by the union to which he belonged ; on the death of his wife in 1865 he became entitled to a sum of 400J., but no steps were taken by the guardians of the union to obtain an order from the justices, under 16 & 17 Vict. c. 97, s. 104, to make the fund applicable to his maintenance: the Court refused to make them a grant of administration as creditors of the deceased (<). A female, having taken administration to the estate of the deceased as a creditor, married and died; under the administration she got in a considerable portion of the estate of the deceased, and paid some of the debts, but did not set apart any particular fund in payment of her own debt : held, that the husband was not entitled in his own right as a creditor, but only as the representative of his wife, to take administration of the unadministered effects of the deceased (m). E. G. being a married woman and having an interest under her father's wUl, expectant on the death of his widow, joined with her husband in 1841, in executing a mortgage of such interest to B., to secure a running account: E. Gr. died in 1851, and her husband in 1853, neither possessed of any other property ; on the death of her father's widow, a representative of E. G. was required to release the trustees ; B.'s debt being larger than E. G.'s interest under the will, the Court granted administration of the goods of E. G. to B. as mortgagee (x). • A. in 1813 assigned certain bills of exchange and nego- tiable instruments to B., who was in 1833 adjudicated a (s) Cleaver v. Next of kin of M'Kenna, 35 L. J., P. & M. 91. . (*) Sharland v. SAarland, 40 L. J., P. Si M. 21. (u) In the goods of Risdon, 1 L. R., Prob. 637. (a) In the goods of Elii. God- frey, deceased, 2 Sw. & Tr. 133. Digitized by Microsoft® ADMINISTEATION. 181 bankrupt; in 1862 C, being his official assignee, assigned To whom the sums remaining due and to become due on the said bills of exchange and negotiable instruments to T>., as purchaser under the Bankruptcy Act, 1861, sect. 137, and D. sold and assigned them to E. ; the Court declined to make a grant of administration of the personal effects of A. limited to the aforesaid sums (the next of kin of A. having been cited and not appearing) to E. ; but made the grant to D. as assignee of the official assignee (y). Where A. died, leaving a will, whereof he appointed B. executor and residuary legatee, and B. proved the will, and afterwards became bankrupt, and subsequently died intestate, leaving part of the estate qf A. unadministered : at the time of his bankruptcy, B. was a creditor of A. ; the Court granted administration, with the wOl annexed, of the unadministered estate of A. tothe assignee in bank- ruptcy of B. in the character of assignee of a residuary legatee {z). A. died, leaA^ng a will, whereof he appointed B. executor Assignee of and residuary legatee ; B. proved the wiU and afterwards Water^ ' became bankrupt, and subsequently died intestate, leaving part of the estate of A. unadministered ; at the time of his bankruptcy B. was a creditor of A.: the Court granted administration, with the will annexed, of the unadministered estate of the effects of A. to the assignee in bankruptcy of B., in the character of assignee of a residuary legatee ; Semble, that the assignee would also have been entitled to the grant as assignee in bankruptcy of a creditor of A. (a). But if the assignee of a bankrupt deceased can obtain the debts due to the deceased without the grant of admi- nistration, the Court will not assist him, for where after the death of A., who died domiciled in France, intestate, his estate was, by a decree of a French Court, declared bankr nipt, and B. was appointed syndic or assignee, and autho- iy) In goods of William Coles, 3 Tr. 564. Sw. & Tr. 181. (a) Downward v. Dichenson, 34 (i) Chune, In goods of, 3 Sw. & L. J., P. & M. 4. Digitized by Microsoft® 182 ADMINISTEATION. To whom granted. To nominee of creditors. Ci'editor guardian to minors. Creditor limited. rized to dispose of the debts due to the deceased : pursuant to this decree the debts, including one due from a person in England, were sold to C. : by the law of France, C. could sue in his own name for the debts, without .obtaining letters of administration to A. without any other judicial act ; the person entitled in distribution to the deceased's effects having been cited, and not appearing, application was made for a grant of administration to C. limited to the debt due in England: held, that as C. derived his title from the syndic, as a purchaser and not as repre- senting the deceased, he was not entitled to have the grant (6). In a recent case the Court granted administration (the next of kin having renounced) of the personal estate and effects of an insolvent intestate, to a stranger nominated by the bulk of the creditors, in preference to a particular creditor, whose debt was small, but required the nominee to give justifying security, and to enter into a bond to pay the debts ■pro rata (c). Where A. died intestate and insolvent, leaving three children minors, who had no known relations, and were the only persons entitled in distribution, the Court ap- pointed a creditor guardian to the children, for the pur- pose of taking out administration to the estate of A. {d). The Court, there being no known relative of the de- ceased, under special circumstances made a grant to a creditor ad colligenda bona, limited to collect the personal estate of the deceased, to give receipts for his debts on payment of the same, and to renew the lease of his business premises, which would expire before a general grant could be made : the Court refused to include in the grant a power to dispose of the lease and goodwill of the business, or a power to carry on the business (e). (i) Dessit v. Delemcleuse, 30 L. ((f) Peck, In goods of, 27 L. J., J., P. & M. 86. P. & M. 106. (c) Smithson, In goods of, 36 (e) In the goods of Ch. Clark- L. J., P. & M. 77. ington, 2 Sw. & Tr. 381. Digitized by Microsoft® ADlimiSTRATIOX. 183 And where the widow and next of kin in this country To whom renounced administration, and the estate, which was in- S'a'itei solvent, was liable to depreciation, if the property (timber) was not at once sold : the Court, under the circumstances, made a grant ad colligenda bona to a creditor, the money realized by the sale of the timber (after deduction for wages and charges) and collection of debts, to be paid into the registry, and the next of kin abroad to be at once cited, with a view to the applicant taking a creditor's grant (/). Administration was granted to the assignee of a de- ceased tradesman limited to the book debts specified in the deed of assignment (^). Administration may be granted to one creditor of the deceased, though the proceedings for obtaining adminis- tration may have been initiated by another creditor : the latter being allowed such costs as were reasonably incurred by him, before the former took up the application (Ji). The Court will not grant administration to a creditor Affidavit of without an affidavit of the date when the debt became " ^ ° ® '" due {{). It should also state that all persons entitled in distribu- tion of the effects of the deceased had been cited (A). It must also state the amount of the personal estate of the deceased (Z). Where administration is applied for by the creditor of a Advertising person who died intestate, without any known relation, a " "''°°' citation calling on the next of kin, if any, and aU persons having interest in the estate of the deceased, should be issued, and an abstract of it advertised twice, with an in- terval of a fortnight, notice also being given to the (/) Stewart, In goods of, S8 L. (i) Rawlinson t. Burnell, 3 Sw. J., P. & M. 39; 1 L. E., Prob. 727. & Tr. 479; 33 L. J., P. & M. 123. . (g) Dixon, In goods of,- 10 Jur., (*) Brown v. Wildman, 28 L. J., N. S. 854. P. & M. 54. (A) Andrews v. Murphy, 30 L. {I) Briggs v. Roope, 29 L. J., J., P. & M. 37. P- & M. 96. ■ Digitized by Microsoft® 184 ADMINISTRATION. To whom granted. To party with- out interest. To attorney. Queen's proctor, after the lapse of thirty days from the last advertisement, if there is no appearance, and the Queen's proctor declines to interfere, administration wiU be granted to a creditor (m). In case of an intestacy, where the persons who are sole next of kin, and the only persons entitled in distribution, renounce their title to administration the Court will make the grant to a person, who would have been next of kin if the sole next of kin had been out of the way, although such person has no interest (ra). So administration was granted to the nephew on the renunciation of his father, the brother and sole next of kin of the deceased (o). Upon the consent of aU the next of kin, the Court granted administration under the 73rd section of 20 & 21 Vict. c. 77, to a person having no interest in the property of the deceased ( p). But the Court refused to grant an administration of the effects of the deceased, under the 73rd section of the Pro- bate Act, to a person not having any interest in the estate, merely because the next of kin had agreed to renounce in his favour {q). In an administration suit in Chancery, it became neces- sary for the purposes of the suit that a personal representa- tive of A., the wife of B., should be appointed ; the Court, at the instance of C.,who had no direct interest, allowed a citation to issue to B. to take administration of his wife's estate, or to show cause why it shoiild not be granted to C.(r). A. died domiciled in Brazil intestate, leaving a widow and several children (all minors), and some personal pro- BronnHll, 33 L. (m) Broron {Mary Anne), In goods of, 28 L. J., P. & M. 126. See Kule 76, P. R. Non-C. (n) In the goods of Geo. John- son, 2 Sw. & Tr. 695. (o) In the goods of Mary Xeane, 1 Hag. Eoc. R. 692. (^p) Farrell v. J., P. & M. 185. (j) Blahe, In goods of, 35 L. J., P. & M.- 91. (?•) Williams, In goods of, 39 L. J., P. & M. 48. ■Digitized by Microsoft® ADMINISTRATION. 185 perty in England ; the Judge of Orphans, a functionary to wljom in Brazil charged with the administration of estates S'"™'^''- belonging to minors, having appointed B. guardian of the children of the deceased, who appointed C. the Brazilian Minister at Turin, his attorney in the matter, with power of substitution, issued letters of request to the judicial authorities in England to coUect and deliver the same to C. or his representative ; C. appointed D., resident in England, his substitute ; authenticated copies of the pro- ceedings before the Judge of Orphans, and of the power of attorney to C. and the original power of attorney, with affidavits of the facts of the case and of the law of Brazil' having been filed, the Court granted administration to B., having acquired a domicil in British Guiana, died a bachelor and intestate: under an ordinance of that colony the administrator general took possession of B.'s property in that colony, and appointed Messrs. P., F. & P. of Liverpool to be his attomies, and in his name to obtain letters of administration to the personal estate of the deceased in this country: the Court directed notice to be given to the Queen's proctor, and for citations of the next of tin, if any, to be advertised: such notice was given, and the citations accordingly were advertised, and on the consent of the only party who appeared the adminis- tration was granted as prayed (t). Although the attorney of the next of kin is resident without the jurisdiction of the Court, administration will be granted to him if the sureties to the bond are resident within the jurisdiction (m). So, also, where the executors of a wiU being resident abroad, they appointed persons resident in Scotland as their attomies to take out administration with the will annexed ; ( s) In the goods of Louis deceased, 2 Sw. & Tr. 604. Sianclii, deceased, 1 Sw. & Tr. («) In goods of Joseph Leeson, 511. deceased, 1 Sw. & Tr. 463. («) InthegoodsofJoJm O'Brien, Digitized by Microsoft® 186 ADMINISTKATION. To whom the attornies being unable to procure sureties to the bond S'"" " ■ resident in England, the Court accepted sureties resident in Scotland (x). If the Court, on the document before it, is satisfied that the party entitled to a grant of administration desires the person applying to act as his attorney, it will not require a regularly-executed power of attorney (y). Where the person solely entitled to a grant of adminis- tration was resident in this country and able to take it himself, the Court declined to decree it to his attorney for his use and benefit {z). When the person entitled to administration is in Eng- land, a grant wiU not be made to his attorney unless the estate consists solely of property held in trust (a). If two executors give a letter of attorney to a third person to take administration cum testamento, and one of the executors dies, the other has a right to call in the letters of attorney, and to take a probate of the will (b). Under Court of Prolate Act, 1857, s. 73, Rule 31, P. R. Non-C] Where the executor or administrator was abroad, the inconveniences arising therefi-om were remedied or relieved by the 38 Geo. 3, c. 87, but that statute did not apply to cases where probate or administration had never been taken out, and no representative ever constituted. The inconvenience from this state of things was very great, the property might be perishable or in a critical state, and irretrievable injury might be suffered before the party entitled to the grant could be communicated with. To remedy this the Court of Probate Act, c. 73, confers on the present Court a power of making a grant of administra- tion to " such person as the Court shall think fit to be such (») Ballingall, In goods of, 32 Burch, deceased, 2 Sw. & Tr. 139. L. J., P. & M. 138. (a) Bullar, In goods of, 39 L. {y) Morley, In goods of, 3 Sw. J., P. & M. 26. & Tr. 425; 33 L. J., P. & M. 108. (J) Pipon y. Wallis, 1 Lee, 402. ' (i) In the goods of Eleanor Digitized by Microsoft® ADMINISTRATION. 187 administrator," although he may not be the person by law To whom entitled. granted mi • T 1 • Court of Pror This enactment applies to cases where it appears to the bate Act, 185", Court to be necessary or convenient " by reason of the °' ^^\ , ,. , nil ni •I-'-" what cases. msolvency ol the estate oi the deceased, or other special circumstances " to appoint such person, and it apphes to cases where the deceased died wholly intestate as to per- sonalty, or leaving a will of personalty, but there is no executor appointed, or no executor willing or competent, or where the executor is not resident in Great Britain or Ireland. The grant, too, must be made to a person " other than the person who, if this act had not been passed, would by law have been entitled to the grant. Therefore, since the next of kin of an intestate have bi/ law the same title to administration as the widow has (although the practice is to make the grant to the widow), administration cannot be granted under this section to the next of kin, passing by the widow (c). The terms of this section are perfectly general, and they Stranger, give a most extensive power to the Court to make, under any special circumstances, the grant which, in the par- ticular case, it may think fit. For where the deceased was assisted in the latter years of his life by A. B., his wife's nephew, his personal estate and effects (principally furni- ture) were valued at 838?., the debts owing by him at the time of his death amounted to 9121., and these were paid by A. B. out of his own money: the next of kin having renounced, the Court granted letters of administration of the personal estate and effects of the deceased to A. B., under the 73rd section ( ii 1 J • i.1 as to old bonds. tile an inventory ot the goods of the deceased m the re- gistry of the Court of Probate. By Court of Probate Act, 1857, s. 87, such inventories are returnable only into the Court of Chancery. The course to be adopted in such a case is to move the Court ex parte for a rule, calling upon the principal and sureties to show cause why the bond should not be assigned for breach of the condition without further proceedings. The Court may then, upon being satisfied that an inventory has not been returned into the Court of Chancery, order the registrar to assign the bond(j9). The enactments contained in sect. 15 of 21 & 22 Vict. c. 95 are not retrospective, so as to enable the assignee of a bond, given to the ordinary before the passing of the C. P. A. 1857, to maintain an action commenced by him before the passing of the C. P. A. 1858 (y). Where, in 1854, an administration bond with two sureties was given to the Bishop of Chester, in 1854 a suit in chancery was commenced by a creditor of the in- testate against his administratrix, and the condition of the bond having been broken, it was ordered by the Master of the Rolls that an action should be brought on it against the sureties : the proceeding required by the Ecclesiastical Court to be taken before commencing such action were not completed at the time the Probate, Act came into operation, when the testamentary jurisdiction of the Court of Chester ceased : on motion that the Court should order the bond to be attended with, for the purpose of being put in suit, the Court decreed that the Registrar should order the bond to be assigned for the purpose of being put in suit; qucBre whether, since 20 & 21 Vict. c. 77, an action wiU lie on such bond (r). By the 20 & 21 Vict. c. 77, s. 81, "every person to (^) Bouverie and Lefevre v. (?) Young y. Svghes, i H. & If . Maxwell, 36 L. J., P. & M. 3 ; 1 76. Law Kep., P. & D. 272. (r) Ymtng y. Oxley, 27 L. J., P. & M. 30. Digitized by Microsoft® 200 ADMINISTRATION BOND. Condition. Penalty. Execution of. Bond cannot be dispensed with. whom any grant of administration shall be committed shall give bond to the Judge of the Court of Probate, to enure for the benefit of the judge for the time being, and if the Court of Probate, or (in the case of a grant fi-om the district registry) the district Registrar shall require, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the personal estate of the deceased, which bond shall be in such form as the judge shall from time to time, by any general or special order, direct : provided that it shall not be neces- sary for the solicitor for the affairs of the treasury, or the solicitor of the Duchy of Lancaster, applying for or ob- taining administration to the use or benefit of her Majesty, to give any such bond as aforesaid." By the 82nd section, " such bond shall be in a penalty of double the amount under which the estate and effects of the deceased shall be sworn, unless the court or district Kegistrar, as the case may be, shall in any case think fit to direct the same to be reduced ; in which case it shall be lawful for the Court or district Registrar so to do ; and the Court or district Registrar may also direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court or district Re- gistrar shall think reasonable." See also Rufes 38, 39, 40, 41, 42, P. R., Non-C. and Rules 44, 45, 46, 47, 48 and 49, D. R., as to the practice as to administration bonds and sureties. An administration bond was returned from Australia, executed in the presence of two witnesses and not in the presence of the commissioner who took the affidavit of the administratrix: the Court allowed the bond to be filed notwithstanding the 38th rule, P. R., Non-C. (s). The Court has no power under any circumstances to dispense with an administration bond (<). («) Parker, In, goods of, 36 L. J., P. & M. 26 (*) Ponu, In goods of, 34 L. J., P. & M. 55. Digitized by Microsoft® ADMINISTRATION BOND. 201 It was held under this section (82), where the effects of C. P. A. 1857, an intestate had been sworn under 20,000/., and letters ot ' ' administration were granted to A., on the execution of the bond, usual administration bond, in a penalty double that sum, and subsequently, by payment to the administratrix of a dividend upon the estate of a bankrupt debtor of the in- testate, the value of the effects being increased beyond 20,000/., and it became necessary to re-swear them as under 25,000/., that a fresh bond need not be executed, but that a bond in the penalty of 10,000/. would, with that already executed, be sufficient («). Where Gr. died a bachelor and intestate, leaving personal estate sworn under 2,000/,, his debts amounting to about 44/,, the Court, under section 82, granted letters of admi- nistration to his mother, who was his sole next of kin, on her giving a bond with sureties for double the amount of the debts of the deceased (ar). Where letters of administration were granted merely to Nominal enable a personal representative of the deceased to execute ^^°^ ^' a formal release to the trustee under a marriage settlement, the Court allowed the property to be sworn under 20/. ( ?/). Where a testator died leaving personal estate in England Property in and personal property in Ireland, and an administration was granted in the Court of Probate in England of the property in England, sworn under 2,000/., with a bond to cover such property, the Court subsequently ordered that on a bond being given in the penal sum of 120,000/,, and its being noted on the letters of administration, that the deceased's personal estate in Ireland had since been sworn under 60,000/, and the security given accordingly, one of the registrars should issue a certificate that a bond had been given to the judge of the Court of Probate to cover the property in Ireland as well as in England (z). («,) inre, In goods of, 28 L. J., Sw. & Tr. 316; 30 L. J., P. & M. P. & M. 111. 191- (a;) M. Gent, In goods of, 27 L. (z) Potts, In goods of, 2 Sw. & J., P. & M. 37. Tr. 5. (y) Staokpoole, In goods of, 2 Digitized by Microsoft® 202 • AUMINISTKATION BOND. Sureties.] See Eules 42, P. E., Non-C. and 49, D. E. Where a lunatic without a committee of estate or person was next of kin and solely entitled in distribution, and administration was granted, under the 73rd section, to her stepmother, sureties were required to justify (a). Where the deceased's only son and the sole person en- titled in distribution was resident in Australia, administra- tion was granted under the 73 rd section to his father-in- law on his giving justifying security and being assigned to exhibit an inventory of the goods, chattels, and credits, within one month from the date of the letters of adminis- tration (b). Amount. Where a grant was made to persons representing three- fourths of the interest, their sureties were ordered to justify to the extent of the other fourth (c). Where justifying security had been ordered, and it appeared, that though the estate had been sworn under 2,000Z., its actual value was only 800/. ; the Court allowed the sureties to justify for double the amount of the actual value, instead of double the amount under which the estate was sworn {d). Where the beneficial residuary legatees were minors, and the value of the residue was about 8,000Z., subject to a mortgage of 3,900Z., the Court granted administration, with the wiU annexed de bonis non, to a contingent legatee, and reduced the amount for which the sureties would have had to justify to 1,000Z. each, it appearing that justifying security to a greater amount could not be given, that the grant was for the interest of the minors and that their guardians did not oppose (e). Where A. died intestate, leaving personalty sworn under the value of 6,000Z., A.'s father, who was his only next of kin and the only person entitled in distribution, being (a) In goods of Mary Burrell, ' north, 1 Sw. & Tr. 305. deceased, 1 Sw. & Tr. 64. (d) England t. Wall, 31 L. J., ■ (*) In goods of John Jones, de- P. M. & A. 16. ceased, 1 Sw. & Tr. 13. (e) Fraser, In goods of, 33 L. J., (c) Iredale v. Ford and Bram- P. & M. 67. Digitized by Microsoft® ADMINISTRATION BOND. 203 unable to procure sureties to a bond in a penalty for double Sureties. the amount of the estate, the court accepted two sureties in the sum of 1,000^. each (/). A. died intestate, leading B. his only next of kin, and solely entitled in distribution : his personal estate was of the value 'of about 551., and it seemed that he had no debts : B. being unable through poverty to obtain sureties to the amount of 200Z., the penalty of the requisite bond, the Court under s. 82 of 20 & 21 Vict. c. 77, reduced the penalty to 60Z. (gi). Creditors are entitled to a constat of the personal estate, Who may de- but they have no right to the quantum of security (having toYnstifyf '^^ no interest in the administration bond), or to require the sureties to justify (h). Even where the parties beneficially entitled desire a grant to their nominee under the 73rd section, the sureties must justify {i). On renunciation of a co-executor, the Court wiU not grant administration with the wiE annexed, without justify- ing securities, to the daughter, the residuary legatee, during the lunacy of the mother, the other co-executor (k). Where the unadmiaistered estate of a testator had been Sureties iiis- transferred to the Accountant-General of the Court of P™^^'' '"""• Chancery and a biU had been filed praying for it to be administered by the Court, the Court decreed a grant de bonis non to the residuary legatee for life, without requiring her to find sureties to the administration bond (J). The Court made an order to dispense with the usual sureties to an administration bond, to be entered into by A. B., who was beneficially entitled to a fund which had been paid into the Court of Chancery and for which the (/) M' Donald, In goods of, 32 Roierts, deceased, 1 Sw. & Tr. 64. L. J., P. & M. 132. (h) Re Barditone, 1 Hag. Ecc. (^) Barrigan, In goods of, 32 L. R. 487. J., P. & M. 204. (0 Cleverly and another y. Glad- (A) Hughes v. Cook ^ others, 1 dish, 2 Sw. & Tr. 335; 31 L. J., P. Lee, 386. & M. 53. (i) In the goods of Hannah Digitized by Microsoft® 204 ADMINISTRATION BOND. Sureties. Not dispensed with. Must be in England. Eesident in Scotland. Substitution of. administration was required, it appearing that A. B. was> in consequence of sickness, in great poverty, and unable to induce any of his relatives or friends to become sureties to the bond(7n). The mere fact that a receiver of the personal estate of an intestate has been appointed by the Court of' Chancery, is no ground for dispensing with justifying security on a grant of administration. If the receiver is appointed for a temporary purpose only and it is not clear that the Court of Chancery wiU retain its control of the estate, after the grant has been made, justifying security wiU be required (ra). Where administration is granted to a person out of England, it is required that the sureties. to the bond shall be resident within the kingdom (o). The Court will not allow residents in Scotland to be sureties to an administration bond (p). Where the person applying for administration was solely entitled to the personal estate of the deceased, and there were no creditors, the Court allowed the sureties to the administration bond to be persons resident in Scotland (j). The Court wiU not discharge the original sureties to an administration bond, and allow other sureties to be sub- stituted for them (r). An administration bond was attested by two witnesses, but not by the person who administered the oath to the administratrix, as required by Rule 38, P. R., Non-C, the estate being small, and the administratrix resident in New South Wales, the Court dispensed with the rule and made the grant («). (to) Louise Maria de la Farque, In goods of, 2 Sw. & Tr. 631; 31 L. J., P. &M. 199. {,n) Jachson, v. Jackson, 35 L. J., P. & M. 3. (o) He CByrne, 1 Hag. Ecc. R. 316. {p) Herbert v. SMell, 33 L. J., P. & M. 142; {Ballingall, Ingoods of, overruled). (y) Boustoii, In goods of, 36 L. J., P. & M. 41. (r) In the goods of Stack, 1 L. R., Pro. 76; 35 L. J., P. & M. 42. (.!) In the goods of Parker, 1 L. R., Pro. 301. Digitized by Microsoft® ADMINISTRATION BOND. 205 The Court may, on application made on motion or peti- Assignment o£ tion in a summary way, and on being satisfied that the condition of any such bond has been broken, order one of the Registrars of the Court to assign the same to some person to be named in such order, and such person, his executors or administrators, shall thereupon be entitled to sue on the said bond, in his own name, both at law and in equity, as if the same had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the said bond (t). On a prima facie case of a breach of an administration bond being established, notice in some form having been given to the sureties, the Court will direct the bond to be assigned; but might refuse to do so, if on cause shown the proceeding appeared to be wholly frivolous and vexa- tious (m). And where a person interested under the estate of a Rule nisi, deceased intestate, to whom administration has been taken out, makes out a prima facie case of breach of the admi- nistration bond, the Court will direct a rule nisi, calling on the sureties to show cause why the bond should not be assigned (v). The Court will order an administration bond to be Assigned on assigned upon being satisfied that the application for the order is made bond fide, and upon a prima facie case being made out by the applicant, that the condition of the bond has been broken, and that he was entitled to sue the administrator for the breach. Where the alleged breach of the condition of any administration bond was that the administrator had not paid any part of the personal estate of the intestate to one of the next of kin, and the only (S) Court of Probate Act, 1857, P. & M. 25. B. 83. (■») I'fK' goods of Wm. Jones, 3 (u) Brooks and Marshman v. Sw. & Tr. 28; 32 L. J., P. & M, Brooks, 3 Sw. & Tr. 32; 32 L. J., 26. Digitized by Microsoft® 206 ADAIINISTRATION BOND. Assignment of bond. Two bonds. Delivered out to be can- celled. question in dispute was whether the applicant was one of the next of kin, the Court directed the bond to be assigned to him, upon condition that he would Consent to an order that no execution should issue at common law, but that the money, if any, recovered by the judgment should be paid into the registry: leave to appeal refused (ar). An administrator swore the estate under twenty pounds and gave the usual bond with A. for surety, subsequently he re-swore the estate under six hundred pounds and gave a fresh bond with two other sureties: He then became bankrupt without having duly administered : The Court ordered the second bond to be assigned, but refiised to order the assignment of the first until after the action on the second bond should be decided, it appearing that the estate had been duly administered to the amount for which the surety to the first bond was liable (y). Where, under a misapprehension as to the value of the personal estate of an intestate, the penalty of an adminis- tration bond was too large, the Court, upon the execution of a fresh bond in a penalty proportioned to the actual value of the estate, ordered the original bond to be delivered out of the registry in order that it might be cancelled (z). Powers and Duties of Peesonal Representative. The power of an administrator commences upon the grant of the letters of administration (a). It should be always borne in mind that an administrator derives his authority from the Court, whUe an executor derives his authority from the wiU : and he is in possession, in point of law, from the time of the death, though before probate is granted (S). Consequently, an executor may commence his duties (x) In the goods of Toung, 1 L. R., Prob. 186. (y) Irving, In goods of, 38 L. J., P. & M. 83j 1 L. R., Prob. 658. (i) 6/onld, In goods of, 34 L. J., P. & M. 105. (o) Wankford y. Wanhford, 1 Salfc. 299. (J) Smith V. Milles, 1 T.R. 480. Digitized by Microsoft® POWERS AND DUTIES OF REPRESENTATIVE. 207 upon the death of the testator, but an administrator has no authority to act until he has obtained letters of admi- nistration. The distribution of an intestate's estate before adminis- tration granted is not an act for the benefit of the estate. A person, therefore, who subsequently takes out adminis- tration will be entitled to recover the property, although it was distributed with his assent (c). The first duty of an executor or administrator is to bury To bury de^ the deceased in a manner suitable to the estate, and the law win imply a promise on his part to pay a person, who, upon the neglect of the executor, has performed this duty. As to what is suitable to the estate of a deceased, the rule appears to be that the executor is entitled to be allowed reasonable expenses, according to the testator's condition in life ; and if he exceeds those, he is to take the chance of the estate turning out insolvent; no precise sum can be fixed to govern executors in all cases; it must obviously vary in every instance, not only with the station in life of" each particular testator, but also with the price of the requisite articles at the particular place (d). The expense of taking out probate or administration To take out comes next in order (e). ^^"^ ' Both executors and administrators may be compelled by Inventory, any party having an interest to exhibit an inventory of the personal estate and effects of the deceased, but the modem practice is not to deliver any inventory, unless it be called for : the Court has power ex officio to compel an inventory: this is done frequently in the case of minors (_/). A Court of Probate can only require that all the de- Inventory of ceased died possessed of should be included in the inven- (c) Morgan v. Thomag, 8 Ex. (e) Fugwell v. Sayman, 3 Camp. '^ 302; 17 Jnr. 283; 22 L. J., Ex. 152. 298. {d) Edwards v. Edwards, 2 Cr. (/) Rolerts t. Boierts, 2 Lee, & M. 612 ; Beeves v. Ward, 2 Scott, 399; Phillips v. Bignell, 3 Phill. 395. 239. Digitized by Microsoft® 208 PO^VERS AND DUTIES OF REPEESENTATIVE. Inventory — who may de- mand. To collect estate. To pay debts. Order of debts. tory; it cannot call for an account of the subsequent profits on his business {g). An inventory and account may be demanded of an executor by a residuary legatee who has given a release, as a release is no bar to such a claim (A). Where an administration has been granted to a guardian pendente minore estate of a vs^idow, and the widow on coming of age renounces in favour of a creditor, the creditor has a right to call on the original administrator for an inventory and account ( i). An executor or administrator should next collect the goods of the deceased. In this duty he should exercise due diligence ; for, , if by unduly delaying to bring an action, the executor or administrator has enabled a debtor of the deceased to avail himself of the Statute of Limita- tions, the executor or administrator will be personally liable (_/). He has power, unless expressly forbidden, to make reasonable and proper investments of the fiinds col- lected (k). He should next pay the debts of the deceased in order. The crown has the first claim on the estate if the debt be of record (/). There are certain debts which take precedence under special acts of parliament. Money due fi-om overseers of the poor(»i). From executors of persons intrusted with monies, &c. of friendly societies (w). And from executors of ofiicers of savings banks (o). The debts of officers and soldiers in actual service take precedence of all debts whatsoever ( jd). (g) Pitt (assignee of WoodTiam) V. Woodham, 1 Hag. Ecc. R. 250. (A) Kenny v. Kenny, 1 Hag. Ecc. R. 105. (i) Taylor v. Nemton, 1 Lee, 15. ij) Hay ward v. Kinsey, 12 M. & E. 573. (*) 22 & 23 Vict. c. 35, s. 32. (0 Magna Charta, u. 18; 2 Inst. 32; Com. Dig. Admou. (c. 2). (ot) 17 Geo. 2, c. 38. (ra) 18 & 19 Vict. c. 63, s. 23. (0) 3 & 4 Will. 4, c. U, 9. 28. ip) 58 Geo. 3, c. 73, s. 1. Digitized by Microsoft® POWEES AND DUTIES OF REPRESENTATIVE. 209 Where the death has taken place before the 1st January, Where death 1870, judgment debts of courts of record and decrees in January, 1870. chancery come next; and such debts are preferred to recognizances and statutes, which latter should next be paid(y). Debts by special contract take rank next in succession, for instance, rent, bond, &c. An executor is bound to pay a debt on specialty before a debt by simple contract, although the bond is not yet due. Last in order come debts on simple contract. If a debt of this nature be due to the crown, it takes precedence of other debts of the same nature which are owing to subjects. But now aU specialty and simple contract debts of de- Death since ceased persons stand in equal degree, if the deceased die on or after the 1st of January, 1870 (r). One of the privileges of an executor or administrator Retainer, is that he may retaia a debt due from him to the deceased in preference to all creditors of equal degree. When the debts are all discharged, the legacies should Payment of be paid. The residue, after payment of legacies, should be ^sacies. distributed among the parties entitled. Where the administrator is cum testamento annexo, the office of administrator is almost identical in its duties with that of executor, so far as the will extends. The principal duty which a simple administrator has to Distribution perform, as distinguished from an executor, is to distribute ° ^ *' the intestate's estate ; but an executor may in some cases be called upon to distribute the portion of the estate that is undisposed of by the wiH. Formerly, if there were no residuary legatee, the executor took the residue of the personal estate, after paying debts and legacies, but now it has been enacted by 11 Geo. 4 & 1 Will. 4, c. 40 («), Residue un- that when any person shall die, having by wiU or codicil ^^^°^ ° ' (2) See 1 & 2 Vict. c. 118, s. 18. («) Sect. 1. (r) 32 & 33 "Vict. c. 46, s. 1. B. P Digitized by Microsoft® 210 POM'ERS AND DUTIES OF EEPEESENTATn^. Distribution of estate. Oi'tlinaries to have power to call adminis- trators to account and to make distri- bution, &c. appointed any executor, sucli executor shall be deemed by Courts of equity to be trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect of any residue not directly disposed of, unless it shall appear by the will oi* codicil thereto that the person so appointed executor was intended to take such residue. This intention that the executors should take beneficially, must appear on the face of the will, and parol evidence is not admissible to show it (t). Where, however, there is no person entitled to distri- bution, an executor may take for himself for his own use and benefit the intestate portion of the estate (m). In this respect the office of executor differs firom that of administrator, because the latter takes no benefit whatever from the estate in right of his office. The principal statutes relating to distribution are 22 & 23 Car. 2, c. 10; 29 Car. 2, c. 3; and 1 Jac. 2, c. 17. .By 22 & 23 Car. 2, c. 10, s. 3, it is enacted, " And also " that the said Ordinaries and Judges respectively, shall " and may and are enabled to proceed and call such ad- " ministrators to account for and toucMng the goods of " any person dying intestate ; and, upon hearing and due " consideration thereof, to order and make just and equal " distribution of what remaineth clear (after all debts, " funeral, and just expenses of every sort first allowed and " deducted), amongst the wife and children, or children's " children, if any such be, or otherwise to the next of " kindred to the dead person in equal degree, or legally " representing their stocks, pro suo cuique jure, according " to the laws in such cases, and the miles and limitation " hereafter set down; and the same distributions to decree " and settle, and to compel such administrators to observe " and pay the same by the due cotirse of his Majesty's " ecclesiastical laws ; saving to every one, supposing him " or themselves aggrieved, their right of appeal, as was " always in such cases used." (i) Onslow V. WalUs, 16 Sim. 483; Love v. Oaxe, 8 Bear. 472. (?0 11 Geo. 4 & 1 Will. 4, c. 40, s. 2; Taylor v. Bay garth, 14 Sim. 8. Digitized by Microsoft® POWERS AND DUTIES OF EEPEESENTATIVE, 21 1 The customs of London, York and certain other places. Distribution of saved by sect. 4 of 22' & 23 Cai*. 2, c. 10, are abolished ^^'^'^• by 19 & 20 Yict. c. 94, s. 1. SondTn! &o. By sect. 5, it is fiirther enacted,, "that all Ordinaries °°^ abolished. " and every othe* person who by this act is enabled to l^^ ^^ ^^^' ^' " make disfribntion; of the surplusage of the estate of any How the sur- " person dying intestate, shall distribute the whole sur- distributed. * " plusage of such estate or estates in manner and form " following : that is to say, one-third part of the said sur- " plusage to the wife of the intestate, and all the residue " by equal portions to and amongst the children of such " persons dying intestate, and such persons as legally " represent such children, in case any of the said chil- " dren be then dead, other than such child or children " (not being heir-at-law) who shall have any estate by " the settlement of the intestate, or shall be advanced by " the intestate in his lifetime by portion or portions^ " equal to the share which shall by such distribution be " allotted to the other children to whom such distribution " is to be made : and in case any child, other than the Advancement " heir-at-law, who shall haVe any estate by settlement ^ ^"'^ ^°°'' " from the said intestate, or shall be advanced by the said " intestate in his lifetime by portion not equal to the " share which will be due to the other children by such " distribution as aforesaid ; then so much of the surplusaige " of the estate of such intestate to be distributed to each " child or children as shall have any land by settlement' " from the intestate, or were advanced in the lifetime of " the intestate, as shall make the estate of all the said- " children to be equal as near as can be estimated : but " the heir-at-law, notwithstanding any land that he shall Heir-at-law to " have by descent or otherwise from the intestate, is to' p^| ^^ ^^^^ " have an equal part in the distribution with the rest of " the children, without any consideration of the value of " the land which he hath by descent or otherwise from- " the intestate." And by sect. 6, " in case there be no children, nor any Sect. 6. p2 Digitized by Microsoft® If no wife. child. 212 POWERS AND DUTIES OF REPRESENTATIVE. Distribntiop of legal representatives of them, then one moiety of the said estate. estate to be allotted to the wife of the intestate, the re- 22 fir 2^ Car 2 c. 10, s. 6. ' sidue of the said estate to be distributed equally to every If no children, of the next of kindred of the intestate who are in equal degree, and those who legally represent them." Sect. 7. And by section 7, it is provided, " that there be no representations admitted among collaterals after brothers' and sisters' children ; and in case there be no wife, then aU the said estate to be distributed equally to and amongst No wife or the children : and in case there be no cMld, then to the next of kindred in equal degree of or unto the intestate, and their legal representativ^es as aforesaid, and in no other manner whatsoever." Sect. 8. And by section 8, it is likewise enacted, " To the end tion till after a that a due regard be had to creditors, that no such distri- year. bution of the goods of any person dying intestate be made wards appl'^' *^^ ^^^ °^^ ^^^^ ^ ^^J" expired after the intestate's then all to death, and that such and every one to whom any distribu- portoaWy. ^^^^ ^^^ share shall be allotted, shall give bond with suffi- cient sureties in the said Court, that if any debt or debts, truly owing by the intestate, shall be afterwards sued for, and recovered or otherwise duly made to appear, that then and in every such case he or she shall respectively reftmd and pay back to the administrator his or her rateable part of that debt or debts, and of the costs of suit and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the debt or debts so discovered after the distribution made as aforesaid." Sect. 9. Finally, by section 9, it is enacted, " That in aU cases ^tend to°ad- ^^^^® *^^ Ordinary hath used heretofore to grant adminis- ministratiou tration cum testamento annexo, he shall continue so to do, mento annexo. ^-nd the wiU of the deceased in such testament expressed shall be performed and observed in such manner as it should have been if this act had never been made." 1 Jac. 2, c. 17, By 1 Jac. 2, c. 17, s. 7, " If after the death of a father any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and Digitized by Microsoft® s. 7. POWERS AND DUTIES OF REPRESENTATIVE. 213 sister, and the representatives of them shall have an Distribution of equal share with her." Brother and sister includes the ^'^*^' half blood {x). The Court of Probate does not entertain suits for the distribution of residue (20 & 21 Vict. c. 77, s. 23): such matters are the province of a court of equity. The degrees of relationship are, for the purpose of dis- Degrees of tribution, computed in the same manner as for the pur- ^^ ^ °"^ '^* pose of the grant of administration. See " Admiaistration — ^who entitled to." An estate pur autre vie is not distributable (y). The following table shows the order in which distribu- tion should take place, and the amoimts to which each degree is entitled : — 1. Husband The whole. 2. Wife One-third. Children per capita "j and \ The residue. Issue of deceased children ^er stirpes.. . ) 3. Wife One-third. Grand-children, per capita .. . . "J and \ The residue. Issue of deceased grandchildren^er stirpes ) 4. Wife One-half. First degree. Father The residue. 5. Wife One-half. Second degree. Mother, brothers and sisters, per capita 1 Children of deceased brothers and sisters, f ^^® residue. per stirpes . . . . . . . . J 6. Wife One-half. Second degree. Grandfathers and grandmothers . . The residue. 7. Wife One-half. Third degree. Great grandfathers and great grand- '\ mothers I nn. -j Uncles and aunts V The residue. Nephews and nieces, per capita .. .. j 8. Wife One-half. Fourth degree. Great-great-grandfathers and great-great j grandmothers . . Great uncles and great aunts . . . . ^ ^j^ ^^ Great nephews and great nieces. . ' and Cousins geim&n, per capita 9. Wife " One-half. Fifth degree. Great-great uncles and great-great aunts A Children of great uncles and great aunts I ™, . , Children of cousins germaBj^e?- ca^iia / (iB) Jessopp r. Watson, 1 Myl. & (y) Oldison v. Pickering, 3 Salk. K. 666. 137; Garth. 376; 1 Ld. Raym. 96. Digitized by Microsoft® 214 LIMITED GRANTS. LIMITED GBANTS. Grants whether of prohate, of administration, with a will annexed, or of simple administration, are of various kinds, from the general grant which places the grantee foUy in the position of the deceased, to those which limit his representation to a small fraction, as it were, of the de- ceased's rights or liabilities. The first are called general grants, the latter limited grants, as these grants only represent the deceased to a certain extent, the residue of the representation is contained in a grant of the rest of his property (cceterorum). •Sometimes the general or undefined grant is made first, then it is made as a grant of the representation of the deceased', save and except some distinct portion; the representation of the deceased in either case passing away, as it were, in different directions. The general practice is not to make a limited grant to a person, who is entitled to a general grant. Among the rules for the district registries this is provided for in cases of administration, but there is no corresponding rule amongst the rules for the guidance of the principal re- gistry, although there, such is the practice. This practice, however, is not inflexible, and the Court niay, although a district registrar may not, depart from it. Where A., a creditor, insured the life of his debtor, but the policy having by mistake been made payable to the representa- tives of the deceased, the Court granted administration to A., limited to the policy (y). The limitation of grants, whether of probate or ad^- ministration, may be caused either by the act of the deceased, or by the nature of the interest or estate to be transmitted. Limited by act " The Court may grant a limited probate where the " testator has limited the executor" {z). — Sir George Lee. By nature of It is a rule that general letters of administration cannot interest. {y) Patteson v. Hunter ^ am- {z) Siitton v. Smith, 1 Lee, 280, tker, 30 L. J., P. & M. 272. Digitized by Microsoft® LIMITED GRANTS. 215 be granted to a person taving an interest only in part of the effects of the deceased, but the grant must be limited to that part (a). Limited grants may be divided into three classes, viz., those which limit the representation — 1st. In estate; 2nd. In time ; 3rd. To a particular object. See Rules 29 and 30, P. R., Non-C, and 35 and 36, D. E. 1st. Limited in Estate.'\ The following are the most usual cases where the representation is limited in estate ; viz. — To a trust or other particular fund. To a married woman^s property, disposed under a power. De bonis (?". e., where an executor or administrator has died leaving his deceased's property partly or wholly unadministered) ; And the Hke. In cases where the limitation is created by any document. Documents such document must be brought into the registry. For it ^"ught into is not sufficient, in order to make out the title to a term registry. of years, &c. with the view of obtaining administration, to refer to deeds, deducing such title in affidavits; the deeds themselves must be brought into the registry (b). The Court will grant letters of administration to a To a tms^ cestui que trust, of a trust fund limited to that trust, when "° ' the trustee in whose name the fund stands is dead, and is without a personal representative, the parties en- titled to represent the deceased trustee having been first cited; when there are several parties interested in the fund, the grant wiU be limited to the interest of the cestui que trust making the application, unless the other cestitis que trust assent to the grants extending to their respective interests (c). (») BocLgson, In goodi of, 28 L. Tr. 265. J., P. & M. 116. (c) Pcgg t. Chamberlain. ^ (J) Keene, In, goods of, 1 Sw. & others, 1 Sw. & Tr. 527, Digitized by Microsoft® 216 LIMITED GEANTS. In estate. To specific fund devised. To property within juris- diction. To married woman's pro- perty. To extent of power. Where a will bequeathed certain specific property, but had no residuary clause, the legatee was held to be entitled to a grant of administration, with the will annexed, limited to the property specified in the wiU (d). With respect to this case, the Judge seems afterwards (e) to have said that the party was miserably poor, and there were only two cases in which similar grants had been made. Where a foreigner, inhabiting the State of Alabama, died on board an English vessel, on his voyage to Eng- land, possessed of property, chiefly bills of exchange, drawn on merchants in Liverpool, and entitled to a sum of money alleged to be in the hands of another person in this country ; on the arrival of the ship in the port of London, the owner took possession of the bills of exchange, and there being no known relation or agent of the deceased in this country, and communication with his relations in the Southern States being difiicult and uncertain by reason of the civil war and blockade of the Southern ports, the Court granted administration to the owner of the ship, Kmited to realize and collect the property which the de- ceased was possessed of or entitled to within the jurisdiction of the Court, and to invest the proceeds in the 3 per cent, consols (/). As to the property of married women, see Kule 15, P. E., Non-C, and 18, D. R. In making a grant limited to the property of a married woman where there is a power before the Court and an averment that a testa- mentary paper was made in pursuance of a power, the Court is bound to grant probate, and thereby to leave it to the competent Court of construction to decide whether the testamentary paper is a due execution of, or operative under the power (gi). The Court granted probate to the executors " limited to the settled property and all accumu- (,d) Watson, In goods of, 1 Sw. & Tr. 110. («) Watts, In goods of, 8 W. R. 3i0. (/) TVyohoff, In goods of, 3 Sw. & Tr. 20; and see Gudolle, In goods of, cited ibid. p. 22. . (y) DeChatelainy. De Pontigny, 1 Sw. & Tr. 411; see also Sarnes V. ^'incent, 5 Moore, P. C. C. 201. Digitized by Microsoft® LIMITED GRANTS. 217 lations over which the deceased had a disposing power. In estate. and which she had disposed of (/t). Administration, with will (of a married woman made under a power) annexed, can only be granted to the extent of that power, to the person appointed by the will, and the husband will be entitled to a general grant ccBterorum honorum (i). It frequently happens that before an executor or ad- Be bonis. ministrator has fully carried out the provisions of the will, or distributed the assets, as the case may be, his office is determined by his death, inability or the like. It then becomes necessary to provide for the complete carrying out of the object, for which the original grant was made. The Court, in such a case, or it may be the deceased executor, appoints a new representative. This grant is called a grant de bonis non administratis, or shortly de bonis non, or de bonis, and is a grant limited in estate, being limited to the estate which the deceased had in his representative character. Of course it naturally happens that an administrator de bonis is a much more common character than an executor de bonis, for when a deceased executor dies leaving a will, and appointing an executor, he does not often appoint one person as executor of his own will, and another person as the executor of the will of the original testator; but there is nothing to prevent . him so doing. With regard to grants de bonis, it is requisite to consider Chain of what is called the chain of representation, and first it must ''^P''^^*" ^ '°"' be remembered that the estate of a number of executors or administrators in the eflfects of a deceased is a joint estate, each being possessed of the whole, and the estate surviving from one to the other, with all the attributes peculiar to joint estates. When, therefore, there is only one person as representative of a deceased, whether originally so named, or as the last survivor of a number, then and not till then does his estate become transmissible. (K) Ledgard t. QarloAid, 1 Curt. 286. (i) Boxley v. Stubington, 2 Lee, 537. Digitized by Microsoft® 218 LIMITED GRANTS. la estate. De bonis. Chain of representation. And where there are two executors and one proves the will and dies, the executorship survives to the other (A); and where L. appointed E. sole executrix and residuary legatee, and R. died in the lifetime of L., and appointed A. and B. her executors, and A. alone proved E.'s will, power being reserved to B., it was held that B. must be cited as well as A. before administration, with the will annexed of L., could be granted to a legatee (t). In considering the transmission of representation there are important differences between a deceased executor who has taken out probate and a deceased administrator, and they all arise from the different characters of each. An executor is a person in whom the testator has reposed his trust ; an administrator is a mere officer of the Court. I say an executor who has taken out probate, because it is now provided that whenever an executor appointed in a will survives the testator, but dies without having taken pro- bate, the right of such executor wholly ceases, and the representation of the deceased goes as though there had been no such appointment (w) ; and this appears to be merely a declaration of the old law (ti). Thus, where a testator appointed A., B. and C. his exe- cutors ; A. and B. proved the will, power being reserved to C. ; B. survived A., and died in the lifetime of C, having made a will and appointed an executor: — Held, under 21 & 22 Vict. c. 95, s. 16, that upon the death of C. the executor of B,, the surviving acting executor, became the personal representative of the original testa- tor (o). " It has for many years been the practice of this Court (Prerogative Court of Canterbury) that an executor taking probate of the will of an executor becomes executor of the will of the first testator, and is not permitted to renounce (/;.) Ilmise <5' another v. Lord Petre, 1 Salk. 311. (Z) Zinch, In goods of, Dcanp & Sw. 291 (m) 21 & 22 Viet. c. 95, s. 16. (») Isted V. Stanley, Dyer, 372. (o) Lorimer, In goods of, 31 I<. J., P. & M. 189. Digitized by Microsoft® LIMITED GRANTS. 219 probate of the first will and take probate of the second." In estate. — Sir H. Jenner ( p). • -0« ionis. Nevertheless, Lord Hardwicke said that his opinion was ^^^" °\ ^. /.11 •. representation. clear that " if an executor die before he has administered, the effects unadministered shall not go to the representa- tive of the executor but to the administrator de bonis non of the testator in trust for his next of kin (q). In this case it does not appear whether or not the first executor had taken out probate. If he had, the case is scarcely to be supported, but if he had not, then the law laid down by the chancellor agrees with the general principles in other cases. For "the administering executor may prove his " testator's will, because he is the person named in the " wUl; and if he does so, his executor shall be executor " to the first testator, because there needs no new pro- "bate"(r'). But unless the first executor prove the will of the original Mere admiuis- testator the chain is broken, even although such first exe- pro^n Ji*°"' cutor partially administer the effects ; in such a case the sufficient. Court win make an original grant of administration, with the wiU annexed, to the next of kin (or party entitled) of the original testator (s). The executrix of an executor is entitled to an adminis- tration cum testamento annexo in preference to the widow of the original testator {£).. Where A. died leaving a will whereby he appointed his Traced wife sole executrix and universal legatee ; she took probate covert and afterwards married B.,and during her coverture made a win in execution of a power vested in her, and appointed B. sole executor ; upon her death B. took limited probate of her win and also administration of the rest of her effects : — Held that B-j as representing the whole of his wife's (^) Iw goods of Ferry, 2 Curt. Salk. 309. 655. (») Ibid. 308. (j) Lloyd v. Stoddart, Amb. (*) Thomas v. Baker, 1 Lee, 152. 341. (r) Wa/nkford Y, Wanlford, 1 Digitized by Microsoft® 220 LIMITED GRANTS. In estate, De bonis. Chain of representation. To whom. Representative of residuary legatee. Chain broken. personal estate, was entitled to administration of the unad- ministered effects of A. (m). A., a married woman, the sole executrix and universal legatee named in the wOl of B., took probate of the same, and died leaving part of his estate unadministered. C, the sole executrix named in the will of A., took probate of the same, limited to the property over which A. had a power of disposal, and also administration of the rest of her goods: — Held that C. should take a grant of administra- tion, with the will annexed, of the unadministered estate of B., and not a supplemental grant of administration of the goods of A., limited to such personal estate as vested in A. as sole executrix of the wiU of B. [x). Where A. died, having appointed B. executor of his will, and B. proved the will and died, leaving part of the estate unadministered, the Court made a grant de bonis non, with the wiU annexed, to the administrator of B., the parties entitled in priority being abroad and difficult to be found, and the applicant repr'esenting three-fourths of the estate ; but required that security should be given to the amount of the share of the parties entitled to priority (y). A. died in 1832, leaving a wiU whereof he appointed B,, C. and D. executors, and B. residuary legatee : C. alone proved the will, power being reserved to grant probate to the other executors : in 1847 B, died leaving a wiU, ap- pointing E. sole executrix, who duly proved B.'s wiU : in 1855 C. died intestate, leaving part of the personal estate of A. unadministered : D., the surviving executor of A., not having appeared to a citation, calling upon him to accept or refuse probate of the will of A., administration, with the will of A. annexed, was granted to the attorney of E., then abroad, as the personal representative of the residuary legatee of A., the chain of executorship having been broken {z). (m) Martin, In goods of, 32 L. J., P. & M. 6. (w) In the goods of Riokards, 35 L. J., P. & M. it. Digitized by Microsoft® (y) In the goods of Hichs, 39 L. J., P. & M. 27. {z) Collinson v. Mane, 28 L. J., P. & M. 90. LIMITED GRANTS. 221 Where a married woman made a will under a power, In estate. and appointed two executors, one of them proved, and the ^^ ioms. husband took out a caterorum administration; the deceased of representa- was the executrix of a will which she had proved : — Held t'o"- that the chain of executorship was not continued by the appointment of executors made under the power, and that the residuary legatee of the original testatrix was therefore entitled to a grant of administration de bonis non, without citing those executors to accept or renounce probate (a). A. died in Ireland : B., his executor, proved his will there : B. died, and C, his executor, proved his. will in Ireland, and had the Irish grant resealed in the principal registry of the Court of Probate in England : — Held that the chain of representation was not continued, and that C. was not entitled to a grant of administration of the personal estate and effects in England of A.'s wife, who predeceased her husband (V). If an administrator die, leaving part of the goods unad- ministered, the rules respecting original grants apply ; for instance, where there is a wiU which appoints a residuary legatee, such person has precedence and is entitled to a grant de bonis non. The Court has, however, a discretion in the matter, and on sufficient grounds shown will depart from the general practice of the registry, by which a party originally entitled in distribution is preferred, in making a grant de bonis non, to a party having a derivative interest, e. g., the personal representative of the next of kin, and wUl make the grant to the latter (c). The Court is not obliged to grant an administration de Not to largest bonis to the person having the largest interest in the per- '°'^''^^'' sonal property of the intestate {d). {a) Stiglies, In goods of, 29 1062. L. J., P. & M. 165. (c) In the goods of Carr, 1 L. E., (Jb) Gaynor, In goods of, 38 Prob. 291. li. J., P. & M. 79; 1 L. K., Prob. {d) Cardale v. Haney, 1 Lee, 723; 21 L. T., N. S. 367; 17 W. R. 177. Digitized by Microsoft® tive interest. 222 LIMITED GRANTS. In estate. The statute 21 Hen. 8, c. 5, applies only to such as are Be bonis. next of kin at the time of the death; therefore the Court made the de bonis non grant to the executor of the admi- nistrator (the sole next of kin at the death) in preference to persons entitled in distribution, who had received their shares and signed releases (e). Again, the Court is not bound by the statute, it always grants the administration to those who have the interest; administration de bonis non was granted to a person entitled under a deed of gift from the first administratrix to the whole beneficial inte- rest in preference to one who was not next of kin at the time of the death, and who consequently had no statutable right (/). To representa- Administration de bonis non, with a will annexed, was granted to a representative interest, entitled to seven- twelfths of the residuary estate, without citing those having a direct interest as entitled in distribution (^). F. died in 1836, leaving a will and one codicil, and therein appointed three executors and residuary legatees' in trust; two renounced, and the third took probate, but died in 1853 intestate ; all the beneficial residuary legatees named in the will and codicil then renounced except S., and on his being cited and not appearing, a grant de bonis non (will annexed) was made to R. as a creditor; he died in 1858, leaving personalty of F. unadministered : F. was indebted to his co-trustees of the marriage settlement of D., in respect of certain trust monies misappropriated by him, which had been the subject of certain proceedings in Chancery; by indenture of 28th of December, 1860, thd executors of the surviving trustees agreed with the per- sons beneficially entitled to the trust fund to transfer all their right and title to sue, &c., on receiving discharges from such persons; and the Court, on S. being cited and not appearing, granted to the nominee of the assignee of ( e) Savage t. Blythe, 2 Hag. Ecc. 1E5. E, App. 150. (g) MiddUton, In goods of, 2 (/) Almes V. Alnies, ibid. App. Hag. Ecc. E. 60. Digitized by Microsoft® LIMITED GRANTS. 223 the executors of the surviving trustees, administration de In estate. bonis non (will annexed) of F., limited to revive and sub- ^^ ionis. stantiate the proceedings in Chancery (A); A female, having taken administration to an estate as a Eight of hns- creditor, iiiarried and died ; under the administration, she j„„jg ,„g,j^ of got in a considerable portion of the estate, and paid some '"i^^'s adminis- of the debts, but did not set apart any particular fund in payment of her own debt: — Held that the husband was not entitled in his own right as a creditor, but only as the representative of his vrife, to take administration of the un- administered effects of the deceased (i). A joint grant of administration de bonis non may be Joint grants. made under 20 & 21 Vict. c. 77, s. 73, to a next of kin and a person entitled in distribution, the next of kin con- senting to the grant, and there being special circum- stances rendering such joint grant convenient {k). Testator left by his will to his wife, a life interest in his real, leasehold and personal estate, with permission to con- sume such portion of the personal estate as was consumable by nature ; on her death or re-marriage, he gave his real and leasehold estates and such personal estate as then remained unconsumed, to his children in equal shares, their executors, administrators and assigns, with a proviso that if all and every his children died before obtaining a vested interest under the will, the property should go in equal shares to his then next and nearest of kin, and the then next and nearest of Mn of his wife; the testator's only child survived him, but died in his mother's lifetime and previous to her re-marriage; the vrife died leaving part of the estate unadministered: — Held that the child did not take a vested interest under the wiU, and adminis-' tration was granted to the next of kin of the testator (Z). (ft) Day T. Thompson, 3 Sw. & (A) In the goods of Grundy, I Tr. 169. L. E,., Prob. 459 j 37 L. J., P. & (i) Risdon, In goods of, 1 L. E., M. 21. Prob. 637 i 38 L. J., P. & M. 40; (2) Greenhalgh v. Bates, 39 L. 20 L. T., N. S. 330; 17 W. E. 576. J., P. & M. 44. Digitized by Microsoft® 224 LIMITED GRANTS. In estate. Be bonis. To legatees. Till will be found. Limited admimstration de bonis non, with the will annexed, will not generally be granted to a legatee ; the person entitled to a general grant should be first cited, and if they do not take administration, the legatee will be entitled to a general grant (»?). Where the surviving exe- cutor under a wiU which did not dispose of the residue, died, leaving eflfects of the testator unadministered, and A., as legatee was solely interested in 750Z. 3Z. per cent., the Court refused to grant administration de bonis non, with the wiU annexed, to A., limited to that fond, the persons entitled to a general grant not having been cited, although it appeared that the service of a citation on them would be attended with great difficulty and expense (w). Administration de bonis non, limited to a certain legacy, was granted to the representative of the substituted legatee, without citiiig the representative of the residuary legatee resident abroad, but by practice entitled to the general de bonis grant; no claim to this legacy having since the death (in 1797) of the residuary legatee (also executor and legatee for life) been made by his representative (o). 2nd. Grants limited in Time.] The following are the more usual cases where a grant is limited in time : Till a will be found. Durante absentia. Durante minoritate. Durante dementia. Pendente lite, A wiE in existence, after the testator's death, being accidentally lost and the contents unknown, administra- tion limited, till the will be found, granted (on justifying securities) to the widow alone, with a minor daughter, en- titled in distribution (/I ). Administration was granted to a widow tUl a will (m) Watts, In goods of, 29 L. J., P. & M. 108. (») Ibid, (o) Steadman, In goods of, 2 Hag. Ecc. E. 59. ip) Be Camplell, 2 Hag. Ecc. R. 555. Digitized by Microsoft® LIIUTED GRANTS. 225 should appear, in preference to the grant of a simple In time. administration to a brother (g). See 38 Geo. III. q. 87, ss. 1, 2, 3, 4 and 5; Court fj"™^/| of Probate Act, 1857, s. 74; Court of Probate Act, 1858 (21 & 22 Vict. c. 95), s. 18, in App. 1 ; and Eules 31, 32, P. E., Non-C, and 37, 38, D. E. Under the first of 38 Geo. III. these statutes administration is to be granted to a creditor, next of kin, or legatee. It only applied to those cases where ■ a will had been executed and executors appointed who had taken probate, and not to cases where administration, or administration with will annexed, had been granted (r). The Court of Probate Act, 1857, extends this to cases where letters of administration have been granted. But in both these cases it was necessary for the applicant to intiend to institute proceedings in Chancery and to swear so in his affidavit. The last statute, C. P. A. 1858 (21 & 22 Vict. c. 95), s. 18, however, does away with this necessity, and in aU cases where the executor or administrator, at the expiration of twelve calendar months fi-om the death of the deceased, is resident out of the jurisdiction, enables the Court to grant the special administration in the form given in the statute 38 Geo. III. c. 87 (s). The practice of granting administration durante absentia of an executor was, however, of much earlier date than even the statute of Geo. III. {t). It must also be observed that these enactments apply to cases where probate or administration has already been granted, and they must not be confounded with the Court of Probate Act, 1 857, sect. 73, which provides for the case where no probate or administration has as yet been granted. Though the legatee only is mentioned in the 38 Geo. III. To whom, c. 87, yet the Court granted a hmited administration to ""otl^^f^^ (j) Lloyd T. Lloyd, 2 Lee, 321. (f) Slater v. Mm/, 2'IA. Eaym. (»•) Hay T. Willoughiy ^ Bill, 1071; Lacas T. Lucas, 2 Lee, App. 2 Bobert. 184. 576. («) 38 Geo. 3, c. 87, s. 3. B. Q Digitized by Microsoft® 226 LIMITED GKANTS. In time. Durante absentia. To new trus- tee. To attorney. Determination of. the personal representative of a legatee, the executor being out of the jurisdiction, holding that the case came within the spirit, if not within the letter, of the statute (m). The executor and trustee under a will, lent a portion of the trust fund on the security of a promissory note made payable to him as executor; he subsequently became bankrupt and went abroad, and a new trustee was ap- pointed in his place by the Court of Chancery ; adminis- tration, with the wiU annexed, was granted to the new trustee, limited to the interest of the cestui que trust in the money due on the promissory note (x). When the party entitled to administration was within the jurisdiction, the grant could not be made for his use and benefit to his attorney (y). Where upon the death of a testator. A., the surviving executor, being resident in Sydney, B. who held a power of attorney to act for A. in this country, sent out to him, for execution, a special power of attorney, to authorize B. to take out administration, with the wiU annexed, for A.'s use and benefit, and also a proxy of renunciation in case he should wish to renounce : the residuary legatee for life was incompetent fi:om senility to take administration ; and subject to her interest, B. and others were entitled to the residue : the majority of the persons interested under the will, being desirous that a grant should be made without waiting for the return of the power of attorney or renun- ciation, the Court granted administration, with the will annexed, to B., limited until such time as A. should apply for probate, or his attorney for administration, with the win annexed («). Grants durante absentia to attornies of executors or parties entitled to administration are not revoked, but are pronounced to have ceased and expired on the appli- (?*) Collier, In goods of, 81 L. J., P. & M. 63. (ib) Sampson, In goods of, 35 L. J., P. & M. 1. (y) In the goods ofKeane, 1 Hag. Ecc. R. 692. (z) Lewis, In goods of, 29 L. J., P. & M. 94. Digitized by Microsoft® LIMITED GRANTS. 227 cation of the executor or party entitled for probate or in time, administration, and the usual affidavit that no suits Durante were pending. The Court declared that for the future (since 1832) such grants should be for the use, &c., and until the executor (or party entitled to the administration) should apply for and obtain probate or administration {a\ This regulation was, no doubt, to avoid the great incon- veniences of the old grants durante absentia, which termi- nated of themselves by the mere return of the executor or administrator, and put an end summarily to aU proceedings instituted by the temporary administrator (i). This must apply to grants independent of the statute, for it seems that administrations granted durante absentia under the 38 Geo. III. c. 87, do not expire by the return or even the death of the executor (c). By Kule 33, P. R., Non-C, " Grants of administration Burwnte may be made to guardians of minors and infants for their ™*»»»^*«*«- use and benefit, and elections by minors of their next of kin or next friend, as the case may be, will be required ; but proxies accepting such guardianships and assignments of guardians to minors wiU be dispensed with." Kule 34, P. E., Non-C. " In cases of infants {i. e., under the age of seven years) not having a testamentary guar- dian, or a guardian appointed by the High Court of Chancery, a guardian must be assigned by order of the Judge, or of one of the Registrars ; the Registrar's order is to be founded on an affidavit, showing that the proposed guardian is either de facto next of kin of the infants, or that their next of Mn de facto has renounced his or her right to the guardianship, and is consenting to the assign- ment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship." Rule 35, P. R., Non-C. " Where there are both minors and infants, the guardians elected by the minors may act (fi) Casiidy, In goods of, i Hag. 1071. Ecc. E. 360. («) Sannay t. Taynton, 3 B. & Q) Slater v. May, 2 Ld. Eaym. P. 26. Q2 Digitized by Microsoft® 228 LIJIITE0 GRANTS/ In time. Durante minoritate. Distinction between minors and infants. To whom. To husband. To elected guardian. for the infants without being specially assigned to them, by order of the Judge or a Registrar, provided that the object in view is to take a grant. If the object be to renounce a grant, the guardian must be specially assigned to the infants by order of the Judge or of a Registrar," Rule 36, P. R., Non-C. " In all cases where grants of administration are to be made for the use and benefit of minors and infants, the administrators are to exhibit a declaration on oath of the personal estate and effects of the deceased, except when the effects are sworn under the value of twenty pounds, or when the administrators are the guardians appointed by the High Court of Chancery or other competent Court, or are the testamentary guar- dians of the minors or infants." See also the corresponding rules for the district regis- tries, 39, 40, 41 and 42, D. R. By the ecclesiastical law there is a distinction between infancy and minority. Infancy continues up to the age of seven : minority commences on completion of the latter age and continues until the age of twenty-one. In the case of an infant a guardian is assigned by the Court, and the child has no voice in the matter, but a minor may elect his own guardian. If, however, there are several executors, and any one of them be of age, the latter can execute the will, and there is no necessity to grant administration durante minoritate. If the person entitled to administration be a minor, ad- ministration is granted to some person to act for him imtU he attains the age of twenty-one. Upon attaining such age he may act for himself, and the grant of administration to the appointee of the Court expires. Where a minor wife is entitled to administration she may elect her husband. The minor may elect a guardian in Court, but the usual course is for him to make the appointment under his hand and seal by an instrument duly attested. Digitized by Microsoft® LIMITED GRANTS. 229 Where an executor is unable to take the grant owing In time. to his minority, administration cum testamento annexo may -DMJ-awfe , .... minorttate. be granted durmg the minority oi the executor to a testa- mentary trustee (rf). Where the executor is an infant there may be a grant To testamen- testamento annexo to testamentary trustees, for the use of '^^ ™^ ^' the infant executor and next of kin tiJl he should arrive at legal age to take probate (e). The testamentary guardian has a right to administra- tion for the use and benefit of minors, in preference to the guardian elected by them (_/"). The Court does not grant administration to trustees, merely as such. Testamentary guardians can only be appointed by a will executed according to statute 12 Car. II. c. 24, s. 8 (>). When a minor is sole next of kin and residuary legatee, she may select a guardian for all purposes in law, and especially for taking administration cum testamento an- nexo (h). Where the persons entitled in distribution to the effects of an intestate were minors, and their next of kia were abroad, the Court, under the 73rd section of the 20 & 21 Vict. c. 77, granted administration for their use and bene- fit to a guardian elected by them, without inquiring that the next of kin should be cited or renounce (z). Administration durante minoritate of children in the To uncle, East Indies was decreed to an uncle resident in Ireland, l^gsg^^^o^T he giying foU justifying security; the grandfather, to whom as next of kin the grant would naturally have passed, being upwards of eighty, and also resident in Ireland (J). ((f) Appleby r. Appleby ^ Jaoh- 327. son, 1 Lee, 135. (A) Ibid. («) Sughes v. Mieards, 2 Lee, (i) Bagger, In goods of, Z2Jj. 3., 543; see 87 Geo. 3, c. 87. P. & M. 96. (/) Morris, In goods of, 31 L. J., (j) Re Erving, 1 Hag. Ecc. E. P. & M. 80. 381. {g) Fawkcner v. Jordan, 2 Lee, Digitized by Microsoft® 230 LIMITED GKANTS. In time. Durante viinoritate. Discretion of Coart. To father. Father passed over. Powers of. Duration of. Durante minoritate i dementia. Durante dementia. The Court is not compellable to grant administration to the guardian elected by a minor, although, when the minor is nearly of age, his or her choice would have much weight with the Court (k). The father has the first right to the guardianship of his infant child, and next to him persons appointed by him by deed or will, but such persons may be disregarded by the Court when there are special reasons (Z). A woman, whose marriage had been dissolved on the ground of her husband's adultery and desertion, died intestate, leaving issue of the marriage one child, a minor: the Court decreed administration to the grandmother of the child, passing by the father, upon a copy of the decree dissolving the marriage being filed, and also copies of letters fi:om him showing that he was unfit to take the grant (m). An administrator durante minoritate may do all acts that an executor or administrator might do, and which are for the advantage of the infant and the estate. It is contrary to the practice of the Court to extend a grant for the use and benefit of minors beyond the time when the eldest of them attains his majority. Where an intestate left a widow and an infant, and the widow took 'out administration, but became lunatic, ad- ministration was also granted to the aunt of the infant, for the use and benefit of the widow and infant, during the incapacity of the widow and the minority of the in- fant (w). Where a sole executor or administrator becomes a lunatic, it is the ordinary practice of the Court to make a limited grant to his committee for his use and benefit during his lunacy; and the same is the practice where (J) Fanhener v. Jordan, 2 Lee, 327. Q) Wellesley v. Duhe of Beau- fort, 2 Bliss, 1. (m) In the goods of Hay, 35 L. J., P. & M. 8; 1 L. R., Prob. 51. (») In goods of Binfield, 1 Lee, 626. Digitized by Microsoft® LIMITED GRANTS. 231 the insanity has supervened before the party entitled has in time, taken the grant (o). Surante Where one of three joint administrators became lunatic, in consequence of which the interest of certain property of the deceased could not be received from the Bank of England, the Court directed that upon the letters of ad- ministration being brought back into the registry by the two sane administrators and the committees of the insane one, by consent of the latter, letters of administration should issue to the two sane administrators alone (/?). Where the executor's state of mind and body was such, No committee, from paralytic affection, as to render him incapable of acting, but no committee was appointed, the Court granted administration during the life and incapacity of the executor to the residuary legatee, the next of kin not opposing (y). " The grant of this administration is in the discretion of the Court ; no party being of right entitled to it" (r). Sir H. Jenner Fust. Administration, with will annexed, de bonis was granted to the executors of a sister, the administratrix, deceased, for the use and benefit of the surviving sister, the sole next of kin, during her imbecility without citing her next of kin, who were thirty in number, and resident in various places, some in America ; though had one of the next of kin of the imbecile applied for administration, the Court would have granted it (s). The practice seems to. be, in general, to prefer the committee of the lunatic; for where A. died intestate, without child or parent, leaving his widow, his brother and others entitled in distribution, him surviving; the widow became a lunatic, and a committee of her person and estate was appointed by the Court of Chancery ; on (o) Alford T. Alford, Dea. & Sw. 497. 322. (»•) Soutlimead, In goods of, 3 {p) Fhillipg, In goods of, 2 Add. Cnrt. 28. 335. (») Ibid- (2) Crump, In goods of, 3 Phill. Digitized by Microsoft® 232 LIMITED GRANTS. Service ou lunatic. Pendente lite. In time. the question of grant of administration, it was held that durante ^.j^g ordinary preference exercised by the discretion of the dementia. n ■> --i it a Court in favour of the widow, would extend to such com- mittee, unless the next of kin could show special cause to the contrary (i?). Where a person whom it is necessary to cite as inte- rested in the estate of a deceased is a lunatic, and a committee of his estate has been appointed, service of the citation on such committee is sufficient ; it is not necessary that the lunatic should be personally served in the presence of some medical man (m). By the 70th section of the Court of Probate Act, 1857 (20 & 21 Vict. c. 77), it is enacted, that "pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling or revoking any probate or any grant of administration, the Court of Probate may appoint an administrator of the personal estate of such deceased person ; and the ' administrator so appointed shall have all the rights and powers of a general adminis- trator, other than the right of distributing the residue of such personal estate, and every such administrator shaU be subject to the immediate control of the Court and act under its direction. By statute 21 & 22 Vict. c. 95, s. 22, " all the pro- visions contained in the Court of Probate Act respecting grants of administration pending suit, shall be deemed to apply to the case of appeals to the House of Lords under W ten granted, the said act." Administration pendente lite under this section was granted to a defendant in a testamentary suit, the plaintiff not opposing the application {w). The Court has power under 20 & 21 Vict. c. 77, s. 70, to appoint an administrator pendente lite in contested testamentary and administration suits on the application of a person who is a party to such suit. In an adminis- (<) A Iford v. A Iford, Dea. & Sw. J., P. & M. 89. 322. (?!)) DeChatelain v. DePontigny, ill) Sm-tees, In goods of, 28 L. 27 L. J., P. & M. 18. 21 & 22 Vict. .-. 95, s. 22, to apply to ap- Digitized by Microsoft® LIMITED GRANTS. 233 tration suit wMch was likely to be protracted, the Court In time, appointed an administrator pendente lite, at the instance Pendente Ute. of a creditor who was not a party to the suit (a;). ™ ^*° In a testamentary suit in which there was no dispute as to the appointment of the executors, and one of them was willing to act, the Court refused to appoint an administrator pendente lite, unless it could be shown that there was something requisite to be done in relation to the estate, which the executor before probate could not do (y). Where there is a dispute as to the right to administer an estate, the Court has power to grant administration pendente lite (2;). It wiU not, however, grant administra- tion pendente lite without due cause ; the necessity for such administration must be shown (a). Administrations pendente lite ought never to be granted without special cause (6) ; though they may be granted where there is an executor named in the will propounded, if there be good reason for such administrations (c). The plaintiif and deceased, as joint tenants, had for many years leased certain &rms, each having provided a portion of the capital required for their management ; the plaintiff was the executor named, not only in the will in dispute, but also ia a will of earlier date, which was pro- pounded by one of the defendants ; the Court refused, on a suggestion that the plaintiff was selling the stock and produce of the farms unduly and unnecessarily, to appoint an administrator pendente lite {d). The Court will appoint an administrator pendente lite in all cases in which it is the practice of the Court of ix) Tiohhorne v. Tichiorne, 1 329. L. R., Prob. 730. (*) Sutton v. Smith, 1 Lee, 207. (jr) Mortimer j. Paitll, 39 L. J., (c) Maskeline v. Harrison, 2 P. & M. 47. Lee, 258. (z) Walker t. Woollaston, 2 P. ( '■ _ Ad litem. Nor will the personal representative of a trustee be dis- pensed with under this section where such representative must, of necessity, be active in the performance of the decree to be made as to the execution of the trust (/), and in various similar cases (ff). The following are instances of administrations ad litem which have been granted to file a bill (A) : to answer a suit (i) ; to prove a debt under a decree (A) ; and the like. The grant runs " to attend, supply, substantiate, and con- " firm the proceedings already had, or that shall or may " be had in the said suit in the High Court of Chan- , " eery, or in any other cause or suit which may be com- " menced in the said Court, or in any other Court between " the said parties or any other parties, touching or con- " cerning the matters at issue in the said suit, and until a " final decree shall be made or had therein, and the said " decree carried into execution, and the execution thereof " fidly completed." Notwithstanding the last words of the order the grantee can only carry on the suit to its termination, he cannot receive its fioiits, and therefore it is necessary, if such should be desired, to add, " and to " receive any sum or sums of money which shall be pro- " nounced by any or such final order or decree to be due " and payable with interest thereon" (?). The Court will grant to the agent of a foreign Prince object to sub- an administration limited to substantiate ' proceedings in feedings ^"' Chancery (m). (e) Silver v. Siein, 1 Drew. 295. (i) Sonell v. Metcalfe, 2 Add. (/) Fowler T. Bayldon, 9 Hare, 361 n. (a). App. 78. (*) Eleotor of Hesse, In goods (g) See Rarvlms v. McMahon, of, 1 Hag. Ecc. R. 93. 1 Drew. 225; Or over v. Levi, 9 (Z) Dodgson, In goods of, 1 Sw. Hare, App. 47; 16 Jnr. 1061. & Tr. 269; 28 L. J., P. & M. 117. (A) WooUey y. Gordon,Z Phill. (m) Elector of Hesse, In goods 315. of, 1 Hag. Ecc. K. 93. Digitized by Microsoft® 240 LIMITED GEANTS. To a particular object. Ad litem. To whom. Guardians ad litem. Ad eolligenda bona. The grant of letters of administration ad litem makes the grantee complete representative of the estate to the extent of the authority which the letters purport to confer, and a decree against such grantee is therefore binding upon any one who may afterwards take out general admi- nistration to the estate (o). An administration ad litem of a married woman does not sufficiently represent her separate estate to enable the Court to decide how far that estate is liable in respect of her acts as a trustee (p). The Court may in its discretion pass by the next of kin in appointing a guardian ad litem to an infant {q}. The Court refused to appoint the paternal uncle guardian to a minor, for the purpose of instituting a suit on his behalf against the mother in reference to the validity of the wiU of his father, without first citing the mother to show cause why such an appointment should not be made (r). Where there are no next of kin, creditors, or other person applicant for the administration, the Court has a discretionary power to grant administration ad eolligenda bona defuncti, or the Court may take the matter in hand itself. The above grant of administration is had recourse to by the Court generally where there is danger to the estate by reason of the same being of a perishable or precarious nature. When a sole next of kin refuses to take administration, the Court, on cause shown, wiU decree letters ad eolligenda bona defuncti, limited according to the special circum- stances of the case (s). (o) Davis •) Jenkins, In goods of, 1 L. R., Pro. 690; 38 L. J., P. & M. 72;21L. T.,N-. S. 300. («) Radnall, In goods of, 2 Add. 232. Digitized by Microsoft® LIMITED GRANTS. ' 241 The power of the Court seems in such cases to be To a particular limited to collecting the personal estate, giving discharges ° ■'^'^ ' n -, 1 . , c ,1 -1 Ad coUigenda. tor debts on payment oi the same, or renewing leases, which would expire before a general grant could be made. There is no precedent in the Prerogative Court which would warrant the Court of Probate in giving an admi- nistrator ad colligendum, the power to dispose of the premises and goodwill of a business, nor indeed, has the Court power to seU any of the goods of the deceased: it cannot therefore delegate an authority for such a purpose to another (^). When a loss to an estate was likely to occur if a grant of administration was delayed, the Court made a grant ad coUigenda bona to a creditor, but directed that, after pay- ment of necessary charges, the balance should be deposited in the registry until a general grant should issue (m). A monition against an administrator joewc?enfe lite, will be Determination granted at the end of the suit to compel him to transfer to l-ant!^ ^ the person entitled, everything in his possession acquired in that character {x). Grants ccBterorum.] See C. P. A. 1857, ss. 86 and 88, and C. P. A. 1858, s. 20. Where the representation of a deceased is divided by excepting a previous portion out of the residue, the sup- plemental grant is called a grant cceterorum. As where administration testamento annexo of the will of a married woman made under a power, was granted, limited to the extent of that power, to the person appointed by the will : to the husband was decreed a general grant caterorum bonorum (y). The cases previously discussed where the representation is divided in estate, as under head 1 {i. e., limited in estate), or a particular function of the general (f) In the goods of ClarUngton, {x) Grams, In goods of, 1 Hag. 2 Sw. & Tr. 381. Ecc. R. 313. (m) Stemwrt, In goods of, 1 L. (y) Bascley t. French, 2 Lee, R,, Pro. 727; 38 L. J., P. & M. 537. 39; 20 L. T., N. S. 279. B. B Digitized by Microsoft® 242 LIMITED GRANTS. Cceterorum. Grant, save and except. Supplemental or cessate grants. representative is taken from him and conferred on another head 3 (limited to particular purpose), afford instances where the larger grant is a caterorum grant. A grant " save and exc.epf is the reverse of a casterorum grant — it precedes instead of following the particular or limited grant, as in the case above cited, if the grant were made to the husband first, it would be a general grant of aU his wife's goods and chattels, " save and except " such as she was entitled to dispose of, and had disposed of under the power. These grants {cceterorum and save and except) are therefore made under similar conditions, and general and limited grants may issue almost together. The oaths requisite will be found in the Appendix, Forms. Where, however, the cases discussed under the second head (where the representation is limited in point of time) occur, it is obvious that, as the whole representation is granted, although only for a time, no other grant can be made until such time has elapsed. For instance, a grant made durante absentia or minoritate, is a grant of the whole representation, expiring on the return or coming of age of the party entitled. Then and not till then can the party entitled apply for a general and regular grant. This is called a supplemental or cessate grant. Although the first grant would seem to be equally determinable • by the happening of the particular event as by the death of the grantee, yet a distinction is taken between a supple- mental or cessate grant and a grant de bonis ; and rightly so, because in the latter case the grant was originally of the entire representation, the fee simple, as it were, of the representation ; whereas in the former, the original grant was a kind of leasehold of, or determinable estate in, the representation, determining of itself on the effluxion of time or on the happening of a particular event. This distinction is not merely technical, for a cessate grant is a renewal of the entire original grant, while a grant de bonis is only a grant of so much as is unadministered, and an administrator taking the former is obliged to give Digitized by Microsoft® LIMITED GRANTS. 243 seciirity to tlie same amount that the original adminis- Supplemental, trator did in the first instance, although the estate may have been partly administered (z). Though, where it appeared that the whole of the estate had been distributed with the exception of the legacy to the proposed administrator, the Court, under the 82nd section of the Probate and Administration Act, made the grant upon security being given to the amount of double the value of the property remaining unadministered (a). Alteration in Grants.'] See C. P. A. 1858, s. 17, 55 Geo. III. c. 184, s. 42. Rules 72, P. E., Non-C, and 63, D. E. By the 3rd and 4th sections of the C. P. A. 1857, the By Judge, former testamentary jurisdiction of the Ecclesiastical Courts is aboKshed and transferred to the present, and with it the power which those Courts exercised of altering or amending the grants they had made. By the C. P. A. 1858, s. 17, the Judge of the Court of Probate is invested with the power of altering and amending grants made before January 11, 1858, i. e., grants made by the extinct Courts. By Eule 72, P. E., Non-C, the Principal Eegistrars are directed to send a notice in the cases men- tioned in the rule to the District Eegistrar. By the 63rd Eule, D. E., no grant of probate or letters By District of administration is to be altered by a District Eegistrar ^^S^^trar. without an order of a Eegistrar of the Principal Eegistry previously obtained. In case the name of the testator or intestate requires alteration, the notice of application must be renewed, and an alteration ordered is not to be made by the District Eegistrar until the usual certificate on such notice has been received fi?om the Principal Eegistry. Where probate of a wiU had been obtained by the universal legatee and sole executrix, on a false represen- tation that she was a spinster, whereas she had a husband living, the Court refused to alter the probate without the {z) Aiiott V. Abiott, 2 Phill. (a) Fozard, In goods of, 32 L. 578. J., P. & M. 160. E2 Digitized by Microsoft® 244 ALTERATION OF GRANTS. by fraud. In amount sworn under. Grant obtained consent of the husband, the property not being bequeathed to the sole and separate use of the legatee (6). "Where the date of the death of the deceased is altered, a further affidavit is required from the executor or admi- nistrator for the Inland Revenue. It frequently happens that the amount of the deceased's estate is sworn at too. low a figure, to remedy this the 55 Geo. III. c. 184 (sects. 41, 42, 43 and 44) was passed. By sect. 41, the repre- sentative of the deceased is entitled on making affidavit or declaration of the real amount, and on payment of the full duty (without any deduction for any previous duty paid), and of the penalty for stamping de^eds after their execution to have the probate or letters of administration duly stamped. If, however, the erroneous amount is the result of a mistake without fraud, and the application is made within six months after the true value has been ascertained, the Commissioners are to remit the penally and to aUow for what duty has already been paid, and to stamp the probate or letters of administration on payment of the balance of stamp duty really due. In the case of administration on which too little stamp duty has been paid at first, the administrator, before he can get his letters of administration duly stamped for the real amount, has to give such security to the Court " as ought by law " to have been given on the granting thereof, in case the " full value of the estate and effiacts of the deceased had '' been then ascertained " (c). Revocation of Grantsr^ See C. P. A. 1857, ss. 59 (amended by C. P. A. 1858, s. 12), 76, 77 & 78; Eule P. E., Non-C. 72, D. E. 62. There seems to be no limitation, either by statute or common law, of the time within which a grant may be revoked. Next of kin are not barred hy mere lapse of time by acquiescence, or by the receipt of legacies, from (S) Hale, In goods of, 5 No. of See, however, Weir, In goods of, 1 Ca. 513. Sw. & Tr. 606; and Fozard, In (c) 55 Geo. III. c. 184, s. 42. goods of, 32 L. J., P. & M. 160. When. Digitized by Microsoft® EEVOCATIOK OF GRANTS. 345 requiring executors to prove a will ia solemn form {d), " or When, otherwise to show cause why such probate should not he revoked," as the decree runs. Where an administration is granted on a false sugges- Fraud, tion in fraud of the stamp duty, and of the fees of the office, it will be revoked, and the party falsely suggesting condemned in costs (e). Where two executors gave a letter of attorney to a Nominee third person to take administration cum testamento annexo, ^™^' who thereupon took the grant, and one of them died, it was held that the survivor had a right to call in the letter of attorney, and to take probate of the will (/). Where a testamentary guardian to minor children had Granted ^e?- , ..T -I -I • • , ,• IT . . incwriam. been appointed, and. administration nad, per mcuriam, been granted to a guardian elected by the minors for their use and benefit, the Court revoked the grant, and granted administration to the testamentary guardian (^). By settlement (1794) on marriage, certain property was Administra- assigned to trustees in trust as to the income for the hus- g^^) revoked. band, for life, then for the wife for life, if she survived, remainder in trust to be divided among the children on their coming of age, according to appointment by surviving parent ; the husband and two children survived the vnfe, and the latter attained the age of twenty-one : in 1809, the last of the trustees died, and his executors refused to take out probate in the province of Canterbury, as he had only this trust estate in that province, whereupon adminis- tration (with will and codicils annexed) limited to this trust estate was granted to the husband : on his consent and affidavit that he had not assigned his right, and on his assigning to his sons his interest under the trust, and executing a release of his power of appointment, the former administration was revoked, and admiaistration similarly limited was granted to the sons (A). {d) Merrymtather v. Twrner, 3 (^) Morris, In goods of, 31 L. Curt. 802. J-. P- & M. 80. (e) Smith v. Carry, 1 Lee, 418. (A) In goods of Ferrier, 1 Hag. (/) Pi^on T. Wallis, 1 Lee, 402. Ecc. R. 241. Digitized by Microsoft® 24$ DUTIES. See 55 Geo. III. c. 184, s. 38 ; 22 & 23 Vict. c. 36, s. 1 ; 27 & 28 Vict. c. 56, s. 4 ; 31 & 32 Vict. c. 124, s. 7. Exemptions under lOOZ.] 27 & 28 Vict. c. 56, s. 5. Seamen, Marines, or Soldiers.] 2 & 3 Vict. c. 37, s. 50. Probate Duty.l By the law of England, if a married woman becomes entitled to the property of a deceased rela- tive situated in England, and her husband takes no step to reduce her rights into possession, and she dies, and her husband"does not take out administration to her, and he dies, the child of these married persons must take out two administrations, one to his father, the other to his mother, on each of which, as on a distinct devolution of property, duty is payable to the crown : if this child is domiciled in a foreign state, where his parents were also domiciled, and empowers a person in England to take out administration for him, the same course must, under the same circum- stances, be pursued, even though the property, when ob- tained, is to be distributed in the foreign state, where the law might not require this double authority of adminis- tration. Where such property, no next of kin appearing, had been taken possession of by the solicitor to the treasury, who had paid off all the debts of the intestate, and then paid over the balance to the crown, and, after some years, the claim of the next of kin was estabKshed, and the solicitor of the treasury ordered to pay over the principal amount, with interest, to the next of kin, the interest, as well as the principal^ is chargeable with duty ; the rule being that whatever is recoverable by virtue of the letters of administration is so chargeable, and the interest was so recoverable, being, in fact, part of the estate for which administration was granted (J). Not restricted In granting probate or letters of administration, the applica^. ° Court is not restricted to the oath of the applicant as to the value of the property, but may receive the oath of any (i) Partington v. AU.-Gen., 4 L. R., H. L. Caa. 100 | 38 L. J., Exch. 205 ! 21 L. T., N. S. 370. Digitized by Microsoft® DUTIES. 247 competent person to that fact. Where, therefore, the property was sworn below its value by the executor who was abroad, the Court allowed a fresh affidavit, in which the true value of the property was stated, and the mistake in the executor's oath explained, to be sworn and filed by his agent in this country, and probate to go accordingly (A). Probate duty is payable in respect of the purchase- money of real estate on a contract for its purchase, made before, but completed after, the death of the testator (I). "Where letters of administration were granted merely to enable a personal representative of a deceased to execute a formal release to the trustee under a marriage settlement, the Court allowed the property to be sworn under 201. (m). Succession.] See 16 & 17 Vict. c. 51. The duties payable on legacies amounting to 201. and upwards are — To children or their descendants ... 1 per cent. Brother or sister or their descendants . . 3 per cent. Uncle or aunt or their descendants ... 5 per cent. Great uncle or aunt or their descendants . 6 per cent. AU other relations or strangers . . . .10 per cent. Husband, wife, and the royal family are exempted. (A) De AnguU y XlrrueU, 38 L. H. of L. Ca. 243; 30 L. J., Ex. 379. J., P. & M. 21. {nC) Stachpoole, In goods of, 5 (J) Att.-Gen. \. Bnmning, 8 L. T., N. S. 140, Prob. Digitized by Microsoft® ( 248 ) PEACTICE AND PLEADING IN CONTENTIOUS BUSINESS. When conten- tious business commences. Procedure. The practice of the Court of Probate shall, except where otherwise provided by this act, or by the rules or orders to be from time to time made under this act, be, so far as the circumstances of the case will admit, according to the present practice of the Prerogative Court (a). This section relates to the procedure of the Court, not to the principles on which it is to act (6). The rules for practice in the registry are not, under all circumstances, absolutely binding on the Court (c). Upon an appearance being entered in answer to the warning of a caveat, the matter shall be entered as a cause in the Court book, and the contentious business shall thereupon be held to commence, and the expenses of the entry of such caveat and the warning thereof shall, upon taxation, be considered as costs in the cause (d). When a party proposes to prove a will or codicil in solemn form of law, and no caveat has been entered, or a caveat has been entered, and no appearance given to the warning thereof, the contentious business shall be held to commence with the extracting of a citation in the forms, Nos. 1 and 2, or in some similar form (e). Parties. As the parties to a cause must always be persons who (a) C. P. Act, 1857, s. 29. (b) In goods of Thos. Sy. Olvphant, deceased, 1 Sw. & Tr. B25. (o) In goods of Loftus, 3 Sw. & Tr. 307 ; 33 L. J., P. & M. 59. {d) Rule 12, C. B. (e) Rule 14, C. B. Digitized by Microsoft® CONTENTIOUS BUSINESS. 249 are in some way interested in the result of the suit, it will Parties. be as well to consider how such interests arise. Although these interests may arise in various ways, they aU, how- ever, can be reduced to three heads: — 1. Those arising under some testamentary paper as executors, and the like. 2. Those arising from relationship to the deceased, as widow or next of kin, &c. 3. Those arising from operation of law, as creditors, heirs-at-law, &c. Executors or other parties who, previous to the passing who may of the Court of Probate Act, 1857, might prove wUls iii P™^^' solemn form of law, shaU be at liberty to prove wUls oyiei-g. under similar circumstances, and with the same privileges, liabilities and effect as heretofore fy). " Executors."^ This includes any kind of executor, whether nominate, according to the tenor, delegate or sub- stituted, in fact any person to whom simple probate can be granted. Or other Parties.'^ This refers to parties to whom, on failure of the executor to appear, or on his refusal to act after appearance, or on renunciation, the Court would grant administration with the will annexed, as residuary or other legatees {g), or their represMitatives legatees in trust (but not to their representatives) {h), or on their death, the cestui que trusts, and the Kke. It would seem that, on the failure of all other parties interested to propound a will, the widow or next of kin might propound it, as the Ordinary is directed by the words of the statute to grant adminis- tration to them, on the reftisal of the executor (z). Next of kin and others who, previously to the passing of Who may put the said act, had a right to put executors or parties entitled ^n proof!' to administration with the wiU annexed, upon proof of a will in solemn form of law, shall continue to possess the (/) Rule i, C. B. (K) Hwtoliinson y. LamheH, 3 ig) Sutton V. Sraa, 2 Phill. Add. 27. ^ 323; Thome v. jRoohe, 2 Curt. 799. (i) 21 Hen. 8, c. 55. Digitized by Microsoft® 2ri0 CONTENTIOUS BUSINESS* rartic3. same rights and privileges, and be subject to the same liabilities with respect to costs, as heretofore (J). Next of kin (which includes the widow) are entitled to put executors on proof of a will in solemn form, for the obvious reason that if the proof of the will fails, thej be- come entitled in distribution. A next of kin, however, qua next of kin, has no right to oppose a testamentary paper, without showing some in- , terest, however small (A); as where a will disposes of the interest of the next of kin, he would have no interest to oppose a codicil merely, which did not affect him. ■ And others.] This refers to those persons who, without being next of kin, have interests which are affected by the will, as, for instance, the executor or legatee of a prior win or their representatives. It does not include the executor himself after he has proved the will in common form ; for an executor who has proved a will in common form cannot, as such executor, take proceedings to call in question the validity of that will ; he has no right, therefore, to cite the persons inte- rested under it to propound it in solemn form, or show cause why the probate in common form should not be re- voked ; the executor of an executor is in this respect in the same position as the original executor (I). Intervener. Parties who, previously to the passing of the said act, had a right to intervene in a cause, may do so, with leave of the Judge or one of the Registrars, obtained by order on summons, subject to the same limitations and the same rules with respect to costs as heretofore (tw). An "intervener" is a party who voluntarily interposes. A party who is brought into the contest by being cited is not strictly an intervener. Any party whose interest is affected is entitled to oppose the grant of probate. U) Rule 5, C. B. (J) Sascomi v. Harrison, 7 No. of Ca. 275. [l) Cliamberlain, In goods of, 1 L. R., Prob. 316. (»n.) Rule 6, C. B. Digitized by Microsoft® CONTENTIOUS BUSINESS. 251 He must, However, have some interest (n) ; it may be Parties, very small, even the bare possibility of an interest is sufficient (o). But a party who has no interest cannot be permitted to intervene in a cause ( ;?). Therefore, before a person is permitted to contest a will Interest tnnat he may be called upon by the propounder to show his interest; but when two contest a will neither can call upon the other first to show his interest {q). Where an administration has once been duly granted, the propounder of a wiU loses this right, for a party in possession of an administration is not bound to propound her interest till the party calling it in question has esta- blished her own (r). Where the Court decided that a legatee in a separate Legatee In paper was not executrix according tp the tenor, it was ^^P*™ ® paper, held that she could not oppose the validity of a former will, if she was paid her costs, and if the executor of that will was ready to take probate of the paper by which she was benefited (s). A creditor is not entitled to contest an administration Creditor, already granted, though prima facie fraudulently ob- tained (t). Nor can he oppose a grant of probate of a wiU to the executor according to the tenor (u). Where the deceased left behind him three executed wills, each of which in fact revoked the previous one: the last will was propounded by the executors named in it against the next of kin ; the executors of the first will (re) Wright y. Rutherford, 2 (f) MiWen v. Caleitibowg , 1 Lee, 266. Phill. 166. (o) Kipping ^ BarTier -7. Ash ^ («) Sillam r. Walker, 1 Hag. others, 1 Bob. 270; 4 No. of Ca. Ecc. E. 71. 177. (t) Newsom, In goods of, 2 No. (p) Brotherton y. SelUcr, 1 of Ca. 16. Lee, 699. (") ^lenzies v. Pvlirooft, 1 No. (q) MingeHon v. Tucker, 31 L. of Ca. 132. J., P. & M. 91. Digitized by Microsoft® 252 CONTENTIOUS BUSINESS. Parties, Evidence of "relationship. Not baiTed by lapse of time. obtained leave to intervene to propound their will and to plead, as regarded the last wiUj that it was not duly exe- cuted; that the deceased was not of testamentary capacity at the time he signed it, and that it was obtained by undue influence and fraud: — Held that the executors of the last will could not as such propound the second will as well as their own, merely to prove that it revoked the first win, and, therefore, deprived the executors of the first wiU of any interest in the estate of the deceased (ar). A deed executed by the deceased in favour of the de- fendant, in which the defendant was described as a sister of the deceased, was held to be sufficient evidence of re- lationship, so that the defendant as next of kin could con- test the validity of the will of the deceased {y). Where an executor having propounded a will, a party who appeared to dispute it, as the natural son of the de- ceased, was put upon proof of his interest : in his decla- ration he alleged that the deceased was a domiciled Portuguese : that he was his natural son ; that by the law of Portugal he was entitled to the whole of the deceased's property, and that he had instituted a suit in Portugal against the executor, in which he obtained a decree that he should be put into possession of the property ; the de- claration did not state the nature of the suit, nor the questions involved in it, nor did the judgment show that the plaintiff was in the same position as a legitimate son : — Held that the foreign judgment alone did not show such an interest in the party in whose favour it was made as to entitle him to dispute the will (^z). An intervener may plead after issue joined by leave of the Court (a). Where a party, sole next of kin of the deceased, after (a) Parton v. Johnson, 37 L. J., P. & M. 67. iy) Smith V. Teblltt, 36 L. J., P. & M. 35. (2) Crispin v. Doglione, 29 L. J., P. & M. 130. (a) Jones v. Williams ^' others, 34 L. J., P. & M. 102. Digitized by Microsoft® CONTENTIOUS BUSINESS, 253 a lapse of fourteen years from his death, and after the Parties. receipt of a legacy under the ■wiU, cited the executors to bring in probate of and prove the will : — Held that the party was not barred by lapse of time, or by the receipt of Or receipt of a legacy, though he was by admissions in Chancery (6). ^^S^y- There is no limitation as to time in requiring a will to be proved in solemn form (c). When the testament is to be proved in solemn form, it Parties to be is requisite that such persons as have interest, that is to "'^ ' say, the widow and next of kin of the deceased, to whom next of kin. the administration of his goods ought to be committed, if he had died intestate, are to be cited to be present at the probation and approbation of the testament, in whose pre- sence the wiU is to be exhibited to the Judge (rf). This is the groundwork of the present system ; the practice of the present Probate Court being directed to be (except where otherwise specifically ordered) according to the practice of the Prerogative Court (e). The executor should, therefore, cite the widow (if any) and the next of kin of the deceased. The extinct Courts of Probate never pretended to have Heir-at-law, any jurisdiction over realty. But now under the operation "^^^i^^^^' ^'=- of sects. 61, 62, 63 and 64 of the C. P. Act, 1857, "the " heir-at-law, devisees and other persons having or pre- " tending interest in the real estate affected by the will" are to be cited or summoned as though they were next of kin and the will affected personalty. They also may be- come parties or intervene for then; respective interests (/). The penalty on this indulgence is that they are bound by the decree of the Court, whether for or against the wiU (ff). The 63rd section provides that where a deceased had no real estate or power to appoint to real estate beneficially, (J) M&rryweather t. Turner, 3 (d) Swinb. 448. No. of Ca. 65. («) C. P. A. 1857, s. 29. (ff) Topping, In goods of, 2 (/) C. P. A. 1857, s. 61. Eobert, 620. (m) C P. A. 1857, s. 62. Digitized by Microsoft® 254 CONTENTIOUS BUSINESS. Parties. Heir-at-law, When to be cited. or where the will does not affect real estate, these persons" need not be cited (h). The rule applicable to persons desirous of citing the heir-at-law or devisees in relation to a wiU affecting real estate is Rule 71, C. B. Should one of the above parties not be cited, but be de- sirous of intervening to protect his interest, he then comes within the scope of E,ule 6, C. B., and may obtain the leave of the Judge or one of the Registrars by order ou summons as there directed. But execution of a will affecting realty cannot be pre- vented from obtaining probate in common form by a caveat entered by the heir-at-law if he has not been cited, and if the heir-at-law enters such a caveat it is not necessary for the executors to deliver A declaration, and if they do so, and the heir-at-law does not plead to it, he wall not be condemned in the costs incurred in deHvering it (J) ; such a caveat in fact seems a mere nullity. The object of these enactments was to prevent the possi- bility of a double trial on the same wiU (k). " The Court is authorized to cite the heir-at-law in two " events only; one being where the validity of the will is " actually in contest ; the other being where the wiU, al- " though not in contest, is about to be proved in solemn " form by the person who brings it before the Court" (J). — Sir J. P. Wilde. Therefore the Court will not authorize the citation of the heir-at-law under C. P. A. 1857, s. 61, until a plea has been filed in the suit, or until the next of kin has been already cited to see proceedings (?n). So where a testamentary suit was commenced by caveat, and after warning of the caveat and entry of ap- pearance by the next of kin the executrix under an alleged (70 C. P. A. 1857, ». 03. (i) Young v. Ferrle, 29 L. J., P. & M. 69. (*.) MoholU V. Binns, 1 Sw. & Tr. 19. (7) Moore !; another v. Ilolgate S- wife, 1 L. R., Pro. 101; 35 L. J., P. & M. 46. (m) Ibid. Digitized by Microsoft® CONTENTIOUS BUSINESS. 255 win filed a declaration propoundiDg the will ; it was held Parties, that leave to cite the heir-at-law of the testator under Heir-at-law. sect. 61 could not be granted until a plea had been filed denying the validity of the will (n). But if the party propounding the wiU will file an affi- davit (even before the time for pleading has expired) that he intends to go on and prove the wiU in solemn form, the Courts will allow the citation to issue (o). "Where there was no question as to the validity of the In what cases will, the citation to the heir-at-law was only allowed to ° * ^ issue upon the statement in Court by counsel that the plaintiiF was going to prove the will in solemn form (p). Conversely, where the executors under the wiU of a deceased cited the executors named in a codicil to it, as also the other parties interested to propound such codicil, and an appearance had been entered for the executors named in the codicil, but no declaration had been filed, and the bequests in the codicil afiected the real estate, the Court ordered the heir-at-law to be cited (^q). Again, where executors propounded a will in solemn form, it was held they might obtain the leave of the Court to cite the heir-at-law to see proceedings under the Court of Probate Act, 1857, s. 61, although no plea is filed, and the validity of the will is not in dispute (r). So, in a cause transferred from the Prerogative Court of Canterbury to the Court of Probate, before any allega- tion or declaration given in, it was held the provisions of the 61st and following sections applied, and that the fact that one co-heir being an infant and child of a plaintiff, was no ground for the Court refusing to allow such co-heir to be cited (s). (to) Cqplestone ^ wife v. (g') Corner v. Parnell ^ others, Mcholes, 38 L. J., P. & M. 57. 36 L. J., P. & M. 81. (o) Peacoek v. Lome, \ L. E., (»•) Domville v. DomviUe, 34 Pro. 311; 36 L. J., P. & M. 46. L. J., P. & M. 79; 4 Sw. &. Tr. 17. (^p) Baldivinv. Durrani, qaoted (s) Niehnlls S; Freeman t. in Peacochy. Lone, supra. Binns, 1 Sw. & Tr. 19; 27 L. J., P. & M. 14. Digitized by Microsoft® 256 CONTENTIOUS BUSINESS. Parties. Heir-at-law. Not to be found. When he must be cited. Devisees.- Queen's proctor. All persons interested. Legatees. Although already before the Court as a defendant in another character, the Court will still direct a citation to issue against the heir-at-law (t). And where a party to a suit is before the Court as next of kin or legatee, being also heir-at-law or devisee under the same will, it is stiU necessary to cite him to see pro- ceedings under the 61st section as heir-at-law, or de- visee (m). When a contention arises about a testamentary paper of a deceased, and his heir-at-law is either not within the jurisdiction of the Court, or has no known place of abode, the Court may still order him to be cited, but will not decide that any particular form of service of the citation shall bind him (x). Upon a motion for the appointment of a receiver under Court of Probate Act, 1857, s. 71, it must appear upon aflSdavit that the heir-at-law has been cited (y). Executors propounding a will, disposing of real estate, may issue citation to see proceedings against devisees under a prior wiU, which is not propounded (z). In a cause of proving in solemn form, the will of a spinster, a bastard, which affected real estate, the Court authorized the executor under Rule 34, C. B. (of the old rules, which is now represented by Rule 78, C. B.) to cite the Queen's proctor to see proceedings («). A next of kin contesting a will, propounded by an exe- cutor, may take out a decree citing all persons interested tinder the papers, either as legatees or otherwise, to see proceedings (i). On the death of the deceased, probate of his will was granted in common form to the sole executor named in it. (<) Idster V. Smith, 3 Sw. & Tr. 53; 32 L. J., P. & M. 13. (m) Mmberley v. l}rei:anion, 22 L. J., P. & M. 142. (x) Martin v. Harding, 11 Jur., N. S. 118. (y) Purdey v. Field, 33 L. J., P. & M. 73. (z) Lister v. Smith, 32 L. J., P. & M. 13; 3 Sw. & Tr. 63. (a ) Wyman v. Ashmell, 29 L. J., P. & M. 94; 4 Sw. & Tr. 19G. (J) Colvin V. Praser, 1 Hag. Ecc. E. 107. Digitized by Microsoft® CONTENTIOUS BUSINESS. 257 and lie intermeddled in the estate : lie afterwards died, Parties. and probate of his will was also granted to the executor Who to be therein named : this last executor also intermeddled in the estate of his testator : — Held that the executor's exe- cutor had no interest to cite the legatees under the first wiU to propound the same, or show cause why the probate of that will should not be revoked, and the wiU itself should not be declared null and void (c). A creditor is not to be cited, as he cannot controvert Creditor not the vaHdity of a wiU, for it is indifferent whether he *o^e cited, receive his debt from an executor or an administrator {d). But if he has already had a grant of administration it is AUter if he otherwise, as in that case he is the same for the purpose °'^* * ^™ of opposing the will as a next of kin (e). And where the plaintiffs propounded the will and codicil of Ann Wilson, under the latter of which, her husband, who had survived her but a short time, took an interest, the Court allowed a citation to issue to the official liqui- dators of the East of England Bank, creditors of the hus- band, to see the will proved (f). A married woman, it seems, may be a party, even in Married opposition to her husband. Where a husband, having entered a caveat against the issuing of probate or adminis- tration of the win of a deceased person, in which his wife was named executrix, the Court refused him Hberty to allege, as he had not suSacient primd facie interest in the assets of the deceased to oppose the wiU (ff). Where a married woman propounds a paper the hus- band must join in the proxy (A). Where a wife refused to take administration to which she was entitled, and, being cited by her husband (who (c) Chamberlain, In goods of, 3 Sw. & Tr. 572. 36 L. J., P. & M. 52. (?) Preston v. Preston, Milw. ( MicrOSOftm C- ^- A- '857, s. 25. Enforcing at- tendance, &c. Order to bring in papers. CONTENTIOUS BUSINESS. 303 shown to be in his possession, may direct him to be examined in open Coiirt or by interrogatories; and arms it with powers to punish the disobedient (i). The Court of Probate has power to order any docu- Order to bring ment suiSciently described and shown to be material i°ffn:'<, 38 L. J., (J) Timier, In goods of, 33 L. P- & M. 67. J., p. & M. 180. Digitized by Microsoft® CONTENTIOUS BUSINESS. 307 been made for Hm there and elsewhere, nothing had been Evidence. heard of him ; on motion for probate of the will of E. H. Presumption as having died a widow : — Held that the husband of E. H. not having been heard of for more than seven years, might, under the circumstances, be presumed to have died before his wife, as there was no legal presumption that his death took place at the end of seven years, and that, consequently, the will of E. H. was valid (c). N., intending to come to England, sailed on 1st July, Presumption 1856, fi-om New Zealand in a ship bound for Sydney; the tTOre*!^^''" ship never arrived at Sydney, nor was anything ever heard of her or the crew after she set sail ; some heavy gales having occurred at the time she would have been on her voyage and in her direct course, it was supposed she had foundered with aU hands; advertisements had not been inserted in the newspapers for information concerning N. ; it was held, that, under the above circumstances, as N.'s history was traced up to a certain point, and he was then lost sight of, advertisements were unnecessary, and that his death was to be presumed (rf), this motion was made 28th January, 1858. On the 27th of January, 1857, M., master of the ship After one year. B., sailed in her from L. for V., the average duration of the voyage being ten weeks ; the ship never arrived at V., and nothing having been heard or seen of her or of any of her crew, since she sailed from L., the underwriters had Payment by paid as for a total loss of the ship: it was held, the death ""derm-iters. of M., in or since January, 1857, might be presumed. This motion was made the 28th January, 1858 (e). But, although payment by the insurers may presuppose Does not prove a total loss of the ship, it does not foUow that all the crew ^^^^ °^ "'"''"■ are drowned; and inquiries, in general, should be made at the port of departure for any of the missing crew. For, where on the ISth November, 1857, G. S. sailed from (c) Bow, In goods of, 27 L. J., P. & M. 4; 1 Sw. & Tr. 6. P. & M. 37; 1 Sw. & Tr. 53. ifi) In goods of Main, 27 L. J., {d) In goods ofNorris, 27 L. J., P. & M. 5; 1 Sw. & Tr. 11. x2 Digitized by Microsoft® 308 CONTENTIOUS BUSINESS. Evidence. Presumption of death. Inquiries at port of de- parture. Barcelona to Constantinoplej the average duration of the voyage being thirty days : and the vessel had never arrived at her destination, nor had anything since been heard of her or her crew, and the insurers had paid as on a total loss ; administration was refused to the effects of G. S., as it did not appear that any inquiries had been made for the crew at Barcelona; but was allowed con- ditionally on an affidavit of such inquiries having been made without result, being filed in the registry (_/). Motion made 13th November, 1858. Where A., master of the X., sailed in her from Deme- rara on the 23rd of October, 1858, bound for London, the ordinary duration of the voyage being five or six weeks ; a few days after saihng, a hurricane passed over the West Indian Islands, in which it was supposed the X. and all • hands had been lost, neither the vessel nor any of the crew having been heard of since the vessel sailed : the under- writers on the vessel had arranged to pay the amount insured, as upon a total loss : on affidavits of these facts, a motion made on the 30th March, 1859, for a grant of administration of the effects of A. was rejected, the Court holding that the apphcation was premature ; since, though •the vessel might be lost, the crew might have been picked up by a vessel bound on so long a voyage, that tidings of them could not have been received in the period that had elapsed since the vessel was last heard of; and, further, that inquiries should have been made at Demerara for the crew; but on the 22nd June, 1859, the underwriters having then paid the amount insured on the vessel, and nothing having been heard of either her or any of the crew, administration was granted (^). In September, 1859, the presumption arose that A., who had not been heard of for seven years, was dead; but there were no circumstances from which the date of his (/) Smyth, In goods of, 28 L. J., P. & M. 1; see also Bonnet, In goods of, ibid, notis. {g) Bishop {Henry), In goods of, 28 L. J., P. & M. 93 ; ] Sw. & Tr. 303. Digitized by Microsoft® CONTENTIOUS BUSINESS. 309 death coiild be inferred; in 1857, his father, who would Evidence. have been entitled to administration, had he survived A., Presumption died intestate, and no administration was taken out to him ; it being uncertain whether A. or his father survived ; the Court, under the 73rd section of the Probate Act, granted administration of the effects of A., to his sister, without requiring administration to the father to be taken out. Semble, that, if there had been a legal personal representative of the father, the Court would have required his consent before making such a grant (A). Where W., his wife and an only child, an infant, were Survivorship. kiUed in the Cawnpore massacre, in June, 1857, and W. left no wiU. : in the absence of any evidence as to survivor- ship, the Court granted administration of the personal estate of W., as having died a widower, to his next of kin (i). Where a husband and wife die by the same calamity, and there is no evidence that the one survived the other, administration of their personal estate will be granted to their respective next of kin (A). In the Court of Probate an ambiguity on the face of a Parol evi- paper as to the factum; e. g., whether a revocatory clause AmMguitv. was intended to operate as a general or only as a partial revocation, lets in parol evidence (l). Where testator appointed " his said nephew, Joseph To explain. Grant, executor of his wUl: his wife's nephew of that name had resided with him for many years, and managed his business : there was also living a nephew (a brother's son)" of the same name, both claimed probate- of the will : — Held that parol evidence was admissible to show the relation and circumstances in which the respective parties stood to the testator, and the sense in which he habitually used the word "nephew" when speaking of his wife's (A) Peclt, In goods of, 29 L. J., {k) Wheeler, In goods of, 31 L. P. & M. 95. J., P- & M. 40. (i) WaimvrigU, In goods of, 28 (0 Draper v. Hitchi I Hag. L. J., P. & M. 2. Ecc. E. 677, note. Digitized by Microsoft® 310 CONTENTIOUS BtTSINESS. Evidence. Ambiguity, what is. To correct the date. Intention of deceased. Of lost will. nephew, and the evidence showing that the wife's nephew was the person meant, probate of the will was decreed to him accordingly {m). Testator by his will appointed " Francis Courtenay Thorpe, of Hampton, gentleman," one of his executors ; the only person answering the description was a youth of twelve, the son of Francis Corbett Thorpe, of Hampton, gentleman, who, previous to the execution of the wiU, had been asked by the testator and consented to be one of his executors and trustees : — Held that there was no ambiguity to entitle the court to inquire into the intention of the tes- tator so as to ascertain which of the two, the father or son, he meant to be executors (w). Parol evidence is admissible to show that a will was executed on a date other than that which it bears (o). The iatention of a testator that a duly-executed paper writing should operate as a will, may be proved by parol evidence ( p). Testator executed a will and five codicils ; the fourth codicil revoked the three first, and the fifth, after making an alteration in the wiU, in all other respects confirmed the said will sjoAfour codicils : — Held that there was sufficient ambiguity on the face of the codicils to render parol evidence admissible for the purpose of explaining it, and as it appeared by such evidence that the testator intended to confirm his will and fourth codicil only, and that by mistake of the copyist of the draft will, the words "four codicils" had been substituted ia the engrossment for the words "fourth codicil," that the wiU. and fourth and fifth codicils only were entitled to probate (q). The original wiU being lost and no copy in existence, a limited administration, with the wiU (contained in an affi- (m) Grant v. Grant, 39 L. J., P. & M. 121. P. & M. 17. (p) MnglisTi, In goods of, 3 Sw. («) Peel, In goods of, 39 L. J., & Tr. 586. P. & M. 36. (gt) Thomson, In goods of, 35 L. (») Befell T. Seffell, 35 L. J., J., P. & M. 17. Digitized by Microsoft® CONTENTIOUS BUSINESS. 311 davit) annexed, may be granted to the widow, as executrix Evidence, and residuary legatee for life, on her giving justifying security : the eldest son having been personally cited, two other children, minors and abroad, cited by a service on the Koyal Exchange, and the remaining five consent- ing (r). G. made his will in 1855, appointing his wife sole exe- Of missing cutrix; in May, 1857, he fled fi-om Delhi when the ^''^' mutiny broke out, leaving there a desk containing the will ; after the recapture of Delhi, an attempt was made to re- cover it, but without success : Gr. died in June, 1857: on proof of the due execution of the will, and of its contents, the Court granted probate to the executrix (s). The 20th section of the Wills Act, and the 6th section 0£ lost revo- of the Statute of Frauds, define how a will is to be re- '^^ °'^^ ^^ " voked ; it was held that the former statute did not prohibit the introduction of parol evidence to prove the fact of a will having existed subsequent to the will found on the death of the alleged testator, and that the execution of the second wiU of a different purport fi^om the first, is by law a revocation of the first, though the second may not appear {t). It is a presumption of law that a wiU never out of Presumption deceased's custody, and not appearing at his death, has been destroyed by the deceased (m). It must be this presumption which would allow parol evidence to be given of the contents of the second will, showing that its purport was different fi-om the first will ; otherwise it would be difficult to see how the contents of a written document could be given in evidence, not being in the possession of the opposite party, and without proof of its destruction. Where G., in 1855, wrote his will on six or seven Presumption of revocation. (r) Vallancey. VaUance, IHag. (t) Helyar v. JSelywr, 1 Lee, Ecc. R. 693. 472. («) Gardner, In goods of, 27 (m) Ibid. X. J., P. & M. 55. Digitized by Microsoft® 312 CONTENTIOUS BUSINESS. Evidence. Presumption of revocation. Lost will. Ambassador's certificate. Declarations of deceased. unattached sheets of paper ; at the foot of each sheet he signed his name in the presence of two witnesses, who also subscribed their names in his presence ; after G.'s death, two only of these sheets, viz. the third and fourth, could be found, but they contained a disposition of part of G.'s property ; on motion for a grant of administration, with these two papers annexed, as being the will of G. : — Held first, that it must be presumed that Gr. destroyed the lost sheets intentionally ; secondly, that, as the lost sheets con- tained the only signatures which were in compliance with the Wills Act, the whole must be presumed to have been revoked (^). Where it was proved that the deceased had executed a wiU, by which he gave all his property to his daughter the plaintiff, and that he continued to express approval of the contents of this wiU up to a few weeks before his death : it was further proved that the defendant, after his father's death, got possession of the key of the drawer in which the wUl had been kept, and that his conduct generally at that time was of a suspicious character ; although cited, the defendant did not appear to contest the suit: the Court held that, as it was not satisfied that the will was not in existence at the time of the death of the deceased, and therefore revoked, it ought to grant probate of a copy, which had been made by the person who prepared it (y). The certificate of a foreign ambassador, imder the seal of the Legation, is sufficient evidence of the law of the country by which he is accredited («). Where the defendant, in a testamentary suit, claimed to be the lawful nephew and one of the next of kin of the deceased; issue was joined upon the questions of the legitimacy of the deceased and of the defendant ; upon the trial of the issues, it was held first, that the declarations by the defendant's mother, as to her marriage with his father, (») GuUan, In goods of, 27 L. J., P. & M. 15. (y) Finch V. Finch, 36 L. J., P. & M. 78. (_z) Klingeman, In goods of, 32 L. J., P. & M. 16; 3 Sw. & Tr. 18. Digitized by Microsoft® CONTENTIOUS BUSINESS. 313 were inadmissible without previous proof of such marriage ; Evidence, secondly, that declarations by the deceased of her own Declajration of illegitimacy were admissible (a). Declarations by a testator that he had destroyed a will, the revocation of which is in issue, are inadmissible in evidence (6). The declarations of a testator made after the execution of a will are not admissible as evidence of its contents (c). Verbal declarations or written statements made by a testator, in and respecting the making of his will, pre- ceding or accompanying acts done by him in relation thereto, are admissible in evidence, in order to show the quaKty and nature of such acts (d). Trial.'\ See Rules 52 and 53, C. B., as to preparing the questions for the jury. The process ^for obtaining a jury is the same as in the Superior Courts of Law at West- minster (e). If, however, the cause is to be tried by a Directions for special jury, the practice is to obtain an office copy of the speciaHury. order, directing the mode of trial, and to take that to the Registrar, who will obtain the Judge's signature to a copy of it. This is then taken to the sheriff's office, the copy of the panel obtained from the sheriff's office should be forthwith ffled with the clerk of the papers. Where an appKcation for a certificate for the costs of a special jury was not made until three months after trial : the Court held that it was bound to exercise the powers conferred on it by the 36th section of the Probate Act (20 & 21 Vict. c. 77), with regard to trials by jury, subject to the same rules as the Common Law Courts, and, there- fore, under the 34th section of the Jury Act (6 Geo. 4, c. 50), re&sed the application as being too late (/). (a) Queen's Proctor v. Wil- & M. 146; 2 Sw. & Tr. 442. liams, 31 L. J., P. & M. 157; 2 Sw. {d) Johnson v. Lyford, 37 L. J., & Tr. 491. P. & M. 65. (J) -Staines v. Stema/rt^anotlier, (e) C. P. A. 1857, ». 36. 31 L. J., P. & M. 10; 2 Sw. & Tr. (/) SUpper v. Shipper, 29 L. J., 320. P. & M. 133. (c) Quick V. Qmck, 33 L. J., P. Digitized by Microsoft® 314 CONTENTIOUS BUSINESS. Hearing. Right to begin. Several defendants. Affidavits. Verdict liow far final. Issue directed to the assizes. The hearing of the cause shall be conducted in Court, and the counsel shall address the Court, subject to the same rules and regulations as now obtain in the Courts of Common Law (ff). " The onus probandi lies in every case upon the " party propounding a will ; and he must satisfy the con- " science of the Court, that the instrument so propounded " is the last wiU of a free and capable testator" (A). — Parke, B. In a suit for revocation of probate, the party propound- ing the will must begin, though the plaintiff has declared, alleging an intestacy («"). Where an executor propounds a will in solemn form, and there are several defendants, whose case on the plead- ings is substantially the same, the Court will hear counsel only for one defendant (j). The Court will allow affidavits in reply, to be read at the hearing of a cause, if it thinks such affidavits are necessary (A). The Court is not bound to act upon the verdict of a jury that a testator did not intend a will or codicil to be operative, but must itself be satisfied of that fact, before pronouncing against it(?). After the conclusion of the trial or hearing, the Regis- trar shall enter on the records the finding of the jury, or the decision of the Judge, in a form corresponding as near as may be with those given, Nos. 25 and 26 (Forms, C. B.), and shall sign the same (jn). It shall be lawful for the Court of Probate to cause any question of fact arising in any suit or proceeding ig) Eule 57, C. B. (Ji) Barry v. Butlin, 1 Curt. 638. (i) Cross V. Cross, 3 Sw. & Tr. 293; 33 L. J., P. & M. 49. (j) Palmer v. Maclean tf ano- tJier, 1 Sw. & Tr. 149. (A) Cordeux v. Trasler, 34 L. J., P. & M. 127. (0 Lister v. Smith, 33 ,L. J., P. & M. 29. (»0 Rule 58, C. B. Digitized by Microsoft® CONTENTIOUS BUSINESS. 315 under this act to be tried by a special or common jury Trial at by means of an issue to be directed to any of ''^^^^^■ the Superior Courts of Common Law, in the same manner as an issue may now be directed by the Court of Chan- cery (w). In every case where any Court of Law or Equity may desire to have any question of fact decided by a jury, it shaU be lawful for such Court to direct a writ of summons to be sued out by such person or persons as such Court shall think ought to be the plaintiff or plaintiffs, against such person or persons as such Court shall think ought to be defendant or defendants therein, in the form set forth in the 2nd schedule to this act annexed, with such altera- tions or additions as such Court may think proper ; and thereupon aU the proceedings shaU go on and be brought to a close in the same manner as is now practised under a feigned issue (o). This form is not obhgatory, the old form of wager may still be adopted (p). Where, on an apphcation acquiesced in by aU parties to In what cases. the cause, to direct an issue in a testamentary suit to be tried at the assizes, it appeared from affidavits that the whole property did not amount to 300?., the Court required that it should also appear that the personalty was not under 200/., so as to show thai the County Court had no jurisdiction {q}. The consent of all parties that an issue in a testamen- tary matter should go down to the assizes is not suffi- cient : there must be an affidavit assigning reasons to the satisfaction of the Coiu:t (r). The statute speaks of a " writ of summons," and gives Writ of ' its form in the 2nd schedule to the act. The term "writ ^™°'°°^- (to) C. p. a. 1857, s. 35. (q) Swnn y. Dunn, 30 L. J., P. (o) 8 & 9 Vict. c. 109, s. 19. & M. 40. {p) Lizard v. JBioteher, 15 L. J., (r) Bvll t. Bull, ibid, notis. C. P. 187; 2 Com. B. 858. Digitized by Microsoft® 316 CONTENTIOUS BUSINESS. Trial at assizes. Form of writ of summons. of summons" seems scarcely applicable, as it is in the following form : — In the Court of Queen's Bench [" Common Pleas" or " Exchequer," or in any inferior Court, as the case may 5e]. Middlesex to wit \or such other county as may be directed]. Whereas A. B. affirms and C. D. denies {here state fully the fact or facts in issue), and the Lord Chancellor (or here the Judge of the Court of Probate) is desirous of ascertaining the truth by the verdict of a jury, and both parties pray that the same may be inquired of by the country : Now let a jury, &c. There appear to be no rules applying to issues thus directed ; probably because as soon as the order is made, they leave, as it were, the Court of Probate and enter the jurisdiction of that Court to which they are directed, until the postea is retm-ned. Get a copy of the rule directing the issue, if necessary instruct counsel to settle draft issue. When the draft is prepared leave it with the opposite attorney, who, if he agree in it, will return it approved. If you are unable to agree with the opposite attorney as to the form of issue, take the rule and draft issue to the Registrar, who will make an appointment to settle it. When the issue is settled and approved engross it on parchment. Take it then with the usual common law pracipefor a writ of summons to the Master'' s office of the particular Court in which the issue is to be tried. The clerk then will seal the engrossed issue ; the stamp is 5s. Serve a copy of the issue, with due notice of trial en- dorsed, on the opposite attorney. Notice of trial. The rule may direct what notice of trial is to be given, but the usual notice is the regular ten day notice of trial for country causes ; it wUl also direct the mode of trial. Practical directions. Digitized by Microsoft® CONTENTIOUS BUSINESS. 317 and whether before a common or special jury. If hy a Trial at special jury, give the ordinary notice to the sheriff of the *^^'^<>^- county, as in ordinary causes tried at the assizes. The record commences with a recital in the form given in No. 13, Forms, in C. B., stating how the cause began, whether by citation or warning, as the ease may be, and proceeds with a transcript of the issue as delivered; it is engrossed on parchment, and it is presumed, that any par- ticulars should be annexed to it in the same way as to a Nisi Prius record. Similarly annex the jury panel. Send the record with these documents annexed to the attorney in the country who conducts the cause, if there be one, if not, to any attorney in the country ; he will take them to the marshal at his lodgings in the assize town, and will enter the cause with him. The subpoenas are issued out of the Court where the issue is to be tried, and therefore must be tested in term. The plaintiff has the carriage of the suit, but if the By proviso, defendant be desirous of bringing the cause to a trial he may move the Court to which the issue is directed to be at liberty to carry the record down to trial at the next assizes, if he has reason to suppose that the plaintiff wishes • to delay, and the Court permitted a defendant to carry a record of an issue directed by Chancery down to trial, on a suggestion that the plaintiff intended to delay it(s). Be careful to apply by letter to the Registrars of the Practical Principal Registry to request them to direct the affidavits of scripts and testamentary papers in the cause to be sent to the District Registry nearest to the assize town, where the cause is to be tried; obtain, also, the consent of your opponent to allow the papers to be sent by post, and enclose his consent in your letter to the Registrars ; otherwise the Registry will send a special messenger with the papers, thus greatly increasing the expense. If possible, notice should be given to the District Registry, whither the (s) Sumpage v. Remley, 4 T. E. 767. Digitized by Microsoft® 318 CONTENTIOUS BUSINESS. Trial at assizes. Practical directions. Copies left in Registry. Trial, post- ponement of. ■papers have been sent, of the day on which they will be required in Court, otherwise a clerk from the office will be attending each day and so increasing the expenses. The safest course, however, is to serve the officer to whom the testamentary papers are transmitted with a subpoena duces tecum, issued and tested in like manner as the other sub- poenas. Otherwise it is difficult to see what remedy a party would have if the officer refused or neglected to attend. This will not prevent the sending, as a matter of courtesy and convenience, of the notice before mentioned. It must be remembered that the Principal Registry will not thus transmit through the post the testamentary- papers until examined copies (which they themselves always prepare) have been made and paid for, to be left in the Principal Registry in case of the loss of the originals. If, therefore, the testamentary papers are long or nume- rous, some delay on this account must be taken into con- sideration. In the Court of Chancery, it seems that if the plaintiff do not proceed to trial by the time directed, the defendant may in the next subsequent term move that Court that the matters in issue at Common Law be taken pro con- fesso (t). It is not probable that the Court of Probate would act in the same way, but would refuse to follow the precedent of the Court of Chancery in this. It would, however, probably foUow it in the practice of condemning the plaintiff in the costs for not proceeding to trial, unless good cause were shown. Defendant moved for the postponement of a trial from the spring to the summer assizes, on the ground that a material witness for the plaintiff, whom the defendant wished to cross-examine in Court, would be prevented by illness from being present at the trial ; the Court rejected the motion, as it appeared that the witness would probably die before the summer assizes, and no advantage would. (t) Casbarnc v. Barsliam, 5 M. & C. 113; Johnson v. Todd, 3 Beav. 218. Digitized by Microsoft® CONTENTIOUS BUSINESS. 3 1 9 therefore, be gained by tbe postponement. Quare, whether Trial at the unavoidable absence at the trial of a witness whom *^^'^''^- the applicant does not intend to call, but wishes to cross- examine, if called by the other side, is any ground for postponing the trial (m). Where ill the Court of Chancery, a decree directs an issue to be tried at the next assizes, an application to post- pone the trial, on account of the illness of a material witness, must be made to the Court which directed the trial (ar). Nevertheless, when the cause is entered, the record comes down to Nisi Prius, the Judge there is in posses- sion of it, and an application may be made to him to put the trial oS{7/). The cause takes its place in the list and comes on in its turn in the same way as the other causes at the assizes. In issues directed by the Court of Chancery, the decree may also direct that certain matters be admitted; and, semble, in issues directed by the Court of Probate, the Judge at the trial wiU take notice of the terms of the order by which the issue is directed. Where issues of devisavit vel non were directed by the Master of the KoUs, who ordered that they should be tried by a special jury, but that none of the special jury should reside within twelve miles of G. " (the assize town), there was no order as to the talesmen, only eight special jurors appeared: the plaintiff's counsel prayed a tales, but the other party objected. The Judge would not grant a tales, on the ground that there being no order of the Master of the EoUs as to the talesmen, and their residing within twelve miles of G. being no legal ground of challenge, the talesmen could not be asked on the voir dire as to their residences; and that if any of them did reside within twelve miles of G., the Master of the Rolls would probably order a new trial on that ground ; the trial, therefore, stood over till the next assizes (z). (m) Williams v. Benry 8f {y')Bnxton,r.Lawton,iC,SLm^A&i. othnrs, 33 L. J., P. & M. ] 10. («) Wood c]- others v. Thomimn, (a) KeUl T. Philpot, 9 Sim. 614. Car. & M. 171. Digitized by Microsoft® 320 CONTENTIOUS BUSINESS. Trial at assizes. Bill o£ exceptions. The plaintiff is entitled to begin, on the ground, that in such issues it will be presumed that the party ordered to be plaintiff was intended to begin (a). — Erskine, J. It must, however, be remembered that the titles of plaintiff and defendant in the Court of Probate are some- times misleading, see Eule 33, Con. B. 1862; it would seem to be that in such proceedings the more correct term would be " affirmant " or " party declaring." In issues directed by the Court of Chancery, the plaintiff may elect to be nonsuited, as in ordinary cases (6). But qucere, whether he may be nonsuited in issues directed by , the Court of Probate, as see below. Upon the trial a biU of exceptions will not lie ; but the regular course is to apply to the Court, which directed the issue, for a new trial; the Court of Chancery, however, will, on the waiver of the parties, allow a verdict on an issue to be made the subject of a proceeding in error (c). There are certain fundamental principles of the Court of Probate which render issues directed by it liable to consi- derations which do not ordinarily attach to issues directed by other Courts. The judgment of the Probate Court on a will is, in a measure, a judgment in rem, and it will not be bound by the assent or agreement of parties in the same manner as in cases where the judgment is strictly a judg- ment inter partes. It wiU fi'om this appear that the parties to a suit cannot by mere consent clothe an imper- fect document with the authority of a testamentary paper, but that in all cases evidence, which will justify the Court in so regarding it, must be produced at the hearing. Where, therefore, at a trial at the assizes on such an instrument, parties come to terms or agree to a verdict, the Court of Probate, when a motion is subsequently made to grant or refuse probate, as hereafter shown, will (a) Franli v. Franh, 2 Moo. & Rob. 314. (A) Barnes v. Ileadlry, 1 Campb. 164. (c) Clayton v. Nugent, 8 Jur. 867. Digitized by Microsoft® CONTENTIOUS BUSINESS. 321 •decline to recognize any such verdict, unless evidence has Trial nt been produced sufficient to justify such grant or refusal (d). ^^'"^^^^ Where the verdict is found, the postea is indorsed on the Postea. record as in ordinary cases, but it is not necessary to enter up judgment. The postea must be signed by the associate at the trial (e) : the associate then generally himself for- wards the record up to his London agents, to whom appli- cation should be made for it by the successful party, who should also direct the testamentary papers to be sent from the District Registry back to the Principal Registry, as these must be returned into the Registry before the motion can be made for a grant, or as the case may be, by the suc- cessful party, who must also ffle the record, with postea thereon, indorsed and signed as above in the Registry, with his case for motion. After the trial, however, the contentious proceedings may be at any time discontinued by order on summons, and the grant obtained by a Registrar's order, as in com- mon form proceedings. County Court.'] The enactments relating to the juris- diction of the county courts are 20 & 21 Vict. c. 77, ss. 55, 56, 57, 58, 59, 60, and 21 & 22 Vict. c. 95, ss. 10, 11, 12, 13; see Appendix I., and County Court Rules, see Appendix II, In estimating the value of the real estate to which a de- County court ceased was entitled at the time of his death, for the purpose •'°™ of deciding whether the county court has jurisdiction, charges upon such estate cannot be taken in consideration. If the estate be of the value of 300/., but the value of the deceased's interest in it is reduced by mortgage to less than 300/., the county court has no jurisdiction (/). The county court has no jurisdiction over a probate suit where the deceased died seised or beneficially entitled to {d) See Williams on Executors, P. & M. 39. 6th ed., pp. 316, 317. (/) Davies v. BrecJmell, 40 L. (e) West V. Goodrich, 31 L. J., J-, P. & M. 15. B. Y Digitized by Microsoft® 322 CONTENTIOUS BUSINESS. County court jurisdiction. real estate of the value of 300?., although the persons in- terested in the realty have not been cited (A). When contentious proceedings in a testamentary suit are referred by the Court of Probate to a county court, the Court of Probate has no further jurisdiction, except by way of appeal, over such proceedings (z). New Trial or Rehearinff.] See Rules 59 and 60, C. B. The expression, new trial, alludes to those cases where the original trial was before a jury. Rehearinff, where it has been heard before the Judge without a jury. New Trial.1 Where an issue had been tried at the assizes, it was held that the parties were not bound by the 35th Rule (1858), which directs that an application for a new trial must be made within ten days of the trial, or at the first sitting of the Court after the trial (A). The hearing of a motion for a new trial upon affidavits, if formally made in time wiU be postponed, when there has not been sufficient time to procure the necessary affidavits (Z). County court. The Court of Probate has no power to order a new trial of a cause commenced in, or transferred to, a county court. The only mode in which the decree of a Judge of a county court can be reviewed, is by appeal, under section 58 of Court of Probate Act, upon points of law, and the admis- sion or rejection of evidence. Upon questions of fact, the decision of the county court is final (?n). Appeal.'] See Rules 87 and 88, C. B., the notice of appeal does not operate as a stay of proceedings, without an order fi-om the Judge to that effect. At the trial of issues in a testamentary suit, the jury found that the residuary clause in the wiU had been ob- tained by undue influence, whereupon the Court pronounced (7t) Thomas v. Nurse, 39 L. J., P. & M. 80. (i) Maoleitr v. Macleur, 37 L. J., P. & M. 68 ; 1 L. R., Pro. 604. (/«) Charlton v. Sindmarsh, 29 L. J., P. & M. 163. (Z) Young v. Dendy, 36 L. J., P. & M. 43. {in) Zeally v. Veryard, 35 L. J., P. & M. 127; 1 L. K., Pro. 195. Digitized by Microsoft® CONTENTIOUS BUSINESS. 323 for the will, exclusive of the residuary clause, but sus- Appeal, pended the delivery out of probate, in order that an appli- cation for a new trial might be made : a rule for a new trial having been discharged, the plaintiff, who intended to appeal against the decree, asked for leave to appeal against the order discharging the rule : — Held that no such leave was necessary, as the order being interlocutory, it would be under appeal on the appeal against the decree (w). Where a party is .actually in contempt, but the contempt By party in is waived, he is not precluded from appealing to a superior *'°" ^™^ ' court (o). Enforcing Orders, §-c.J The Court of Probate has, under the 25th section of the 20 & 21 Vict. c. 77, the like powers, jurisdiction, and authority for enforcing its orders, decrees and judgments as are by law vested in the Court of Chancery, but the Hmit of this authority must be found in the powers exercised by the Court of Chancery prior to the passing of the 1 & 2 Vict. c. 1 10. The Court of Probate does not possess the additional powers and autho- rity indirectly conferred upon Courts of Equity for the enforcing of their orders by that statute. Where, therefore, large sums of stock stood in the books of the Bank of England in the name of an unsuccessM defendant in a testamentary suit, who admitted that he held the stock as executor and trustee for the original de- fendant, and who was condemned in the costs of the suit as executor and party, the Court refused to give effect to a writ of sequestration for payment of the costs, by granting an order on the Bank of England to pay into Court the dividends on the stock in question, an adverse order never having hitherto been made by a Court of Equity, on a third party to pay over to a creditor, money which he owes to the debtor (j»). (to) Smith T. Atkvni, 39 L. J., No. of Ca. 303. P & M. 78. (.P) Crispmy. Oimiano, 3Sli. J.,, (o) Ha/rrison v. Barruon, 1 P. & M. 28 ; 1 L. B., Pro. 622. .y2 Digitized by Microsoft® 324 CONTENTIOUS BUSINESS. Enforcing orders, &c. Attachment. Against mar- ried woman. On subpoena to bring in will. An executor, cited by a creditor to take probate of a ■mil, and assigned to do so, cannot be pronounced ia con- tempt for non-compliance with, the assignation, at the suit of the creditor (5'). Where the executors of a wiU intermeddled in the estate and effects of their testator, without taking probate of the instrument, a citation having been served upon them to enter an appearance and take probate, they entered an appearance but took no fiirther steps in the matter. The Court refused to grant an attachment against them for contempt in not obeying the citation, but directed a peremptory order to be served upon them to take probate within ten days from the date of the order (r). The Court will not issue an attachment against a married woman, who has no separate property, for not obeying an order for the payment of money (s). An attachment wiU not be granted against a married woman for disobedience of an order for payment of costs if she has no separate property. But the onus of esta- blishing that fact lies upon her, and if she does not appear upon a motion for an attachment, of which she has had notice, the Court will grant the attachment {t). But a married woman may be attached for non-com- pliance with a citation, calling upon her to file an inven- tory in the registry, of an estate, of which she is adminis- tratrix (m). The Court granted an order for an attachment against A. for disobedience of a subpoena, to bring in a will ; but directed that the attachment should lie in the registry for eight days after notice to A. of its having been issued, (q) Watson Y. Tomltins,! No. oi Ca. 313. (r) Mordmmt t. Clarke, 38 L. J., P. & M. 45. (s) Harris v. Bradlury, 31 L. J., P. & M. 86; 1 Sw. & Tr. 459. (t) Parher v. Bick, 33 L. J., P. & M. 154; 2 Sw. & Tr. 436. (?0 Baker t. Baker, 2 Sw. & Tr. 380. Digitized by Microsoft® CONTENTIOUS BUSINESS. 325 before proceedings should be taken to enforce it: the Enforcing application for such an attachment is contentious busi- ™ "^^l , . Attachment, ness (X). When a subpoena has been personally served upon an individual to bring in a testamentary paper and such indi- vidual fails to comply therewith, the Court will not at once order an attachment to issue against him, but wiU make a preliminary order that he shall attend in Court to be examined in reference to his possession of such paper (y). As a general rule, an attachment for disobeying an Personal ser- order of the Court wiU not be granted unless the order has been personally served. An order that a defendant " as administratrix of the effects of the deceased" do pay the plaintiff's costs of a suit is tantamount to an order that such costs should be paid out of the estate, and does not render the plaintiff personally liable : where, there- fore, such an order was made, and there were no assets, the Court refused an attachment for non-payment of the plaintiff's costs : money deposited in a bank by a hus- band in the joint names of himself and his wife, as a provi- sion for her in case of his death, upon his death becomes the absolute property of the wife (z). An administrator in custody under an attachment, ob- tained by the persons entitled in distribution, for not filing an inventory, is not entitled to be discharged from cus- tody, upon his filing such inventory except on payment of costs (a). Where damages and costs are not paid pursuant to an H. fa. order of the Court, leave will be granted to issue a ^eri facias under sect. 52 of 20 & 21 Vict. c. 85 (b). (a!) Simmons y. Seane, 27 L. J., P. & M. 127; 2 Sw. & Tr. 437. P & M 103 ^"'^ Marsliman v. Brookes, 32 L. (y) JParUnson v. Thornton, 37 J., P. & M. 95. I, J. P & M. 3. (*) -S«e'^ V. Reed, 29 L. J., P. & (z) Williams Y.Savies, 331,. J., M. 158. Digitized by Microsoft® 326 CONTENTIOUS BUSINESS, Taxation. County court trial. Wlio may be condemned in. Costs.] See C. P. Act, 1857, sect. 96, and C. P. Act, 1858, sect. 28, and Kules Non-Con. 88 to 91, D. K. 99, 100, and C. B. 92 to 95, all inclusive ; see also Kules 4, 5 and 6, C. B., as to the liabilities of executors, next of kin, and interveners. In taxing the costs of a trial in a testamentary suit, the Registrar is not bound by the practice of the Prerogative Court, which was to allow the fees of only two counsel at the hearing, but may exercise his discretion as to the number of counsel to be allowed (c). In taxing the costs of a trial, the Registrar has a dis- cretion as to the number of witnesses and number of counsel whose expenses and fees should be allowed; the expenses of only one consultation are usually allowed (). (0 Major V. Knight, 3 No. of L. J., P. & M. 134. Q^ gyj (o) NicholU ^ a/notlier v. (ot) supper V. BodUn, 2 Sw. Slum, X Sw. & Tr. 289. ^ Xr. 1. iP) Tippett t. Tippett, 35 L. J., (ra) Broadlent t. Hughes, 29 P. & M. 41. Digitized by Microsoft® 334 CONTENTIOUS BUSINESS. Costs. Omission in affidavit of scripts. Concealment desired by testator. The omission to annex to, or to mention in the affidavit of scripts, the instructions for a will, is no ground for allowing out of the estate the costs of an unsuccessful opposition to the wOl, if such opposition is not founded on the absence of instructions (q). The plaintiffs propounded a will made in "W., a foreign country : the defendant, the next of kin, pleaded that the testator, when he made his will, was a domiciled Scotch- man, and that the wiU was not executed in conformity with the laws of Scotland : the plaintiffs replied, first, that the testator was not domiciled in Scotland but in "W., and that the will was executed in conformity with the laws of W. ; secondly, that the wiU was executed so as to be vaKd according to the law of Scotland, if the testator was a domiciled Scotchman; issue was joined, but before the cause came on for trial, a Scotch Court of Appeal, for the first time, decided that the will of a domiciled Scotch- man affecting personalty, made in a foreign country and in accordance with its laws, is valid in Scotland: the defendant, as soon as he became cognizant of this deci- sion, gave notice that he should not further contest the will, and at the hearing offered no opposition: — Held that though the defendant, if he had raised simply the question of law, might have been entitled to costs out of the estate, yet that, as he had raised also the question of domicil, and without reason, he was not entitled to such costs (r). Nine years after a testator's death his executors pro- duced and propounded a will: it was opposed by the next of kin : the executors accounted for the delay by saying that the testator had desired that it should not be produced until after his mother's death: the will being admitted to probate, the Court held that as the conduct of the testator in desiring its concealment had given the (j) FoxmeU v. Poole, 32 L. J., P. & M. 8. (»•) Onslow ^ another v. Ck»i wm, 30 L. J., P. & M. 165. Digitized by Microsoft® CONTENTIOUS BUSINESS. 335 next of kin a reasonable ground for suspicion, she ought Costs, not to be condemned in the costs of her opposition (s). Not allowed. A., B. and C, three legatees named in a codicil, sought probate of it in solemn form against the executors named in the will; subsequently to their having pro- pounded the codicil, D., another legatee, intervened : the executors by their replication, which was given in after D. had intervened, admitted part of the alleged codicil, including the legacy to D. : — Held that D. was not entitled to have his costs out of the estate (i). Where the widow of a deceased propounded a will by which she was appointed sole executrix and universal legatee : one of the next of kin opposed, on the ground {inter alia) of incapacity, and upon that issue the Court pronounced against the wiU, but, under the special circum- stances of the case, declined to condemn the widow in costs; and it was held the next of kin, although not entitled to administration, was entitled to his costs out of the estate (m). In opposition to a will propounded by the executor, the Atteatino- wit- next of kin pleaded that the will was not duly executed : "^sses. at the trial one of the attesting witnesses was called by the executor, and proved due execution, but his evidence was contradicted by the other attesting witness who was called by the next of kin : a jury having found that the will was duly executed, the Court decreed probate, but refiised to make any order as to costs (ar). Where probate of a will was opposed by the next of kin, who was also the executor of a previous will, he made no inquiry into the circumstances under which the later will was executed, though he was aware of its execu- tion, and knew the name of the attorney who had prepared it : he pleaded undue execution, incapacity, and that the (s) Emlerley v. Trevanion, 29 (i«) Oritehell v. OritcheU, 32 L. L. J., P. & M. 143. J., P. & M. 108. (t) Shame ^ another v. Mar- (») Ferry v. King, 31 L. J., P. shall # others, 1 Sw. & Tr. 129. & M. 120j 3 Sw. & Tr. 61. Digitized by Microsoft® 336 CONTENTIOUS BUSINESS. Costs. will was not tlie last will of the deceased, but gave notice before the hearing that he did not intend to produce evi- dence : on cross-examination of a witness called in sup- port of the wUl, certain facts were elicited which in the opinion of the Court would have justified the next of kin in calling for proof of the wiU in solemn form, if they had been known to him : but as they were not known to him until stated by the witness in Court, and he had made no previous inquiry as to the circumstances attending the execution, the Court refused to allow his costs out of the estate, although it did not condemn him in costs (y). Where the Judge of assize was satisfied with a verdict for the plaintiffs, establishing a wiU, but would not have been dissatisfied with a contrary verdict, the Court refused to condemn the defendant in costs (z). Where next of kin unsuccessfully oppose a wUl on the ground of undue execution and incapacity, if there is reasonable ground for their opposition they will not be condemned in costs, even though they call witnesses in support of their plea (a). The question of undue influence is ofben a mixed ques- tion of the degree of pressure exercised, and the capacity of the testator to resist it. The Court refused to condemn a next of kin in costs who had unsuccessfially opposed a wiU on the ground of incapacity and undue influence, although there was no direct evidence of undue influence, when it appeared that the will was made in favour of the testator's widow and at her instigation by answer of aye and no, and at a time when his capacity might be fairly questioned (&). Where the only question in dispute between the parties in this suit was, whether the defendant had been lawfully married to the deceased : during the progress of it appli- es) Seaton v. Sturcli Si another, (a) Summerell v. Clements, 32 29 L. J., P. & M. 195. L. J., P. & M. 33; 3 Sw. & Tr. 35. («) Brantley ^ another v. (i) Smith t. Smith, 36 L. J., P. Sramley, 3 Sw. & Tr. 430. & M. 18. Digitized by Microsoft® CONTENTIOUS BUSINESS. 337 cations were made personally to tte defendant, and in Costs. writing to lier attorney, to state where such marriage had taken place: no answer was returned by the attorney, False informa- and the information given by the defendant on this point *'°°- was false: the marriage at the hearing was established, but the Court refused to condemn the plaintiff in the costs of the suit(c). Where the plaintiff propounded the will of the deceased No costs as to in a declaration in the ordinary form, and the defendant ^.^ ' 1 1 n 1 1 11 T • ^rr^^ 1 • Amendment 01 pleaded thereto : subsequently the plamtm brought m a declaration. special declaration, in heu of the first, and in such special declaration he alleged that the will had been executed under the circumsta-nces and with the formalities required by the law of the State of New York, America: that the deceased at the time was domiciled in that State, and that after his death the will received probate in the com- petent Court of the State : the defendant pleaded to this declaration, and evidence was taken on both sides under a requisition directed to the authorities of the State of New York : afterwards the plaintiff applied to amend his special declaration, by adding a clause that the deceased was a British subject, and had his domicil of origin in Ireland : the amendment having been made the defen- dant withdrew from the suit : — Held that as the plaintiff in amending his special declaration had relinquished the legal position intended to be maintained by it, the defen- dant was not liable for any costs incurred subsequently to ^ the filing of such declaration (d). In all cases the party opposing a will, may, with his Rule 41. plea, give notice to the party setting up the will, that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the wiU, and he shall thereupon be at liberty to do so, and shall be subject to the same {e) Wiseman t. Wiseman, 36 L. (d) Archer v. J3m-Jie, 37 L. J., J P. & M. 22; 1 L. R., Prob. 351. P. & M. 30. B. Z Digitized by Microsoft® 338 CONTENTIOUS BUSINESS. Costs. liabilities in respect of costs as lie would have been under Rule 41. similar circumstances, according to the practice of the Prerogative Court (e). Condemned in. Next of kin has generally a right to call on the executor to prove a winder testes, and to cross-examine the witnesses produced in support of it, without being subject to costs. If, however, he gives in a plea and fails to prove it, he wiU be hable to costs from the date of the plea {/). Plaintiff having propounded the will of a deceased, the defendant pleaded that the wiU was not duly executed, and that the deceased was incapable at the time of making a will: with this plea, under Rule 41, he gave notice that he only intended to cross-examine the witnesses pro- duced in support of the wiU: subsequently he obtained leave to and did file a plea of undue influence on the part of the plaintiff, but did not withdraw the above-mentioned notice : — Held that such notice only protected the defen- dant from costs in case he limited his cross-examination to those matters required to be established by an executor in proving a will in solemn form, namely, that the will was duly executed, and that the testator was capable at the time of execution (y). In a testamentary suit, the defendants with their pleas gave notice that they merely insisted upon the will being proved in solemn form of law by the production of the attesting witnesses, and that if both such witnesses were , . produced, they only intended to cross-examine the wit- nesses produced in support of the will. The plaintiff examined both the attesting witnesses: — Held that under the rules a sufficient notice had been given, and that the defendants, one of whom was an executor under an earlier will of the deceased than the one propounded, were not liable to be condemned in costs (h). («) Rule 41, C. B. P. & M. 79. (/) Farler v. Farler, 27 L. J., (A) Leman v. Qem-ge S( Rmser, P. & M. 103. 37 L. J., P. & M. 13. (y) Ireland v. Rcndall, 35 L. J., Digitized by Microsoft® CONTENTIOUS BUSINESS. 339 Where, in a testamentary suit, the plaintiff, opposing a Costs. codicil, pleaded that it was not executed in accordance -^"^^ *^- with the Wills Act. About three weeks after this plea had been filed a notice was given to the other party that if both the attesting witnesses to the codicil were produced at the hearing, the plaintiff would call no witnesses on that issue: — Held that whether or no the form of the notice was a compliance with the terms of the 41st Rule, as it was not delivered with the plea to the defendant, the . plaintiff could not claim under it any exemption as to costs (i). A party who pleads that the deceased did not know and approve of the contents of his will, may, therefore, upon that question cross-examine the witnesses produced by the plaintiff without being liable to costs, if he have given the notice required by Rule 41 (A). Where a next of kin unsuccessfully applied for revoca- Delay and tion of the probate of a wUl, he was condemned in costs, ^^^'^ ^^^^' although there was strong evidence of the incapacity of the testator, on the .ground that he had allowed an unreason- able time to elapse between the death of the testator and the institution of the suit, and had charged the widow of the testator and the drawer of the will with conspiring to obtain the wiU when the testator was incompetent (I). In deciding whether the costs of the unsuccessful party should be paid out of the estate or not, the Court wiU be guided by the opinion of the Judge before whom the t issues were tried : when the opposition is groundless, the unsuccessful opponent of a will who has pleaded the incapacity of the testator will be condemned in costs, although he may have acted lonajide (m). A next of kin who unsuccessfiiHy opposed a wiU was Who con- d,emned in. (i) Bone V. WUttle,-3G L. J., P. (0 Clayton t. Bavies, 33 L. J., ^ jj jg P. & M. 28s 3 Sw. & Tr. 290. (&) Clears T. Cleare, 38 L. J., (m) West y. Goodricls, 31 L. J., P & M. 81. P- & M. 39. z2 Digitized by Microsoft® 340 CONTENTIOUS BUSINESS, Costs. condemned in the costs of another next of kin whom he Condemned in. ]^^ cited to see proceedings, and who had appeared and pleaded, but had taken no further part in the pro- ceedings (m). A next of kin though not cited to see proceedings, and not having intervened, if in fact cognizant of a suit between the executor of a will and other next of kin ending in the establishment of the will, is not at liberty in any way to oppose probate of such will being taken ; and where on a verdict the Court has pronounced for a will, and a next of kin so situated had entered a caveat, the Court directed probate to issue in spite of the caveat, and condemned the next of kin in costs (o). Security for. The extinct court had the power of requiring security for costs where a party was out of the kingdom, the Pre- rogative Court directed him to give security for costs (p) ; whence it follows the present Court has the same power. C. P. A. sect. 4. There seems to have been a general rule (q), of the extinct courts, that in aU cases the Court may, upon application made to it, direct security for costs to be given by either or aU of the parties. Where an appellant became insolvent, an application for security for costs was refused on the ground that his assignee had appeared in the Court, who then became Hable for costs (r). A party in a cause becoming bankrupt was required to , give security for costs (s). But the power of the Court to make this order seeins to have been doubted by the Court of Appeal (t). («) Ooss V. Cross, 33 L. J., P. Hag. Ecc. R. & M. 49; 3 Sw. & Tr. 292. (?•) Jones v. Goodrich, 1 No. of (o) Batoliffe ^ another v. Ca. 624. Barnes, 2 Sw. & Tr. 486. («) Qoldie v. Murray, 1 No. of {p) Hillam, y. Wallier, 1 Hag. Ca. 35. Ecc. E. 72. (i) Jones v. Goodrich, 1 No. of (g) See Rule 13, 1830, set out Ca. 625. p. xvi at the commencement of 2 Digitized by Microsoft® CONTENTIOUS BUSINESS. 341 When a party is out of the kingdom the Court will Costs. direct him to give security for costs (m). Security for. As a general rule a defendant residing abroad will not Defendant re- be required to give security for costs. Semble, however, ^' ™^ ^ '°* ' that when the defendant on the record is substantially plaintiff he may, if resident abroad, be required to give security for costs. After letters of administration of the eifects of A., on the presumption of his death, had been decreed, but before the grant had been sealed, a person of the same name as A., and resident abroad, entered a caveat, and in the subsequent contentious proceedings, in which he was made defendant, opposed the application for adminis- tration on the ground that he was the alleged deceased : the Court refused to order him to give security for costs (y). But where probate was granted in 1835, and a motion After delay, was made for a decree calling on the executor to prove it in solemn form in 1853, the motion was granted on security being given for the costs (a;). The Court will not order the plaintiff to find security for costs, when, though a foreigner, he is staying in England at the time of the application, and there is nothing to lead to the supposition that he is on the point of leaving the country; his affidavit in opposition to such an application, need not state an iatention of permanent residence (y). An order was made for the revocation of a grant of Attorney's administration with the will annexed. The letters of ^™' administration were in the hands of the proctors who had obtained them, and who claimed a hen upon them for costs. The Court declined to order the proctors to (M) Hillam T. Walker, 1 Hag. («) Topping, In goods of, 2 Eoc. R. 72. Robert. 620. («) Rolson V. Roison, 3i L. J., (y) Oispin v. Doglione, 1 Sw. P. & M. 6; 3 Sw. & Tr. 568. & Tr. 522. Digitized by Microsoft® 342 CONTENTIOUS BUSINESS. Costs. deliver up the letters for the purpose of canceUation, but directed that a copy of its order, revoking the grant and requiring the executor to bring the letters into the Re- gistry if they ever came into his possession, should be served upon them (z). (z) Barnes v. Durlumt, 38 L. J,, P. & M. 46. Digitized by Microsoft® ( 343 ) APPENDIX I. STATUTES RELATING TO WILLS. 29 Car. 2, t. 3. 29 CaK. II. C. 3. [Thisacluire- pealedj except as to An Act for Prevention of Frauds and Perjuries. ^mlZ^r^T^i, ivfra.^ V. And be it further enacted by the authority aforesaid, that Devises of lands from and after the said four and twentieth day of June all aSaltteSeTb""^' devises and bequests of any lands or tenements devisable either tbree or four wit- by force of the Statute of Wills or by this statute, or by force ^'"^^' of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect. VI. And moreover, no devise in writing of lands, tenements, how the same or hereditaments, nor any clause thereof, shall at any time *''»i' be revocable, after the said four and twentieth day of June, be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his pre- sence and by his directions and consent, but all devises and bequests of lands and tenements shall remain and continue in force untU the same be burnt, cancelled, torn or obliterated by the testator, or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same, any former law or usage to the contrary notwithstanding. XII. And for the amendment of the law in the particulars Estates pur auter following, be it further enacted by the authority aforesaid, that ^"' *«^'*''''^«- from henceforth any estate pur auter vie shall be devisable by a will in writing signed by the party so devising the same, or by some other person in his presence and by his express directions. Digitized by Microsoft® 344 Appendix I. — Wills. 29 Car. 2, c. 3. And assets. Where no special occupant shall go to executors. Nuncupative wills. Testimony of nun- cupative wills. Probates of nun- cupative wills. Repeal of wills. Soldiers' and mariners' wills excepted. attested and subscribed in the presence of the devisor by three or more witnesses, and if no such devise thereof be made the same shall be chargeable in the hands of the heir, if it shaU come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple : and in case there be no special occupant thereof, it shall go to the executors or ad- ministrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. XIX. And for prevention of fraudulent practices in setting up nuncupative wills, which have been the occasion of much perjury, be it enacted by the authority aforesaid, that from and after the aforesaid four and twentieth day of June no nuncupa- tive will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses (at the least) that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear witness that such was his will, or to that effect, nor unless such nuncupative vrill were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath been resi- dent for the space of ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. XX. And be it further enacted, that after six months passed after the speaking of the pretended testamentary words no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were com- mitted to writing within six days after the making of the said will. XXI. And be it further enacted, that no letters testamentary or probate of any nuncupative will shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired, nor shall any nuncupative will be at any time received to be proved unless process have first issued to call in the widow or next of kindred to the deceased, to the end they may contest the same if they please. XXII. And be it further enacted, that no will in writing concerning any goods or chattels or personal estate shall be re- pealed, nor shall any clause, devise or bequest therein be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least. XXIII. Provided always, that notwithstanding this act any soldier being in actual military service, or any mariner or sea- man being at sea, may dispose of his moveables, wages, and Digitized by Microsoft® Appendix I. — "Wills. 345 personal estate as he or they might have done before the making 29 Car. 2, c. 3. of this act. XXIV. And it is hereby declared, that nothing in this act The jurisdiction shall extend to alter or change the jurisdiction or right of pro- <" m'"'^ s^^^i- bate of wills concerning personal estates, but that the Preroga- tive Court of the Archbishop of Canterbury, and other eccle- siastical courts, and other courts having right to the probate of such wills, shall retain the same right and power as they had before in every respect, subject nevertheless to the rules and directions of this act. XXV. And for the explaining one act of this present parlia- Husbunds not ment, intituled "An Act for the better settling Intestates' S^dWribuUon Estates," be it declared by the authority aforesaid, that neither of the personal the said act nor anything therein contained shall be construed wives. to extend to the estates of feme coverts that shall die intestate, 22 & 23 Car. 2, but that their husbands may demand and have administration "■ ^^■ of their rights, credits, and other personal estates, arid recover and enjoy the same, as they might have done before the making of the said act. 25 Geo. II. c. 6. An Act for avoiding and putting an End to certain 25 Geo. 2, l-. 6. Doubts and Questions, relatinq to the Attestation of iRepfaUd, exapi y,,. /y-»7..? • -n 7 T~i . 7 as to the cotonieSt It Ills ana Codicils, concerning Meal iLstates, m that ma m to mils Part of Great Britain called England, and in His b^xvift^^Me!^ Majesty's Colonies and Plantations in America. infra.-\ Whereas by an act made in the twenty -ninth year of the Preamble, reciting reign of his late Majesty King Charles the Second, intituled, 29"car."2.'"' "" "AnActforPrevention of Frauds and Perjuries ;" itis, amongst other things, enacted, that from and after the twenty-fourth day of June, in the year of our Lord one thousand six hundred and seventy-seven, all devises and bequests of any lands or tenements devisable, either by force of the Statute of Wills, or by that statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express direction ; and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of none eifect, which hath been found to be a wise and good provision: but whereas doubts have arisen who are to be deemed legal witnesses, within the intent of the said act; therefore, for avoiding the same, be it enacted by the King's most excellent Majesty, by and with the Digitized by Microsoft® 346 Appendix I. — Wills. 25 Geo. 2, c. 6. Devisee, &c. atteatiDg, tlie de- vise void, but lie admitted to prove tile will. Creditor attesting, admitted a wit- ness to the will. Legatee who has been paid, or shall refuse his legacy, admitted a wit- ness to the will. After tender and refusal he is barred from the leg.icy ; but after acceptance he may retain the same, though the will be adjudged void. advice and consent «f the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that if any person shall attest the exe- cution of any will or codicil, which shall be made after the twenty-fourth day of June, in the year of our Lord one thousand seven hundred and flfty-two, to whom any beneficial devise, legacy, estate, invest, gift, or appointment o^ or affect- ing any real or personal estate, other than and except charges on lands, tenements, or hereditaments, for payment of any debt or debts, shall be thei-eby given or made, such devise, legacy, estate, interest, gift, or appointment, shall, so far only as con- cerns such person attesting the execution of such will or codicil, or any person claiming under him, be utterly null and void; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act ; notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such will or codicil. And be it further enacted by the authority aforesaid, that in case, by any will or codicil already made, or hereafter to be made, any lands, tenements, or hereditaments, are, or shall be charged with any debt or debts ; and any creditor, whose debt is to charged, hath attested, or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act. And be it further enacted by the authority aforesaid, that if any person hath attested the execution of any will or codicil already made, or shall attest the execution of any will or codicil which shall be made on or before the said twenty-fourth day of June, in the year of our Lord one thousand seven hundred and fifty-two, to whom any legacy or bequest is or shall be thereby given, whether charged upon lands, tenements, or hereditaments, or not; and such person before he shall give his testimony concerning the execution of any such will or codicil, shall have been paid, or have accepted or released, or shall have refused to accept such legacy or bequest, upon tender made thereof; such person shall be admitted as a vntness to the execution of such will or codicil, within the intent of the said act, notwithstanding such legacy or bequest. Provided always, and be it further enacted, that in case of such tender and refusal, as aforesaid, such person shall in no wise be intitled to such legacy or bequest, but shall be for ever afterwards barred therefrom ; and in case of such acceptance, as aforesaid, such person shall retain to his own life the legacy or bequest which shall have been so paid, satisfied, or accepted, notwithstanding such will or codicil shall afterwards be adjudged or determined to be void, for want of due execution, or for any other cause or defect whatsoever. Digitized by Microsoft® Appendix I. — Wills. 347 And be it. further enacted, that in case any such legatee, as 25 Geo. 2, c. 6.- aforesaid, who hath attested the execution of any will or codicil Legatee attesting already made, or shall attest the execution of any will or codicil, and dying in the which shall be made on or before the said twenty- fourth day of testator, or before June, in the year of our Lord one thousand seven hundred and J'^f^'j^/^^'^lS^ fifty-two, shall have died in the lifetime of the testator, or be- admitted a wit- fore he shall have received or released the legacy or bequest so ™'* '° """ "'"■ given to him, as aforesaid, and before he shall have refused to receive such legacy or bequest, on tender made thereof, such legatee shall be deemed a legal witness to the execution of such will or codicil, within the intent of the said act, notwithstand- ing such legacy or bequest. Provided always, that the credit of every such witness, so Credit of tiie wit- attesting the execution of any will or codicil, in any of the Sred and°d'eter- cases in this act before mentioned, and all circumstances I'e- mined by tiie lating thereto, shall be subject to the consideration and deter- °°"'^ " mination of the court, and the jury, before whom any such witness shall be examined, or his testimony or attestation made use of; or of the Court of Equity, in which the testimony or attestation of any such witness shall be made use of ; in like manner, to all intents and purposes, as the credit of witnesses in aU other cases ought to be considered of, and determined. And be it further enacted by the authority aforesaid, that no s'o devisee where , 1 /.■ii.i'j.j. •i'j. • A the devise is made person, to whom any benencial estate, interest, girt, or appoint- ^oid j nor legatee ment, shall be given or made, which is hereby enacted to be ^^^^^l"^ null and void, as aforesaid, or who shall have refused to receive legacy, being ex- any such .legacy or bequest, on tender made, as aforesaid, and ""e^ntion Juhe who shall have been examined as a witness concerning the win, shaii atter- execution of such will or codicil, shall, after he shall have been YJ^l^yZ^^^' so examined, demand or take possession of, or receive, any or^compe^imtion profits or benefit of or from any such estate, interest, gift, or appointment, so given or made to him, in or by any such will or codicil; or demand, receive, or accept, from any person or persons whatsoever, any such legacy or bequest, or any satisfaction or compensation for the same, in any manner, or under any colour or pretence whatsoever. Provided always, and be it enacted by the authority afore- c^^j'^'"^";^,^^ said, that this act, or any thing herein contained, shall not vStyVwiiis^ extend, or be construed to extend, to the case of any heir at -^^-^e's^^ law or of any devisee in a prior will or codicil ot tlie same not affected by testator, executed and attested according to the said recited this act. act or any person claiming under them respectively, who has been in quiet possession for the space of two years next pre- ceding the sixth day of May, in the year of our Lord one thousand seven hundred and fifty-one, as to such lands, tene- ments and hereditaments, whereof he has been in quiet pos- session as aforesaid; and also that this act, or any thing herein contained, shall not extend, or be construed to extend, to any Digitized by Microsoft® 348 Appendix I. — Wills. 25 Geo. 2, c. 6. will or codicil, the validity or due execution whereof hath been contested in any suit in law or equity commenced by the heir of such devisor, or the devisee in any such prior will or codicil, for recovering the lands, tenements, or hereditaments, men- tioned to be devised in any will or codicil so contested, or any part thereof, or for obtaining any other judgment or decree relative thereto, on or before the said sixth day of May, in the year of our Lord one thousand seven hundred and fifty-one, and which has been already determined in favour of such heir at law, or devisee in such prior wiU or codicil, or any person claiming under them respectively, or which is stiU depending, and has been prosecuted with due diligence; but the validity of every such will or codicil, and the competency of the witnesses thereto, shall be adjudged and determined in the same manner, to all intents and purposes, as if this act had never been made ; any thing hereinbefore contained to the contrary thereof in any wise notwithstanding. Possessions which Provided always nevertheless, and it is hereby declared, that h'^nd°d vriuftathe ^° posscsslon of any heir at law, or devisee in such prior will meaning oi the or codicil as aforesaid, or of any person claiming under them preceding clause, respectively, which is consistent with, or may be warranted by or under, any will or codicil attested according to the true intent and meaning of this act, or where the estate descended or might have descended, to such heir at law, till a future or executory devise, by virtue of any will or codicil attested according to this act, should or might take effect, shall be deemed to be a possession within the intent and meaning of the clause herein last before contained. And whereas in some of the British colonies or plantations in America, the said act of the twenty-ninth year of the reign of King Charles the Second, has been received for law, or acts of assembly have been made, whereby the attestation and sub- scription of witnesses to devises of lands, tenements, and here- ditaments, have been required : Therefore, to prevent and avoid doubts which may arise in the said colonies or planta- tions, in relation to the attestation of such devises of lands, tenements, and hereditaments; be it enacted by the authority This act to extend aforesaid, that this act, and every clause, matter, and thing Brii'lsh colonies in therein contained, shall extend to such of the said colonies and America, where plantations, where the said act of the twenty-ninth year of the is received asT ' reign of King Charles the Second, is by act of assembly made, law, jie. or by usage received as law, or where by act of assembly or usage, the attestation and subscription of a witness or witnesses are made necessary to devises of lands, tenements, or heredita- ments; and shall have the same force and effect in the construc- tion of, or for the avoiding of doubts upon, the said acts of assembly, and laws of the said colonies and plantations, as the same ought to have in the construction of, or for the avoiding Digitized by Microsoft® Appendix I. — Wills. 349 of doubts upon, the said act of the twenty ninth year of the 25 Geo. 2, c.-6. reign of King Charles the Second in England. Provided always, that as to cases arising in any of the said Derises, &o. colonies or plantations in America, no such devise, legacy, or i^j^Jch.'iTsI, to bequest as aforesaid, shall be made null and void, by virtue of "« ""'y "o^^- this act, unless the will or codicil whereby such devise, legacy, or bequest shall be given, shall be made after the first day of March, which shall be in the year of our Lord one thousand seven hundred and fifty-three. tain words in this act: 1 Vict. c. 26. An Act for the Amendment of the Laws with respect to 1 Vict, c 26. mils. [3rd July, 1837.] Be it enacted by the Queen's most excellent Majesty, by and Meaning of cer- with the advice and consent of the lords spiritual and temporal, '"' ' ' and commons, in this present parliament assembled, and by the authority of the same, that the words and expressions herein- after mentioned, which in their ordinary signification have a more confined or a diflerent meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows ; (that is to say,) the word "will" shall extend to a testament, and to a "wui;" codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled "An Act for taking 12 Car. 2, c. 24. away the Court of Wards and Liveries, and Tenures in capite and by Knights Service and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof," or by virtue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled "An Act for taking away the Court of Wards and Liveries and 14 & I6 Car. 2 (i.) Tenures in capite and by Knights Service," and to any other testamentary disposition; and the words "real estate" shall ex- " Real estate ;■■ tend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any un- divided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "personal estate" "Fereonai estate i" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities Digitized by Microsoft® 350 Appendix I. — Wills. l.Vict. c. 26. Number; Geiirler. Repeal of the Statutes of Wills, 32 Hen. 8, c. 1, and 34 & 3S PIcn. S, 0. S. 10 Car. 1, sess. 2, c. 2 (I.) Sects. 5, e, 12, 19, 20,21 & 23 of the Statute of Frauds, 29 Car. 2, c. 8 ; 7 Will. 3, c. 12 (I.) Sect. }4 of 4 & 5 Anne, c. 16. 6 Anne, c. 10 (I.) Sect. 9 of 14 Geo. 2, c. 20. 25 Geo. 2, c. 6 (ex- cept 09 to colo- uieB). for money (not being real estates), debts, choses in action, rigbts, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. II. And be it further enacted, that an act passed in the thirty- second year of the reign of King Henry the Eighth, intituled " The Act of Wills, Wards, and Primer Seisins, whereby a Man may devise Two Parts of his Land ;" and also an act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth, intituled "The Bill concerning the Explanation of Wills;" and also an act passed in the parliament of Ireland in the tenth year of the reign of King Charles the First, intituled "An Act how Lands, Tenements, &c. may be disposed by Will or otherwise, and concerning Wards and Primer Seisins;" and also so much of an act passed in the twenty-ninth year of the reign of King Charles the Second, intituled "An Act for Prevention of Frauds and Perjuries," and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled " An Act for Pre- vention of Frauds and Perjuries," as relates to devises or be- quests of lands or tenements, or to the revocation or alteration of any devise in writing of any lands, tenements, or heredita- ments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estate, being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein ; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled "An Act for the Amendment of the Law and the better Advancement of Justice," and of an act passed in the parliament of Ireland in the sixth year of the reign of Queen Anne, intituled "An Act for the Amendment of tihe Law and the better Advancement of Justice," as relates to witnesses to nuncupative wills; and also so much of an act passed in the fourteenth year of the reign of King G-eorge the Second, inti- tuled "An Act to amend the Law concerning Common Eeco- veries, and to explain and amend an Act made in the Twenty- ninth Year of the Reign of King Charles the Second, intituled 'An Act for Prevention of Frauds and Perjuries,' "as relates to estates pur autre vie; and also an act passed in the twenty -fifth year of the reign of King George the Second, intituled "An Act for avoiding and putting an end to certain Doubts and Questions relating to the Attestation of Wills and Codicils con- cerning Real Estates in that Part of Great Britain called Eng- Digitized by Microsoft® Appendix I.— "Wills. 351 land, and in his Majesty's Colonies and Plantations in America," 1 Vict. c. 26. except so far as relates to his Majesty's colonies and plantations in America; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Second, intituled "An Act for the avoiding and putting an end 25Gco. 2,c.U(i.) to certain Doubts and Questions relating to the Attestation of Wills and Codicils concerning Real Estates ;" and also an act passed in the fifty-fifth year of the reign of King George the Third, intituled "An Act to remove certain Difficulties in the 55 Geo. 3, c 192. Disposition of Copyhold Estates by Will," shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any virills or estates pur autre vie to vrhich this act does not extend. III. And be it further enacted, that it shall be lavi^ful for au property may every person to devise, bequeath, or dispose of, byhis-will exe- s^. «»poseci of by cuted in manner hereinafter required, all real estate and all per- sonal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that comprisins cus- the power hereby given shall extend to all real estate of the Inacop^ioidr' nature of customary freehold or tenant , right, or customary or without suiTender copyhold, notwithstanding that the testator may not have sur- tancefana also' ' rendered the same to the use of his wiU, or notwithstanding such of them as that, being entitled as heir, devisee, or otherwise to be admitted vised; thereto, he shall not have been admitted thereto, or notwith- standing that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will accord- ing to the power contained in this act, if this act had not been made; and also to estates pur autre vie, whether there shall or estates pur autre shall not be any special occupant thereof, and whether the same ^'^°' shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament ; and also to all contingent in- contingent, executory, or other future interests in any real or '*''^'*'' personal estate, whether the testator may or may not be ascer- tained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will ; and also to all rights of entry for conditions broken, and other rights of entry ; rights of entry; and also to such of the same estates, interests, ^SfrRtw'eM- cution of the will. Digitized by Microsoft® 352 Appendix I. — "Wills. 1 Vict. c. 20. Aa to the fees and fines payable by devisees of cus- tomary and copy- hold estates. Wills or extracts of wills of cus- tomary freeholds and copyholds to be entered on the court rolls : and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwith- standing that he may become entitled to the same subsequently to the execution of his will. IV. Provided always, and be it further enacted, that where any real estate of the nature of customary freehold or tenant right, or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and pay- able in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator : provided also, that where the testator was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surren- dered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the ad- mittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. V. And be it further enacted, that when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such, real estate, to be entered on the court rolls of such manor or reputed manor ; and when " any trusts are declared by the will of such real estate it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; Digitized by Microsoft® Appendix I. — Wills. 353 and when any sucli real estate could not have heen disposed of l Vict. c. 26. by will if this act had not been made, the same fine, heriot, dues, ana the lord to be duties, and services shall be paid and rendered by the devisee 5ame'fl!ie?&c° as would have been due from the customary heir in case of the when such estates descent of the same real estate, and the lord shall, as against the visabio as he devisee of such estate, have the same remedy for recovering and *ouu have been n • 1 _o 7 • T 1 . -, . 7 . irora the heir lu entorcmg sucn iine, heriot, dues, duties, and services as he is case of descent. now entitled, to for recovering and enforcing the same from or against the customary heir in case of a descent. VI. And be it further enacted, that if no disposition by will Estates pur autre shall be made of any estate pur autre vie of a freehold nature, ™' the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assents by de- scent, as in the case of freehold land in fee simple ; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or adminis- trator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or adminis- trator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be ap- plied and distributed in the same manner as the personal estate of the testator or intestate. VII. And be it further enacted, that no will made by any ifo win of a per- person under the age of twenty-one years shall be valid. vaud" "^ "''^ VIII. Provided also, and be it further enacted, that no will Nor of a feme made by any married woman shall be valid, except such a will g°ch'^Ss';Sj as might have been made by a married woman before the passing now be made. of this act. IX. And be it fiirther enacted, that no will shall be valid Every wiii shaii imless it shall be in writing and executed in maimer hereinafter sigSdYy tue'tes- mentioned ; fthat is to say,) it sha,ll be signed at the foot or end ""°'' '" '"^ i'™.: 1 nt ,1 , , , 1 ,1 ■ 1 • sence of two vvit- thereoi by the testator, or by some other person m nis presence nesses at one and by his direction ; and such signature shall be made or ac- t™8(«^ knowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. X. And be it further enacted, that no appointment made by Appointments by will, in exercise of any power, shall be valid, unless the same ratedUkeMher be executed in manner hereinbefore required ; and every wil]» wins, and to be . T. T '1^ -ji-n-/ valid, although executed m manner hereinbefore required shall, so tar as other required respects the execution and . attestation thereof, be a vahd exe- n"^™"^",^^^ ''^ cution of a power of appointment by will, notwithstanding it ° shall have been expressly required that a will made in exercise (a) Amended by 15 Vict. c. 24, infra. B. A A Digitized by Microsoft® 354 Appendix I. — Wills. 1 Vict. c. 26. Soldiers' and ma- riners' ■wills ex- cepted. Act not to affect certain provisions nj 11 Geo. 4 & 1 Will. 4, c. 20, with respect to wills of petty officers and si?amcn and ma- rines. Pnbllcation not to be requisite. ■Will not to be void on account of incompetency of attesting witness. Gifts to an attest- ing witness to be void (6). Creditor attesting to be admitted a witness (6). of such power should be executed with some additional or other fovm of execution or solemnity. XI. Provided always, and be it further enacted, that any soldier being in actual military service, or any mariner or sea- man being at sea, may dispose of his personal estate as he might have done before the making of this act. XII. And be it further enacted, that this act shall not preju- dice or affect any of the provisions contained in an act passed in the eleventh year of the reign of his Majesty King George the Fourth and the first year of the reign of his late Majesty King William the Fourth, intituled " An Act to amend and consoli- date the Laws relating to the Pay of the Royal Navy," re- specting the wills of petty officers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other monies payable in respect of services in her Majesty's navy. XIII. And be it further enacted, that every wUl executed in manner hereinbefore required shall be valid without any other publication thereof. XIV. And be it further enacted, that if any person who shall attest the execution of a will shall at the time of the executiou thereof or any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. XV. And be it further enacted, that if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appoint- ment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as con- cerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly nuU and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will. XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. (J) As to wills made before 1838 in these respects, see 25 Geo. II. c. 6, Digitized by Microsoft® Appendix I.— Wills. 355 XVn. And be it further enacted, that no person shall, on 1 Vict. c. 26. account of his being an executor of a will, be incompetent to be Executor to be admitted a witness to prove the execution of such will, or a ^^'A^**'""' witness to prove the validity or invalidity thereof. XVm. And be it further enacted, that every will made by wui to be revokea a roan or woman shaU be revoked by his or her marriage (except ^^ marriage. a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions). XIX. And be it further enacted, that no will shall be revoked No win to be re- by any presumption of an intention, on the ground of an altera- sumption.''^"' tion in circumstances. XX. And be it further enacted, that no wUl or codicil, or any N" ■^>" '» ^^ "^- part thereof, shall be revoked otherwise than as aforesaid, or Inother wiifor by another wUl or codicil executed in manner hereinbefore re- ""d"^". ^ 'y " • J -I ..... . . ,. "wnluig executed quired, or by some writing declaring an intention to revoke the like a wui, or by same, and executed in the manner in which a will is herein- destruction. before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of re- voking the same. XXI. And be it further enacted, that no obliteration, inter- No alteration in a lineation, or other alteration made in any will after the execu- ^„'y laect unless tion thereof shall be valid or have any effect, except so far as executed as a wiii. the words or effect of the will before such alteration shaU not be apparent unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. XXn. And be it further enacted, that no will or codicil, or m win revoked any part thereof, which shall be in any manner revoked, shall ^t^wtoThan by be revived otherwise than by the re-execution thereof, or by re-execution or a a codicil executed in manner hereinbefore required, and showing ■=" " ° an intention to revive the same ; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. (c) See note (J), ante, p. 354. A a2 Digitized by Microsoft® 356 Appendix I. — "Wills. 1 Vict. c. 26. A devl.se not to be rendered Inoperiw tive by any.siib- sequent convey- ance or act. A will shall be construed to spealc from the death of the testator. A residuary de- vise shall include estates comprised in lapsed and void devises. A ffeneral devise of the testator's lands shall include copyhold and leaaeliold as well us freehold lands. A general gift shall include es- tates over which the testator has a general power of appointment. XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. XXIV. And be it further enacted, that every wUl shall he construed, with reference to the real estate and personal estate comprised in it, to speak and take eiFect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. XXV. And be it further enacted, that, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shaU. be included in the residuary devise (if any) contained in such will. XXVI. And be it further enacted, that a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it,. shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his custom- ary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. XXVII. And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be con- strued to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a con- trary intention shall appear by the will ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be con- strued to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. Digitized by Microsoft® Appendix I. — "Wills. 357 XXVIII. And be it further enacted, that where any real 1 Vict. c. 26. estate shall be devised to any person without any words of a devise without limitation, such devise shall be construed to pass the fee simple, "attastaii'be"™' or other the whole estate or interest which the testator had construed to pass power to dispose of by will in such real estate, unless a contrary "" '^'• intention shall appear by the will. XXIX. And be it further enacted, that in any devise or The words " die bequest of real or personal estate the words " die without i^'a* wftiS'" °'' issue," or " die without leaving issue," or " have no issue," or leaving issue," any other words which may import either a want or failure of to mean di'efwith- issue of any person in his lifetime or at the time of his death, ™' issue iMng at or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention sLaU appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or other- wise : provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a pre- ceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. XXX. And be it further enacted, that where any real estate no devise to trus- (other than or not being a presentation to a church) shall be ex^ptta-Tte™ devised to any trustee or executor, such devise shall be construed <» a presentation to pass the fee simple or other the whole estate or interest which pugg a chattel la- the testator had power to dispose of by wiU in such real estate, ^''^^'■■ imless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. XXXI. And be it further enacted, that where any real estate Trustees under an shall be devised to a trustee, without any express limitation of ^h™e tht tmsf' the estate to be taken by such trustee, and the beneficial interest "„^y^^j^''g"j^°^''^j-jj in such real estate, or in the surplus rents and profits thereof, person tjenefloiaiiy shaU not be given to any person for life, or such beneficial inte- l'^*'^^^^"^^^' rest shall be given to any person for life but the purposes of the trust may continue beyond the hfe of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. XXXn And be it further enacted, that where any person Devises ot estates to whom any real estate shall be devised for an estate tail or an tausnau not lapse. estate in quasi entail shall die in the Ufetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the Digitized by Microsoft® 358 Appendix I.— Wills. 1 Vict. c. 26. Gifts to children or other issue who leave issue living at the testator's death shall not lapse. Act not to extend to wills made be- fore 1838, nor to estates pur autre vie of persons who die before 1838. Act not to extend to Scotland. Act may be altered this ses- sion. testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. XXXin. And be it further enacted, that where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened imme- diately after the death of the testator, unless a contrary inten- tion shall appear by the will. XXXIV. And be it further enacted, that this act shall not extend to any will made before the first day of January, one thousand eight hundred and thirty-eight, and that every will re-executed or republished, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived ; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. XXXV. And be it further enacted, that this act shall not ex- tend to Scotland. XXXVI. And be it enacted, that this act may be amended, altered, or repealed by any act or acts to be passed in this pre- sent session of parliament. 15 Vict. c. 24 (Locke King's Act). 15 Vict. c. 24. An Act for the Amendment of an Act passed in the First Year of the Reign of Her Majesty Queen Victoria, intituled "An Act for the Amendment of the Laws with respect to Wills:' [17th June, 1852.] Whereas the laws with respect to the execution of wills re- quire further amendment : be it therefore enacted by the Queen's most exceDent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same (as follows) : I. Where by an act passed in the first year of the reign of 1 Vict. c. 26. her Majesty Queen Victoria, intituled " An Act for the Amend- ment of the Laws with respect to Wills," it is enacted, that no will shall be valid unless it shall be signed at the foot or end Digitized by Microsoft® Appendix I. — Wills. 359 thereof by the testator, or by some other person in his presence, 15 Vict. c. 24. aad by his direction : every will shall, so far only as regards the when signature position of the signature of the testator, or of the person signing ^"e^^jVlua' "^ for him as aforesaid, be deemed to be valid within the said en- actment, as explained by this act, if the signature shall be so placed at or after, or following or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circumstance that the signature shall not foUow or be immediately after the foot or end of the "will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attesta- tion, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to con- tain the signature ; and the enumeration of th? above circum- stances shall not restrict the generality of the above enactment ; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. II. The provisions of this act shall extend and be applied to Act to extend to every will akeady made, where administration or probate has XSy^e. not already been granted or ordered by a court of competent jurisdiction in consequence of the defective execution of such will, or where the property, not being within the jurisdiction of the ecclesiastical courts, has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in conse- quence of the defective execution of such will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the will, by a court of competent jurisdiction, in consequence of the defective exe- cution of such will. III. The word " will" shall in the construction of this act be interpretation of interpreted in like manner as the same is directed to be inter- "'""'■" preted under the provisions in this behalf contained in the said act of the first year of the reign of her Majesty Queen Victoria. Digitized by Microsoft® 360 Appendix I,— Wills. 15 Vict. c. 24. IV. This act may be cited as " The Wills Act Amendment Short title of act. Act, 1852." 24 & 25 Vict. c. 114. "Wills made out of ttic kingdom to be admitted if made according to tlie law of the place where mude. "Wills made in the ltin;?tlom to be ad- mitted if made ac- cording to local usage. Change of domi- cile not to invali- date will. ITothing in this act. to invalidate wills otherwise made. Extent, of act. 24 & 25 Vict, c, 114. An Act to amend the Law with respect to Wills of Personal Estate made hy British Subjects. [eth August, 1861. J Be it enacted by the Queen's most excellent Majesty, by and witb the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : 1. Every will and other testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same or at the time of his or her death) shall as regards personal estate be held to be well executed for the purpose of being admitted in England and Ireland to probate, and in Scotland to confirma- tion, if the same be made according to the forms required either by the law of the place where the same w^as made or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of her Majesty's dominions where he had his domicile of origin. 2. Every will and other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same or at the time of his or her death) shall as regards personal estate be held to be well executed, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made. 3. No will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domi- cile of the person making the same. 4. Nothing in this act contained shall invalidate any will or other testamentary instrument as regards personal estate which would have been valid if this act had not been passed, except as such will or other testamentary instrument may be revoked or altered by any subsequent will or testamentary instrument made valid by this act. 5. This act shall extend only to wills and other testamen- tary instruments made by persons who die after the passing of this act. Digitized by Microsoft® Appendix I.— Wills. 361 24 & 25 Vict. c. 121. An Act to amend the Law in relation to the Wills and 24 & 25 Vict. Domicile of British Subjects dying whilst resident "^^ ^'^^^ abroad, and of Foreign Subjects dying whilst resi- . dent within Her Majesty''s Dominions. [6th August, 1861.J Whereas by reason of the present law of domicile the wills of British subjects dying whilst resident abroad are often defeated, and their personal property administered in a manner contrary to their expectations and belief ; and it is desirable to amend such law, but the same cannot be effectually done without the consent and concurrence of foreign states : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by autho- rity of the same, as follows : 1. Whenever her Majesty shall by convention with any no Bvitui) subject foreign state agree that provisions to the effect of the enact- comuiy to bT'^° ments herein contained shall be applicable to the subjects of her aeeinea to imvc Majesty and of such foreign state respectively, it shall be lawful clS'uaiess rrsi"-'" for her Majesty by any order in council to direct, and it is dent there fm- one hereby enacted, that from and after the publication of such precediiiRw"or^ order in the London Gazette no British subject resident at the her death, &c , rti. 1 Ti>i/»' 1- ^and lor all pur- time or his or her death m the foreign country named in such poses of testate or order shall be deemed under any circumstances to have acquired staf shiVrSn a domicile in such country unless such British subject shall the domicile pos- have been resident in such country for one year immediately of^oing toreaide^ preceding his or her decease, and shall also have made and in such fovtign deposited in a public office of such foreign country (such office °°"" '^' to be named in the order in council) a declaration in writing of his or her intention to become domiciled in such foreign country; and every British subject dying resident in such foreign country, but without having so resided and made such declaration as aforesaid, shall be deemed for all purposes of testate or intestate succession as to moveables to retain the domicile he or she possessed at the time of his or her going to reside in such foreign country as aforesaid. 2. After any such convention as aforesaid shall have been No foreign subject entered into by her Majesty with any foreign state it shall be B^.;i'^^ta"?iretond lawful for her Majesty by order in council to direct, and from to be deemed to and after the publication of such order in the London Gazette Somwfe unfes? it shall be and is hereby enacted, that no subject of any foreign JJ^'jJ,^"' '"erein country who at the time of his or her death shall be resident in med°ate'iy'pr™" any part of Great Britain or Ireland shall be deemed under any ^|^™k ^is or her circumstances to have acquired a domicile therein, unless such foreign subject shall have been resident within Great Britain or Ireland for one year immediately preceding his or her Digitized by Microsoft® 362 Appendix I.— Wills. 24 & 25 Vict, c. 121. TVho this act shall not apply to. When subjects of foreign states shall die in her Majesty's domi- nions, and there shall be no persons to administer to their estates, the consuls of such foreign states may administer. decease, and shall also have signed, and deposited with her Majesty's secretary of state for the home department, a declaration in writing of his or her desire to become and be domiciled in England, Scotland, or Ireland, and that the law of the place of such domicile shall regulate his or her moveable succession. 3. This act shall not apply to any foreigners who may have obtained letters of naturalization in any part of her Majesty's dominions. 4. Whenever a convention shall be made between her Majesty and any foreign state, whereby her Majesty's consuls or vice- consuls in such foreign state shall receive the same or the like powers and authorities as are hereinafter expressed, it shall be lawful for her Majesty by order in council to direct, and from and after the publication of such order in the London Gazette it shall be and is hereby enacted, that whenever any subject of such foreign state shall die within the dominions of her Majesty, and there shall be no person present at the time of such death who shall be rightfully entitled to administer to the estate of such deceased person, it shall be lawful for the consul, vice- consul, or consular agent of such foreign state within that part of her Majesty's dominions where such foreign subject shall die, to take possession and have the custody of the personal property of the deceased, and to apply the same in payment of his or her debts and funeral expenses, and to retain the surplus for the benefit of the persons entitled thereto ; but such consul, vice- consul, or consular agent shall immediately apply for and shall be entitled to obtain from the proper court letters of adminis- tration of the effects of such deceased person, limited in such manner and for such time as to such court shall seem fit. 28 & 29 Vict. c. 72. 28 & 29 Vict. An Act to make better Provision respecting Wills of Sea- c. 72. jjjg^ ^^^ Marines of the Royal Navy and Marines. [29th June, 1865.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and tem- poral, and commons, in this present parliament assembled, and by the authority of the same, as follows : ihort title. 1. This act may be cited as " The Navy and Marines (Wills) Act, 1865." 2. In this act — The term " the admiralty" means the lord high admiral of the United Kingdom, or the commissioners for executing the office of lord high admiral : Interpretation of terms. Digitized by Microsoft® Appendix I. — Wills. 363 The term " seaman or marine" means a petty officer or sea- 28 & 29 Vict, man, non-commissioned officer of marines or marine, or c. 72. other person forming part in any capacity of the comple- ment of any of her majesty's vessels, or otherwise belong- ing to her Majesty's naval and marine force, exclusive of commissioned, warrant, and subordinate officers, and assist- ant engineers, and of Kroomen. 3. A will made after the commencement of this act by any win made before person at any time previously to his entering into service as a ^t?w^^s°&& seaman or marine shall not be valid to pass any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the admiralty, or any effects or money in charge of the admiralty. 4. A will made after the commencement of this act by any ■win invalid « person while serving as a seaman or marine shall not be- valid power of'atton.ey. for any purpose if it is written or contained on or in the same paper, parchment, or instrument with a power of attorney. 5. A will made after the commencement of this act by any EeBuiations for person while serving as a seaman or marine, or when he has scl'sa to w™es', ceased so to serve, shall not be valid to pass any wages, prize &«. money, bounty money, grant, or other allowance in the. nature thereof, or other money payable by the admiralty, or any effects or money in charge of the admiralty, unless it is made in con- formity with the following provisions : — (1.) Every such will shall be in writing and be executed with the formalities required by the law of England in the case of persons not being soldiers in actual * military service or mariners or seamen at sea. (2.) Where the will is made on board one of her Majesty's ships, one of the two requisite attesting witnesses shall be a commissioned officer, chaplain, or warrant or subordinate officer belonging to her Majesty's naval or marine or military force : (3.) Where the will is made elsewhere than on board one of her Majesty's ships, one of the two requisite attesting witnesses shall be such a commissioned officer or chaplain or warrant or subordinate officer as aforesaid, or the governor, agent, physician, surgeon, assistant surgeon, or chaplain of a naval hospital at home or abroad, or a justice of the peace, or the incumbent, curate, or minister of a church or place of worship in the parish where the will is executed, or a British consular officer, or an officer of customs, or a notary public : A will made in conformity with the foregoing provisions shall, as regards such wages, money, or effects, be deemed to be well 'made for the purpose of being admitted to probate in England ; and the person taking out representation to the Digitized by Microsoft® 364 Appendix I.— "Wills. 28 & 29 Vict, c. 72. As to willa made by prisouers of war. Paj'ment under will not in con- formity with act. Commencement of act. Publication of orders in council. testator under such will shall exclusively be deemed the tes- tator's representative with respect to such wages, money, or effects. 6. Notwithstanding anything in this or any other act, a will made after the commencement of this act by a seaman or marine while he is a prisoner of war shall (as far as regards the form thereof) be valid for all purposes if it is made in conformity with the following provisions : — (1.) If it is in writing and is signed by him, and his signa- ture thereto is made or acknowledged by him in the presence of and is in his presence attested by one witness, being either a commissioned officer or chaplain belonging to her Majesty's naval or marine or military force, or a warrant or subordinate officer of her Majesty's navy, or the agent of a naval hospital, or a notary public : (2.) If the will is made according to the forms required by the law of the place where it is made : (8.) If the will is in writing and executed with the formalities required by the law of England in the case of persons not being soldiers in actual military service or mariners or seamen at sea. 7. Notwithstanding anything in this act, in case of a will made after the commencement of this act by any person while serving as .a marine or seaman, and being either in actual mili- tary service or a mariner or seaman at sea, the admiralty may pay or deliver any wages, prize money, bounty money, grant or other allowance in the nature thereof, or other money payable by the admiralty or any effects or money in charge of the admiralty to any person claiming to be entitled thereto under such will, though not made in conformity with the provisions of this act, if, having regard to the special circumstances of the death of the testator, the admiralty are of opinion that compli- ance with the requirements of this act may be properly dis- pensed with. 8. This act shall commence on such day, not later than the first day of January, one thousand eight hundred and sixty-six, as her Majesty in council thinks fit to direct ; nevertheless her Majesty in council may, if it seems fit, with reference to any places out of the United Kingdom, direct that this act do not commence there, respectively, until a time after that day, and with respect to every such place the time so appointed shall be deemed the time of commencement of this act. 9. Every order in council under this act shall be published in the London Gazette, and shall be laid before both houses of parliament within thirty days after the making thereof, if par- liament is then sitting, and if not, then within thirty days after the next meeting of parliament. Digitized by Microsoft® Appendix I.— Executoes and Administeatoes. 365 STATUTES RELATING TO EXECUTORS AND ADMINISTRATORS. 22 & 23 Cae. II. c. 10. An Act for the better settling of Intestates Estates. 22 & 23 Car. 2, Be it enacted by the King's most excellent Majesty, with the '^' advice and consent of the lords spiritual and temporal, and ^1™ "wer'to'"'"' the commons in this present parliament assembled, and by the srant administia- authority of the same, That aU ordinaries, as well the Judges totakeToni^^" of the Prerogative Courts of Canterbury and York for the time being as all other ordinaries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may, upon their respective granting and committing of administrations of the goods of persons dying intestate after the first day of June, one thousand six hundred seventy and one, of the respective person or per- sons to whom any administration is to be committed take suffi- cient bonds, with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner following, mutatis mutandis; viz. : — II. " The condition of this obligation is such, that if tlie Tiie conaition of within bounden A. B., administrator of all and singular the ^''^^^■ goods, chattels and credits of C. D. deceased, do make or cause to be made a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased which have or shall come to the hands, possession or knowledge of him the said A. B., or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the registry of Court at or before the day of next ensuing, and the same goods, chattels and credits, and all other the goods, chattels arid credits of the said deceased at the time of his death which at any time after shall come to the hands or pos- session of the said A. B., or into the hands and possession of any other person or persons for him, do well and truly ad- minister according to law, and further do make or cause to be made a true and just account of his said administration at or before the day of , and all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the said administrator's account, the same being first examined and allowed of by the Judge or Judges for the time being of the said Court, shall deliver and Digitized by Microsoft® 366 Appendix I.— Executors and Administeators. 22 & 23 Car. 2, c. 10. Oriliaaries have power to call ail- liilnistraturs to aci;ount, and to niiike distribu- Customs of ron- ton and York savtd. How and to whom the surplusage is to be distributed. pay unto such person or persons respectively as the said judge or judges by his or their decree or sentence, pursuant to the true intent and meaning of this act, shall limit and appoint, and if it shall hereafter appear that any last will aud testament was made by the said deceased, and the executor or executors therein named do exhibit the same into the said Court, making request to have it allowed and approved accordingly, if the said A. B. within bounden, being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said Court, then this obligation to be void and of none effect, or else to remain in full force and virtue." III. Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any courts of justice ; and also that the said ordinaries and judges respec- tively shall and may and are enabled to proceed and call such administrators to account for and touching the goods of any person dying intestate, and upon hearing and due consideration thereof to order and make just and equal distribution of what remaineth clear (after all debts, funerals, and just expenses of every sort first allowed and deducted) amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation hereafter set down, and the same distributions to decree and settle, and to compel such administrators to observe and pay the same by the due course of his Majesty's ecclesiastical laws ; saving to every one, supposing him or themselves aggrieved, their right of appeal as was always ia such cases used. IV. Provided, that this act, or anytliing herein contained, shall not any ways prejudice or hinder the customs observed within the city of London, or within the province of York, or other places having known aud received customs peculiar to them, but that the same customs may be observed as formerly, anything herein contained to the contrary notwithstanding. Provided always, and be it enacted by the authority aforesaid, that all ordinaries and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole sur- plusage of such estate or estates in manner and form following; that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settle- ment of the intestate, or shall be advanced by the intestate in Digitized by Microsoft® Appendix I. — Executors and Administrators. 3G7 his lifetime, by portion or portions equal to the share which 22 & 23 Car. 2, shall by such distribution be allotted to the other children to c 10. whom such distribution is to be made ; and in case any child Advancement by other than the heir at law shall have any estate by settlement f"'"™- from the said intestate, or shall be advanced by the said intes- tate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated ; but the heir Heir at law lo at law, notwithstanding any land that he shall have by descent ^^^^ "" '"''"'' or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any conside- ration of the value of the land which he hath by descent or otherwise fi'om the intestate. VI. And in case there be no children, nor any legal repre- i' "" ciiiiaren, es- sentatives of them, then one moiety of the said estate to be to wife ana liUt allotted to the wife of the intestate, the residue of the said oikm. estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them. VII. Provided, that there be no representations admitted n no wife, among collaterals after brothers' and sisters' children : and in ciTimrai.''^ case there be no wife, then all the said estate to be distributed equally to and amongst the children ; and in case there be no child, then to the nex ; of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. VTIl. Provided also, and be it likewise enacted by the autho- No rtistriimtion rity aforesaid, to the end that a due regard be had to creditors, '' " "^^ unej<;ar. that no such distribution of the goods of any person dying intestate be made till after one year be fully expired after the intestate's death ; and that such and every one to whom any distribution and share shall be allotted shall give bond, with sufficient sureties in the said Courts, that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovei'ed, or otherwise duly made to appear, that then and in every such case he or she shall respectively refund and pay n ,ipbts after- back to the administrator his or her rateable part of that debt ;;^;^'^,17*';^;„„4 or debts, and of the costs of suit and charges of the adminis- proportionabiy. trator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said ad- ministrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid. IX. Provided always, and be it enacted by the authority Act not to exi end aforesaid, that in all cases where the ordinary hath used here- cum tcltrmcnio" annexo. Digitized by Microsoft® 368 Appendix I. — Executors and Administrators. 22 & 23 Car. 2, tofore to grant administration cum testamento aunexo he shall >;• 10- continue so to do, and the will of the deceased in such testament expressed shall be performed and observed in such manner as it should have been if this act had never been made. X. Provided also, that this act shall continue in force for seven years, and from thence to the end of the next session of parliament, and no longer. Cnntlnuance of act. Children dying after father intestate without ■wife or children. 1 Jac. II. c. 17. ■ Sect. 7. Provided also, and it is hereby enacted, that if after the death of a father any of his children shall die intestate without wife or children, in the lifetime of the mother,, every brother and sister, and 'the representatives of them, shall have an equal share with her ; anything in the last-mentioned acts notwithstanding. 38 Geo. 3, c. 87. If, after a certnin period the uxglh- lor to whom |U'0- bate is gnuitctl shall not reside ■withiu Ihe jiifis- (llction of his Sla- jesty s courts, oil apitlication of a cretliLor, &c. special artminis- tratiun may be granted, for which a 5s. stamp duty shall be paid. The party apply- ing to malce the followhig aftl- davit. 38 Geo. III. c. 87. An Act for the Administration of Assets in Cases where the Executor to whom Probate has been granted is out of the Realm. [28th June, 1798.] Whereas the laws now existing are not sufficient to enforce a speedy distribution of the assets of deceased persons where the executor to whom probate of the -mW. has been granted is out of the jurisdiction of his Majesty's courts of law and equity ; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and tem- poral, and commons, in this present parliament assembled, and by the authority of the same, that, at the expiration of twelve calendar months from the death of any testator, if the executors or executor to whom probate of the will shall have been granted, are or is then residing out of the jurisdiction of his Majesty's courts of law and equity, it shall be lawful for the Ecclesiastical Court which has granted probate of such will, upon the appli- cation of any creditor, next of kin, or legatee, grounded on the affidavit hereinafter mentioned, to grant such special adminis- tration as hereinafter is also mentioned ; which administration shall be written or printed upon paper or parchment stamped only with one five shilling stamp, and shall pay no further or other duty to his Ma,iesty, his heirs or successors. II. And be it further enacted, that the party applying to the Spiritual Court to grant such administration as aforesaid shall Digitized by Microsoft® Appendix I.— Executors and Administeators. 369 make an affidavit in the following words, or to the purport and 38 Geo. 3 c.87. effect following : > • • " I, A. B. of , do swear, that there is due Affidavit. and owing to me, upon bond or simple contract, or upon account unsettled, as the case may happen to be (in which latter case he shall swear to the best of his belief only), from the estate and effects of deceased, the sum of and that C. D., the only executor capable of acting, and to whom probate has been granted, hath departed this kingdom and is now out of the jurisdiction of his Majesty's Coui-ts of Law and Equity, and that this deponent is desirous of exhibiting a bill in equity in his Majesty's Court of for the purpose of being paid his demand out of the assets of the said testator." III. And be it further enacted, that the administration to be Administration to granted pursuant to this act shall be in the form hereinafter touSffurnf^ mentioned; (that is to say,) " by Divine Providence, Archbishop of Canterbury, primate of all England and metropolitan, to our well-beloved in Christ greeting : whereas it hath been alleged before the worshipful doctor of laws, surrogate of doctor of laws, master, keeper, or commissary of our Preroga- tive Court of Canterbury, lawfully constituted by you the said that did, whilst living and of sound mind, memory, and understanding, make and duly execute his last will and testament in writing, and did therefore nominate, con- stitute, and appoint his executors (or sole executor), who in the month of proved the said will by the autho- rity of our said Court, and now reside (or resides) out of this kingdom, and out of the jurisdiction of his Majesty's Courts of Law and Equily (as in and by an affidavit duly made and sworn to by ) and brought into and left in the Eegistry of our said Court (reference being thereunto had will more fully and at large appear) : and whereas the surrogate aforesaid, having duly considered the premises, did, at the petition of the said decree letters of administration of 8,11 and singular the goods, chattels, and credits of the said deceased, to be committed and granted to you the said named by or on the behalf of the said a creditor (legatee) or (one of the next kin) of the said deceased (as the case may be), limited for the purpose, to become and be made a party to a bill or bills to be exhibited against you in any of his Majesty's Courts of Equity, and to carry the decree or decrees of any of. the said Court or Courts into effect, but no further or otherwise (justice so requiring): and we being desirous that the said goods, chattels, and credits may be well and faithfully adminis- tered, applied, and disposed of, according to law, do therefore, by these presents, grant full power and authority to you, in whose fidelity we confide, to administer, and faithfully dispose of the B. BB Digitized by Microsoft® 370 Appendix I.— Executors and Adminxstkatous. 38 Geo. 3, c. 87. Court may appoint persons to collect outstanding debts. Stock belonging to the estate o£ the deceased may be transferred into the name of the Accountant Gene- ral in Chancery, in trust for such purposes as the Court shall direct in any suit. Executors return- ing to reside witli- in jurisdiction of the Court, to be made a party in such suit. Where an infant is sole executor, administration to be granted to the guardian, &c. "who shall have the same power as Where adminlstra- said goods, chattels and credits, according to the tenor and effect of the said will, limited as aforesaid, so far as such goods, chattels, and credits of the deceased will thereto extend, and the law requires, you 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, so far as the same may come to your hands, and to ex- hibit the same into the Registry of our said Prerogative Court of Canterbury, on or before the next ensuing, and also to render a just and true account thereof: and we do by these presents ordain and constitute you administrator of all and singular the goods, chattels, and credits of the said deceased, limited as aforesaid, but no further or otherwise. " Given at London, the day of in the year of our Lord and in the year of our trans- lation." IV. And be it further enacted, that it shall be lawful for the Court of Equity in which such suit shall be depending, to appoint (if it shall be needful) any persons or person to collect in any outstanding debts or effects due to such estate, and to give discharges for the same, such persons or person giving security in the usual manner, duly to account for the same. V. And be it further enacted, that it shall be lawful for the accountant-general of the High Court of Chancery, or for the secretary, or deputy secretary, of the governor and company of the Bank of England, to transfer, and for the governor and com- pany of the Bank of England to suffer a transfer to be made of any stock belonging to the estate of such deceased person, into the name of the accountant-general, in trust, for such purposes as the Court shall direct, in any suit in which the person to whom such administration has been granted, shall be, or may have been, a party ; provided, nevertheless, that if the executors or executor capable of acting as such, shall return to and reside within the jurisdiction of any of the said Courts pending such suit, such executors or executor shall be made party to such suit, and the costs incurred by granting such administration, and by proceeding in such suit against such administrator, shall be paid by such person or persons, or out of such fund as the Court where such suit is depending shall direct. VI. And whereas inconveniences arise from granting probate to infants under the age of twenty-one ; be it enacted, that where an infant is sole executor, administration, with the will annexed, shall be granted to the guardian of such infant, or to such other person as the Spiritual Court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before, probate of the will shall be granted to him. VII. And be it enacted, that the person to whom such ad- ministration shall be granted, shall have the same powers Digitized by Microsoft® Appendix I.— Executoks and Administkators. 371 vested in him as an administrator now hath by virtue of an admi- 38 Geo. 3, c. 87. nistration granted to him durante minore setate of the next of kin. tion is granted au- rante minore setate '^~~^^ of the next of Idn. 31 & 32 Vict. c. 90. An Act to empower certain Public Departments to pay 31 & 32 Vict. otherwise than to Executors or Administrators small "■ ^'^■ Sums due on account of Par/ or Allowances to Persons deceased. [31st July, 1868.] Whereas by several Acts of Parliament power is given to the Commissioners of the Admiralty, and the Secretary of State for War, and the Commissioners of Chelsea Hospital, to cause to be paid to persons who may not have been authorized by law to act as executors or administrators of deceased persons, limited suras of money due in respect of naval and military services to such deceased persons : And whereas it is expedient to extend the power so given, so far as the military service is concerned, and to provide for the similar payment of sums due in respect of civil services : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : 1. On the death of any person or persons to whom respectively Treasury, &o. any sum or sums of money not exceeding one hundred pounds JSnTin^M °' may be payable by a public department in respect of civil pay, service entitiea to or allowances, or annuities granted under authority of parlia- air^ct'payment ' ment, it shall be lawful for the commissioners of her Majesty's thereof without treasury, or for such departments as may be deputed by such letters of aaminis- commissioners, to exercise like powers in reference to claims tr''"'"'- payable upon their orders respectively, on being satisfied of the expediency of dispensing with probate or letters of administra- tion, to authorize the payment of such sum or sums to such person or persons as the said commissioners or departments may consider entitled thereto, without requiring the production of probate or of letters of administration, payment to be made under such regulations as to the said commissioners may seem fit. 2. In the case of any civil or military allowances chargeable Extension of to the army votes and of army prize money, the sum, not ex- g'epSmenTas to ceedine one hundred pounds, due at the death of a claimant, such payments to may be dealt with by the Secretary of State for War,_ or the «"■"= ™4« "««• Commissioners of Chelsea Hospital, in accordance with the enactments already in force with respect to sums of lesser amount similarly due. 3. Any payment made in pursuance of this act shall be valid indemnity, against all persons whatever, and all persons acting under its provisions shall be absolutely discharged from all liability in re- spect of any monies duly paid or applied by them under this act. bb2 Digitized by Microsoft® 372 Appendix I. — Peobates, &c. STATUTES RELATING TO THE GRANTING OF PROBATES AND LETTERS OF AD- MINISTRATION. Commencement of act. Interpretation of terms. 20 & 21 Vict. c. 77 (Court of Probate Act, 1857). C. P. A. 1857. An Act to amend the Law relating to Probates and Letters of Administration in England. [25th August, 1857.] Whereas it is expedient that all jurisdiction in relation to the grant and revocation of probates of wills and letters of adminis- tration in England should be exercised in the name of her Majesty, by one Court : be it enacted by the Queen's most ex- cellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : I. This act (except where otherwise specially provided) shall come into operation on such day, not sooner than the first day of January, one thousand eight hundred and fifty-eight, as her Majesty shall by order in council appoint, provided that such order shall be made one month at least previously to the day so to be appointed. n. In the construction of this act, unless the context be in- consistent with the meaning hereby assigned — " Will" shall comprehend "testament" and all other testa- mentary instruments of which probate may now be granted: " Administration" shall comprehend all letters of auministra- tion of the efiects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes : "Matters and causes testamentary" shall comprehend all matters and causes relating to the grant and revocation of probate of wills or of administration : " Common form business" shall mean the business of obtain- ing probate and administration where there is no contention as to the right thereto, including the passing of probates and administrations through the Court of Probate in con- tentious cases when the contest is terminated, and all business of a non-contentious nature to be taken iu the Court in matters of testacy and intestacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or administration. - III. The voluntary and contentious jurisdiction and authority of fiU ecclesiastical, royal peculiar, peculiar, manorial, and other Testamentary jurisdiction of SccLesliUjtlcal and Digitized by Microsoft® Appendix I. — Peobates, &c. 373 Courts and persons in England now having jurisdiction or C. P. A. 1857. authority to grant or revoke probate of wills, or letters of ad- other courts ministration, of the effects of deceased persons, shall, in respect ^■'"Ushed. of such matters, absolutely cease ; and no jurisdiction or authority in relation to any matters or causes testamentary, or to any matter arising out of or connected with the grant or revocation of probate or administration, shall belong to or be exercised by any such Court or person. IV. The voluntary and contentious jurisdiction and authority Testamentary in relation to the granting or revoking probate of wills and letters*'g^eSd°by a*"" of administration of the effects of deceased persons now vested court of Pro- in or which can be exercised by any Court or person in England, " together with full authority to hear and determine all questions relating to matters and causes testamentary, shall belong to and be vested in her Majesty, and shall, except as hereinafter is mentioned, be exercised in the name of her Majesty in a Court to be called the Court of Probate, and to hold its ordinary sittings and to have its Principal Registry at such place or places in London or Middlesex as her Majesty in council shall from time to time appoint. V. There shall be one Judge of her Majesty's Court of Pro- Power to her Ma- bate ; and it shall be lawful for her Majesty, from time to time, iuageVtte'cj'o'nrt by letters patent under the great seal of the United Kingdom, to <>' Probate (»). appoint a person, being or having been an advocate of ten years' standing, or a barrister-at-law of fifteen years' standing, to be such Judge. VI. The Judge of the Court of Probate shaR hold his office Judge's tenure of during good behaviour, provided that it shall be lawful for her °®°°' Majesty to remove any such Judge from his office upon an address of both houses of parliament. Vn. Every Judge of the Court of Probate shall, before exe- Judge before ant- cuting any of the duties of his office, take the following oath, ^gowing oa'th. which the Lord Chancellor, or the Master of the Rolls for the time being, is hereby respectively authorized and required to administer : " I, A. B., do solemnly and sincerely promise and swear, that I will duly and faithfully, and to the best of my skill and power, execute the office of Judge of the Court of Probate. « So help me God." Vm. The Judge shall have rank and precedence vnth the ^"^^^J^Jjy/" puisne Judges of her Majesty's Superior Courts of Common Law who shaii appoint at Westminster, according to the date of his appointment, and l^^f^ ""* he shall have a secretary and usher, to be from time to time ap- pointed and removed by him at his pleasure. IX. There shall be paid to the Judge the net yearly salary of m^n^oUuag^, four thousand pounds, and to his secretary the net yearly salary wner. (a) C. P. A. 1858, s. 10, " County Court Jurisdiction." (j; C. P. A. 1858, s. 1. Digitized by Microsoft® 374 Appendix I.— Pkobates, &c. C. p. A. 1857. the next vacancy. As to increase of salary upon union of ttie two offices. Ketiring pensions of Judges. of three hundred pounds, and to his usher the net yearly salary of one hundred and fifty pounds. Judge of court of X. Upon the next vacancy in the office of Judge of the High jSdge'^f'the°Ad-° Court of Admiralty of England, it shall be lawful for her miraity Court on Majesty, if she SO think fit, to appoint the person then being Judge of the Court of Probate, to be also Judge of the said Court of Admiralty, or in case the office of Judge of the Court of Probate become vacant before the office of Judge of the Court of Admiralty, the Judge of the Court of Admiralty may, with Jihis consent, be appointed to and hold also the office of Judge of the Court of Probate, and after the union of the said two offices they shall be thenceforth held by the same person. XI. From and after the union under this act of the two offices of Judge of the Court of Probate and Judge of the Court of Admiralty in the same person, the said yearly salary of four thousand pounds payable under this act shall be increased to five thousand pounds, and the salary now payable to the Judge of the Court of Admiralty shall cease. Xn. Her Majesty, by letters patent under the great seal of the United Kingdom, may grant unto any person executing the office of Judge of her Majesty's Court of Probate an annuity, not exceeding two thousand pounds, or if such person be also executing the office of Judge of the said Court of Admiralty, not exceeding three thousand five hundred pounds, to commence immediately after the day when the person to whom such annuity shall be granted shall resign the said office or offices, and to continue during his natural life; provided that her Majesty may, in and by such letters patent, limit the duration of payment of such annuity, or any part thereof, to such periods of time during the natural life of such person in which he shall not exercise any office of profit imderher Majesty, so that such annuity, together with the salary and profits of such other office, shall together not exceed in the whole the said sum of two thousand pounds, or three thousand five hundred pounds, as the case may be : provided also, that no annuity granted to any person having executed the office of Judge under this act, ex- cept the present Judge of the Prerogative Court, shall be valid, imless such person shall have held such office for the period of fifteen years, or have held such office and any of the offices of Judge in any of the Superior Courts of Law or Equity, or the High Court of Admiralty, for periods amounting together to fifteen years, or shall be afilicted with some permanent infirmity disabling him from the due execution of his office, which shall be distinctly recited in the said grant. Xin. There shall be established for each of the districts specified in Schedule (A.) to this act, and at the places respec- tively mentioned in such schedule, a public Registry attached to and under the control of the Court of Probate, hereinafter referred to as " the District Registry." District registries to be establlslied as in Sclieduie (A.) Digitized by Microsoft® Appendix I.— Peobates, &c. 375 XIV. There shall be three Registrars, two record keepers, C. P. A. 1857 and one sealer for the Principal Registry of the Court of Pro- Appointment of ' bate, and there shall be one District Registrar for each District officers of the Registry hereinafter referred to as the District Registrar, and bXcc"."^™" there shall be so many clerks and other officers for the Court and the Principal Registry as the Judge of the Court, with the sanction of the commissioners of her Majesty's treasury, may, from time to time, think fit : provided, that if at any time it appear to her Majesty in council that the duties of the Registrars of the Principal Registry of the Court of Probate can be per- formed by two Registrars, it shall be lawful for her Majesty by order in council to direct that the number of Registrars for such Principal Registry be reduced accordingly. XV. Charles Dyneley, esquire, John Iggulden, esquire, and As to appointment William F. Gostling, esquire, the present Deputy Registrars of SSlplScfr' the Prerogative Court of Canterbury, shall, if willing to accept Begistry. the office, be the first Registrars of the Principal Registry of the Court of Probate ; Joseph Todd and John Smith, the pre- sent record keepers of the said Prerogative Court, shall, if willing to accept the office, be the first record keepers at the said Principal Registry ; and William John Berry, the present sealer of the said Prerogative Court, shall, if willing to accept the office, be the first sealer at the said Principal Registry ; and George Jarvis Foster, clerk of the papers in the said Preroga- tive Court, shall, if willing to accept the office, be the first clerk of papers at the said Principal Registry. XVT. The other clerks and officers now employed in the said Clerks and officers Prerogative Court shall be transferred to such situations in the coSt fefbe't^s- Court of Probate and the Principal Registry thereof as the Lord 'eTea to like Chancellor may in that behalf direct, so that their duties may Ctote? *^°'"* °' be such as in the opinion of the said Lord Chancellor may be as nearly as possible similar to those which they have heretofore discharged in the said Prerogative Coui-t : provided always, that no such clerk or other officer shall be so transferred whom the said Lord Chancellor shall consider to be from age, infirmity, or other cause incompetent to the discharge of his duties. XVII. The Registrar or deputy Registrar (as the case may be) Existing Diocesan now executing in person the duties of Registrar of a diocesan or fn«tie?to be ap- other Court exercising testamentary jurisdiction at any place at pointed District which a District Registry is to be established under this act, or same pSa! where there is more than one such Registrar or deputy Registrar so acting, such one of them as the Judge shall select shall be appointed the first District Registrar for such district, save where the Judge shall consider such Registrar or deputy Registrar, or all such Registrars or deputy Registrars if more than one, to be from age, infirmity, or other cause incompetent to the discharge of the duties of District Registrar ; provided that where there is (c) C. P. A. 1858, s. 6. Digitized by Microsoft® 376 Appendix I. — Pkobates, &c. As to appointment to offices. Tenure of office of C. P. A. 1857. now more than one such Registrar or deputy Registrar competent to the discharge of the duties, the Judge may appoitit them or more than one of them to hold such office of District Registrar jointly with benefit of survivorship. XVin. The Registrars, District Registrars, and other officers of the Court of Probate, except as herein provided, shall be ap- pointed by the Judge : there shall be paid to the several officers saiiwies of ofBcers. mentioned in Schedule (B.) to this act the several salaries set opposite to their respective titles in the same schedule, and the said District Registrars shall, for the performance of their duties under this act, including the services of any clerks they may employ, be entitled to take in respect of the business in their respective District Registries such fees as shall be fixed as here- inafter provided ; and, except as aforesaid, there shall be paid to the several clerks and other officers appointed under this aot such salaries or other remuneration as the Judge, with the con- sent of the commissioners of her Majesty's treasury, shall from time to time in each case direct. XIX. The Registrars and District Registrars shall hold their offices during good behaviour, subject to be removed by order of the Lord Chancellor for some reasonable cause to be in such order expressed, and the other officers of the Court may be removed by the Judge, with the sanction of the Lord Chan- cellor. XX. No person shall be appointed a Registrar or District Re- gistrar who shall not be or have been an advocate, barrister-at- law, proctor, solicitor, or attorney-at-law, unless at the time of the passing of this act he is performing in person the duties of Registrar or deputy Registrar of some Ecclesiastical Court in England, or is acting as articled clerk or paid clerk to a proctor in Doctors' Commons, or as officer or clerk in the office of the said Prerogative Court, or of the Prerogative Court of York, or of any Diocesan Court. XXI. AR Registrars, District Registrars, officers, and clerks of the Court of Probate shall execute their respective offices in person and not by deputy; and no Registrar of the Principal Re- gistry of the Court, nor any officer or clerk in the Principal Re- Registrars, &e. not gistry thereof, shall during the time of his holding such office to act as proctors, directly or indirectly practise as an advocate, barrister, proctor, solicitor, or attorney, or receive or participate in the fees of any other person so practising. XXII. The Judge shall cause to be made seals for the Court of Probate, that is to say, one seal to be used in its Principal Registry and separate seals to be used in the several District Re- gistries, and may cause the same respectively from time to time to be broken, altered, and renewed at his discretion ; and all probates, letters of administration, orders, and other instru- ments, and exemplifications and copies thereof respectively, Qualiflcntion of Registrars and district Regis- trars. Officers of the Court to execute tlieir offices in person. Power to Judge to cause seals of the Court to he pro- vided. Digitized by Microsoft® Appendix I. — Probates, &c. 377 purporting to be sealed with any seal of the Court of Probate, C.P. A. 18o7. shall in all parts of the United Kingdom be received in evidence without further proof thereof. XXni. The Court of Probate shall be a Court of Eecord, ^^'i^^g^J'^t'^l"'™ and such Court shall have the same powers, and its grants and England the same orders shall have the same effect, throughout all England, and ^"^/ogauvfcourt in relation to the personal estate in all parts of England, of within me pro- deceased persons, as ■ the Prerogative Court of the Archbishop ^'^J™ °' ^'""^''' of Canterbury and its grants and orders respectively now have in the province of Canterbury, or in the parts of such province within its jurisdiction, and in relation to those matters and causes testamentary and those effects of deceased persons which are within the jurisdiction of the said Prerogative Court ; and all duties which, by statute or otherwise, are imposed on or shall be performed by ordinaries generally, or on or by the said Prerogative Court, in respect of probates, administrations, or matters or causes testamentary within their respective juris- dictions, shall be performed by the Court of Probate : provided that no suits for legacies, or suits for the distribution of re- Suits for legacies sidues, shall be entertained by the Court, or by any Court to te entertained! or person whose jurisdiction as to matters and causes testa- mentary is hereby abolished. XXIV. The Court of Probate may require the attendance Power to examine of any party in person, or of any person whom it may think fit witnesses. to examine or cause to be examined in any suit or other pro- ceeding in respect of matters or causes testamentary, and may examine or cause to be examined upon oath or affirmation, as the case may require, parties and witnesses by word of mouth, and may, either before or after or with or without such exa- mination, cause them or any of them to be examined on intei'- rogatories, or receive their or any of their affidavits or solemn affirmations, as the case may be; and the Court may by writ As to proauction require such attendance, and order to be produced before itself f„^'^^'„ or otherwise any deeds, evidences, or writings, in the same form, ^«,.™i, a'p. a. or nearly as may be, as that in which a writ of subpoena ad isss, s. 23.] testificandum, or of subpoena duces tecum, is now issued by any of her Majesty's Superior Courts of Law at Westminster ; and every person disobeying any such writ shall be considered as in contempt of the Court, and also be liable to forfeit a sum not exceeding one hundred pounds. XXV. The Court of Probate shall have the like powers. Powers of the jurisdiction, and authority for enforcing the attendance of per- onTera.'" '^" "'°° sons required by it as aforesaid, and for punishing persons failing, neglecting, or refusing to produce deeds, evidences, or writings, or refusing to appear or to be sworn, or make affir- mation or declaration, or to give evidence, or guilty of contempt, and generally for enforcing all orders, decrees, and judgments made or given by the Court under this act, and otherwise in Digitized by Microsoft® 378 Appendix I. — Pkopates, &c. C. P. A, 1857. Order to produce any Instrument purporting to be testamentary. Pegisfrars, &e. to have power to ad- minister oatlis. Power to appoint, also, commis- sioners to admi- nister oaths, Src. relation to the matters to be inquired into and done by or under the orders of the Court under this act as are by law vested in the High Court of Chancery for such purposes in relation to any suit or matter depending in such Court. XXVI. The Court of Probate may, on motion or petition, or otherwise, in a summary way, whether any suit or other pro- ceeding shall or shall not be pending in the Court with respect to any probate or administration, order any person to produce and bring into the Principal or any District Registry, or other- wise as the Court may direct, any paper or writing being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person ; and if it be not shown that any such paper or writing is in the possession or under the control of such person, but it shall appear that there are reasonable grounds for believing that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court, or upon interrogatories respecting the same, and such person shall be bound to answer such questions or inter- rogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit in the Court and had made such default ; and the costs of any such motion, petition, or other proceeding shall be in the discretion of the Court. XXVII. The Registrars and District Registrars shall respec- tively have full power to administer oaths ; and all persons who at the commencement of this act shall be acting as surrogates of any Ecclesiastical Court, and any other persons whom the Judge shall, under the seal of the Court, from time to time ap- point, shall respectively have full power to administer oaths and perform such other duties in reference to matters and causes testamentary as tnay be assigned to them from time to time by the rales and orders under this act; and the persons so ap- pointed shall be styled " Commissioners of her Majesty's Court of Probate ;" provided, that any party required to be examined, or any person called as a witness or required or desiring to make an affidavit or deposition under or for the purposes of this act, shall be permitted to make his- solemn affirmation or declaration instead of being sworn In the circumstances and manner in which a person called as a witness or desiring to make an affi- davit or deposition would be permitted so to do under the Com- mon Law Procedure Act, 1854, in cases within the provisions of that act : and any person who shall wilfully give false evi- dence, or who shaU wilfully swear, affirm, or declare falsely iu any affidavit or deposition before the Court of Probate or before any Registrar, District Registrar, or Commissioner of the Digitized by Microsoft® Appendix I. —Pkobates, &c. 379 Court, shall be liable to the penalties and consequences of C. P. A. 1857. wilful and corrupt perjury. XXVin. If any person forge the signature of any Eegistrar, Penalty on forsing Disti-ict Registrar, or Commissioner for taking oaths, or forge or seato o" signatures counterfeit any seal of the Court of Probate, or knowingly use <" office"- or concur in using any such forged or counterfeit signature or seal, or tender in evidence any document with a false or counterfeit signature of such Eegistrar, District Registrar, or Commissioner, or with a false or counterfeit seal, knowing the same signature or seal to be false or counterfeit, every such person shall be guilty of felony, and shall upon conviction be liable to penal servitude for the term of his hfe or any term not less than seven years, or to imprisonment for any term not exceeding three years, with or without hard labour. XXIX. The practice of the Court of Probate shall, except Practice of the where otherwise provided by this act, or by the rules or orders ^°'"^*" to be from time to time made under this act, be, so far as the circumstances of the case wiU admit, according to the present practice in the Prerogative Court. XXX. And to the intent and end that the procedure and Eu'es and orders practice of the Court may be of the most simple and expeditious reguiatinis tiie character, it shall be lawful for the Lord Chancellor, at any ^^^'^'^ "* '"^ time after the passing of this act, with the advice and assistance of the Lord Chief Justice of the Court of Queen's Bench or any one of the Judges of the Superior Courts of Law to be by such Chief Justice named in that behalf, and of the Judge of the said Prerogative Court, to make rules and orders, to take effect when this act shall come into operation, for regulating the procedure and practice of the Court, and the duties of the Registrars,. District Registrars, and other officers thereof, and for determining what sluiU be deemed contentious and what shall be deemed non-contentious business, and, subject to the express provisions of this act, for fixing and regulating the time and manner of appealing from the decisions of the said Court, and generally for carrying the provisions of this act into effect ; and after the time when this act shall come into operation it shall be lawful for the Judge of the Court of Probate from time to time, with the concurrence of the Lord Chancellor and the said Lord Chief Justice, or any one of the Judges of the Superior Courts of Law to be by such Chief Justice named in this behalf, to repeal, amend, add to, or alter any such rules and orders as to him, with such concurrence as aforesaid, may seem fit. XXXI. Subject to the regulations to be established by such Mode of taking rules and orders as aforesaid, the witnesses, and where necessary tentionf maSs. ' the parties, in all contentious matters where their attendance can be had, shall be examined orally by or before the Judge in open Court ; provided always, that, subject to any such regula- Digitized by Microsoft® 380 Appendix I. — Pkobates, &C!. C. p. A. 1857. Court may issue commissions or give orders for ex- amination of wit- nesses abroad, or wiio are unable to attend. Rules of evidence in Common Law Courts to be ob- served. Common Law Judges may sit, on request of Judge of Court. Court may cause questions of fact to be tried by a jury before itself, or direct an issue to a Court of Law. tions as aforesaid, the parties shall be at liberty to veiify their respective cases, in whole or in part, by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of such opposite party orally in open Court as aforesaid, and after such cross-examination may be re-examined orally in open Court as aforesaid by or on behalf of the party by whom such affidavit was filed. XXXII. Provided, that where a witness in any such matter is out of the jurisdiction of the Court, or where, by reason of his illness or otherwise, the Court shall not think fit to enforce the attendance of the witness in open Court, it shall be lawful for the Court to order a commission to issue for the examination of such witness on oath, upon interrogatories or otherwise, or if the witness be within the jurisdiction of the Court to order the examination of such witness on oath, upon interrogatories or otherwise, before any officer of the said Court, or other person to be named in such order for the purpose ; and all the powers given to the Courts of Law at Westminster by the Acts of the thirteenth year of King George the Third, chapter sixty-three, and of the first year of King William the Fourth, chapter twenty- two, for enabling the Courts of Law at Westminster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such ex- amination, and all the provisions of the said acts, and of any other acts for enforcing or otherwise applicable to such ex- amination, and the witnesses examined, shall extend and be applicable to the said Court of Probate and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined, as if such Court were one of the Courts of Law at Westminster, and the matter before it were an action pending in such Court. XXXIII. The rules of evidence observed in the Superior Courts of Common Law at Westminster shall be applicable to and observed in the trial of all questions of fact in the Court of Probate. XXXIV. It shall be lawful for the Judge of the Court of Probate to sit, with the assistance of any Judge or Judges of any of the Superior Courts of Law at Westminster, who, upon the request of the Judge of the Court of Probate, may find it convenient to attend for that purpose. XXXV. It shall be lawful for the Court of Probate to cause any question of fact arising in any suit or proceeding under this act to be tried by a special or common jury before the Court itself, or by means of an issue to be directed to any of the Superior Courts of Common Law, in the same manner as an ' issue may now be directed by the Court of Chancery, and such question shall be so tried by a jury in any case where an heir- Digitized by Microsoft® Appendix I.— Probates, &c. 331 at-law, cited or otherwise made party to the suit or proceeding, C. P. A. 1857. makes application to the Court of Probate for that purpose ; and in any other case where all the parties to the suit or pro- ceeding concur in such an application, and where any party or parties other than such heir-at-law make a like application (the other party or parties not concurring therein), and the Court shall refuse to cause such question to be tried by a jury, such refusal of the Court shall be subject to appeal as herein provided. XXXVI. When the Court shall order a question of fact to Powers of the be tried before itself by a jury, the Court may make all such oUuesUonsVyt' rules and orders upon the sheriff or any other person for pro- i"i'y. curing the attendance of a special or common jury for the trial of such question as may now be made by any of the Superior Courts of Common Law at Westminster, and may also make any other orders which to such Court may seem requisite ; and every such jury shall consist of persons possessing the qualifi- cations, and shall be struck, summoned, balloted for, and called in like manner as if such jury were a jury for the trial of any cause in any of the said Superior Courts ; and every juryman so summoned shall be entitled to the same rights and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said Superior Courts ; and every party to any such proceeding shall be en- titled to the same rights as to challenge and otherwise as if he were a party to any such cause ; and generally for all purposes of or auxiliary to the trial of questions of fact by a jury before the Court itself, and in respect of new trials thereof, and also for all purposes in relation to or consequential upon the direc- tion of issues, the Court of Probate shall have the same juris- diction, powers, and authority in aU respects as belong to any Superior Court of Common Law, or to any Judge thereof, or to the High Court of Chancery, or any Judge thereof, for the like pui-poses. XXXVII. When any such question shall be so ordered to be Question to be tried by a jury before the Court itself, such question shall be '^Jj^'^ ?4"it^ reduced into writing in such form as the Court shall direct, and at the trial the jury shall be sworn to try the said question, and a true yerdict to give thereon according to the evidence ; and conrt, on trial, to upon every such trial the Court of Probate shall have the same SorityTa powers, jurisdiction, and authority as belong to any Judge of JuageatNisi any of the said Superior Courts sitting at Nisi Prius. "'■ XXXVIII. Where the Court of .Probate directs an issue, it court may direct shaU be lawful for such Court to direct such issue to be tried ^."Sl^;""^ ^"^^ either before a Judge of Assize in any county or at the sittings for the trial of causes in London or Middlesex, and either by a special or common jury, in like manner as is now done by the Court of Chancery. Digitized by Microsoft® 382 Appendix I.— Probates, &c. C. p. A. 1857. Appeal to the House of Lords. Advocates ad- mitted to practice. Barristers may practice in couten- tioas causes. Extended to all causes and matters ■whatsoever (c?). Advocates ad- mitted to practice as barristers. Proctors admitted to praclice. Admission of Re- gistrars and proctors as solici- tors. XXXIX. Any person considering himself aggrieved by any final or interlocutory decree or order of the Court of Probate may appeal therefrom to the House of Lords : provided always, that no appeal from any interlocutory order of the Court of Probate shall be made without leave of the Court of Probate first obtained, but on the hearing of an appeal from any final decree all interlocutory orders complained of shall be considered as under appeal as well as the final decree. XL. All persons who at the time cf the passing of this act have been admitted advocates in any of the Ecclesiastical Courts shall be entitled to practice as advocates or counsel in all matters and causes whatsoever in the Court of Probate ; and all seijeants and barristers-at-law shall be entitled to practice as advocates or counsel in all contentious matters and causes in the said Court ; and such persons who have been so admitted advocates and Serjeants and barristers-at-law shall have respec- tively the same rank and precedence which they now have before the Judicial Committee of the Privy Council, unless and until her Majesty shall otherwise order. XLI. All persons who at the time of the passing of this act have been admitted as advocates as aforesaid shall be entitled to practice as counsel in any of her Majesty's Courts of Law or Equity in England, with the same eligibility to appointments, under Acts of Parliament or otherwise, as if they had respec- tively been duly called to the degree of barrister-at-law on the days on which they respectively were so admitted as advocates, and with the same rank and precedence which they now have before the said Judicial Committee, unless and until her Majesty shall otherwise order. XLII. Every person who at the time of the passing of this act is actually admitted and practising as a proctor in the Courts in Doctors' Commons, or in the Prerogative Court of York, or in any Diocesan Court, or in any Archidiaconal Court, having previously duly served under articles of clerkship either to an attorney or proctor, may, upon his application, at any time within one year after the passing of this act, be admitted a proctor of the Court of Probate, without payment of any fee or stamp duty. XLm. Every person who at the time of the commencement of this act is acting as Eegistrar or Deputy Registrar of any Ecclesiastical Court, or is actually admitted and practising as a proctor in the Courts in Doctors' Commons, or in any Ecclesias- tical Court in England or Wales, may, within one year after the passing of this act, be admitted, without the payment of any stamp duty, fee, charge, or gratuity whatsoever, as a solicitor of the High Court of Chancery, upon the production of his {d) C. P. A. 1858, s. 2. Digitized by Microsoft® Appendix I.— Puobates, &c. 383 appointment or admission as such Registrar, Deputy Registrar, C. P. A. 1857. or proctor, or an official certificate thereof ; and upon the pro- duction of an official certificate that such appointment or admis- sion continued in force at the time of the passing of this act, and upon signing the roll of solicitors of the High Court of Chancery, but not otherwise, such person shall be entitled to be admitted as a solicitor of such Court, and to be afterwards in like manner admitted and enrolled as an attorney of her Majesty's Superior Courts. XLIV. Every person who at the time of the commencement Admission of of this act has served or is actually serving as an articled clerk proctors as souci- to a proctor entitled to take such articled clerk, and who has ''"'^• not been admitted as a proctor, shall be entitled to be admitted as a solicitor of the High Court of Chancery, in the same manner, and subject to the same rules and regulations, and upon the same conditions, as if he had before the commence- ment of this act been articled to a solicitor or to an attorney-at- law ; and such admission shall entitle such articled clerk so admitted as a solicitor to be afterwards in like manner admitted and enrolled as an attorney of her Majesty's Superior Courts : provided, that if any such proctor to whom any such clerk is now articled shall retire from practice after the passing of this act, he shall and is hereby required to transfer such articled clerk to some other proctor, or to a solicitor, or to an attorney- at-law, for the unexpired term of his articles of clerkship ; provided that the Court shall at any time have the same power to transfer such clerk during the unexpired term of his articles of clerkship, to any other proctor, or to a solicitor, or to an attorney-at-law as the Judge of the Prerogative Court now has in respect to clerks articled to proctors practising in the Court of Arches. XLV. All solicitors and attornies-at-law may practice in the Practitioners. Court of Probate, and the laws and statutes now in force con- cerning solicitors and attornies shall extend to solicitors and attornies practising in the said Court ; and the commissioners for taking oaths in the High Court of Chancery shall be com- missioners for taking oaths in the Court of Probate. XL VI. Probate of a will or letters of administration' may. Probates and ad- upon application for that purpose to the District Registry, be tegSedTJom- granted in common form by the District Registrar in the name ™JJ Jj^gt^^^"','; of the Court of Probate and under the seal appointed to be used it shaiupp^rby in such District Registry, if it shall appea,r by affidavit of the ^^"^10" te h"d a person or some or one of the persons applying for the same that axed place of the testator or intestate, as the case may be, at the time of his »"''*«• death had a fixed place of abode within the district in which the application is made, such place of abode being stated in the affidavit, and such probate or letters of administration shall have effect over the personal estate of the deceased in all parts of England accordingly. Digitized by Microsoft® 384 Appendix I. —Probates, &c. C. P. A. 1857. Affldavit to be conclusive for authorizing grant of probate. Djstrict Registrars not to mal^e grants wtiere there is conten- tion, &c. As to transmis- sion of notice of application for grants of probate, &c. to District Registrar. District Kegistrar in case of doubt as XL VII. Such affidavit shall be conclusive for the purpose of authorizing the grant, by the District Kegistrar, of probate or administration ; and no such grant of probate or administration shall be liable to be recalled, revoked, or otherwise impeached by reason that the testator or intestate had no fixed place of abode within the district at the time of his death ; and every probate and administration granted by any such District Regis- trar shall effectually discharge and protect all persons paying to or dealing with any executor or administrator thereunder, not- withstanding the want of or defect in such afldavit, as is hereby required. XL VIII. The District Registrar shall not grant probate or administration in any case in which there is contention as to the grant until such contention is terminated or disposed of by decree or otherwise, or in which it otherwise appears to him that probate or administration ought not to be granted in com- mon form. XLIX. Notice of every application to any District Registrar for the grant of probate or administration shall be transmitted by such District Registrar to the Registrars of the Principal Registry by the next post after such application shall have been made ; and such notice shall specify the name and description, or addition (if any), of the testator or intestate, the time of his death, and the place of his abode at his decease, as stated in the affidavit made in support of such application, and the name of the person by whom the application has been made, and such other particulars as may be directed by rules or orders under this act ; and no probate or administration shall be granted in pursuance of such application until such District Registrar shall have received a certificate, under the hand of one of the Registrars of the Principal Registry, that no other application appears to have been made in respect of the goods of the same deceased person, which certificate the said Registrar of the Principal Registry shall forward as soon as may be to the District Registrar ; all such notices in respect of applications in the District Registries shall be filed and kept in the Prin- cipal Registry, and the Registrars of the Principal Registry shall, with rieference to every such notice, examine aU notices of such applications which may have been received from the several other District Registries, and the applications which may have been made for grants of probate or administration at the Principal Registry, so far as it may appear necessary to ascertain whether or no application for probate or administra- tion, in respect of the goods of the same deceased person, may have been made in more than one Registry, and shall com- municate with the District Registrars as occasion may require in relation to such applications. L. In every case where it appears to a District Registrar that it is doubtful whether the pi'obate or letters of admiuistra- Digitized by Microsoft® Appendix I.— Probates, &c. 385 tion wliich may be applied for should or should not be granted, C. P. A. 1857. or wbere any question arises in relation to the grant, or appli- to grant to take cation for the grant, of any probate or administration, the Dis- *}J^ j^a""""' "' trict Registrar shall transmit a statement of the matter in question to the Registrars of the Court of Pi-obate, who shall obtain the directions of the Judge in relation thereto, and the Judge may direct the District Registrar to proceed in the matter of the application according to such instructions as to the Judge may seem necessary, or may forbid any further pro- ceeding by the District Registrar in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Court of Probate through its Principal Registry, or, if the case be within its jurisdiction, to a County Court. LI. On the first Thursday of every month, or oftener if nutrict Regi? trars required by any rules or orders to be made in that behalf, every of probates an'a District Registrar shall transmit to the Registrars of the Prin- administrations, cipal Registry a list, in such form and containing such particu- wiiis. lars as may be from time to time required by the Court of Probate, or by any rules or orders under this act, of the grants of probate and administration made by such District Registrar up to the last preceding Saturday, and not included in a pre- vious return, and also a copy, certified by the District Regis- trar to be a correct copy, of every will to which any such probate or administration relates. LII. Every District Registrar shall file and preserve all District Registrars original wills of which probate or letters of administration with ^f^°^*°"^'" the will annexed may be granted by him, in the Public Regis- try of the district, subject to such regulations as the Judge of the Court of Probate may from time to time make in relation to the due preservation thereof, and the convenient inspection of the same. Lin. Caveats against the grant of probates or administra- As to caveats. tions may be lodged in the Principal Registry or in any Dis- trict Registry, and (subject to any rules or orders under this act) the practice and procedure under such caveats in the Court of Probate shall, as near as may be, correspond with the practice and procedure under caveats now in use in the Pre- rogative Court of Canterbury ; and immediately upon a caveat being lodged ia any District Registry, the District Registrar shall send a copy thereof to the Registrars to be entered among the caveats in the Principal Registry ; and immediately upon a caveat being entered in the Principal Registry, notice thereof shall be given to the District Registrar of the district, if any, in which it is alleged the deceased resided at the time of his decease, and to any other District Registrar to whom it may appear to the Registrar of the Principal Registry expedient to transmit the same. B. CC Digitized by Microsoft® 386 Appendix I.— Probates, &c. C. p. A. 1867. LIV. [Eepeajed by C. P. A. 1858, s. ll.J Registrar o( L V. On a decree being made by a Judge of a County Court n-ansmiSufl" for the grant or revocation of a probate or administration in cate of decree for any such causc, the Registrar of the County Court shall transmit tion'of probateT to the District Registrar of the district in which it shall have been sworn that the deceased had at the time of his decease his fixed place of abode a certificate under the seal of the County Court of such decree having been made, and thereupon, on the application of the party or parties in favour of whom such decree shall have been made, a probate or administration in compliance with such decree shall be issued from such District Registry ; or, as the case may require, the probate or letters of administration theretofore granted shall be recalled or varied by the District Registrar according to the effect of such decree. The Judge of the LVI. The Judge of any County Court before whom any Sfofus'S'and disputed question shall be raised relating to matters and causes enforce judgments testamentary under this act shall, subject to the rules and orders as in other cases, ^^^^j. ^j^jg ^^^ have all the jurisdiction, power, and authority to decide the same and enforce judgment therein, and to enforce orders in relation thereto, as if the same had been an ordinary action in the County Coupt. AiHdavit of the ' LVII. The afiidavit as to the place of abode and state of the oounfy^court"* property of a testator or intestate which is to give contentious jurisdiction to he jurisdiction to the Judge of a County Court under the previous d™proved'wMie^ provisions shall, except as hereinafter provided, be conclusive the matter is fQj. the purposc of authorizing the exercise of such jurisdiction, and the grant or revocation of probate or administration in com- pliance with the decree of such Judge ; and no such grant of probate or administration shall be Hable to be recalled, revoked, or otherwise impeached by reason that the testator or intestate had no fixed place of abode within the jurisdiction of such Judge or within any of the said districts at the time of his death, or by reason that the personal estate sworn to be under the value of two hundred pounds did in fact amount to or ex- ceed that value, or that the value of the real estate of or to which the deceased was seised or entitled beneficially at tlie time of his death amounted to or exceeded three hundred pounds : provided, that where it shall be shown to the Judge of a County Court before whom any matter is pending under this act that the place of abode or state of the property of the testator or intestate in respect of whose will or estate he may have been applied to for grant or revocation of probate or ad- ministration has not been correctly stated in the affidavit, and if correctly stated would not have authorized him to exercise such contentious jurisdiction, he shall stay all further proceed- ings in his Court in the matter, leaving any party to apply to the Court of Probate for such grant or revocation, and making Digitized by Microsoft® Appendix I.— Probates, &c. 387 such order as to the costs of the proceedings before him as he C. P. A. 1857. may think just. IjVIII. Any party who shall be dissatisfied with the deter- As to appeals from mination of the Judge of the County Court in point of law, or ^"""'^ '^°'"'- upon the admission or rejection of any evidence in any matter or cause under this act, may appeal from the same to the Court of Probate, in such manner and subject to such regulations as may be provided by the rules and orders to be made under this act, and the decision of the Court of Probate on such appeal shall be final. LIX. It shall not be obligatory on any person to apply for Not owigatory to probate or administration to any District Registry, or through |'«'=^™''«"^' suflBcient, the Registrars must require an affidavit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the provisions of 1 Vict. c. 26, sect. 9 and 15 Vict. c. 24, in reference to the execution were in fact complied with; and such affidavit must be engrossed and form part of the probate. 5. If on perusing the affidavits of both the subscribing wit- nesses it appear that the requirements of the statute were not complied with, the Registrars must refuse probate. 6. If on perusing the affidavit or affidavits setting forth the facts of the case it appear doubtful whether the will or codicil has been duly executed, the Registrars may require the parties to bring the matter before the Judge on motion. 7. If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort must be had to other persons (if any) who may have been present at the execution of the will or codicil; but if no affidavit of any such other person can be obtained, evidence on affidavit must be procured of that fact and of the hand- writing of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of the due execution. Interlineations and Alterations. 8. Interlineations and alterations are invalid unless they existed in the will at the time of its execution, or, if made afterwards, unless they have been executed and attested in the mode required by the statute, or unless they have been ren- dered valid by the re-execution of the will, or by the subse- quent execution of a codicil thereto. 9. When interlineations or alterations appear in the will (unless duly executed, or recited in, or otherwise identified by, the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution must be filed, except when the alterations are merely verbal, or when they are of but small importance and are evidenced by the initials of the attesting witnesses. Erasures and Obliterations, 10. Erasures and obliterations are not to prevail unless proved to have existed in the will at the time of its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid Digitized by Microsoft® 430 Appendix II. — Eules for the Non-Contentious Business. Wills dated after 31st December, 1837. by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasures and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate. 11. In every case of words having been erased or obliterated which might have been of importance, an affidavit must be required. Deeds, ^c. referred to in a Will or Codicil. 12. If a will contain a reference to any deed, paper, memo- randum, or other document, of such a nature as to raise a question whether it ought or ought not to form a constituent part of the will, the production of such deed, paper, memo- randum or other document must be required, with a view to ascertain whether it be entitled to probate; and, if not pro- duced, its non-production must be accounted for. 13. No deed, paper, memorandum or other document can form part of a will unless it was in existence at the time when the will was executed. Appearance of the Paper. 14. If there are any vestiges of sealing wax or wafers or other marks upon the testamentary papers, leading to the inference that a paper, memorandimi, or other document has been annexed or attached to the same, they must be satisfac- torily accounted for, or the production of such paper, memo- randum, or other document must be required ; and, if not produced, its non-production must be accounted for. Married Woman's Will. 15. In granting probate of a married woman's wiR made by virtue of a power or administration with such will annexed, the power under which the will purports to have been made must be specified in the grant (a). (a) Lord Penzance has had un- der his consideration an application made to him, on behalf of the Bank of England, with respect to stock in the public funds standing in the names of married women, and pass- ing under wills made by them whilst under coverture. It is desired by the bank that, in such cases, the stock should ber specified in the limi- tation of the grant of probate or letters of administration with will annexed, and Lord Penzance has directed the Registrars of the Prin- cipal Registry to comply with the desire of the bank so far as practi- cable. With this object, the Regis- trars will hereafter require that on Digitized by Microsoft® the draft oaths to lead such grant being brought to the Principal Re- gistry for settlement a statement shall be furnished, setting forth the particulars of the property claimed to be appointed or disposed of by the will, and in case such property, or any portion of it, shall consist of stock in the public funds standing in the name of the testatrix, the exact amount and description of such stock, and how the same was acquired, and if acquired under a deed or will, a copy or abstract of the deed or will, or of so much thereof as may refer to the stock in question. July, 1872. Principal Eegistry (P. R., Non-C.) 431 KjOOjialSa Business. 16. The above rules and orders respecting wills apply equally to codicils. As TO Probate op Wills, Codicils, and Testamentakt Papers relating to Personalty, and dated before THE 1st January, 1838. Execution of a Will. 17. It is not necessary that a will, codicil, or testamentary wiiis dated before paper dated before 1st January, 1838, should be signed by the i^' •""""^■■y. 1888- testator or attested by witnesses to constitute it a valid disposi- tion of a testator's personal property. Although neither signed by the testator nor attested by witnesses, it may nevertheless be valid ; but in such cases the testator's intention that it should operate as his wiU, codicil, or testamentary disposition must be clearly proved by circumstances. 18. A will, codicil, or testamentary paper, signed at the end of it by the testator and attested by two disinterested witnesses (although there be no clause of attestation) is prima facie entitled to probate. 19. In cases where a will, codicil, or testamentary paper is attested by two witnesses, such witnesses are not required to have been present with the testator at the same time. It is sufficient if the testator subscribed his name or made his mark to the paper in the presence of one attesting witness, or pro- duced it with his name already subscribed, or his mark already made, to one attesting witness, and afterwards produced it to the other attesting witness, provided that on each occasion he declared it to be his will, codicil, or testamentary disposition, or otherwise notified his intention that it should operate as such. 20. If the will, codicil, or testamentary paper is signed at the end of it by the testator but is unattested, and there is nothing to show an intention that it should be ^.ttested by witnesses, the affidavit of two disinterested persons to prove the signature to be of the handwriting of the testator will be sufficient to entitle the paper to probate. 21. If the will, codicil, or testamentary paper is signed at the end of it by the testator, and attested by one witness only, and there is nothing to show the testator's intention that it should be attested by a second witness, the affidavit of one disinterested person to prove the signature to be of the handwriting of the testator will be sufficient to entitle the paper to probate. 22. The circumstance of a person being named as an executor in the will, codicil, or testamentary paper, or being interested as a legatee or as the husband or wife of a legatee under such will, codicil, or testamentary paper, rendered him or her incom- petent to become an attesting witness to it, so that if the name Digitized by Microsoft® 432 Appendix II. — Eules foe the Non-contentibu8 of a person SO interested appears as that of a subscribing wit- ^"' — ness to the will, codicil, or testamentary paper, the same, so far Wills dated before as regards his or her attestation, must be considered as unat- Ist January, 1888. tested, and his or her evidence in support thereof will be inadmissible, unless he or she shall first release his or her interest thereunder. 23. If an attestation clause, or the word " witnesses," appear written at the foot of the paper, the same being unattested, or if the paper purport on the face of it to be a draft of a will, the copy of a will, or instructions for a will, it must prima facie be considered as an incomplete paper, and not, save under special circumstances/ entitled to probate. Appearance of Paper. 24. Any appearance of an attempted cancellation of a paper by burning, tearing, obliteration, or otherwise, and every cir- cumstance leading to a presumption of abandonment or revoca- tion of a paper on the part of the testator must be accounted for. Alterations and Interlineations. 25. Alterations and interlineations made by the testator, if unattested, are to be proved by the affidavits of two persons as to his handwriting. If the same are in the handwriting of any person other than the testator, it will suffice to prove by affidavit that such alterations and interlineations were known to and approved of by the testator. Proof by affidavit that they existed in the paper at the time it was found in the repositories of the testator recently after his death may, under circum- stances, suffice. Alterations and interlineations made since the 31st of December, 1837, are subject to the provisions of 1 Vict. C.26. Deeds, SfC. referred to in a Will or annexed to a Will. 26. With respect to deeds, papers, memoranda, or other documents mentioned in a testamentary paper, or appearing to have been annexed or attached thereto, the foregoing rules, orders, and instructions as to wills bearing date since the 31st December, 1837, will apply. Republication by Codicil. 27. A will made before the 1st of January, 1838, is repub- lished by a subsequent codicil thereto duly executed. As TO Letters of Administration. Notice to other Next of Kin. 28. Where administration is applied for by one or some of the next of kin only, there being another or other next of kin equally entitled thereto, the Registrars may require proof by Digitized by Microsoft® Principal Registry (P. R., Non-C.)- 433 affidavit or statutory declaration that notice of such application Non-Contcntious has been given to such other next of kin. "' °°^°' — . letters of ad- Limited Administrations. ministrationi 29. Limited Administrations are not to be granted unless every person entitled to the general grant has consented or renounced, or has been cited and failed to appear, except under the direction of the Judge. 30. No person entitled to a general grant of administration of the personal estate and effects of the deceased will be permitted to take a limited grant, except under the direction of the Judge. Administrations under Section 73. 31. Whenever the Court under sect. 73 appoints an adminis- trator other than the person who prior to the " Court of Pro- bate Act, 1857," would have been entitled to the grant, the same is to be made plainly to appear in the oath of the administrator, in the letters of administration, and in the administration bond. Grants to an Attorney. 32. In the case of a person residing out of England, adminis- tration, or administration with the will annexed, may be granted to his attorney, acting under a power of attorney. Grants of Administration to Guardians. 33. Grants of administration may be made to guardians of minors and infanta for their use and benefit, and elections by minors of their next of kin, or next friend, as the case may be, ■will be required; but proxies accepting such guardianships and assignments of guardians to minors will be dispensed with. 34. In cases of infants (i.e. under the age of seven years) not having a testamentary guardian, or a guardian appointed by the High Court of Chancery, a guardian must be assigned by order of the Judge, or of one of the Eegistrars; the Registrar's order is to be founded on an affidavit, showing that the pro- posed guardian is either de facto next of kin of the infants, or that their next of kin de facto has renounced his or her right to the guardianship, and is consenting to the assignment of the proposed guardian, and that such proposed guardian is ready to undertake the guardianship. 35. Where there are both minors and infants, the guardian elected by the minors may act for the infants, without being specially assigned to them by order of the Judge, or a Registrar, provided that the object in view is to take a grant. If the ob- ject be to renounce a grant, the guardian must be specially assigned to the infants by order of the Judge, or of a Registrar. 36. In all cases where grants of administration are to be made' for the use and benefit of minors or infants, the adminis- B. ^^ Digitized by Microsoft® 434 Appendix II. — Rules fok the Kon-Conteutlous Business, Letters of ad- mlolstration. trators are to exhibit a declaration on oath of the personal estate and effects of the deceased, except when the effects are sworn under the value of twenty pounds, or when the adminis- trators are the guardians appointed by the High Court of Chancery, or other competent Court, or are the testamentary guardians of the minors or infants. Administrator's Oath. 37. The oath of administrators, and of administrators with the will, is to be so worded as to clear off all persons having a prior right to the grant, and the grant is to show on the face of it how the prior interests have been cleared off, and the oath is to set forth, when the fact is so, that the party applying is the only next of kin, or one of the next of kin, of the deceased. In all administrations of a special character, the recitals in the oath, and in the letters of administration, must be framed in accordance with the facts of the case. Administration Bonds. 38. Administration bonds are to be attested by an officer of the Principal Registry, by a District Registrar, or by a Com- missioner, or other person now or hereafter to be authorized to administer oaths under 20 & 21 Vict. c. 77, and 21 & 22 Vict. c. 95, but in no case are they to be attested by the proctor, solicitor, attorney, or agent of the party who executes them. The signature of the administrator or administratrix to such bonds, if not taken in the Principal Registry, must be attested by the same person who administers the oath to such adminis- trator or administratrix. 39. In all cases of limited or special administration, two sureties are to be required to the administration bond (unless the administrator be the husband of the deceased or his repre- sentative, in which case, but one surety will be required), and the bond is to be given in double the amount of the property to be placed in the possession of, or dealt with, by the adminis- trator by means of the grant. The alleged value of such pro- perty is to be verified by affidavit, if required. 40. The administration bond is, in all cases of limited or special administrations, to be prepared in the Registry. 41. The Registrars are to take care (as far as possible) that the sureties to administration bonds are responsible persons. Justification of Sureties. 42. When any person takes letters of administration in de- fault of the appearance of persons cited, but not personally served, with the citation, and when any person takes letters of administration for the use and benefit of a lunatic or person of unsound mind, unless he be a committee appointed by the Court Digitized by Microsoft® Principal Kegistry (P. E., Non-C). 435 of Chancery, a declaration of the personal estate and effects of Non-contentioua the deceased must be filed in the Registry, and the sureties to ^"™'^- the administration bond must justify. Gekeeai, Rules and Okdees foe the Registrars op the Principax Registry. Time of issuing Grant. 43. No probate or letters of administration, with the will annexed, shall issue until after the lapse of seven days from the death of the deceased, unless under the direction of the Judge, or by order of two of the Registrars. 44. No letters of administration shall issue until after the lapse of fourteen days from the death of the deceased, unless under the direction of the Judge, or by order of two of the Registrars. 45. In every case where probate or administration is, for the first time, applied for after the lapse of three years from the death of the deceased, the reason of the delay is to be certified to the Registrars. Should the certificate be unsatisfactory, the Registrars are to require such proof of the alleged cause of delay as they may see fit. Filling up Grants. 46. All probates or letters of administration issued from the Principal Registry are to be filled up there. Oath of Executors and Administrators. 47. The usual oath of administrators, as well as that of executors and administrators with the will, is to be subscribed and sworn by them as an afiidavit, and then filed in the Registry. Identity of Parties. 48. The Registrars may, in cases where they deem it neces- sary, require proof, in addition to the oath of the executor or administrator, of the identity of the deceased, or of the party applying for the grant. Testamentary Papers to be marked. 49. Every will, copy of a will, or other testamentary paper, to which an executor or administrator with the will is sworn, must be marked by such executor or administrator, and by the person before whom he is sworn. Renunciations. 50. No person who renounces probate of a will or letters of administration of the personal estate and effects of a deceased Digitized by Microsoft® 436 Appendix II. — Edles for the Kon-Conteniious person in One character is to be allowed to take a representation '. — to the same deceased in another character. Affidavits. 51. Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent making it is to be inserted therein. 52. In every affidavit made by two or more persons, the names of the several persons making it are to be written in the jurat. 53. No affidavit will be admitted- in any matter in the Court of Probate of which any material part is written on an erasure, or in the jurat of which there is any interlineation or erasure. 54. where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the Registrar, Commissioner, or other authority before ' whom such affidavit is made is to state in the jurat that the affidavit was read in the presence of the person making the same, and that such person seemed perfectly to understand the same, and also made his or her mark, or wrote his or her signa- ture, in the presence of the Registrar, Commissioner, or other authority before whom the affidavit was made. 55. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his proctor, solicitor, or attorney, or before a partner or clerk of his proctor, solicitor, or attorney. 56. Proctors, solicitors, and attorneys, and their clerks re- spectively, if acting for any other proctor, solicitor, or attorney, shall be subject to the rules in respect of taking affidavits which are applicable to those in whose stead they are acting. 57. In every case where an affidavit is made by a subscribing witness to a will or codicil, such subscribing witness shall de- pose as to the mode in which the said will or codicil was exe- cuted and attested. 58. The Registrars are not to allow any affidavit to be filed (unless by leave of the Judge) which is not fairly and legibly written, or in which there is any interlineation, the extent of which at the time when the affidavit was sworn is not clearly shown by the initials of the Commissioner, or other person before whom it was sworn. Caveats. 59. Any person intending to oppose the issuing of a grant of probate or letters of administration must, either personally or by his proctor, solicitor, or attorney, enter a caveat in the Prin- cipal Registry, or in a District Registry; if in the Principal Registry, the person entering the caveat must also insert the name of the deceased in the index to the caveat book. Digitized by Microsoft® Principal Eegistry (P. R., Non-C). 437 60. A caveat shall bear date on the day it is entered, and Non-ContenUous shall remain in force for the space of six months only, and then °"''°°°°' expire and be of no effect ; but caveats may be renewed from Caveats. time to time. 61. The Registrars shall, immediately upon a caveat being entered, send notice thereof to the District Registrar of any district in which it is alleged the deceased resided at the time of his death, or in which he is known to have had a fixed place of abode at the time of his death. 62. No caveat shall affect any grant made on the day on which the caveat is entered, or on the day on which notice is received of a caveat having been entered in a District Re- gistry. 63. All caveats shall be warned from the Principal Registry. The warning is to be left at the place mentioned in the caveat as the address of the person who entered it. 64. It shall be sufficient for the warning of a caveat that a Registrar send by the pubKc post a warning signed by himself, and directed to the person who entered the caveat, at the address mentioned in it. 65. The warning to a caveat is to state the name and interest of the party on whose behalf the same is issued, and if such person claims under a will or codicil, is also to state the date of such will or codicil, and is to contain an address within three miles of the General Post Office, at which any notice requiring service may be left. The form of warning wUl be supplied in the Registry. 66. Before any citation is signed by a Registrar, a caveat shall be entered against any grant being made in respect of the estate and effects of the deceased to which such citation relates, and notice thereof shall be sent to the District Registrar of any district in which the deceased appears to have resided at the time of his death. 67. In order to clear off a caveat when no appearance has been entered to a warning duly served, an affidavit of the ser- vice of the warning, stating the manner of service and an affi- davit of search for appearance and of non-appearance, must be- filed. Citations. 68. No citation is to issue under seal of the Court until an affidavit, in verification of the averments it contains, has been^ filed in the Registry. 69. Citations are to be served personally when that can be done. Personal service shall be effected by leaving a true copy of the citation with the party cited, and showmg him the origi- nal, if required by him so to do. 70. Citations and other instruments which cannot be person'- ally served are to be served by the insertion of the same, or of Digitized by Microsoft® citations. At 438 Appendix II. — Rules eok the Non-Contentious an abstract thereof, settled and signed by one of the Registrars BuBinesB. ag an advertisement in such morning and evening London news- papers, and such local newspapers, and at such intervals as the Judge or one of the Registrars may direct. Blind and illiterate Testators. 71. The Registrars are not to allow probate of the wiU, or administration with the will annexed, of any blind or obviously illiterate or ignorant person, to issue, unless they have pre- viously satisfied themselves that the said will was read over to the testator before its execution, or that the testator had at such time knowledge of its contents. Alterations in Grants, SfC. 72. Whenever the value of the personal estate and effects of a deceased person is re-sworn under a different amount, or any alteration is made in a grant, or a grant is revoked, and the volume of the printed calendar containing the entry of such grant has been forwarded to the District Registrars, notice of such re-swearing, alteration, or revocation is without delay to be forwarded by the Registrars of the Principal Registry to all the District Registrars. Irish Grants. 73. The seal is not to be affixed to any probate or letters of administration granted in Ireland, so as to give operation thereto as if the grant had been made by the Court of Probate in Eng- land, unless it appear from a certificate of the Commissioners of Inland Revenue, or their proper offiofer, that such probate or letters of administration is duly stamped in respect of the per- sonal estate and effects of which the deceased died possessed in England. In respect to letters of administration, the provisions of statute 21 & 22 Vict. c. 95, s. 29, must also be complied with. Grants for Property in the United Kingdom. 74. Whenever a grant of probate or of letters of administra- tion is made under statute 21 & 22 Vict. c. 56, for the whole personal estate and effects of a deceased within the United Kingdom, it must appear by the affidavit made for the Inland Revenue Office, that the testator or intestate died domiciled in England, and that he was possessed of personal estate in Scotland, other than that excluded by 22 & 23 Vict. c. 80, and the value of such personal estate must be separately stated in such affidavit. In case any portion of the personal estate be in Ireland, a separate affidavit and schedule must also be filed. Upon all such grants a note or memorandum must also be written and signed by cue of the Registrars to the effect that the testator or intestate died domiciled in England. Digitized by Microsoft® Peincipal Registry (P. E., Non-C). 439 Notices to Queen's Proctor. Non-Contentious Business. 75. In all cases where application is made for letters of ' administration (either with or without a will annexed) of the goods of a bastard dying a bachelor or a spinster, or a widower or widow without issue, or of a person dying without known relation, notice of such application is to be given to her Majesty's Procurator General (or in case the deceased died domiciled within the duchy of Lancaster, to the solicitor for the duchy in London), in order that he may determine whether he will inter- fere on the part of the Crown ; and no grant is to be issued until the officer of the Crown has signified the course which he thinks proper to take. 76. In the case of persons dying intestate without any known relation, a citation must be issued against the next of kin, if any, and all persons having or pretending to have any interest in the personal estate of the deceased, and the service thereof upon them shall be effected as required by Rule 70. Such citation must also be served upon the Queen's Proctor, or upon the solicitor for the duchy of Lancaster, as the case may require. Transmission of Papers. 77. After motions have been made before the Judge in Court, the Registrars are, on the application of the parties (unless the Judge shall otherwise direct), to transmit to a District Registrar the original papers and documents, in order that the grant of probate or administration may be completed in a District Registry. 78. Papers and other documents may be transmitted by the Registrars of the Principal Registry to the District Registrars through the post office. Such letters or packets are to be superscribed with the words, " On her Majesty's Service," and may be registered, if thought necessary. 79. The Registrars are to take care that the copies of wills and affidavits to be annexed to the probates or letters of ad- ministration are fairly and properly written, and are to reject those which are otherwise ; but it shall not be necessary that such copies be written in the engrossing hand heretofore in use (a). Office Copies. 80. Office copies of wills, and other documents furnished in the Principal Registry, will not be collated with the original will or other document, unless specially required. Every copy so required to be examined, shall be certified under the hand (a) This rule was made on the former one, which required the en- 29th Decemher, 1865, in lieu of the grossiug hand theretofore in use. Digitized by Microsoft® 440 Appendix II.— Eules foe the Non-contentiouB of one of the Registrars of the Principal Registry, to be an °°^'°°°°- examined copy. Office copies. 81. The seal of the Court is not to be affixed to any office copy of a will, or other document, unless the same has been certified to be an examined copy. Attendances with Documents. 82. If a will or other document filed in the Registry is required to be produced at any place within three miles of the Principal Registry, application must be made for that purpose not later than the day previously to that named for its produc- tion. 83. If a will or other document filed in the Registry is required to be produced at any place beyond the above distance, application must be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document to be deposited in its place, and in every case such notice must be given (except by special leave of the Judge or Registrars) at least twenty-four hours before the clerk in whose charge the will or other document is to be placed will be required to set off. Subpodnas to bring in Testamentary Papers. 84. Any person bringing in a wiU or testamentary paper, in obedience to a subpoena, is to take it in the first instance to the clerk of the papers, who will prepare a minute to be signed by the Registrar to whom the will or paper brought in is to be delivered, and the Registrar will sign the minute recording the delivery thereof. 85. The minute is to be entered in the book of Registrar's minutes in the usual manner ; and the fee for the entry, and a further fee for filing each testamentary paper, wUl then be payable. If these fees should not be paid by the person bring- ing in the will or paper, the same are to be charged to the person who may first apply to the clerk of the papers to make use of the will or paper so brought in. In case the person bringing in a will or testamentary paper may desire to have a voucher for its delivery into the Registry, he may take an office copy of the minute on paying the usual fee for the same. 86. Any person served with a subpoena to bring in a testa- mentaiy paper, is at liberty to enter an appearance on payment of the usual fees, if he thinks fit to do so. Time allowed for appearing to a Warning, Citation, or Subpoena. 87. The time fixed by a warning or citation for entering an appearance or by a subpoena, to bring in a testamentary paper, Digitized by Microsoft® Pkincipal Kegistby (P. E.., Non-C.)- 441 shall, in all cases, be exclusive of Sundays, Christmas Day, Non-contentious and Good Friday. Business. Taxing Bills of Costs. 88. Any bill of costs may be referred to the Registrars of the Principal Registry for taxation, and no special order shall hereafter be required for the purpose. 89. The bill of costs of any proctor, solicitor, or attorney will be taxed on his application, after sufficient notice given to the person or persons liable for the payment thereof, or on the application of such person or persons, after sufficient notice given to the practitioner, and the Registrar shall decide in each case what may be a sufficient notice. 90. When an appointment has been made by a Registrai* to tax a bill, the Registrar may proceed to tax the same after the expiration of a quarter of an hour, notwithstanding the absence of either party, or his agent, provided he be satisfied that the absent party has had due notice of the appointment for taxa- tion. 91. If more than one sixth is deducted from any bill of costs taxed as between practitioner and client, no costs incurred in the taxation thereof shall be allowed as part of such bill. Digitized by Microsoft® 442 Appendix II. — Rules for the Peincipal Registky. RULES, ORDERS AND INSTRUCTIONS AS TO PEESONAL APPLICATIONS For Grants of Probate or Letters of Administration. 1. Persons wishing to obtain grants of probate or letters of administration without the intervention of a proctor, solicitor, or attorney, must apply in person at the department for personal applications, and not by letter. 2. No such application will be received iihrough an agent of any kind (whether paid or unpaid). 3. The applications of parties who are attended by a person acting or appearing to act as their adviser in the matter will not be entertained. 4. All fees are to be paid in advance in Probate Court stamps. 5. Applications which have in the first instance been made through a proctor, solicitor, or attorney at the Principal Regis- try, or at a District Registry, cannot be transferred to this de- partment. 6. Applications for grants of probate or administration in cases which have already been before the Court (on motion or otherwise) will not be entertained [as personal applications, D. R.] at this department, but must be made through a proctor, solicitor, or attorney. 7. Whenever it becomes necessary, in the course of [a personal] proceeding with an application which has been entertained at this department, to obtain the directions of the Court, the appli- cation will not be proceeded with, but must be placed in the hands of a proctor, solicitor, or attorney. 8. The papers necessary to lead the grant applied for will be prepared in this department. An applicant is, however, at liberty to bring such papers,, or any of them, filled up, but not sworn to, and the same, if correct, may be received (the usual fee for perusal being charged). All further papers which may be required will be drawn va. this department. Testamentary papers once deposited in this department will not be given out unless under special circumstances, and by permission of one of the Registrars. 9. When it is necessary to administer an oath or take an afiirmation the party shall be sworn or affirmed before some Digitized by Microsoft® Appendix II. — Eules fok the Principal Registry. 443 proper authority of the Principal Eegistry, or of a District rereonai Appii- Registry, unless otherwise permitted by one of the Registrars. . ™ 10. Every applicant for a first grant of probate or letters of administration must produce a certificate of the death or burial of the deceased, or give a reason to the satisfaction of one of the Registrars for the non-prodnction thereof. 11. Every applicant must be prepared with a reference to some person of position or chai-acter, to establish his or her identity. 12. The engrossments of wills and testamentary papers will be made in the Registry. 13. Every applicant for a grant of probate or letters of admi- nistration shall give under his or her hand a schedule of the property to be affected by the grant in the form hereunto annexed (a), marked A. (The necessary forms will be pro- vided in the Registry.) 14. Legal advice is not to be given to applicants, either with respect to the property to be included in the above-mentioned schedule, or upon any other matter connected with the applica- tion, and the clerks in this department are only to be held re- sponsible for embodying in a proper form the instructions given to thera, but they will, as far as practicable, assist applicants by giving them information and directions as to the course which they must pursue. 15. A receipt or acknowledgment of each application will be handed to the applicant, and the production of such receipt will be required of the person who attends to obtain the grant when completed. 16. No clerk or officer of this department is to become surety to any administration bond. 17. All administration bonds in cases of personal applications are to be executed in this department, or in a District Registry ; if executed in this department the bond must be attested by the chief clerk or senior clerk in attendance. (a) See p. 460.. Digitized by Microsoft® 444- Appendix II. — Eules foe the KULES, ORDERS AND INSTRUCTIONS FOR THE DISTRICT REGISTRARS OF HER MAJESTY'S COURT OF PROBATE, Made under the Provisions of the Statvtes 20 ^- 21 Viet. c. 77, and 21 & 22 T%et. e. 95, IN RESPECT OF NON-CONTENTIOUS BUSINESS. Commeacement of. All rules, orders and instructions heretofore made and issued for the District Registrars of her Majesty's Court of Pro- bate in respect of non-contentious business shall be re- pealed, on and after the second day of March, 1863, except so far as concerns any matters or things done in accordance with them prior to the said day. The following rules, orders and instructions in respect of non- contentious business shall take effect on and after the second day of March, 1863. Non-Contentious NoN-CONTENTious BUSINESS shall include all common form "°"'"^''- business as defined by the " Court of Probate Act, 1857," and the waruing of caveats. Applications for gmnts. 1. Application for Probate or Letters of Adminis- tration may be made at the Principal Registry in all cases. Application may also be made at a District Registry in cases where the deceased, at the time of his death, had a fixed place of abode within the district in which the application is made, and not otherwise. 2. Such applications may be made through a proctor, solicitor, or attorney, or in person by executors and parties entitled to grants of administration. 3. The District Registrar, before ho entertains any applica- tion for probate or letters of administration, must ascertain that the deceased had, at . the time of his death, a fixed place of abode within his district. 4. The District Registrar is not to allow probate or letters of administration to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction, and this refers more particularly to applications made in person by exe- ^„+„„„ „„j „^i,„_„ 'pjjQ District Registrar is notwithstanding cutors and others. Digitized by Microsoft® District Eegisteies (D, R.). 445 to afford as great facility for the obtaining grants of probate or Non-Contentious administration as is consistent with a due regard to the preven- ""^'"^''^- tion of error or fraud. 5. No District Registrar or clerk in a District Registry shall directly or indirectly transact business for himself or as the proctor or solicitor of any other person in the District Registry to which he has been appointed. As TO Peobate of Wills and Codicils and Letters op Administration, with the Will [ok Will and Codicils] annexed, where the wills and codicils are dated after 31st December, 1837. Execution of a Will. 6. Upon receiving an application for probate or letters of administration with the will annexed, the District Registrar must inspect the will and each codicil, and see whether by the terms of the attestation clause (if any) it is shown that the same have been executed in accordance with the provisions of statutes 1 Vict. c. 26, and 15 Vict. c. 24. 7. If there be no attestation clause to a will or codicil pre- sented for probate, or if the attestation clause thereto be insuffi- cient, the District Registrar must require an affi.davit from at least one of the subscribing witnesses, if they or either of them be living, to prove that the provisions of 1 Vict. c. 26, s. 9, and 15 Vict. c. 24, in reference to the execution were in fact complied with ; and such affidavit must be engrossed and form part of the probate. 8. If on perusing the affidavits of both the subscribing wit- nesses it appear that the requirements of the statute were not complied with, the District Registrar must refuse probate. 9. If on perusing the affidavit or affidavits, setting forth the facts of the case, it appear doubtful whether the will or codicil has been duly executed, the District Registrar must transmit a statement of the matter to the Registrars of the Principal Registry, who may require the parties to bring the matter before the Judge on motion. 10. If both the subscribing witnesses are dead, or if from other circiun stances no affidavit can be obtained from either of them, resort must be had to other persons (if any) who may have been present at the execution of the wiU or codicil : but if no affidavit of any such other person can be obtained, evi- dence on affidavit must be procured of that fact and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of the due execution. Digitized by Microsoft® 446 Appendix n. — Rules for the Kon-Contentlons Business. Wills dated after 31st December, * 1837. Interlineations and Alterations. 11. Interlineations and alterations are invalid unless they existed in the will at the time of its execution, or, if made after- wards, unless they have been executed and attested in the mode required by the statute, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. 12. When interlineations or alterations appear in the will (unless duly executed, or recited in or otherwise identified by the attestation clause), an affidavit or affidavits in proof of their having existed in the will before its execution must be filed, except when the alterations are merely verbal, or when they are of but small importance, and are evidenced by the initials of the attesting witnesses. Erasures and Obliterations. 13. Erasures and obliterations are not to prevail unless proved to have existed in the will at the time of its execution, or unless the alterations thereby effected in the will are duly executed and attested, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evidence can be adduced as to the time when such erasm'es and obliterations were made, and the words erased or obliterated be not entirely effaced, but can upon inspection of the paper be ascertained, they must form part of the probate. 14. In every case of words having been erased or obliterated which might have been of importance, an affidavit must be required. Deeds, SfC, referred to in a Will. 15. If a will contain a reference to any deed, paper, memo- randum, or other document, of such a nature as to raise a question whether it ought or ought not to form a constituent part of the will, the production of such deed, paper, memoran- dum, or other document must be required, with a view to ascertain whether it be entitled to probate ; and, if not pro- duced, its non-production must be accounted for. 16. No deed, paper, memorandum, or other document can form part of a will unless it was in existence at the time when the will was executed. Appearance of the Paper. 17. If there are any vestiges of sealing wax or wafers or other marks upon the testamentary papers, leading to the in- ference that a paper, memorandum, or other document has been annexed or attached to the same, they must be satisfac- torily accounted for, or the production of such paper, memoran- Digitized by Microsoft® 1837. District Registries (D. E.). 447 dum, or other document must be required ; and, if not produced, Non-Contentions -^ its non-production must be accounted for. '- — ■wills dated after Married Woman's Will. 3ist December, 18. In granting probate of a married woman's -will made by virtue of a power or administration with such will annexed, the power under which the will purports to have been made must be specified in the grant. Codicils. 19. The above rules and orders respecting wills apply equally to codicils. Doubtful Cases. 20. If it be doubtful whether any will or codicil be entitled to probate, or whether any interlineation, alteration, erasure, oV obliteration ought to prevail, or whether any deed, paper, memorandum, or other document ought to form part of a will or codicil, or if any doubt arise in consequence of the appear- ance of the paper, or on any other point, the District Regis- trar must communicate with the Registrars of the Principal Registry. Letters of Administration with Will annexed. 21. The right of parties to letters of administration with the will annexed, and letters of administration with the will annexed de bonis non, depends so entirely upon the circumstances of each particular case taken in connexion with the wording of the will, that no general rules, other than those which have ob- tained a judicial sanction, can be laid down for the guidance of the District Registrars. Whenever the right of the party applying is at all questionable, a statement of the case, accom- panied by a copy of the will, must be transmitted to the Registrars of the Principal Registry, who will advise thereon. As TO Probate of Wills, Codicils, and Testamentary Papers relating to Personalty, and dated before THE 1st January, 1838. Execution of a Will. 22. It is not necessary that a will, codicil, or testamentary paper dated before 1st January, 1838, should be signed by the testator or attested by witnesses to constitute it a valid disposi- tion of a testator's personal property. Although neither signed by the testator nor attested by witnesses, it may nevertheless be valid j but in such cases the testator's intention that it should operate as his will, codicil, or testamentary disposition must be clearly proved by circumstances. Digitized by Microsoft® 448 Appendix II.— Eules foe the Non-Contentious 23. A wiU, codicil, or testamentary paper, signed at the end Business, of it by the testator and attested by two disinterested witnesses wills dated before Calthough there be no clause of attestation) is prima facie ^"•'*"™'^'^^''*- entitled to probate. 24. In eases where a will, codicil, or testamentary paper is attested by two witnesses, such witnesses are not required to have been present with the testator at the same time. It is sufficient if the testator subscribed his name or made his mark to it in the presence of one attesting witness, or produced it with his name already written or his mark already made, to one attesting witness, and afterwards produced it to the other attesting witness, provided that on each occasion he declared it to be his will, codicil, or testamentary disposition, or otherwise notified his intention that it should operate as such. 25. If the will, codicil, or testamentary paper is signed at the end of it by the testator but is unattested, and there is nothing to show an intention that it should be attested by witnesses, the affidavit of two disinterested persons to prove the signature to be of the handwriting of the testator will be sufficient to entitle the paper to probate. 26. If the will, codicil, or testamentary paper is signed at the end of it by the testator, and attested by one witness only, and there is nothing to show the testator's intention that it should be attested by a second witness, the affidavit of one disinterested person to prove the signature to be of the handwriting of the testator will be sufficient to entitle the paper to probate. 27. The circumstance of a person being named as an executor in the will, codicil, or testamentary paper, or being interested as a legatee or as the husband or wife of a legatee under such will, codicil, or testamentary paper, rendered him or her incom- petent to become an attesting witness to it, so that if the name of a person so interested appears as that of a subscribing witness to the will, codicil, or testamentary paper, the same, so far as regards his or her attestation, must be considered as unattested, and his or her evidence in support thereof will be inadmissible, unless he or she shall first release his or her interest thereunder. 28. The wiU, codicil, or testamentary paper should appear on the face of it to be a complete document ; if an attestation clause or the word "witnesses" appear written at the foot of the paper, the same being unattested, or if the paper purport on the face of it to be a draft of a will, the copy of a will, or instruc- tions for a will, it must prima facie be considered as an incom- plete paper, and not, save under special circumstances, entitled to probate. Appearance of Paper. 29. Any appearance of an attempted cancellation of a testa- mentary paper by burning, tearing, obliteration, or otherwise, Digitized by Microsoft® District Eegistries (D, E.) 449 and every circumstance leading to a presumption of abandon- Non-Oontentioua inent or revocation of such a paper on the part of the testator, ■ '- — must be accounted for or explained by affidavits. In such J^i^^^,''^'!, cases the testamentary paper, and the evidence taken in support of it, should be transmitted to the Kegistrars of the Principal Registry. Alterations and Interlineations. 30. Alterations and interlineations made by the testator, if unattested, are to be proved by the affidavits of two persons as to his handwriting. If the same are in the handwriting of any person other than the testator, it will suffice to prove by affidavit that such alterations and interlineations were known to and ap- proved of by the testator. Proof by affidavit that they existed in the paper at the time it was found in the repositories of the testator recently after his death may, under circumstances, suffice. Alterations and interlineations made since the 31st December, 1837, are subject to the provisions of 1 Vict. c. 26. Deeds, ^c, referred to in a Will or annexed to a Will, 31. With respect to deeds, papers, memoranda, or other documents mentioned in a testamentary paper, or appearing to have been annexed or attached thereto, the foregoing rules, orders, and instructions as to wills bearing date since the 31st December,. 1837, will apply. Republication by Codicil. 32. A will made before the 1st of January, 1838, is repub- lished by a subsequent codicil thereto duly executed. As TO Letters op Administration. 33. The duties of the District Registrar in granting letters of administration are, in many respects, the same as in cases of probate. In both cases he must ascertain the time and place of the deceased's death, and the value of the property to be covered by the grant, and see that the applicant has been sworn as required by statute 55 Geo. 3, c. 184. Notice to other Next of Kin. 34 Where administration is applied for by one or some of the next of kin only, there being another or other next of kin equally entitled thereto, the District Registrar may require proof by affidavit, or statutory declaration, that notice of such application has been given to such other next of kin. B. ^^ Digitized by Microsoft® 450 Appendix II.— Eui,es for the NonrQpntejitLous Letters of ad- ministration. Limited Administrations. 35. Limited administrations are not to be granted, unless every person entitled to the general grant h^s consented or re- nounced, or has been cited and failed to appear, except under the direction of the Judge. 36. No person entitled to a general grant of administration of the personal estate and effects of the deceased will be permitted tq t^ke ft limiljed grant, except und^r the direction of th§ Jijdge. AdministratiQns under Section 73. 37. Whenever the Court, under sect. 73, appoints an adminis- trator other than the person vrho, prior to the " Court of Pro- bate Act, 1857," would have been entitled to the grant, the same is to be made plainly to appear in the oath of the adminis- trator, in the letters of administration, and in the administration bond. Grants to an Attorney. 38. In the case of a person residing out of England, adminis- tration, or administration with the will annexed, may be granted to his attorney, acting under a power of attorney. Grants of Administration tp Guardians. 39. Grants of administration may be made to guardians of minors and infants for their use and benefit, and elections by minors of their next of tin, pr next friend, as the case may be, will be required ; but proxies accepting such guardianships and assignments of guardians to minors will be dispensed with, 40. In all cases of infants (i. e. under the age of seven years), a guardian must be assigned by order of the Judge, or of one of the Registrars of the Principal Registry ; the Registrar's order is to be founded on an affidavit, showing that the proposed guardian is either de facto next of kin of the infants, or that their next of kin de facto has renounced his or her right to the guardianship, and is consenting to the assignment of the pro- posed guardian, and that such proposed guardian is ready to undertake the guardianship. 41. Where there are both minors and infants, the guardian elected by the minors may act for the infants, without being specially assigned to them, by order of the Judg% or a Registrar of the Principal Registry, provided that the object in vievr is to take a grant. If the object be to renounce a grant, the guardian must be specially assigned to the infants by order of the Judge, or of a Registrar of the Principal Registry. 42. In all cases where grants of administration are to be made for the use and benefit of minors or inf^ts, ^h? administratprs are to exhibit a declaration on oath pf the personal est^t^ aqd effects of the deceased, except when the effects are sworn uijder Digitized by Microsoft® DiSTKiCT Registeies (D. E.) 451 the value of twenty pounds, or when the administrators are the Non-conteiiUoas guardians appointed by the High Court of Chancery, or other — "°°'°'"- — competent Court, or are the testamentary guardians of the Lettera gi aUmi- minors or infante. Administrator's Oath. 43. The oath of administrators, and of administrators with the will, is to be so worded as to clear off all persons having a prior right to the grant, and the grant is to show on the face of it how the prior interests have been cleared off, and is to set forth, when the fact is so, that the party applying is the only next of kin, or one of the next of kin, of the deceased. In all administrations of a special character, the recitals in the oath, and in the letters of administration, must be framed in accord- ance with the facts of the case. Administration. Bonds. 44. Administraticm bonds are to be attested by an officer of the Principal Registry, by a District Registrar, or his chief clerk, or by a commissioner or other person now or hereafter to be authorized to administer oaths under 20 & 21 Vict. c. 77, and 21 & 22 Vict, c 95, but in no case are they to be attested by the proctor, solicitor, attorney, or agent of the party who executes them. The signature, of the administrator or adminis- tratrix to such bonds, if not taken in the Principal or District Registry, must he attested by the same person who administers the oath to such administrator or administratrix. 45. In ordinary cases, two sureties are to be required, but when the property is bona fide under the value of fifty poundsi, one surety only may be taken to the administration bond. 46. In all cases of limited or special administration, two sureties are to be required to the administration bond (unless the administrator be the husband of the deceased, or his repre- sentative, in which case, but one surety will be required), and the bond is to be given in double the amount of the property to be placed in the possession of, or dealt with by, the administrator by means of the grant. The alleged value of such property is to be verified by affidavit, if required. 47. The administration bond is, in all cases of limited or special administrations, to be prepared in the District Registry. 48. The District Registrars are to take care (as far as pos- sible) that the sureties to administration bonds are responsible persons. Justification of Sureties. 49. When any person takes letters of administration in de- fault' of the appearance of persons cited, but not .personally served with the citation,, and when any person takes letters of administration for the use and benefit of a lunatic or person of GG2 Digitized by Microsoft® 452 ApPEm>lX II.— EULES FOR THE Non-Contentious unsound mind, unless he be a committee appointed by the ^°°'"^'°- Court of Chancery, a declaration of the personal estate and Letters of admi- effects of the deceased must be filed in the Registry, and the nistration. sureties to the administration bond must justify. Geneeax Rules and Orders for the District Registrars. Last Wills. 50. The District Registrar is not, in any case in which a will apparently duly executed has been produced to him for probate or for administa'ation with the will annexed, to grant probate of any former will, or administration with any former will an- nexed, or administration to the deceased, as having died intes- tate, without an order of the Judge or of one of the Registrars of the Principal Registry, showing that the last will is not entitled to probate. In the absence of such order the District Regis- trar is to communicate with the Registrars of the Principal Registry. Time of issuing Grant. 51. No probate or letters of administration, with the will annexed, shall issue until after the lapse of seven days from the death of the deceased, unless under the direction of the Judge, or by order of one of the Registrars of the Principal Registry. 52. No letters of administration shall issue until after the lapse of fourteen days from the death of the deceased, unless under the direction of the Judge, or by order of one of the Registrars of the Principal Registry. 53. In every case where probate or administration is, for the first time, applied for after the lapse of three years from the death of the deceased, the reason of the delay is to be certified by the practitioner to the District Registrar. Should the cer- tificate be unsatisfactory, or the case be one of personal appli- cation, the District Registrar is to require an affidavit, or to. communicate with the Registrars of the Principal Registry. Filling up Grant. 54. Every grant of probate or of letters of administration issued from a District Registry is to be filled up therein,, and any former grant which has been revoked or has ceased is to be cleared off therein. Notices of Applications. 55. Notices of applications for grants of probate or adminis- tration, with the will annexed, transmitted by the District Digitized by Microsoft® District Eegisteies (D. E.) 453 Registrar to the Registrars of the Principal Registry, are to Non-contentio;is contain (in addition to the particulars specified in sect. 49 of °°°'°^°- ' the " Court of Probate Act, 1857 ") an extract of the words of Notices oi the wiU or codicil by which the applicant has been appointed »»"»"»"«• executor, or of the words (if any) upon which he founds his claim to such administration. 56. Notices of application are to set forth the names and interests of all persons who, according to the practice of the Court, would have a prior right to the applicant, and to show how such prior right is cleared off. In case the persons or any of them have renounced, the date of his or her renunciation must be stated. If the applicant claims as the representative of another person, the date and particulars of the grant to him must appear. Oath of Executors and Administrators. ^ 57. The usual oath of administrators, as well as that of executors and administrators with the will, is to be subscribed and sworn by them as an affidavit, and then filed in the Re- gistry. 58. The draft oaths to lead grants of special or limited pro- bate or administration, with or without the will annexed, are to be transmitted by the District Registrar to the Registrars of the Principal Registry, in order to their being settled, and no special or limited grant is to issue until the draft oath to lead the same has been settled by a Registrar of the Principal Re- gistry. Identity of Parties. 59. The District Registrars may, in cases where they deem it necessary, require proof, in addition to the oath of the exe- cutor or administrator, of the identity of the decesised, or of the party applying for the grant. Testamentary Papers to be marked. 60. Every wUl, copy of a will, or other testamentary paper, to which an executor or administrator with the will is sworn, must be marked by such executor or administrator and by the person ^before whom he is sworn. Renunciations. 61. No person who renounces probate of a will or letters of adrdinistration of the personal estate and effects of a deceased person in one character is to be allowed to take a representation to the same deceased in another character. Revocation and Alteration of Grants. ... 62. Grants of probate or letters of administration can only, be Digitized by Microsoft® 454 Appendix II. — Eules foe the Hon-CDiitenttous revoked by order of the Judge or of one of the Registrars of °'"'°'°°- the Principal Registry. 63. No grant of probate or letters of administration is to be altered by a District Registrar, without an order of a Registrar of the Principal Registry having been previously obtained. lu case the name of the testator or intestate requires alteration, the notice of application must be renewed, and the alteration ordered is not to be made by the District Registrar until the usual certificate on such notice has been received from the Bevocation and altemblon ol grants. Principal Registry. Affidavits. 64. Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent making it is to be inserted therein. 65. In every affidavit made by two or more persons the names of the several persons making it are to be written in the jurat. 66. No affidavit will be admitted in any matter in the Court of Probate of which any material part is written on an erasure, or in the jurat of which there is any interlineation or erasure. 67. Where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the District Registrar, commissioner, or other authority before whom such affidavit is made is to state in the jurat that the affidavit was read in the presence of the person making the same, and that such person seemed perfectly to understand the same, and also made his or her mark, or wrote his or her signature, in the presence of the District Registrar, commissioner, or other authority before whom the affidavit was made. 68. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is ofiered, or before his proctor, solicitor, or attorney, or before a partner or clerk of his proctor, solicitor, or attorney. 69. Proctors, solicitors, and attorneys, and their clerks respec- tively, if acting for any other proctor, solicitor, or attorney, shall be subject to the rules in respect of taking affidavits which are applicable to those in whose stead they are acting. 70. In every case where an affidavit is made by a subscribing witness to a will or codicil, such subscribing witness shall de- pose as to the mode in which the said will or codicil was exe- cuted and attested. 71. The District Registrars are not to allow any affidavit to be filed (unless with the concurrence of the Registrars of the Principal Registry) which is not fairly and legibly written, or in which there is any interlineation, the extent of which at the time the affidavit was made is not clearly shown by the initials Digitized by Microsoft® District Registries (D. R.) 455 of the commissioner or other person before whom it T*^as Non-Contentidui ««#»^*. Business. sworn. Caveats. 72. Any person intending to oppose the issuing of a grant of E rebate or letters of administration must, either personally or y his proctor, solicitor, or attorney, enter a caveat in the Prin- cipal Registry, ot in the proper Disttict Eegistry. 73. A caveat shall bear date on the day it is entered, and shall remain in force for the space of six months only, and then expire and be of no effect ; but caveats may be renewed froiti time to time. 74. The District Registrar shall, immediately upon a caveat being entered, send a copy thereof to the Registrars of the Prin- cipal Registry, and also to the Registrar of any dther district in which it is alleged the deceased resided at the time of his death, or in which he is known to have had a fixed place of abode at the time of his death. 75. No caveat shall affect any grant made on the day on which the caveat is entered, or on the day on which notice is received of a caveat having been entered in the Principal Registry. 76. Caveats shall be warned from the Principal Registry only. 77. After a caveat has been entered, the District Registrar is not to proceed with the grant of probate or administration to which it relates untU it has expired or been subductedj or until he has received notice from the Principal Eegistry that the caveat has been warned and no appearance given, or that the contentious proceedings consequent on the caveat have termi- nated. 78. The further rules in respect to caveats will be found in the " Rules, Orders and Instructions for the Registrars of the Principal Eegistry^" Citations and Subpoenas. 79. Citations and subpoeliaS can be issued from the Principal Ef^istry only, and th6 rules applicable to them will be found ia thfe " Rules, Orders and Instructions for the Registrars of the Principal Registry." 80. No grants are to issue from a District Registry after a citatiofl Without the prodU(Jtion of an office copy of the decree or order of the Judge, or of" one of the Registrars of the Prin- cipal Registrjf authorizing the same. Blind and illiterate Testators. 81. The District Registrars are not to allow probate of th^ will> or administration with the will annexed, of any blind Or obviously illiterate or ignorant person, to issue, unless they have previously satisfied themselves that the said iVill was ^ead over Digitized by Microsoft® 456 Appendix IL — Rules for the Non-Contentlous Business. Blind, &c. testa- tors. to the testator before its execution, or that the testator had at such time knowledge of its contents. When such information is not forthcoming, the District Registrars are to communicate with the Registrars of the Principal Registry. Alterations in Grants, SfC. 82. Whenever the value of the personal estate and effects of a deceased person is re-swom under a different amount, or any alteration is made in a grant, or a renunciation is filed, notice of such re-swearing, alteration or renunciation is without delay to be forwarded by the District Registrar to the Registrars of the Principal Registry, but no fee shall be payable in respect of any such notice. Lists of Grants. 83. The list^ of grants of probate and administration required to be furnished by the District Registrars under section 51 of the " Court of Probate Act, 1 857," are to be furnished on the first and every other Thursday in the month, and are to contain the name of the Registry in which each grant was made ; and the christian and surname of each testator and intestate. 84. Every such list of grants furnished by the District Re- gistrar is to be accompanied by a copy of the record of each grant mentioned in it. The record, besides stating the necessary particulars of the grant to which it refers, is to contain the place and time of death of the testator or intestate ; the names and description of each executor or administrator ; the date of each grant ; and the sum under which the value of the personal estate and effects is sworn, and in cases of administrations the names and description of the sureties. 85. Within four days from the end of each month each Dis- trict Registrar is to forward to the Principal Registry a return, arranged alphabetically, of all grants of probate or letters of administration passed at his District Registry during the pre- ceding month. Grants for Property in the United Kingdom, SfC. 86. Whenever a grant of probate or of letters of administra- tion is made under statute 21 85 22 Vict. c. 56, for the whole personal estate and effects of a deceased within the United Kingdom, it must appear by the afiidavit made for the inland revenue office that the testator, or intestate, died domiciled in England, and that he was possessed of personal estate in Scot- land other than that excluded by 22 & 23 Vict. c. 80, and the value of such personal estate must be separately stated in such affidavit. In case any portion of the personal estate be in Ireland, a separate affidavit and schedule must also be filed. Upon all such grants a note or memorandum must also be written and signed by the District Registrar to the effect that the testator or intestate died domiciled in England, Digitized by Microsoft® District Eegisteies (D. E.) 457 87. Grants of probate and administration made in Ireland Non-Contentious and confirmations granted in Scotland must be taken to the '- — Principal Registry, and not to a District Registry, to be sealed Qrmta for the with the se^ of the Court of Probate, in order to the same " "^ °™' having force and effect in England. Notices to Queen's Proctor. 88. In all cases -where application is made for letters of ad- ministration (with or without a wUl annexed) of the goods of a bastard dying a bachelor or a spinster, or a widower or widow without issue, notice of such application is to be given to her Majesty's Procurator-General (or in case the deceased died domiciled within the Duchy of Lancaster, to the solicitor for the Duchy in London), in order that he may determine whether he will interfere on the part of the crown ; and no grant is to be issued until the officer of the crown has signified the course which he thinks proper to take. 89. In the case of persons dying intestate without any known relation, a citation must be issued from the Principal Registry against the next of kin, if any, and all persons having or pre- tending to have any interest in the personal estate of the de- ceased. See the rules, orders and instructions for the Regis- trars of the Principal Registry. Transmission of Papers. 90. When motions are to be made before the Judge in Court, with regard to any application for probate or administration at a District Registry, the District Registrar is to transmit all original papers and documents to the Principal Registry, and the same, after the directions of the Court have been taken, will, on the application of the parties, be returned to the Dis- trict Registrar together with an office copy of the decree of the Judge. 91. Original papers are also to be forwarded to the Principal Registry whenever an inspection of them is necessary, in order to enable the Registrars to answer the questions submitted to them' by the District Registrar. 92. Original papers and documents may be transmitted by the District Registrars to the Registrars of the Principal Registry through the post office. Such letters or packets are to be superscribed with the words "On her Majesty's Service," and may be registered, if thought necessary. Probate Copies of Wills. 93. The District Registrar is to take care that the copies of wills' and affidavits to be annexed to the probate or letters of administration are fairly and properly written, and is to reject those which are otherwise. Digitized by Microsoft® 458 Appendix II,— Eules foe the naX""* Offic6 Copies. 54. Ofl&ce copies of willsj and other documents furnished in a District Registry, will not be collated with the original will or other document, unless specially required. Every copy so required to be examined shall be certified under the hand of the District Kegistrar to be an examined copy. 93. The seal of the Court is not to be affixed to any office copy of a will, or other document, unless the same has been (jettified to be an examined copy. Attendances with Dociiinents. 96. If a will or other document filed in a District EegiBtry is required to be produced at any place within three miles of that Registry, application must be made for that purpose not later than the day previously to that named for its production. 97. If a wiU or other document filed in a District Registry is required to be produced at any place beyond the above distance, apphcation must be made for that purpose in sufficient time to allow for making and examining a copy of such will or otiier document to be deposited in its place. t)ouhtful and difficult Cases. 98. The District Registrars are in every case of doubt or difficulty to communicfeite with the Registrars of the Principal Registry. Taxing Bills of Costs. 9&. All bills df Cdsts are to be referred to the Registi-ilrs of the Principal Registry for taxation, and no special order shall be required for the purpose. 100. The rules in respect t6 taxing bills of costs will be firand in the " Rules, Orders slhd Instructions for the Regis- trars of the Principal Registry." Digitized by Microsoft® District Eegistkies (D. K.) 45^ RULES, OEDERS AND INSTRUCTIONS AS TO PERSONAL APPLICATIONS For Grants of Probate or Letters of Administration, in the District Registries attached to the Court of Probate^ 1. Persons ■wishing to obtain grants of protate or letters of administration without the intervention of a proctor, solicitor, or attorney, must apply at the District Registry in person, and not by letter. 2. No such application will be received through an agent of any kind (whether paid or unpaid). 3. The applications of parties who are attended by a person acting or appearing to act as their adviser in the matter will not be entertained. 4. All fees are to be paid in advance in Probate Court stamps. 5. An application which has in the first instance been made through a proctor, solicitor, or attorney, cannot be afterwards treated as a personal application. 6. Applications for grants of probate or administration in cases which have already been before the Court (on motion or othervnse) will not be entertained as personal applications, but must be made through a proctor, solicitor, or attorney. 7. Whenever it becomes necessary, in the course of proceed- ing with a personal application, to obtain the directions of the Court, the application will not be proceeded with, but must be placed in the hands of a proctor, solicitor, or attorney. 8. The papers necessary to lead the grant applied for will be prepared in the District Registry. An appUcant is, however, at liberty to bring such papers, or any of them, filled up, but not sworn to, and the same, if correct, may be received (the usual fee for perusal being charged). All further papers which may be required will be drawn in the District Registiy. Testa- mentary papers once deposited in the District Registry will not be given out unless under special circumstances, and by permis- sion of a Registrar of the Principal Registry* 9. When it is necessary to administer an oath or take an affirmation, the party shall be sworn or affirmed before some proper authority of the Principal Registry, or of a District Registry, unless otherwise permitted by the District Registrar. 10. Every applicant for a £rst grant -of probate or letters of administration must, if required by the District Registrar, pro- duce a certificate of the death or burial of the deceased, or give a satisfactory reason for the non-production thereof. Digitized by Microsoft® 460 Appendix II.— Kules for the Personal Appii- 11. The District Registrar may require in any case he sees °°-"°'"- fit a reference to some person of position or character, to esta- blish the identity of the applicants. 12. The engrossments of wills and testamentary papers are to be made in the District Registry, from which the grant is to issue. 13. Every applicant for a grant of probate or letters of admi- nistration shall give under his or her hand a schedule of the property to be eflfected by the grant in the form hereunto annexed, marked A. (The necessary forms wiU be provided in the District Registry.) 14. Legal advice is not to be given to applicants either with respect to the property to be included in the above-mentioned schedule, or upon any other matter connected with the applica- tion, and the District Registrar is only to be held responsible for embodying in a proper form the instructions given to him, but he will, as far as practicable, assist applicants by giving them information and directions as to the course which they must pursue. 15. A receipt or acknowledgment of each application will be handed to the applicant, and the production of such receipt wiU be required of the person who attends to obtain the grant when completed. 16. No clerk or ofiicer of the District Registry is to become surety to any administration bond. 17. All administration bonds in cases of personal applications are to be executed in the District Registry making the grant, or in some other Registry belonging to the Court of Probate, unless otherwise permitted by the District Registrar. (A.) — An Account of the Personai. Estate and Effects OF deceased (a). (No deductions to be made on acconnt of debts owing by deceased.) Price of stocks. Actual Value. Cash in the house and at the bankers . . Household goods, linen, wearing apparel, boots, plate, jewels, carriages, horses, &c. valued at £ s. d. Stocks or funds of Great Britain transferable at the Bank or elsewhere in England, viz.: — Dividends thereon ■ (a) As this schedule is, with one exception, identical with that issued from the Principal Registry, it is not repeated. Digitized by Microsoft® District Kegistries (D. Schedule {X-'y—oomtinued. E.) 461 Foreign stocks or funds transferable in Eng- land, viz. : — Dividends thereon . . Leasehold property : — Value per annum . . Ground rent on do. per annum Length of unexpired term Rents of real or leasehold property due at the death of the deceased Do. of leasehold property due since the death of the deceased Policy of insurance on life (S) . . Proprietary shares or debentures of public companies, viz. : — Dividends or interest thereon Money out on mortgage and other securities . . Interest thereon . . Book debts Bonds and bills Kotes . . Interest thereon . . . . Real estate contracted to be sold Personal estate and effecta left by the mil under some authority enabling the deceased to dispose of the same as he or she might think lit Stock in trade, farming stock, and implements of husbandry valued at Other personal property not comprised under the foregoing heads, viz. : — Price of Stocks, Personal Appli- catloua. Actual Value. & i. d. (V) This item i^ omitted in the schedule issued from the Principal Registry. Digitized by Microsoft® 46? Appendix II. — Debtors Act, 1869. In Heb Majesty's Court of Peobate. DEBTORS ACT, 1869. Rules for regulating the Practice under and carrying into effect the First Part of the said Act^ In pursifenoe of the " Debtors Act, 1869," it is ordered that, on and after the date mentioned at the foot of these rules, the following rules shall be in force for regulating the practice under and carrying into effect the first part of the said "Debtors Act, 1869." 1. All applications to commit to prison under section 5 shall in the first instance be made by summons before the Judge, which shall specify the date and other particulars of the order ■for noupayment of which the application is made, together with the amount due, and be endorsed with the name and place of abode or office of business of the proctor or attorney actually suing out the summons, and in case such attorney shall not be an attorney of this Court then also with the name and place of abode or ofiice of business of the attorney in whose name such summons shall be taken out, and when the attorney actually suing out such summons shall sue out the same as agent for an attorney in the country, the name and place of abode of such attorney in the country shall also be endorsed upon the said summons, and in case no attorney shall be employed to issue the summons then it shall be endorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant ia person, as the case may be, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of sueh plaintiff's or defendant's residence, if any such there be, 2. The service of the summons, wherever it may be prac- ticable, shaU be personal ; but if it appear to the Judge that ■reasonable efforts have been made to effect personal service, and either that the summons has come to the knowledge of the debtor, or that he wilfully evades service, an order may be made as if personal service had been effected upon such terms as to the Judge may seem fit. 3. Proof of the means of the d«btor shall, whenever prac- ticable, be given by affidavit, but if it appear to the Judge either before or at the hearing that a viva voce examination, either of ihe debtor or of any other person, or the production of any document, is necessary or expedient, an order may be made commanding the attendance of any such person before the Judge at a time and place to be therein mentioned, for the pur- pose of being examined on oath touching the matter in question (or and) for the production of any such document, subject to such terms and conditions as to the Judge may seem fit. The Digitized by Microsoft® Appendix H.— Debtors Act, 1869. 463 disobedience to any such order shall be deemed a contempt of PebtoraAct,i869. Court, and punishable accordingly. 4. The order of committal (which may be in the form A. in the schedule, pr to the lite effect) shall, before delivery to the sheriff, be endorsed with the particulars recjuired by Rule 1 of these rules. Concurrent orders may be issued ibr executiw in different counties. The sheriff shall be entitled to the same fees in respect thereof as are now payable upon a ca. sa. _ a. Upon payment of the sum or sums mentioned in the order (including tbe sheriff's fees iu like manner as upcm a ea. sa.), the debtor shall be entitled to a certificate in the fprm B. in the schedule, or to the like effect, signed by the proctor or attorney in., the cause of the plaintiff or defendant, as the case m»y be, or signed by the plaintiff or defendant, as the case may be, and attested by an attorney or j ustice of the peace. , 6. The sheriff or other officer named in an, order of committal shall, within two days after the arrest, endorse on the order th^ true date of such arrest. Dated this 1 7th day of February, 1870, SCHEDULE. A. Upon hearing, 4' Pen»ancs. Approved. (Signed) Hathbelet, C. A. E. COCKBURN, Ch. J. Digitized by Microsoft® 464 Appendix II. — County Court (Pkobate) Eules. KULES AND ORDERS FOE EEGULATING THE PEACTICE OF THE COUNTY COURTS, In Proceedings taken under the Provisions of the Act 20 ^ 21 Vict. c. 77, for amending the Law relating to Probate and Letters of Administration in England. 1. Any person desirous of taking proceedings in any county court under the statute 20 & 21 Vict. c. 77, for amending the law relating to probates and letters of administration in Eng- land, shall lodge with the Registrar of the Court having juris- diction in the matter an application in writing according to Form A, annexed, duly stamped with the proper duty there- en (a), and at the same time lodge with the Registrar an office copy of the minute of the Court of Probate authorizing such application. 2. Where any person shall have lodged a caveat against the grant of probate or letters of administration, and proceedings are proposed to be taken in a county court, the person who shall have applied for the probate or letters of administration shall be deemed the plaintiff in the proceedings, and the person who shall have lodged the caveat shall be deemed the defendant. 3. The party making application to a county court for the revocation of probate or letters of administration, shall be deemed the plaintiff in the proceedings, and the party against whom the application is made shall be deemed the defendant. 4. Where an application shall be made to a county court for the grant or revocation of probate or letters of administration, the Registrar shall issue a notice to the defendant according to. Form 13, annexed, and deliver a notice, according to such form, then and there to the plaintiff or his agent. 5. The above-mentioned notices shall be issued ten clear days before the day on which the Judge shall proceed to make a decree in the matter. 6. Notices shall be served by a bailiff of the court, by his delivering the same to some person at the respective places of residence of the parties, as mentioned in the application for proceedings to be taken. 7. The Registrar of the county court, at the time that he issues the notices in proceedings for the revocation of the grant of probate or letters of administration, shall give notice by post, according to Form C, annexed, to the District Registrar liy whom the probate or letters of administration has been granted, to produce the original will or other necessary docu- inents at the county court at which the matter of the applica- tion win be considered. (a) The stamps to be used in the county courts under the act 20 & 21 Vict. c. 77, can be obtained of the different local distributors of stamps. Digitized by Microsoft® Appendix II.— County Court (Probate) Rules. 465 8. The certificate to be given by the registrar of a county Practice of the court under sect. 55 of 20 & 21 Vict. c. 77, shall be according C'"'"ty C""-' ^ to Form D, annexed ; and on or before the day mentioned in the notice, the plaintiff shall deliver to the Eegistrar such form, stamped with the proper duty thereon, and the cause shall not proceed until such form duly stamped is so delivered : pro- vided that the defendant may procure and deliver such form duly stamped, if the plaintiff shall have neglected to deliver such form so stamped. 9. Upon the day mentioned in the notice the Judge, whether both parties are then before him or not, may proceed to con- sider the matter of the application, and to make a decree thereon, or he may adjourn the proceedings from time to time as he may think fit. 10. The decree shall be according to Form E, annexed, and a copy of such decree shall be sent by post to the plaintiff and defendant. 11. Where application for probate or letters of administra- tion has been made at the Principal Registry, and any con- tentious matter shall arise out of such application, and the Judge of the Court of Probate shall send the cause to a county court, the Eegistrar, upon the receipt of such cause, shall forth- with issue a notice, according to Form B, in the schedule, both to the plaintiff and defendant, without any application being made to the Court by the plaintiff. 12. In proceedings for which rules and orders are not hereby provided the rules and practice of the Court of Probate shall be followed so far as they are applicable. 13. The enactments, practice and forms in force and used in the coimty courts shall, subject to the foregoing rules and orders, be adopted with reference to proceedings in the county courts in matters of probate or letters of administration, so far as the same are applicable, mutatis mutandis. In pursuance of the powers vested in us by the appointment of the Lord Chancellor under the provisions of the statute 19 & 20 Vict. e. 108, we, James Manning, John Herbert Koe, Edward Cooke, John Worlledge and William Furner, have, under the provisions of the statute 20 & 21 Vict. c. 77, framed the above rules and orders, and we do hereby certify the same to the Lord Chancellor accordingly. James Majststing. John Worlledge. John Herbert Koe. William Furner. Edward Cooke. I approve of the above to come intc force on the 4th day of February, 1858. Ceanworth, C. For Forma nsed in the County Court, see Appendix II., and for fees and costs therein, see Appendix III. B. H H Digitized by Microsoft® 466 Directions foe describing Testators, Intestates, DIRECTIONS For describing Testators, Intestates and Parties applying for Grants. 1. As a general rule adopt the signature of a testator as his name, although it differ from the name as written in the head- ing of the will. 2. In case of a variance between the name of the testator in the heading of the will, and the name as signed at the foot or end of it, and in case the former is the more correct, the tes- tator should be described by the name he signs, the word " otherwise" followed by the name given him in the will being added. 3. If the testator's name is wrongly spelt in the will, and he signs his will by his initials or by a mark, he should be de- scribed by his correct name, the word " otherwise" followed by the name written in the will being added. 4. If the testator is described in the will as " the elder," but does not so subscribe himself, such description is not to be in- serted. 5. If the testator is described in the will as " the younger," but does not so subscribe himself, he should, notwithstanding, be described as " the younger," or " heretofore the younger," as the case may be. 6. The testator's last place of residence as stated in the will or codicil should form part of his description, and any previous or subsequent residence may be added, provided that not more than three places of residence be inserted. 7. When there is but one executor or executrix named in the will, he or she should be described in the probate as " the sole executor" or " the sole executrix." 8. When there are more executors than one, if they are all females, they are to be described as "the executrixes." If they are all males, or partly males and partly females, they are to be described as "the executors." The expressions "joint executors" and " executor and executrix" should not be used. 9. If the name of an executor or executrix is mis-spelt in the will, the words " in the will written" should be added to his or her correct name, and if the two names be identical in sound, no proof of identity is required. Digitized by Microsoft® AND PaETIES applying FOE GeANTS. 467 10. If an executor be wrongly described in the will as " the elder," or "the younger," or by a wrong christian name, an aflS.davit is requisite in proof of the identity of the person in- tended to be named in the will with the executor applying for the grant, or to whom power to apply is to be reserved in the grant. 11. Whenever it appears from the contents of the will that an executor or executrix is related to the testator as father, mother, grandfather, grandmother, son, daughter, grandson, granddaughter, brother, sister, uncle, aunt, great uncle, great aunt, nephew, niece, great nephew, great niece, he or she is to be so described in the probate. 12. Administrators are to be described as follows: — A husband as " the lawful husband." Directions. " the lawful widow and relict." " the natural and lawful father." "the natural and lawful mother" and "next of kin." " the natural and lawful and only child," or " one of the natural and lawful children." " the natural and lawful brother." " the natural and lawful sister." If there be no parents living, the brother or sister are further to be described as " one of the next of kin," or the " only next of kin." "the lawful nephew," rand "one of the" I or "the lawful niece," l"onlynextofkin." If a brother or sister should be living, and the nephew or niece being the child of the intestate's brother or sister who died in his lifetime takes the letters of adminis- tration, he or she is to be described as "one of the parties entitled in distribution." Grandparents, grandchildren, cousins, &c., are to be described as " lawful." A wife A father A mother A child A brother A sister A nephew A niece HH 2 Digitized by Microsoft® 468 Appendix II. — Eules in the KULES AND OEDEES FOE HER MAJESTY'S CO OUT OF PROBATE, Made under the Provisions of tlie Statutes 20 ^ 21 Vict. c. 11, and 21 ^ 22 Viet. e. 95, IN RESPECT OP CONTENTIOUS BUSINESS. Contentious Business. Commencement of. 1. All rules and orders heretofore made and issued in respect of Contentious business shall be repealed on and after the 1st day of September, 1862, except so far as concerns any matters or things done in accordance with them prior to the said day. 2. The following rules and orders in respect of contentious business shall take effect on and after the 1st day of September, 1862. Contentious Business. 3. All proceedings in the Court of Probate or in the Regis- tries thereof in respect of business not included in the Court of Probate Act, 1857, under the expression " common form busi- ness," except the warning of caveats, shall be deemed to be contentious business, Parties to Causes. 4. Executors or other parties who, previously to the passing of the Court of Probate Act, 1857, might prove wills in solemn form of law, shall be at liberty to prove wills under similar cir- cumstances, and with the same privileges, liabilities, and effect, as heretofore. 5. Next of kin and others who, previously to the passing of the said act, had a right to put executors or parties entitled to administration with will annexed upon proof of a wUl in solemn form of law, shall continue to possess the same rights and privi- leges, and be subject to the same liabilities with respect to costs, as heretofore. 6. Parties who previously to the passing of the said act had a right to intervene in a cause may do so, with leave of the Judge or one of the Registrars, obtained by order on summons, subject to the same limitations and the same rules with respect to costs as heretofore. Caveats. 7. Caveats may be entered in the Principal Registry of the Court of Probate or in a District Registry thereof; if in the Digitized by Microsoft® Peincieai. Kegistey (C. B.) 469 Principal Registry the person entering the caveat must insert Contentious the name of the deceased in the index to the caveat book. — Bnsiness; — 8. A caveat shall bear date on the day it is entered, and shall Caveats. remain in force for the space of six months, and then expire and be of no effect, but may be renewed from time to time. 9. Caveats shall be warned from the Principal Registry, The warning is to be served by leaving the same or a true copy thereof at the place mentioned in the caveat as the address of the person who entered it. 10. It shall be sufficient for the warning of a caveat that a Registrar send by the public post a warning signed by himself, and directed to the person who entered it, at the address men- tioned in it. 11. The warning to a caveat is to state the name and interest of the party on whose behalf the same is issued, and if such person claims under a wiU or codicil, is also to state the date of such will or codicil, and must be accompanied by an address within three miles of the General Post Office at which any notice requiring service may be left. The form of warning will be supplied in the Registry. 12. Upon an appearance being entered in answer to the warning of a caveat, the matter shall be entered as a cause in the court book, and the contentious business shall thereupon be held to commence, and the expenses of the entry of such caveat and the warning thereof shall, upon taxation, be considered as costs in the cause. Citations. 13. Citations can only be extracted from the Principal Re- gistry, and no citation is to issue under seal Until an affidavit in verification of the averments it contains has been filed in the Registry. 14. When a party proposes to prove a will or codicil in solemn, form of law, and no caveat has been entered, or a caveat has been entered and no appearance given to the warning thereof, the contentious business shall be held to commence with the extracting of a citation in the Forms Nos. 1 and 2, or in some similar form. 15. Before a citation is signed by the Registrar a caveat shall be entered against any grant being made in respect of the estate and effects of the deceased to which such citation relates, and notice thereof shall be sent to the Registrar of any district in which the deceased appears to have had a residence at the time of his death. Such caveat is to be renewed from time to time, so as to be kept in force so long as the proceedings arising from the service of the citation are pending. This rule is not to apply to citations to exhibit an inventory, and to render an account, nor to citations to show cause why a bond should not be assigned in order to its being enforced against the sureties. Digitized by Microsoft® 470 Appendix II. — Kules in the Contentious Business. Citations, 16. Citations to see proceedings may be extracted fi'om the Registry, on the application of any party to the cause. A form is given, No. 4. 17. Every citation shall be written or printed on parchment, and the party extracting the same, or his proctor, solicitor, or attorney, shall take it, together with a praecipe, a form of which is given, marked No. 5, to the Registry, and there de- posit the praecipe, and get the citation signed and sealed. The address given in the praecipe must be within three miles of the General Post Office. 1 8. Citations are to be served personally when that can he done, the party cited being resident in Great Britain or Ireland, but if personal service cannot be effected the direction of the Judge or Registrars as to the mode of service must be obtained. Personal service shall be effected by leaving a true copy of the citation with the party cited, and showing such party the origi- nal, if required by him so to do. 19. Citations may be served upon parties resident out of Great Britain and Ireland by the insertion of the same or of an abstract thereof, settled and signed by one of the Registrars, as an advertisement, in such of the morning and evening London newspapers, and if necessary in such local newspapers, and at such intervals as the Judge or a Registrar may direct : provided that in any case the Judge or a Registrar may direct a citation to be served personally. If the party cited be abroad, having an agent resident in England, such agent must be served with a true copy of the citation. 20. Before a party can proceed after the service of a citation, an appearance must have been entered by or on behalf of the party cited, or an affidavit of personal service, and of non- appearance, mast, together with the citation, have been filed in the Registry, or if personal service has not been duly effected, the order of the Judge, or of one of the Registrars in his absence, founded on an affidavit, and giving leave to proceed, must have been obtained. In case the citation has been adver- tised, the newspapers containing the advertisement, together with the citation and an affidavit of non-appearance, must be filed in the Registry. 21. The above rules, so far as they relate to the service of citations, are to apply t6 the service of all other instruments requiring personal service. 22. If contentious proceedings arise from the service of a citation, the expense of the citation and service thereof shall, upon taxation, be considered as costs in the cause. Suits in Forma Pauperis, 23. Any person desirous of prosecuting a suit in forma pauperis is to lay a case before counsel, and obtain an opinion that he or she has reasonable grounds for proceeding. Digitized by Microsoft® Peincipal Eegistrt (C. B.) 471 24. No person shall be admitted to prosecute a suit in forma contentious pauperis without the order of the Judge ; and to obtain such ^''^'■^^'^• order, the case laid before counsel, and his opinion thereon, suits in torma with an affidavit of the party, or of his or her proctor, solicitor ^^'^f^™- or attorney that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit by the party applying that he or she is not worth 251. after payment of his or her just debts, save and except his or her wearing apparel, shaU be produced at the time such application is made. 25. Where a jpauper omits to proceed to trial, pursuant to notice, he or she may be called upon by summons to show cause why he or she should not pay costs, though he or she has not been dispaupered, and why all future proceedings should not be stayed until such costs are paid. Appearances. 26. All appearances are to be entered in the Principal Registry in a book provided for the purpose, and kept by the clerk of the papers. The entry must set forth the interest which the person on whose behalf it is entered has in the estate and effects of the deceased. 27. The entry of the appearance of a party shall be accom- panied by an address within three miles of the General Post Office. Service of Pleadings, SfC. 28. It shall be sufficient to leave all pleadings and other instruments, personal service of which is not expressly required by these rules and orders, at the address furnished as aforesaid by the plaintifif and defendant respectively. Default. 29. In case the party cited does not appear within the time limited in the citation, the cause shall proceed in default; nevertheless, the party cited may enter an appearance at any time before a proceeding has been taken in default, or afterwards by leave of the Judge or of one of the Registrars. Affidavits as to Scripts. 30. In testamentary causes the plaintiff and defendant, within eight days of the entry of an appearance on the part of the defendant, are respectively to file their affidavits as to scripts, whether they have or have not any script in their possession. A Form, No. 10, is given. 31. Every script which has at any time been made by or under the direction of the testator, whether a will, codicil, draft of a will or codicil, or written instructions for the same. Digitized by Microsoft® 472 Appendix II. — Eules in the Contentious Business. Affldavlta as to scriiJts, of which the deponent has any knowledge, is to be specified in his affidavit of scripts ; and every script in the custody or under the control of the party making the affidavit is to be annexed thereto, and deposited therewith in the registry. 32. No party to the cause, nor his proctor, solicitor, or attorney, shall be at liberty, except by leave of the Judge, or of one of the Registrars of the Principal Registry, to inspect the affidavit as to scripts, or the scripts annexed thereto, filed by any other party to the cause, until his own affidavit as to scripts shall have been filed. The Declaration. 33. In ordinary cases it belongs to the plaintiff to deUver the declaration, and to the defendant to deliver the plea ; but the party propounding the alleged last will and testament of the deceased shall, in all cases, even if defendant in the suit, de- liver the declaration, and the party opposing the same deUver the plea. 34. The declaration is to be delivered to the opposite party, and a copy thereof filed in the Registry on one and the same day, and within one month from the entry of appearance by the defendant ; but the party whose duty it is to bring in the de- claration shall not be compelled to deliver it, or to file a copy thereof, until the expiration of eight days after the other party has filed his affidavit as to scripts. 35. In case of proving a will in solemn form of law, the party whose duty it is shall declare in the Form No. 6, or as near thereto as the circumstances of the case admit. 36. In case of proceedings in default, the plaintiff shall file his declaration in the Registry within eight days from the last day allowed in the citation for the appearance of the defendant. Interest of Party opposing Will. 37. In a testamentary cause after delivery of the declaration the interest of the party to whom it has been delivered cannot be disputed by the party declaring, except by leave of the Judge. The Plea. 38. A party desirous of pleading, must deliver his plea to the other party within eight days after the service of the declaration, and file a copy thereof in the Registry on one and the same day, otherwise he will not be permitted to plead, except with the permission of the Judge, or of the Registrars of the Principal Registry in the absence of the Judge. A form of plea is given, No. 8. Further Pleadings. 39. Either of the parties may, within eight days of the ser- vice upon him of the last previous pleading, give in a replica- Digitized by Microsoft® Pbincipal Eegistrt (C. B.) 473 tion, rejoinder, sur-rejoinder, rebutter, or demurrer, as lie may Contentious be advised. The form of the declaration and plea will, it is — °'^'"°''" — presumed, be a sufficient guide as to the form of any further Further pleadings. pleadings. General Rules as to Pleadings. 40. If one party propound a will in his declaration, and nepeaica by the the other party in his plea allege the existence of another luh januaiy, ' will, each party may, with and subject to the permission of i^ee. the Judge, adduce proof at the trial or hearing of the cause of the validity of the will upon which he relies. In place of Rule 40 of the Rules and Orders in Contentious Made nth Jana- Business, and of the Form No. 8 referred to in Rule 38 of the a'T.i806. said rules and orders, it is ordered, that — ■ 40. If one party propounds a will or testamentary script in his declaration, and the adverse parties, or either of them, desire to propound another will or testamentary script, the adverse parties must, with their pleas, deliver to the opposite party and file in the Registry a declaration propounding such other will or testamentary script, to which the opposite party shall plead j and the form of declaration, and the pleadings and proceedings arising therefrom, shall be the same as are directed by the rules and orders of this Court in respect to the original declaration delivered and filed in the cause. 40a. The party or parties pleading to a declaration pro- pounding a will or testamentary script shall be allowed to plead only the pleas hereunder set forth, unless by leave of the Judge, to be obtained on summons. 1. That the paper writing bearing date, ^c, and alleged by the plaintifi' [or defendant] to be the last will and testa- ment [or codicil to the last will and testament] of A. B., late 01^ &c., deceased, was not duly executed according to the provisions of th.e statute 1 Vict. c. 26, in manner and form as alleged. 2. That A. B. the deceased in this cause, at the time his alleged will [or codicil] bears date, to wit, on the, &c., was not of sound mind, memory, and understanding. 3. That the execution of the said alleged will [or codicil] was obtained by the undue influence of C. D. and others acting with him. 4. That the execution of the said alleged will [or codicil] was obtained by the fraud of C. D. and others acting with him. 5. That the deceased at the time of the execution of the said alleged will [or codicil] did not know and approve of the contents thereof. Any party pleading the last of the above pleas shall there- with (unless otherwise ordered by the Judge) deliver to the Digitized by Microsoft® 474 Appendix II. — Rules in the Contentious adverse parties and file in the Eegistry particulars in writing, ^"^'°'""- stating shortly the substance of the case he intends to set up General rules as to thereunder ; and no defence shall be available thereunder which pleadings. might have been raised under any other of the said pleas, unless such other plea be pleaded therewith. 41. In all cases the party opposing a will may, with his plea, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in sup- port of the will, and he shall thereupon be at liberty to do so, and shall be subject to the same liabilities in respect of costs as he would have been under similar circumstances according to the practice of the Prerogative Court. 4'2. Either party desiring to alter or amend a pleading must apply to the Court upon motion ; but if the alteration or amend- ment required be merely verbal or in the nature of a clerical error it may be made by order upon summons. 43. When a pleading has been ordered to be altered or amended, the time for filing the next pleading shall commence from the time of the order having been complied with. 44. If a party in any cause fail to deliver, or file a copy of the declaration, plea, or other pleading within the time specified in these rules, or within such extended time as may have been allowed, the party to whom such declaration, plea, or other pleading ought to have been delivered shall not be bound to receive it, and the copy of such declaration, plea, or other pleading shall not be filed, unless by direction of the Judge, or by order of the Registrars of the Principal Registry, obtained on summons. The expense of every application for such direction or order shall fall on the party who has caused the delay, unless the Judge or Registrars shall otherwise direct. 45. When in any cause a conditional order is made, the party entitled to proceed in default must, before he can take the next step, obtain an order of the Registrars, or, if required, an order of the Judge upon summons, or on motion in Court. The Issue, 46. Within fourteen days after the delivery of the last pleading in the cause, the party who brought in the declaration is to deliver to the other parties in the cause the issue in the Form No. 11, or in a form as near thereto as the circumstances of the case will admit, but the issue is not to be filed. The Mode of Trial. 47. The party who delivers the issue shall therewith give notice to the other parties to the cause, that, after the expira- tion of eight days, he. intends on a day to be specified in the notice to apply to the Court to try the questions at issue before Digitized by Microsoft® Principal Kegistrt (C. B.) 475 itself, either with or without a jury, or to direct an issue to be contentious tried before a Judge of assize, as the case may be ; and if '^"°'°°°°- he do not give such notice with the issue, or within sixteen The mode of trial. days from the day on which the issue was delivered, the other party may give a similar notice to him. A form of notice, No. 12, is subjoined. 48. A copy of every such notice shall be filed in the Re- gistry with the case for motion as to mode of trial. 49. In each case the Judge shall, after hearing the parties upon motion in Court, direct in what mode the cause shall be tried or heard. The Record. 50. After the direction of the Judge has been obtained as to the mode in which the cause is to be tried or heard, the party who delivered the declaration shall, within eight days, deposit the record of the cause in the Registry. The record is to con- clude with a statement of the mode in which the Judge has directed the cause to be tried or heard, as in the Form No. 13. 51. In default of the appearance of defendants, being parties cited, a record, as in Form No. 14, or as near thereto as can be, shall be deposited in the Registry. Trial by Jury. 52. If the cause be directed to be tried by a jury, the ques- tions at issue between the parties are to be prepared by the party declaring from the record, and settled by one of the Re- gistrars of the Principal Registry. A form is given, No. 1 5, and a copy of such questions so settled is to be served on all the other parties to the cause. 53. After the questions have been so settled, any party in the cause shall be at liberty to apply to the Judge on summons to alter or amend the same, and his decision shall be final and binding on the parties. Setting down the Cause for Trial or Hearing. 54. The party who has deposited the record shall set down the cause for trial or hearing, and upon the day on which he so sets it down shall give notice of his having done so to each party for whom an appearance has been entered; but if he delay setting down the cause for trial or hearing for the space of one month after the Court has directed the mode in which the questions at issue shall be tried or heard, either of the other parties may set the cause down for trial or hearing, and give a similar notice. A copy of every such notice shall be filed in the Registry ; and the cause, unless the Judge shall otherwise direct, shall come on in its turn. 55. No cause is to be called on for trial or hearing until after the expiration of ten days from the day when the same has been Digitized by Microsoft® 476- Appendix II. — Rules in the Contentious Business. Setting d6wil cause. set down for trial or hearing, and notice thereof has been given; save with the written consent of all parties to the suit, pre- viously filed in the Registry. Demurrer. 56. All demurrers are to be set down for hearing in the same manner as causes, and will come on in their turn with other causes to be heard by the Judge without a jury. The Hearing. 57. The hearing of the cause shall be conducted in Court, and the counsel shall address the Court, subject to the same rules and regulations as now obtain in the Courts of Common Law. 58. After the conclusion of the trial or hearing, the Registrar shall enter on the record the finding of the jury, or the decision of the Judge, in a form corresponding as near as may be with those given, Nos. 25 and 26, and shall sign the same. New Trial. 59. An application for a new trial of an issue tried before a jury may be made to the Court by motion within fourteen days from the day on which the issue was tried if the Court be then sitting, if not, on the first motion day after the expiration of the fourteen days. 60. An application for a re-hearing of a cause heard before the Judge without a jury, and in which evidence has been given viva voce, may be made by motion within fourteen days from the day on which the same was heard, if the Court be then sitting, if not, on the first motion day after the expiration of the fourteen days. Interest Causes. 61. In interest causes, as heretofore, each party shall be at liberty to deny the interest of the other; and in such cases both parties may, with and subject to the permission of the Judge, adduce proof on one and the same trial of their interests re- spectively. 62. In interest causes the pleading of each party must show on the face of it that no other person exists having a prior inte- rest to that of the claimant. 63. Forms of the declaration and plea in an interest cause are given, No. 7 and No. 9. Proceedings by Petition, 64. Any question arising in a cause, and not being one of interest, domicile, or other matter usually brought before the Court by declaration and plea, may be brought before the Court by petition. Digitized by Microsoft® Pkincipal, Eegistky (C. B.) 477 65. The party desiring to proceed by petition is to give Contentious notice thereof in writing to all the other parties in the cause, and such notice is to set forth the question intended to be raised Proceedings by for the decision of the Court, and a copy of such notice is to be ""^ filed in the Registry. 66. In proceedings by petition the plaintifi" shall, within eight days after he has given notice, deliver his petition to tHe defen- dant, and file a copy thereof in the Registry upon one and the same day. 67. The defendant shall, within eight days after the delivery of the petition, deUver his answer to the plaintiff, and file a copy thereof in the Registry upon one and the same day; and the same course shall be pursued with respect to the reply, rejoinder, &c. until the petition is concluded. 68. When the defendant raises the question to be heard by petition, and gives notice thereof to the plaintiff", the plaintiff shall, within eight days from the receipt of such notice, file a petition ; otherwise the defendant shall be at liberty to do so. 69. Both plaintiff and defendant shall, within eight days from the day upon which the petition is concluded, file in the Regis- try such affidavits and other proofs as may be necessary in support of their several averments therein. A form of petition is given. No. 28. 70. After the time for filing the affidavits and other proofs has expired, the petitioner is to set down the petition for hearing in the same manner as a cause. Subpanas. 71. Every subpoena shall be written or printed on parchment, and may include the names of any number of witnesses. The party, or his proctor, sohcitor, or attorney, shall take it, together with a praecipe, to the Registry, and there get it signed and sealed, and deposit the praecipe. Forms are given, Nos. 16, 17, 18, and 19. Admission of Documents. 72. Any party in a cause may call upon the other party or parties, by notice in writing in the form given. No. 20, to admit any document, saving any just exceptions; and in case of refusal or neglect to admit the same, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial or hearing the Judge shall certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed as costs in the cause except in cases where the omission to give the notice was, in the opinion of the Registrar, a saving of ex- pense. Digitized by Microsoft® 478 Appendix II. — Rules in the Contenttoua Production of Wills, SfC. Business. , « , -, . « 73. Applications for an order for the production ot papers or writings purporting to be testamentary, may be made to the Judge, by motion or by summons when a suit is pending, and by motion upon affidavit when no suit is pending. If it can be shown that a testamentary paper is in the possession, within the power, or under the control of any person, a subpoena for the production of the same may be obtained by a Registrar's order, founded on an affidavit. Forms of subpoenas applicable to these cases are given, Nos. 21 and 22, and forms of pr3ecipej Nos. 23 and 24. Guardians to Minors. 74. A minor may elect a guardian for the purpose of carry- ing on, defending, or intervening in a suit, in the same manner and subject to the same rules as in respect of non-contentious business, and without having such guardian assigned to him; but guardians are to be assigned to infants (under the age of seven years) for the above purposes by the Judge, or by an order of one of the Registrars, founded on an affidavit to the effect required for such assignment in non-contentious business. Pencil writing on Will, S^c. 75. When any pencil writing appears on a will, script, or other document filed in the Registry, a fac-simile copy of the will, script, or other document, or of the pages or sheets there- of, containing the pencil writing,, must also be filed with those portions written in red ink which appear in pencil in the original. Such copy must be examined by an examiner in the Registry. Inventories. 76. In contentious business, inventories, and not merely declarations of the personal estate and effects of the deceased, are to be filed, unless by order of the Judge or of a Registrar. The form of inventory is given. No. 27. Notices. 77. All notices required by these rules, or by the practice of the Court, are to be in writing. Real Estate. , 78. Any person proceeding to prove a will in solemn form, or to revoke the probate of a will, may, if the will affects real estate, apply to the Judge, or to a Registrar in his absence, for an order authorizing him to cite the heir or heirs at law, or other person or persons having or pretending interest in such real estate, to see proceedings ; and the Judge or Registrar, on being satisfied by affidavit that the will in question does affect Digitized by Microsoft® Peincipal KEaisTEY (C. B.) 479 or purport to affect the real estate, will make an order autho- contentious rizing the person applying to cite the heir or heirs at law or — ?H!!5?!i — other such person or persons as aforesaid : provided always, ^^ *^'°''®' that the Judge may give any special directions as to the per- sons to be cited which he may think the justice of the case requires. Receiver of Real Estate. 79. A receiver of real estate pending suit is to give bond in the form given, No. 29, or in a form as near thereto as the circumstances of the case will admit of, with two sureties, and in a penalty of such an amount as may be directed by the Judge. Affidavits. 80. Every affidavit is . to be drawn in the first person, and the addition and true place of abode of every person making an affidavit is to be inserted therein. 81. In every affidavit made by two or more persons, the names of the several persons making it are to be written in the jurat. 82. No affidavit wiU be admitted in any matter depending in the Court of Probate any material part of which is written on an erasure, or in the jurat of which there is any interhneation or erasure. 83. When an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the Registrar, commissioner, or other person before whom such affidavit is made is to state in the jurat that the affidavit was read in the presence of the party making the same, and that such party seemed perfectly to understand the same, and also that such party made his or her mark thereto, or wrote his or her signature thereto, in the presence of the Registrar, commissioner, or other person before whom the affidavit was made. 84. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his proctor, solicitor, or attorney, or before the partner or clerk of his proctor, solicitor, or attorney. 85. Proctors, solicitors, and attorneys, and their clerks re- spectively, if acting for any other proctor, solicitor, or attorney, shall be subject to the rules in respect of taking affidavits which are applicable to those in whose stead they are acting. 86. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used in Court, unless by leave of the Judge. Appeals, . 87. Application for leave to appeal against any interlocutory decree or order of the Court of Probate, must be made within Digitized by Microsoft® 480 Appendix II. — Eules in the Contentious Business. Appeals. a month of tlie delivery of the decree or order appealed from, • or within such extended time as the Judge shall direct, and notice of such application must be given to the party in whose favour such order or decree has been made, and filed in the registry. A form of notice is given. No. 29. 88. Parties may proceed to carry into effect the decision of the Court of Probate, notwithstanding any notice of appeal, or of application for leave to appeal, unless the Judge shall other- wise order ; and the Judge may order the execution of his decree or order to be suspended, upon such terms as he sees fit. Time fixed by these Rules. 89. The Judge shall in every case in which a time is fixed by these rules for the performance of any act have power to extend the same to such time, and with such qualifications and restrictions, and on such terms as to him may seem fit. 90. To prevent the time fixed for the performance of any act from expiring before application can be made to the Judge for an extension thereof, any one of the Registrars may, upon reasonable cause being shown, extend the time, provided that such time shall in no case be extended beyond the day upon which the Judge shall next sit in chambers, or in Court to hear motions. 91. The time fixed in these rules for bringing in pleadings and for other proceedings shall in all cases be exclusive of Sun- days, Christmas day, and Good Friday. Taxing Bills of Costs. 92. All bills of costs in contentious business are referred to the Registrars of the Principal Registry for taxation, and may be taxed by them without any special order for that purpose. Such bills are (unless by leave of the Judge or a Registrar) to be filed in the Registry two days at least before the day ap- pointed for the taxation. An appointment for taxation will be made at the time of filing the bill. 93. The party who has obtained an appointment to tax his bill of costs shall give the other party or parties to be heard on the taxation thereof at least one clear day's notice of such appointment, and shall at the same time deliver to him or them a copy of the bill to be taxed. 94. When an appointment has been made by a Registrar of the Principal Registry for taxing any bill of costs, and any of the parties to be heard on the taxation do not attend at the time appointed, the Registrar may nevertheless proceed to tax the biU, after the expiration of a quarter of an hour, upon being satisfied by afiidavit that the parties not in attendance had due notice of the time appointed. 95. If more than one sixth is deducted from any bill of costs Digitized by Microsoft® Peincipal Kegistey (C. B.) 481 taxed as between practitioner and client, no costs incurred in Contentioua the taxation thereof shall be allowed as part of such bill. Accounts of Administrators and Receivers pending Suit. 96. Every administrator pendente lite and receiver of real estate sliall exhibit an inventory and render an account of tbe property of the deceased which comes to his hands, and the accounts of every such administrator and receiver shall be re- ferred to the Eegistrars of the Principal E6gistry for investiga- tion and report, before the same are allowed by the Court, unless the Judge shall otherwise direct ; and the' foregoing rules and orders respecting the taxation of costs shall, so far as the same are applicable, be observed with respect to the investigation of such accounts, and any other accounts referred to the Registrars for examination. Paying Money out of Court. 97. Persons applying for payment of money out of the Regis- try must give forty-eight hours' notice of such application to the clerk of the papers. Such notice is to be in writing, and to set forth the day on which the money applied for was paid into the Registry — the minute entered on receiving the same — the date and particulars of the order for payment to the applicant — and if the same be in payment of costs, the date of filing the bill for taxation and of the Registrar's certificate. During the summer vacation money can only be paid out on certain days, to be fixed by the Registrars, notice whereof will be given in the Registry. Business, Summonses. 98. A summons may be taken out by any person in any matter, whether contentious or non- contentious, in which there is no rule or practice requiring a difierent mode of proceeding. 99. A printed form must be obtained and filled up with the object of the summons, and a proper fee stamp affixed. It must then be taken to the clerk of the papers, who will msert in the blank left in the printed form the time when the summons is to be made returnable, and- get the summons signed by a Registrar. 100. The clerk of the papers is then to enter the name of the cause or matter and of the agent taking out the summons in the summons book, and return the summons (with the stamp cancelled), signed, to the applicant, who is to serve a copy on the party summoned. This copy must be served on the party summoned one clear day at least before the summons is return- able, and before 7 p.m. On Saturdays the copy of the summons is to be served before 2 p.m. B. II Digitized by Microsoft® 482 Appendix II. — Eules in the Peincipal Eegistey. Contentious Business. 101. On the day and at the hour named in the summons the party issuing the same is to present himself with the original at the Judge's chambers. 102. Both parties will be heard by the Judge, who wiE make such order as he may think fit, and a note of such order will be made by the Begistrar in the summons book. 103. If the party summoned do not appear aftef the lapse of half an hour from the time named in the summons, the party taking out the summons shall be at liberty to go before the Judge, who will thereupon make such order as he may think fit. 104. An attendanfee on behalf of the party summoned for the space of half an hour, if the party taking out the summons do not during such time appear, will be deemed sufficient, and bar the party taking out the summons from the right to go before the Judge on that occasion. 105. If a formal order is desired, the same may be had on the application of either party, and for that purpose the original summons, or the copy served on the opposite party, must be filed in the Registry. An order will thereupon be drawn up, and delivered to the person filing such summons or copy. The clerk of the papers before giving out the order is to see that the proper stamp has been affixed to it, and is to cancel such stamp. 106. If a summons is brought to the clerk of the papers, with a consent to an order indorsed thereon, signed by the party summoned, or by his proctor, solicitor, or attorney, an order will be drawn up without the necessity of going before the Judge : provided that the order sought is in the opinion of the Registrars one which, under the circumstances, would be made by the Judge. Made nth Janu- ary, 1866. Additional Rules and Oedees. Writs of Attachment and other Writs. 1 07. Applications for writs of attachment, and also for writs of fieri facias and of sequestration, must be made to 1i.e Judge by motion in Court. 108. Such writs, when ordered to issue, are to be prepared by the party at whose instance the order has been obtained, and taken to the Registry, with an office copy of the order, and, when approved and signed by one of the Registrars, shall be sealed with the seal of the Court, and it shall not be necessary for the Judge to sign such writs. 109. Any person in custody under a writ of attachment may apply for his or her discharge to the Judge if the Court be then sitting ; if not, then to one of the Registrars, who for good cause shown shall have power to order such discharge. Digitized by Microsoft® ( 483 ) FOEMS OF INSTKUMENTS To he adopted in the Peincipai, Registry of the Court of Probate, as nearly as the Circumstances of each Case will allow. No. 1. — Affidavit of atteBting Witness in proof of the due Execu- Non-Contentious tion of a Will or Codicil dated after Blst December, 1837. Business. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of (') make oath [pr solemnly, sinceifely and (i) insert the names, truly declare and affirm, according to the form of mords prescribed residence and title, or ly the statute applicable to the particula/r case'] , that I am one of addition of tlie deponent, the subscribing witnesses to the last will and testament [or codicil, as the case may be], of A. B., late of in the county of deceased, the said will [or codicil] being now hereunto annexed, bearing date and that the said testator executed the said will lor codicil] on the day of the date thereof, by signing his name at the foot or end thereof [or in the testimonium clause Siereof , or in the attestation clause thereto, or as the case may be], as the same N.B. if tlie signature is now appears thereon, in the presence of me and of the ^ ^^^ testimonium other subscribed witness thereto, both of us being present at the f^l^ °nserf'^'°" ■ same time, and we thereupon attested and subscribed the said will and intending ti^'Tamlf [ffr codicil] in the presence of the said testator. for liis final signature to (Signed) C. D. ^^ will." Sworn at on the day of 187" . Before me, [person authorized to administer oaths under the act.] No. 2. — Affidavit for the Commissioners of Inland Remenue.-^— Par Executors. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of (') make oath [or solemnly, sincerely and (•) Insert the names, truly declare and affirm, according to the form of words prescribed residence and title, or by the statute applicable to the particula/r case], that I am one of '^'l'"™ <" tie deponent, the executors [or the executor] named in the last will and testa- ment {') of A. B., late of deceased ; that the said de- (S) insert codicils, if any. ceased died on the day of in the year of our Lord one thousand hundred and at (') and C) insert plaee of death, that the personal estate and effects of the said deceased, which he " set forth the reason any way died possessed of or entitled to_, and for or in respect of f^jjjshed'""'^ cannot be which a probate of the said will is to be granted, exclusive of what the said deceased may have been possessed of or entitled to Il2 Digitized by Microsoft® 484 Appendix II.— Foems used in the Non-Contentious N.B. Forms for the two leasehold clauses are to he printed on the hack of the affidavit. as a trustee for any other person or persons, and not beneficially {if the deceased died on or after 3rd April, 1860, add, " but inclusive of all personal estate and effects which the said deceased, under any authority enabling him [or her] to dispose of the same, as he [or she] might think fit, has disposed of by his [or her] said will"j [if any leaseliolds insert clause No. 1, given below], and without deducting anything on account of the debts due and owing from the said deceased, are under the value of pounds, to the best of my knowledge, information and belief [if no leaseholds insert clause No. 2 given, beloml. (Signed) C. D. Sworn at on the day of 187 . Before me, [person amthorized to administer oaths under the aot.] (1) Insert the names, residence and title, or addition of the deponent. C*) Insert codicils, if any. f 3) Insert the place of death, or set forth the reason why the same cannot he furnished. 3Sr.B. Forms for the two leasehold clauses are to toe printed at the back of the affidavit. No, 2 a. — Affidavit/or the Commissioners of Inland Revenue. — For Administrators with the Will annexed. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B,, deceased. I, C. D., of ( ') the party applying for letters of ad- ministration with the will(') annexed of the personal estate and effects of A. B., late of deceased, make oath [or solemnly, sincerely and truly declare and affirm, according to the form of words prescribed by the statute applicable to the particular case"] that the said deceased died on the day of one thousand ' hundred and at(^) and that the personal estate and effects of the said deceased, which he any way died possessed of or entitled to, and for or in respect of which letters of administration; with the said will (') annexed, are to be granted exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons and not beneficially, (if the deceased died on or after Srd April, 1860, add " but inclusive of all personal estate and effects which the said deceased, under any authority enabling him [or her] to dispose of the same, as he [or she] might think fit, has disposed of by his [or her] said will,") [if leaselwlds insert clause No. I given belo7i!~\, and without deducting anything on account of the debts due and owing from the said deceased, are under the value of pounds, to the best of my knowledge, information and belief [if no lease- liolds insert clause No. 2, given below'] . (Signed) C. D.' Sworn at on the day of 187 . Before me, [person authorized to administer oatlis under the act.] Form of Leasehold Clause No. 1. " Including the leasehold estate or estates for years of the said deceased, whether absolute or determinable on a life or lives." Form of Leasehold Clause No. 2. " And I [or we] lastly make oath, that the said deceased was not possessed of or entitled to any leasehold estate or estates for years, either absolute or determinable on a life or lives, to the best of my [or our] knowledge, information and belief. Digitized by Microsoft® Principal Kegistrt (P. E., Non-C.) 485 No. 2 b. — Affidavit for the Commissioners of Inland Revenue.— Non-Contentious For Administrators. Business. 3 names, In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of (' ) the party applying for letters of administra- (i) insert the n ., tion of the personal estate and effects of A. B., late of make residence, title, or addi- oath [or solemnly, sincerely and trnly declare and affirm, according """ °' "■* deponent- to the form of words prescribed by the statute applicable to the ^'-B- Forms for the two particular case] that the said deceased died on the day of I,'?!,?'°;i°l".".¥f w>°, „ ^ 1.1, -t 1 1 1 T . ^n, J ^-^ be prmted at the hacK Of one thousand hundred and at (') the aflldavit. and that the personal estate and effects of the said deceased which (j) inje^ place of death he any way died possessed of or entitled to, and for or in respect of or set forth the reason ' which letters of administration are to be granted, exclusive of what why the same cannot be the said deceased may have been possessed of or entitled to as a *"™ishcd. trustee for any other person and persons, and not beneficially [if leaseholds insert Clause No. 1 given before], and without deducting anything on account of the debts due and owing from the said de- ceased, are under the value of pounds, to the best of my knowledge, information and belief [if no leaseliolds insert clause Jfb. 2 given before], (Signed) C. D. Sworn at on the day of 1 87 . Before me, [person authorized to administer oaths under the act.] No. i.— Oath for an Executor. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of in the county of make oath and say '[or solemnly, sincerely and truly declare and affirm, according to insert the names, resl- theform of mords prescribed in the statute applicable to the par- dence and title or addi- ticular case] , that I believe the paper writing [or the paper writings] tion of the deponent, and hereto annexed and marked by me to contain the true and original the%xicutor to toe'tes- last will and testament [or last will and testament with tator. codicils] of A. B., late of in the county of deceased, and that I am the sole executor [or one of the executors] therein named [or executor according to the tenor thereof, executor during Each testamentary paper life, executrix during widowhood, or as the case may be], and that is to be maa-ked by the I will well and faithfully administer the personal estate and effects S^J'°f ',!;i'J''?.?°l*;?!h„ .,, .-,.,, , . ,-.j_ J i^i J ii_ 1 ■ person administermff the of the said testator by paying his just debts and the legacies con- oath. tained in his will [or will and codicils] so far as the same shall thereto extend and the law bind me ; that I will exhibit a true when several executors and perfect inventory of all and singulair the said estate and effects are appointed, and some and render a just and true account thereof, whenever required by °;,™',;'^';'^„™'J„„ law so to do ; that the testator died at m the county ot should be made in the on the day of 187 ; and that the whole margin of the oath that of the personal estate and effects of the said testator does not F°^^V' '" •>« 'f erved to ui Luo j,oiowu«.x 3 „„„„j_ i„ J.I,. v„„j. „* „„ the Other executors, or amount in value to the sum of _ pounds, to the best of my j^^t they have renounced, knowledge, information and belief. (Signed) C. D. Sworn at on the day of 187 . Before me, [person authorized to administer oaths under the act.] Digitized by Microsoft® 486 Appendix II. — Forms used in the KoD-Coiitentious Business, Insert the names, resi- dence and title, or addi- tion of the deponent. Each testamentary paper is to be marked by the persons sworn and the person administering the oath. No. 4. — Oath for Administrator with the Will. In her Majesty's Court of Probate. The Principal Kegistry. In the goods of A. £., deceased. I, C. C, of in the county of make oath and say [or solemnly, sincerely and truly declare and affirm, according to the form of words prescribed by the statute applicable to the par- tiaular easel > ^^^ ^ believe the paper writing [or the paper writings] hereunto annexed and marked by me to contain the true and original last will and testament [or the last will and testament with codicils] of A. B., late of in the county of deceased, and that E. F. [insert his relations/dp, if any, to the deceased^, the sole executor therein named, survived the said deceased, and is sinpe dead without having taken probate thereof [or as the fact may 5e], and that I am the [imsert the relationship to deceased, if a/n/y'\ residuary legatee in trust named therein [or as the fact ma/y be"], and that I will well and faithfully administer the personal jestate and effects of the said deceased by paying his just debts and the legacies contained in his will [or will and codicils], and distributing the residue of his estate according to law ; that"! will exhibit a true and perfect inventory of all and singular the said per- sonal estate and effects, and render a just and true account thereof, whenever required by law so to do ; that the testator died at on the day of 187 ; and that the whole of the personal estate and effects of .the said deceased does not amount in value to the sum of pounds, to the best of my knowledge, information and belief. (Signed) C. D. Sworn at on the day of 187 . Before me, [person authorized to administer oath^ tinder the act.^ Insert the names, resi- dence and title or addi- tion of the deponent. In all cases where ap- plicable, add " only next of Itin," or " one of the next of kin." . No. 5. — Oath for Administrators. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of in the county of make oath and say [or solemnly, sincerely, and truly declare and affirm, according to the form of words prescribed by the statute applicable to the particu- lar case'], that A. B., late of deceased died intestate, a bachelor, without parent, brother, or sister, uncle or aunt, nephew or niece [or as the case may be], and that I am the lawful cousin germau [or as the case may be"] and one of the next of kin [or only next of kin of the said deceased, as the case may be]; that I will faith- fully administer the personal estate and effects of the said deceased, by paying his just debts, and distributing the residue of his said estate and effects according to law j that I will exhibit a true and perfect inventory of all and singular the said estate and effects, and render a just and true account thereof, whenever required by law so to do; that the said deceased died at on the day of 187 ; and that the whole of the personal estate and effects of the said deceased does not amount in value to the sum of pounds, to the best of my knowledge, information, and belief. (Signed) A. B. Sworn at on the day of 187 . Before me, [person authorized to administer oaths under the act.] Digitized by Microsoft® Peincipal Eegistbt (P. E., Non-C.) 487 No. 6. — Probate. In her Majesty's Court of Probate. The Principal Registry. Be it known, that on the day of 187 the last will and testament [or the last will and testament with codicils] hereunto annexed of A. B., late of deceased, who died on at was proved and registered in the said Principal Registry of her Majesty's Court of Probate, and that administration of all and singular the personal estate and effects of the said de- ceased was granted by the aforesaid Court to C. D., the sole executor [or as the case may je] named in the said will, he having been first sworn well and faithfully to administer the same, by paying the just debts of the deceased and the legacies contained in his vrill [or will and codicils], and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) E. F., (l.s.) Registrar. Kon-Contentious BuaiBess. Sworn under & No. 7. — Letters of Administration with the Will annexed. In her Majesty's Court of Probate. The Principal Registry. Be it known, that A. B., late of in the county of deceased, who died on the day of at made and duly executed his last will and testament [or will and codicils thereto] and did therein name [or did not therein name any] executor [or as the ease may Je]. And be it further knovm, that on the day of 187 , letters of administration with the said will annexed of all and singular the personal estate and effects of the said deceased were granted by her Majesty's Court of Probate to C. D. [injsert the character in mhich the grant is tahen'], he having been first sworn well and faithfully to administer the same by paying the just debts of the said deceased, and the legacies contained in his will [or wiU and codicils] and distributing the residue of his estate according to law, and to exhibit a true and perfect inventory of aU and singular the said personal estate and effects, and to render a jnst and true account thereof whenever re- quired by law so to do. ' -(Signed) E. F., (l.s.) Registrar. Smom under & No. 8. — Letters of Administration. In her Majesty's Court of Probate. The Principal Registry. Be it known, that on the day of 187 letters of ad- ministration of all and singular the personal estate and effects of A. B., late of deceased, who died on 187 at intestate, were granted by her Majesty's Court of Probate to C. D., the lawful widow and relict [or as the case may J«] of the said in- testate, she having been first sworn well and faithfully to administer the same, by paying the just debts of the said intestate, and distri- buting the residue of his estate and effects according to law, and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) E. F., (l.s.) Registrar. Digitized by Microsoft® 488 Appendix II. — Forms used in the Non-ContentiouB Business. Former grant, Jan. 18 under the same sum. No. 9. — Double Probate. ~ In her Majesty's Court of Probate. The Principal Registry. Be it known, that on the day of 187 the last will and testament \or the last will and testament with codicils] hereunto annexed, of A. B., late of deceased, who died on at was proved and registered in the Principal Eegis- y try of her Majesty's Court of Probate, and that administration of g. all and singular the personal estate and effects of the said deceased p was granted by the aforesaid Court to C. D., one of the executors §■ named in the said will [or codicil] , he having been first sworn well f^ and faithfully to administer the same, by paying the just debts of ^ the deceased, and the legacies contained in his will \_or will and codicils], and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do, power being re- served of making the like grant to E. F., the other executor named , in the said will. And be it further known, that on the day of 1 87 the said will of the said deceased was also proved in the said Principal Registry, and that the like administration of all and singular the personal estate and effects of the said deceased, was granted by the aforesaid court to the said E. F., he having been first duly sworn well and faithfully to administer the same, by paying the just debts of the said deceased and the legacies contained in his will [or will and codicils] and to exhibit a true and perfect in- ventory of all and singular the said estate and effects of the said deceased, and to render a just and true account thereof whenever required by law so to do. (Signed) G. H., (l.s.) Registrar. Sworn under & No. 10. — Exemplification of Probate or of Letters of Adminis- tration with Will annexed. In her Majesty's Court of Probate. The Principal Registry. Be it known, that upon search being made in the Principal Re- M gistry of her Majesty's Court of Probate, it appears that on the y. day of in the year of our Lord 187 the last will and g testament with codicils of A. B., late of deceased, who g- died at on or about . 187 , was proved by C. D., the ?; executor named therein [or letters of administration with the last >-4 will and testament and codicils annexed of the personal estate and effects of A. B., late of, &c., were granted to C. D., as the ] and which probate [or letters of administration] now remain of record in the said registry. The true tenor of the said probate [or letters of administration with the will annexed, as the case may Je] is in the words following, to wit : [Here follow the mil, eodioils, and such affidavits as are regis- tered^ In faith and testimony whereof these letters testimonial are issued. Given at as to the time of the aforesaid search, and the sealing of these presents, this day of in the year of our Lord 187 . . (Signed) E. P., (L.S.) Registrar. Digitized by Microsoft® Principal Registry (P. E., Non-C.) 489 No. 11. — Exempli^caiion of Administration. In her Majesty's Court of Probate. The Principal Registry. Be it known, that upon search being made in the Principal Re- gistry of her Majesty's Court of Probate, it appears that on the day of in the year of our Lord 187 letters of ad- ministration of all and singular the personal estate and efEects of A. B., late of who died at on or about were granted to C. D., the [or one of the ] of the said de- ceased, and which letters of administration now remain of record in the said Registry. The true tenor of the said letters of adminis- tration is in the words following, to wit : [Mere the letters of administration are to be recited veriatim.'] In faith and testimony whereof these letters testimonial are issued. Given at as to the time of the aforesaid search, and seal- ing of these presents, this day of in the year of our Lord 187 . (Signed) E. F., (l.s.) Registrar. Kon-Contentious Business. Sworn under No. 12. — Special Administration with the Will of a Married Woman annexed. In her Majesty's Court of Probate. The Principal Registry. Be it known, that A. B., wife of C. B., late of in the county of died on the day of 187 at having during her coverture with the said C. B., by virtue of certain powers and authorities given to and vested in her by a certain indenture of settlement bearing date the day of 187 and of all other powers and authorities her enabling, made and executed her last will and testament bearing date the day of 187 with a codicil thereto, bearing date the day of 187 [or as the case may Se], and thereof appointed her said husband, the said C. B., sole executor, and that the said C. B., as the lawful husband of the said deceased, is the sole person entitled to her per- sonal estate and effects, over which she had no disposing power, and concerning which she is dead intestate. And be it also known, that on the day of 187 letters of administration with the said will and codicil annexed of all and singular the personal estate and effects of the said deceased were granted and committed by her Majesty's Court of Probate to tte said C. B., he having been first sworn well and faithfully to administer the same, by paying the just debts of the said deceased, and the legacies contained in her will and codicil, and distributing the residue of her estate according to law, and to exhibit a true and perfect inventory of all and singular her personal estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) J. S., (L.S.) Registrar. Sivorn under No. \Z.— Limited Prolate of a Married Woman's Will. In her Majesty's Court of Probate. The Principal Registry. Be it known, that A. B., wife of C. B., late of • in the county of died on the day of 187 at having Digitized by Microsoft® 490 Appendix II. — Forms used in the Non-ContentloU8 BualneaB. Steon & ""I during her coverture with the said C. B., by Tirtue of certain powers and authorities vested in her by a certain indenture of settlement, bearing date the day of 187 and made between the said C- B., therein described of in the county of esquire, of the first part, the said deceased, by her then name and descrip- tion of A. G., of in the county of spinster, of the second ^ part, and E. F., of in the same county, gentleman, and H. I., 5<. of gentleman, of the third part, made and executed her last will and testament, bearing date the day of one thousand eight hundred and with codicils thereto bearing date respectively [insert dates'], and thereof appointed L. M. and O. P. executors. And be it also known, that on the day of 187 the said last will and testament, with codicils, of the said A. B., deceased, hereunto annexed, was proved and entered in the Princi- pal Registry of her Majesty's Court of Probate, and that probate of the said will and codicils of the said deceased, limited to the ad- ministration of all such personal estate and effects as she the said deceased by virtue of the aforesaid indenture had a right to appoint or dispose of, and has in and by her said will appointed or disposed of accordingly, but no further or otherwise, was granted by the aforesaid court to the said L. M., one of the executors named in the said will as aforesaid, he having been first sworn well and faithfully to administer the same, by paying the just debts of the deceased, and the legacies contained in her said will and codicils, and to ex- hibit a true and perfect inventory of the said limited estate and effects, and to render a just and true account thereof whenever re- quired by law so to do. Power being reserved of making a like grant of probate to the said O. P., the other executor, when he shall apply for the same. (Signed) J. S., (l.S.) Registrar. No. li.— Special Administration of the Best of the Goods of a Married Woman. In her Majesty's Court of Probate. The Principal Registry. Be it known, that A. B., wife of C. B., late of in the county of died on the day of 187 at having duiing her coverture with the said C. B., by virtue of certain powers and authorities vested in her by a certain indenture bearing date the •day of 187 and made between D. E., of in the (jj county of esquire, of the first part, the said C. B., therein de- g. scribed, of in the county of gentleman, of the second Sworn under 3 part, and the said deceased by her then name and description of A § -^^ ^•' o* ill tlie county of widow, of the third part, and P; G. H., of the same place, esquire, of the fourth part, made and exe- •^ cuted her last will and testament, bearing date the day of 187 and thereof appointed E. F. and G. H. executors. And be it also known, that on the day of 187 probate of the said will, limited to the administration of all such personal estate and effects as she the said deceased, by virtue of the said indenture, had a right to appoint or dispose of, and has in and by her said will appointed or disposed of accordingly, but no further or otherwise, was granted by her Majesty's Court of Probate to the said E. F. and G. H., the executors named in the said will. And be it further Digitized by Microsoft® Principal Registet (P. E., Non-C.) 491 known, that on the day of 187 letters of administra- tion of the rest of the personal estate and effects of the said A. B., deceased, were granted by the aforesaid Court to the said C. B., the lawful hnsband of the said deceased, he having been first sworn well and faithfully to administer the same, by paying the just debts of the said deceased, and distributing the residue of h^r said estate and effects according to law, and to exhibit a true and perfect inventory of the rest of her estate and effects, and also to render a just and true account thereof whenever required by law so to do. (Signed) E. S., (l.s.) Registrar. Xon-Contentloiia Business. No. 15. — Administration de Bonis nan. In her Majesty's Court of Probate. The Principal Registry. Be it known, that A. B., late of in the county of deceased, died on 187 at intestate, and that since his death, to wit, in the month of 187 , letters of administration of all and singular his personal estate and effects were committed and granted by to C. D. [insert the Court from mhieh the grant issved and the relationship or eharader of administrator'^ (which letters of administration now remain of record in ), who, after taking such administration upon him, intermeddled in the personal estate and effects of the said deceased, and afterwards died, to wit, on leaving part thereof unadministered, and that on the day of 187 letters of administration of the said personal estate and effects so left unadministered were granted by her Maijesty's Court of Probate to "he having been first sworn well and faithfully to administer the same, by paying the just debts of the said intestate, and distributing, the residue of his estate and effects according to law, and" to exhibit a true and perfect inventory of the said personal estate and effects so left unadminis- tered, and to render it just and true account thereof whenever re- quired by law so to do. (Signed) E. F., (li.S.) Registrar. Sworn & No. 16. — Administration Bond. Know ail men by these presents, that we, A. B. of C. D. of ■ and E. E. of are jomtly and severally bound unto G. H., the Judge of her Majesty's Court of Probate, in the sum of pounds of good and lawful money of Great Britain, to be paid to the said G. H. or to the Judge of the said Court for the time being, for which payment well and truly to be made Tve bind ourselves and of us for the whole, our heirs, executors, and administration, firmly by these presents. Sealed with our seals. Dated the day of In the year of our Lord one thousand eight hundred and The condition of this obligation is such, that if the above-named A. B. [or K. B., wife of the above-named A. B.], the [as the case may Je] of I. J., late of deceased, who died on the day of and the intended administrator of all and singular the per- sonal estate and effects of the said deceased [left unadministered by Digitized by Microsoft® 492 Appendix II.— Forms used in the Non-Contentlous ], do, Tvheii lawfully called on in that behalf, make or cause Business. to be made a true and perfect inventory of all and singular the per- sonal estate and effects of the said deceased [so left unadministered], which have or shall come to hands, possession, or knowledge, or into the hands and possession of any other person for and the same so made do exhibit or cause to be exhibited into the Prin- cipal Registry of her Majesty's Court of Probate, whenever required by law so to do, and the same personal estate and effects, and all other the personal estate and effects of the said deceased at the time of death, which at any time after shall come to the hands or possession of the said or into the hands or possession of any other person or persons for do well and truly administer according to law j (that is to say) do pay the debts which did owe at decease, and further do make or cause to be made a just and true account of said administration whenever re- quired by law so to do ; and all the rest and residue of the said per- sonal estate and effects do deliver and pay unto such person or per- sons as shall be entitled thereto, under the act of parliament, intituled "An Aetfor the better settling of Intestates Estates;" and if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor or executors, or other persons therein named, do exhibit the same into the said Court, making re- quest to have it allowed and approved accordingly, if the said being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said Court, then this obligation to be void and of none effect, or else to remain in full force and virtue. A. B. (L.S.) C. D. (L.S.) E. F. (L.S.) Signed, sealed, and delivered by the within-named A. B., C. D., and E. F., in the presence of O. P., a clerk in the Principal Registry of her Majesty's Court of Probate. [or a commissioner.] No. 17. — Administration Bond for Administrators with a Will. Know all men by these presents, that we, A. B. of C. D. of and E. F. of are jointly and severally bound unto G. H., the Judge of her Majesty's Court of Probate, in the sura of pounds of good and lawful money of Great Britain, to be paid to the said G. H. or to the Judge of the said Court for the time being, for which payment well and truly to be made we bind ourselves and of us for the whole, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and The condition of this obligation is such that if the above-named A. B. [or K. B., wife of the above-named A. B.], the [as the case may ie] of I. J., late of de'ceased, and who died on the day of and the intended administrator with the will of all and singular the personal estate and effects of the said deceased do, when lawfully called on in that behalf, make or cause to be made a true and perfect inventory of all and singular the personal estate and effects of the said deceased [left unadministered Digitized by Microsoft® Principal Eegistky (P. E., Non-C.) 493 by ] which have or shall come to hands, possession, or knowledge, and the same so made do exhibit or cause to be exhibited into the Principal Registry of her Majesty's Court of Probate, when- ever required by law so to do, and the same personal estate and effects [so left unadministered] do well and truly administer (that is to say), do pay the debts of the said deceased which did owe at decease, and then the legacies contained in the said will annexed to the said letters of administration so to com- mitted, as far as personal estate and effects [so left unadmi- nistered] will thereto extend, and the law charge and further do mate or cause to be made a just and true account of said administration when shall be thereunto lawfully required, and all the rest and residue of the said personal .estate and effects shall deliver and pay unto such person or persons as shall be by law en- titled thereto, then this obligation to be void and of none effect, or else to remain in full force and virtue. A. B. (L.s.) C. D. (L.s.) E. F. (L.s.) Signed, sealed, and delivered by the within-named A. B., C. D., and E. P., in the presence of O. P., a clerk in the Principal Registry of her Majesty's Court of Probate. [or a commissioner.] Non-Contentious Business. No. 18. — Declaratinn of the Personal Estate and Effects of a Testator or an Intestate. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. A true declaration of all and singular the personal estate and effects of A. B., late of deceased, who died on the day of at ■ which have at any time since his death come to the hands, possession, or knowledge of C. C, the intended adminis- trator with the will [or administrator of the said estate and effects] of the said A. B., made and exhibited upon and by virtue of the corporal oath [or solemn affirmation] of the said 0. D., follows, to wit: Krst, this declarant declares that the said deceased was at the time of his death possessed of or entitled to [2%e details of the deceased's effects must be here inserted, and the value inserted opposite to household goods, fwrnitu^e, plate, linen, china, jewellery, and trinhets, ^c. may le described in general terms, the name an,d address of the licensed appraiser mlio valued them Where leasehold estates are described briefly, it mill be neces- sary to state the valuation. But if they are described par- ticula/rly, the valuation ivill not be required. Policies of insurance and mortgages must be sufficiently de- scribed to identify them.'] Lastly, this declarant saith, that no personal estate or effects of or belonging to the said deceased have at any time since his death come Digitized by Microsoft® 494 Appendix II. — Foems used in the Nori-ContentioUs Business. The alflrmation must be made according to the form of words prescribed by the statute applicable to the particular case. to the hands, possession, or knowledge of this declarant, save as is hereinbefore set forth. (Signed) C. D. On the day of 187 the said C. D. was duly sworn to [or being solemnly, sincerely, and truly declared and affirmed] the truth of the aboTe declaration, at in the county of Before rh6, {jperson authorized to administer oaths wider the aet,'] No. 19. — Justification of Sureties, In her Majesty's Conit of Probate. In the goods of A. B., deceased. The Principal Begistry. We, C. D. of and E. P. of jointly and severally make oath [or solemnly, sincerely, and truly declare and affirm, according to the form of words presoriied iy the statute applicable to the particular case'], that we are the proposed sureties on behalf of G. H., the intended administrator of all and singular the personal estate and effects of the said A. B., late of de- ceased, in the penal sum of pounds, for his faithful adminis- tration of the said personal estate and effects of the said deceased ; and I the said C. D. for myself further make oath [or as before'], that I am, after payment of all my just debts, well and truly worth in real and personal estate the sum of ; and I the said E. P. for myself further make oath [or as before], that I am, after payment of all my just debts, well and truly worth in real and personal estate the sum of .pounds. Sworn by the said C. D. E. P. at on the of 187 . and "I day V Before me, [person authorized to administer oaths wider the act.] No. 20. — Election hy Minors of a Quardian. In her Majesty's Court of Probate, The Principal Registry. In the goods of A. B., deceased. Whereas A. B., late of in the county of deceased, died on or about the day of 187 at intestate, a widower, leaving C. D., E. P., and G. H. his natural and lawful and only children, the said C. D. being a minor of the age of twenty years only, the said E. P. being also a minor of the age of nineteen years only, and the said G. H. being an infant of file age of six years only : Now we the said C. D. and E. P., do hereby make choice of and elect K. L., our lawful maternal uncle [or as the case may be] and one of our next of kin to be our curator or guardian, for the pur- pose of his obtaining letters of administration of the personal estate and effects of the said A. B. deceased to be granted to him, for our use and benefit, and until one of us shall attain the age of twenty- one years [or for the purpose of renouncing for us, and on our Digitized by Microsoft® Peincipal Registry (P, R., Non-C.) 495 behalf, all our right, title, and interest to and in the letters of admi- Ifon-Contcntloua nistration, &c., as the case may be'] [^add, in cases where a proctor, Business. solicitor, or attorney appeals for tlie minors'] and we hereby ap- point M. N. of our proctor, solicitor, or attorney, to file or cause to be filed this our election for nS in the Principal Registry of her Majesty's Court of Probate. In witness whereof we have hereunto set our hands and seals this day of in the year 187 . C. D (L.S.) E. P. (L.S. ) Signed, sealed, and delivered by the within-named C. D. and E. F., in the presence of [ One disinterested witness svffioient.] No. 21. — Renunciation of Probate and Administration with the Will annexed. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. Whereas A. B., late of in the county of deceased, (') if there are codicils died on the day of 187 at ; and whereas he *''*'' ^^^^ should be also made and duly executed his last will and testament [or will and '°^*'^'^- testament with a codicil thereto] bearing date the day of 187 ('), and thereof appointed C. D. executor and resi- duary legatee in trust [or as the ease may be] : Now I, the said C. D., do hereby declare, that I have not inter- meddled in the personal estate and effects of the said deceased, and will not hereafter intermeddle therein, with intent to defraud creditors, and I do hereby expressly fenounce all my right and title to the probate and execution of the said wUl [and codicils, if any], and to the letters of administration with the said will [and codicils, if any] , annexed, of the personal estate and effects of the said deceased [add in cases where a proctor, solicitor, or attorney is to appear for tlie person renoimcing], and I hereby appoint E. P. of my proctor, solicitor, or attorney, to file or cause to be filed this renun- ciation for me in the said Principal Registry of her Majesty's Court of Probate. In witness whereof I have hereto set my hand and seal, this day of 187 . C. D. (L.S.) Signed, Sealed, and delivered by the said C. D. in the presence of G. H. [One disinterested witness suffioient.J No. 22. — Renwnciation of Administration. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. Whereas A. B., late of in the county of deceased. This to he variea so as died on the day of 187 at intestate, a widower; J" sho'^'he kindred or and whereas I, C. D., am his natural, lawful, and only child [or as S,mctag.' '"^ ''"''° "' the case may be] : Now I, the said C. D. do hereby expressly renounce all my right and title to the letters of administration of the personal Digitized by Microsoft® 496 Appendix II. — Forms used in the 2Ton-Contentlou8 Business. estate and effects of the-said deceased [add in cases where a proc- tor, solicitor, or attorney is to appear for the person renounoing"], and I hereby appoint E. P. of my proctor, solicitor, or attorney, to file or cause to be filed this renunciation for me in the Principal Registry of her Majesty's Court of Probate. In witness whereof I have hereto set my hand and seal, this day of 187 . C. D. (L.S.) Signed, sealed, and delivered by the said C. D. in the presence of G. H. [ One disinterested mitnefs sufficient.'] Insert the names, resi- dence, and title or addition of tlie deponent. Insert place of death or set forth the reason why the same cannot be furnished. a If any leaseholds, insert clause No. 1, at page 484. 6 If no leaseholds, insert clause No. 3, at page 484. If there is personal estate in Irekwid, a further alli- davit, in Form No. 26, is to be made by executors and administrator. No. 23. — Affidavit for the Commissioners of Inland Revenue when Stamp Duty is paid upon the total value of the Per- sonal Estate in the United Kingdom. (Por Executors.) In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of make oath [or solemnly, sincerely, and truly de- clare and afiirm, according to the form of mords prescribed hy the statute applicable to the particular case"] that I am one of the executors [or as the case may i«] named in the last will and testa- ment with codicils thereto of A. B., late of deceased ; that the said deceased died on or about the day of in the year of our Lord one thousand hundred and at and was at the time of his death domiciled in England, and that the personal estate and effects of the said deceased, which he any way died possessed of, or entitled to, within the United Kingdom of Great Britain and Ireland, and for or in respect of which a probate of the said will and codicils is to be granted, exclusive of what the said deceased may have been possessed of, or entitled to as a trustee for any other person or persons, and not beneficially [if the deceased died on or after Srd April, 1860, add but including all personal estate and effects which the said deceased under any authority en- abling him (or her) to dispose of the same as he (or she) might think fit, and has disposed of by his (or her said will)] (a) and vrith- out deducting anything on account of the debts due and owing from the said deceased, are, under the value of pounds, to the best of knowledge, information, and belief (5). And further make oath [or solemnly, sincerely, and truly declare and affirm] that a part of the said personal estate and effects of the said deceased, under the Talue of pounds, is in England, and a further part thereof, amounting in value to the sum of and more particularly mentioned and set forth in the inventory and valuation hereunto annexed, is in Scotland, and that the said deceased was not, at the time of his death, possessed of or entitled to any personal estate and effects in Ireland, to the best of knowledge, information and belief. [Or end thus: And that a further part thereof, amounting in value to the snm of is in Ireland, to the best of knowledge, information, and belief.] Sworn at on the ) day of 187 \ (Signed) CD. before me. ) [person autJwrized to administer oaths under the act.'] Digitized by Microsoft® Pkincipal Registry (P. U., Non-C.) 497 No. 24. — Affidavit for the Commissioners of Inland Revenue .Non-Contentious when Stamp Duty is paid upon the total value of the Per- Hueinesa. sonal Estate in the United Kingdom. (Por Administrators witli Will.) In her Majesty's Court of Probate. The Principal Eegistry. In the goods of A. B., deceased. I, C. D., of the party applying for letters of administration Insert the names, resi- (with the will annexed) of the personal estate and effects of *«""=«i»"* *'^' °^ ""<''■ A. B., late of deceased make oath {_or solemnly, smcerely, and *'°" "^^^^ deponent, truly declare and afSrm according to the form of words prescribed, hy the statute applicable to the particular case'] , that the said de- ceased died on or about the day of one thousand Insert the place of death, hundred and at and was at the time of his death domi- or set forth the reason ciled in England, and that the personal estate and effects of the said Sshefl!"™ "*" deceased which he any way died possessed of or entitled to, within the United Kingdom of Great Britain and Ireland, and for or in respect of which letters of administration with the said will annexed are to be granted, exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons, and not beneficially {if the deceased died on or after 3rd April, 1860, add but including all personal estates and effects which the said deceased under any authority enabling him \_or her] to dis- pose of the same as he [or she] may think fit, and has disposed of by his [or her] said will(o)), and without deducting anything on ac- a K any leaseholds, insert count of the debts due and owing from the said deceased, are under "'sise No. l, at page 484. the value of pounds to the best of knowledge, informa- tion, and belief (J). 6 it no leaseholds, insert clause No. 2, at page 4S4. And further make oath [or solemnly, sincerely, and truly de- clare and aflSrm], that a part of the said personal estate and effects of the said deceased, under the value of is in England, and a further part thereof, amounting in value to the sum of and li there is personal estate more particularly mentioned and set forth in the inventory and jayft"^™ j.om'No^e'"' valuation hereunto annexed, is in Scotland, and that the said de- must 'be made by the ' ceased was not, at the time of his death, possessed of or entitled to executors or adminia- any personal estate and effects in Ireland, to the best of know- trators. ledge, information, and belief. [Or end thus: And that a further part thereof, amounting in value to the sum of is in Ireland, to the best of knowledge, information, and belief.] Sworn at on") (Signed) C. D. the day of S 187 , Before me, J [person authorized to administer oaths under the act.'] No. 25. — Affidavit for the Commissioners of Inland Revenue when Stamp Duty is paid upon the total value of the Personal Estate in the United Kingdom. (Eor Administrators.) In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I C D of the party applying for letters of administration Insert the names, resi- of the" personal estate and effects of the said late of ttrofThe depinent"" B. KK Digitized by Microsoft® 498 Appendix II. — Fokms used in the iron-Contentlous Insert the place of death, or set forth the reason why the same cannot be furuishetl a If any leaseholds. Insert clause ^0. 1, at page 484. h If no leaseholds, Insert clause 1^0, 2, at page 484. If there is personal estate in Ireland, a further affi- davit, in Form No. 26, must be made by the executors or adminis- trators. deceased make oath [or solemnly, sincerely, and trnly declare and affirm, accorMng to the form of mords prescribed ty the statute applieatle to the partioula/r case'], that the said deceased died on or about the day of one thousand hundred and at and was at the time of his death domiciled in Eng- land, and that the personal estate and effects of the said deceased which he any way died possessed of, or entitled to, within the United Kingdom of Great Britain and Ireland, and for or in respect of which letters of administration are to be granted, exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons, and not beneficially (a) and without deducting anything on account of the debts due and owing from the said deceased, are under the value of pounds, to the best of knowledge, information, and belief (J). And further make oath [or solemnly, sincerely, and truly declare and affirm] that a part of the said personal estate and effects of the said deceased under the value of pounds is in England, and a further part thereof, amounting in value to the sum of and more particularly set forth in the inventory and valuation hereunto annexed, is in Scot- land, and that the said deceased was not at the time of his death possessed of or entitled to any personal estate and effects in Ireland to the best of knowledge, information, and belief. [Or end thus : And that a further part thereof, amounting in value to the sum of is in Ireland, to the best of knowledge, infor- mation, and belief.] Sworn at on"j (Signed) C. D. the day of > 187 , Before me, J [person authorized to administer oaths under the act.'] No. 2&. — Additional Affidavit and Schedule for the Commis- sioners of the Inland Revenue when part of the Personal Estate consists of Property in Ireland. In her Majesty's Court of Probate. The Principal Registry. I, A. B., of an executor [or A. B. of and 0. D. of executors], named in the last vrill and testament with codicils [or the party or parties applying for letters of administra^ tion with the will and codicils annexed, of the personal estate and effects] of E. F. (the testator), late of who died on the day of 187 , at [or, in cases of intestacy, in order to the dfie administration of the personal estate and effects of G. H. (tJie intestate), late of who died on the day of 1 87 , at intestate] , make oath and say ; [or, in the case of Quakers or other affirmants, do or doth solemnly, sincerely, and truly declare and affirm] that ha made diligent search and due inquiry after and in respect of the personal estate and effects of the said deceased in Ireland, in order to ascertain the full amount and value thereof ; and that to the best of knowledge, infor- ination, and belief, the whole of the personal estate and effects, rights and credits, of which the said deceased died possessed in Ireland, consisting of the property, moneys, securities, matters, and things specified in the account annexed to this affidavit [or affirma- tion] are under the value of & , exclusive of what the deceased may have been possessed of or entitled to as a trustee for any other Digitized by Microsoft® Principal Registry (P. E., Non-C.) person or persons, and not beneficially, and without deducting any- thing on account of the debts due and owing from the deceased. Sworn at in the county ] (Signed) A. B. of on the day V of 187 , Before me, ) [_ person autJwrized to administer oaths vmder the act,'] 499 Kon-Contentious Business. An Accoimt of the Estate and Effects of • Price of stocks. Household goods, linen, wearing apparel, books, plate, jewels, &c. & s. d. Property in the stocks or funds transferable at the bank. Leasehold property . . Property in public companies Money out on mortgage and other securities Real estate devised to be sold, or value of lega- cies charged on real estate. Stock in trade, farming stock, and implements of husbandry. Other personal property not comprised under the foregoing heads. No. 28. — Subpcena in a Proceeding in Common Form to bring in a Script. In her Majesty's Court of Probate. ViCTOElA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To of Whbebas it appears by an affidavit of sworn on the day of and filed in the Principal Registry of our Court of Probate, that a certain original paper or script, being or piuporting to be testamentary, to vrit [here deseriie the paper J, bearing date the day of 187 , is now in your possession, within your power, or under your control : Now iSis IS TO coMMAiro Tou, that within eight days after service hereof on you, inclusive of the day of such service, you do bring into and leave in the Principal Registry of our said Court [or the District Registry attached to our said Court at ] the said original paper or script now in the possession, within the power, or under the control, of you the said . And this you shall in no- kk2 Digitized by Microsoft® 500 Appendix II. — Foems used in the Uon-Contentious wise omit under pain of the law and the contempt thereof. Witness Business. [insert the name of the Judge'], at the Court of Probate, the day of 187 , in the year of our reign. (Signed) E. F., Registrar. Indorsement to he made of the Service. This suhpoena was served by G.H. on of on the day of 187 , at (Signed) G. H. No. 29. — Affidavit ofHamdwritmg. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of in the county of make oath [or solemnly, sincerely, and truly declare and affirm according to the form of words prescribed by the statute applicable to the particular easel, that I knew and was well acquainted with A. B., late of in the county of deceasedj who died on the day of at for many years before and down to the time of his death, and that during such period I have frequently seen him write and also subscribe his name to writings, whereby I have become well ac- quainted with his manner and character of handwriting and subscrip- tion, and having now with care and attention perused and inspected the paper writing hereunto annexed, purporting to be and contain the last will and testament of the said deceased, bearing date beginning thus ending thus and being subscribed thus "A. B." [or as the case may be], I further make oath, that I verily and in my conscience believe the whole body, series, and con- tents of the said will, together with the names " A. B." subscribed thereto as aforesaid [or as the case may be], to be of the true and proper handwriting and subscription of the said "A. B." deceased. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. [person authorized to administer oatlis under the act.] No. 30. — Affidavit of Plight and Condition and Finding. In her Majesty's Court of Probate. The Principal Registry. In the goods of A. B., deceased. I, C. D., of in the county of make oath [or solemnly, sincerely, and truly declare and affirm according to the form of words prescribed by the statute applicable to the particular case] , that I am the sole executor named in the paper writing now here- unto annexed, purporting to be and contain the last will and testa- ment of A. B., late of in the county of deceased, who died on the day of at the said will bearing date the day of and having viewed and perused the said will and particularly observed [here recite the various obliterations, in- terlineations, erasures, and alterations (if any), or describe the plight and condition of the will, or any other matters requiring to be accounted for, and set forth the finding qf tlie will in its Digitized by Microsoft® BusIdcss. PRINCIPAL Eegistrt (P. E., NON-G.) 501 present state, and if possible, trace the mill from the possession of ifonContentious t lie deceased in Us lifetime- vp to the time of making the affidavif] - • I the deponent lastly make oath that the same is now in all respects " in the same state, plight, and condition as when found [or as the case may Se] by me as aforesaid. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. [person authorized to administer oaths under the act.'] No. 31. — Affidavit of Search. In her Majesty's Court of Probate. The Principal Registry. This form ot affidavit to T n T\ ^i • j.i> t. £ 1 ii r l>6 used when it is shown 1, CD., of m the county of make oath [or by affldavit that neither solemnly, sincerely, and truly declare and affirm -according to the the subscribed witnesses form of words prescribed by the statute applicahle to the par- nor any other persom-an ticular case-], that I am the sole executor named in the paper rfC^e^utouof'the™ writing hereunto annexed, purporting to be and contain the last wiU. will and testament of A. B., late of deceased, who died on the day of in the year 187 , at the said will beginning thus, " ," ending thus, "In witness whereof I have hereunto set my hand this day of in the year of our Lord one thousand eight hundred and fifty-four" [or as the case may be], and being thus subscribed " A. B." And referring particularly to the fact that the blank spaces originally left in the said will for the insertion of the day and month of the date thereof haye never been supplied [or that the said will is with- out date, or as the case may be] , I further make oath [or declare and affirm] that I hare made inquiry of E. F., the solicitor of the said deceased, and that I hare also made diligent and careful search in all places where he the said deceased usually kept his papers of moment and concern, and in his depositories, in order to ascertain whether he had or had not left any other will, hut that I have been unable to discover any such will. And I lastly make oath [or declare and affirm] that I verily believe the said deceased died with- out having left any will, codicil, or testamentary paper whatever other than the said will by me hereinbefore deposed of. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. [person authorized to administer oaths under the act.] No. Bl.— Caveat. In her Majesty's Court of Probate. The Principal Registry. Let nothing be done in the goods of A. B., late of deceased, • who died on the day of at unknown to C. D. of having interest [or to E. P. of proctor, solicitor, or attorney of parties having interest]. Dated this day of 187 . (Signed) C. D. of [or E. P. of the proctor, solicitor, or attorney of parties having interest.] Digitized by Microsoft® 502 Appendix II.— Forms used in the S'on-Contentlous Business. No. 33. — Warning to Ca/oeat. In her Majesty's Court of Probate. The Principal Registry. To A. B. of {or to C. D. of proctor, solicitor, or attorney of parties having interest]. JVote.— These six days are Yon are hereby warned, within six days after the service of this to be exclusive of Sunday, naming upon you, inclusive of the day of such service, to enter an Christmas Day and Good &rj» j.i,ijj: .^i Friday. appearance, or to cause an appearance to be entered for you, m the Principal Eegistry of the Court of Probate to the caveat entered by yon in the personal estate and effects of E. F., late of deceased, who died at on or about the day of 187 , and to set forth your {or your client's] interest ; and take notice, that in default of your so doing the said Court will proceed to do aU such acts, matters, and things as shall he needful and necessary to be done in and about the premises. (Signed) X. T., Registrar. Issued at the instance of E. S. {here set forth mhat interest R. S. 1ms, and if trnder a mill or codicil, set forth the date thereof, and give an address mithin tli/ree miles of the General Post Office, at which notices reqvJvriMg service may he left.'] Indorsement to he made after Service. This warning was served by I. K. on A. B. of {or on C. D. of the proctor, solicitor, or attorney] by whom the caveat was entered at {liere state horn the service mas effected^ on the day of 187 . , (Signed) I. K FORMS OF JURAT. If one deponent only — Sworn at on the day of If more than one deponent — Sworn by the said and sWTiwmeg of each deponenf] at 187 , 187 , Before me. {give the christian and on the day of Before me. If the deponent be a marksman — Sworn by the said at on the day of 187 , this affidavit having been first read over to him {or her], who seemed perfectly to understand the same, and made his {or her] mark thereto in my presence, Before me, N.B. — In all cases of affirmation the exact words prescribed by the statute applicable to the particulai case must be used, and none other will be received. Digitized by Microsoft® District Eegistries (D. E.) 503 l^on -Contentious FOEMS OF INSTRUMENTS To be adopted in the District Registries attached to the Court of Probate, as nearly as the Circum- stances of each Case will allow. No. 1. — Notice to he transmitted by the District Registrar of Application having teen made to him for Grant of Probate. The District Registry at To the Registrars of the Principal Registry of her Majesty's Court of Probate. Ton are requested to take notice, that application has been made to me for a grant of probate of the will bearing date the day of 187 [and codicil or codicils bearing date the day of 187 ], of A. B., late of deceased, who died on or about the ' day of 187 , at having at the time of his death a fixed place of abode at within the dis- trict of by C. D. of the executor [or by E. P. of the proctor, solicitor, or attorney of C. D. the executor] named in the said will [or codicU] in the words following. [Here insert the extract from the mil or eodieil.'} (Signed) G. H., District Eegistrar. No. 1 a. — Notice to be transmitted by the District Registrar of Application having been made to Mm for Grant of Admi- nistration, with the Will annexed. The District Registry at To the Registrars of the Principal Registry of her Majesty's Court of Probate. Ton are requested to take notice, that application has been made to me for a grant of letters of administration, with the will annexed, the said will bearing date the day of 187 [or will and codicil or codicils annexed, the said will bearing date the day of 187 , and the said codicil bearing date the day of 187 ], of the personal estate and effects of A. B., late of deceased, who died on or about the day of 187 , at having at the time of his death a fixed place of abode at within the district of by C. D. of the residuary legatee [or as the case may J«] named in the said will [or by E. F. of the proctor, solicitor, or attorney, of C. D., the residuary legatee named in the said will] in the words following. [Here insert the extract from the will or codicil.'] (Signed) G. H, District Registrar. Digitized by Microsoft® 504 Appendix II. — Forms used in the Non-Contentious Business, No. 1 b. — Notice to be transmitted hy the District Registrar of Application having been made to him for Orant of Admi- nistration. The District Registry at To the Registrars of the Principal Registry of her Majesty's Court of Probate. You are requested to take notice, that application has been made to me for a grant of letters of administration of the personal estate and effects of A. B., late of deceased, who died on or about the day of 187 , at intestate, haying at the time of his death a fixed place of abode at within the district of a widower, without child or parent^ brother or sister, uncle or aunt, nephew or niece [or as the case may Je], by C. D. of one of the lawful cousins german and next of kin of the deceased [or by E. P. of the proctor, solicitor, or attorney of C. D., one of the, &c.]. (Signed) G. H., District Registrar. No. 1 c. — Notice of the Entry of a Caveat in a District Registry. I To the Registrars of the Principal Registry of her Majesty's Court of Probate. You are requested to take notice, that a caveat has been entered in the District Registry attached to her Majesty's Court of Probate at of the following tenor [set out the caveat at full length~]. This day of 187 . (Signed) C. D., District Registrar. No. 2. — Affidavit of attesting Witness in proof of the due Exe- cution of a Will or Codicil dated after 31s< December, 1837. (') Insert tlie names, resi- dence and title, or addi- tion of tlie deponent. K.B, If tlie signature iB in testimonium clause or attestation clause, insert " meaning and intending the same for liis final sig- nature to his will." In her Majesty's Court of Probate. at The District Registry In the goods of A. B., deceased. I, C. D., of (') make oath [or solemnly, sincerely, and truly affirm and declare, according to the form of mords prescribed T>y the statute applicable to the particular case], that I am one of the subscribing witnesses to the last will and testament [or codicil, as the case may be"] of A. B., late of in the county of deceased, the said wiU [or codicil] being now hereunto annexed, bearing date and that the said testator executed the said will [or codicil] on the day of the date thereof, by signing his name at the foot or end thereof [or in the testimonium clause thereof, or in the attestation clause thereto, or as tlie case may ie], as the same now appears thereon, in the presence of me and of the other subscribed witness thereto, both of us being present at the same Digitized by Microsoft® District Registeies (D. R.) 505 time, and we thereupon attested and subscribed the said will [or Non-Contentious codicil] iu the presence of the said testator. Business. (Signed) C. D. ■■ Sworn at on the day of 187 . Before me, [person authorized to administer oaths under the aot^ No. 3. — Affidavit for the Commissioners of Inland Revenue. — For Executors. In her Majesty's Court of Probate. The District Eegistry at In the goods of A. B., deceased. I, C. D., of (') make oath [or solemnly, sincerely, and (') Insert tlie names, resl- truly affirm and declare, aeeording to the form of words prescribed f.^^/Jlf 'i'''' ™ "J**'' by tlie statute applicable to the particular easel, ^^^'^ I ^™ o°6 of '™ ° eponen . the executors [or the executor] named in the last will and testa- ment (=) of A. B., late of deceased ; that the said deceased (') insert codlciis, ii any. died on the day of one thousand hundred and at (') and that the said deceased had at the (') Insert place of deatli, time of his death a fixed place of abode at within the district or set fortii tiie reason of and that the personal estate and efeects of the said JSm.™^"™' deceased, which he any way died possessed of or entitled to, and for or in respect of which a probate of the said will is to be granted, exclusive of what the said deceased may have been pos- sessed of or entitled to as a trustee for any other person or persons, and not beneficially, (if the deceased died on or after 3rd April, 1860, add, " but inclusive of all personal estate and effects which the said deceased, under any authority enabling him [or her] to dispose of the same, as he [or she] might think fit, has dispose^, of by his [or her] said will," ) [if any leaseholds mclude clause No. 1, IS'-B. rorms for tiie t-wo given below'], and without deducting anything on account of the Sed'on°ttrrck' Yth debts due and owing from the said deceased, are under the value of Sdavit." ® *° " ° * pounds, to (£e best of my knowledge, information and belief [if no leaseholds insert clause No. 2, given below]. (Signed) C. D. Sworn at on the day of 187 . Before me, [person authorieed to administer oaths under the aet.] Form of Leasehold Clause No. 1. " Including the leasehold estate or estates for years of the said deceased, whether absolute or determinable on a Ufe or lives." Form of Leasehold Cla/me No. 2. "And I [or we] lastly make oath, that the said deceased was not possessed of or entitled to any leasehold estate or estates for years, either absolute or determinable on a life or lives, to the best of my [or our] knowledge, information, and belief." Digitized by Microsoft® 506 Appendix II.— Forms used in the JTon-Contontloua Business. (^) Insert the names, residence and title, or addition of the deponent. n Insert codicils, U any. (3) Insert the place of death, or set forth the reason why the same cannot be furnished. N.B. — Forms for the two leasehold clauses to be printed at the baclt of the alHdaylt. No. 3 a. — Affidavit for the Commissioners of Inland Revenue.- For Administrators with the Will annexed. In her Majesty's Court of Probate, at The District Eegistry In the goods of A. B., deceased. I, C. C, of (') the party applying for letters of adminis- tration, with the will (_') annexed, of the personal estate and effects of A. B., late of deceased, make oath [or solemnly, sincerely, and truly afSrm and declare, according to the form of words pre- scribed by the statute applicable to the pa/rticular case'], that the said deceased died on the day of one thonsand hundred and at (') , having at the time of his death a fixed place of abode at within the district of and that the personal estate and effects of the said deceased, which he any way died possessed of or entitled to, and for or in respect of which letters of administration, with the said will (') annexed, are to be granted, exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or per- sons, and not beneficially (if the deceased died on or after 3rd April, 1860, add, " but inclusive of all personal estate and effects which the said deceased, under any authority enabling him [or her] to dispose of the same, as he [or she] might think fit, has disposed of by his [or her] said will,") [if leaselwlds insert clause No. 1, given before'], and without deducting anything on account of the debts due and owing from the said deceased, are under the value of pounds, to the best of my knowledge, information, and belief [if no lease'holds msert clause iVb. 2, given in tits preceding page]. (Signed) C. D. Sworn at on the day of 187 , Before me, [person authorized to administer oaths wnder the act.] (I; Insert the names, residence, title, or addition of the deponent. JT.B. Forms (or the two leasehold clauses to be printed at the back of the nflldavlt. O Insert place of death, or set forth the reason why the same cannot be furnished. No 3 b. — Affidavit for the Commissioners of Inland Revenue. — For Administrators. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. I, C. D., of (') the party applying for letters of adminis- tration of the personal estate and effects of A. B., late of make oath [or solemnly, sincerely, and truly afSrm and declare, according to the form of words prescribed by the statute appli- cable to the pa/rticular case] : that the said deceased died on the day of one thousand hundred and at (*) having at the time of his death a fixed place of abode at within the district of and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to, and for or in respect of which letters of administra^ tion are to be granted, exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person and persons, and not beneficially [if leaseholds insert clause No. 1 given in t/ie preceding page], and without deducting Digitized by Microsoft® District Registries (D. E.) 507 anything on acconnt of the debts due and owing fronl the said Non-Contentious deceased, are under the value of pounds, to the best of my Business, knowledge, information and belief [if no leaseholds insert clause JVo. 2 given in the preceding page']. (Signed) C. D. Sworn at on the day of ,187 , Before me, [jiersoii authorized to administer oaths imder the aet.J No. 4. — Oath for an Executor. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. I, C. D., of in the county of make oath and say [or Insert the names, rest- solemnly, siacerely, and truly affirm and declare, according to the ?.™°?f'S? *i*Jf:f'L^*i,% J. j' -I •' ' -i J t ^7L J. J. J. 7. x7 ^ Yi tion Of the deponent, and form of moras prescnoea by the statute appUcaole to the par- relationship, if any, of the ticular case], that I belieTe the paper writing [ or the paper executor to the testator. writings] hereto annexed and marked by me to contain the true and original last will and testament [or last will and testament with codicils] of A. B., late of in the county of deceased, and that I am the sole executor [or one of the executors] Each testamentary paper therein named [or executor according to the tenor thereof, executor *" ^'^ marked by the per- during life, executrix dmdng ^ridowhood, of as the case may ie], S^Xin'ftheS™" and that I will well and laithiuUy admimster the personal estate and effects of the said testator by paying his just debts and the legacies contained in his will [or will and codicUs], so far as when several executors the same shall thereto extend and the law bind me; that I will a™ appointed, and some exhibit a true and perfect inventory of all and singular the said °™m °'meX,randum estate and effects, and render a just and true account thereof, should' lie made in the whenever required by law so to do; that the testator died at margin of the oath that in the connty of on the day of 187 ; and that ^^^[^|^t°^^^^™^J^«^«to the said testator had at the time of his death a fixed place of abode ji^at they have renounced. at within the district of and that the whole of the personal estate and effects of the said testator does not amount in value to the sum of pounds, to the best of my [or our] knowledge, information, and belief. (Signed) C. D. Sworn at on the day of 187 , Before me, [person authorized to administer oaths v/nder the act.] No. 5. — Oath for Administrators mth the Will. In her Majesty's Court of Probate. The District Begistry at In the goods of A. B., deceased. I, C. D., of in the connty of make oath and say [or insert the names, resi- solemnly, sincerely, and truly affirm and declare, according to the deuce and title, or addi- form of words prescribed hy the statute applicable to the pwr- "™ "' ""^ deponent. ticula/r case], that I believe the paper writing [or the paper writings] hereunto annexed and marked by me to contain the true Digitized by Microsoft® 508 Appendix II. — Forms used in the Non-Contentlous Business. Each testamentary paper to be marked by the per- sons sworn and the per- son administering the oath. and original last will and testament [or the last will and testament with codicils] of A. B., late of in the county of deceased, and that E. F. [msert his relationship, if any, to the deceased'] the sole executor therein named survived the said deceased, and is since dead without having taken probate thereof [or as the fact may be], and that I am the [insert the relationship to deceased, if any] residuary legatee in trust named therein [or as the fact may be], and that I mil well and faithfully administer the personal estate and effects of the said deceased by paying his just debts and the legacies contained in his will [or will and codicils], and distributing the residue of his estate according to law; that I will exhibit a true and perfect inventory of all and singular the said personal estate and effects,, and render a just and true account thereof, whenever requii'ed by law so to do; that the testator died at on the day of 187 , that the said testator at the time of his death had a fixed place of abode at within the district of ; and that the whole of the personal estate and effects of the said deceased does not amount in value to the sum of information, and belief. Sworn at on the pounds, to the best of my knowledge, (Signed) C. D. day of 187 , Before me, [person authorised to administer oaths under tlie act.] No. 6. — Oath for Administrators. In her Majesty's Court of Probate. at The District Registry In the goods of A. B., deceased. Insert the names, resi- I, C. D., of in the county of make oath and say [or dence and title, or addition solemnly, sincerely, and truly affirm and declare, according to the form, of mords prescribed by the statute applicable to the pa/r- ticular case], that A. B., late of deceased, died intestate a bachelor, without parent, brother or sister, uncle or aunt, nephew or niece [or as the case may be], and that I am the lawful cousin german [or as the case may be] and one of the next of kin [»?• only next of kin of the said deceased as the case may be] ; that I will faithfully administer the personal estate and effects of the said deceased, by paying his just debts, and distributing the residue of his estate and effects according to law; that I will exhibit a true and perfect inventory of all and singular the said estate and effects, and render a just and true account thereof, whenever required by law so to do; that the said deceased died at on the day of 187 , that at the time of his death the said deceased had a fixed place of abode at within the district of ; and that the whole of the personal estate and effects of the said deceased ol the deponent. In all cases, where applic- able, add " only next of kin" or " one ol the next of kin." does not amount in value to the sum of my knowledge, information, and belief. pounds, to the best of CD. (Signed) Sworn at on the day of 187 . Before me, [person authorised to administer oaths under the act^ Digitized by Microsoft® District Registeies (D. R.) No. 1.— Prolate. In her Majesty's Court of Probate, at 509 The District Registry Non-Contentious Business. Be it known, that on the day of 187 the last will ^ and testament [or the last will and testament with codicils] ■X herennto annexed of A. B., late of deceased, who died on S at and who at the time of his death had a fixed place §■ of abode at within the district of was proved and re- ^ gistered in the District Registry attached to her Majesty's Court of ^ Probate at and that administration of all and singular the personal estate and effects of the said deceased was granted by the aforesaid Court to CD. the sole executor [or as the cage rtiay J«] named in the said will, he having been first sworn well and faith- fully to administer the same, by paying the just debts of the de- ceased and the legacies contained in his will [or will and codicils], and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) E. P., (l.s.) District Registrar. Sworn under & No. 8. — Letters of Administration with the Will annexed. In her Majesty's Court of Probate, at The District Registry in the county of Be it known, that A. B., late of deceased, who died on the day of at and who at the time of his death had a fixed place of abode at within ^ the disti-ict of made and duly executed his last will and m testament [or will and codicil thereto] and did therein name ^ [or did not therein name any] executor [or as the case may ■? Je]. And be it further known that on the day of 187 letters of administration with the said will annexed of all and singular the personal estate and effects of the said deceased were granted by her Majesty's Conrt of Probate to C. D. [insert the character in which the grant is taken"], he having been first sworn well and faithfully to administer the same by paying the just debts of the said deceased, and the legacies contained in his will [or mil and codicils] and distributing the residue of his estate according to law, and to exhibit a true and perfect inventory of all and singular the said personal estate and effects, and to render a just' and true account thereof whenever required by law so to do. (Signed; E. P., (L.s.) District Registrar. No. 9. — Letters of Administration. In her Majesty's Court of Probate. The District Registry at Be it known, that on the day of 187 letters of administration of all and singular the personal estate and effects of A. B., late of deceased, who died on 187 at in- testate, and had, at the time of his death, a fixed place of abode at within the district of were granted by her Majesty's w >i ^ Sworn s- £ Digitized by Microsoft® 510 Appendix II. — Fokms used in the Non-Contentious Business. Court of Probate to C. D. the lawful widow and relict [or as the case may be! of the said intestate, she having been first sworn well and faithfully to administer the same, by paying the just debts of the said intestate, and distributing the residue of his estate and effects according to law, and to exhibit a true and perfect iuTeutory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) E. ¥., (L.s.) District Eegistrai. No. 10. — Double Probate. Sworn under .a Fcrrmer grant, Jan. 18 under the same sum. In her Majesty's Court of Probate, at The District Registry Be it known, that on the day of 187 the last wiU and testament [or the last will and testament with codicils] hereunto annexed, of A. B., late of deceased, who died on at and had, at the time of his death, a fixed place of abode at within the district of was proved and regis- tered in the District Registry attached to her Majesty's Court of Probate at and that administration of all and singular the personal estate and effects of the said deceased, was granted by the aforesaid Court to C. D., one of the executors named in the said will [or codicil], he having been first sworn well and faithfully to ad- minister the same, by paying the just debts of the deceased, and the legacies contained in his will [or will and codicils], and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever re- quired by law so to do, power being reserved of making the like grant to E. P., the other executor named in the said will. And be it further known, that on the day of 187 , the said will of the said deceased was also proved in the said District Re- gistry, and that the like administration of all and singular the per- sonal estate and effects of the said deceased was granted by the aforesaid Court to the said E. P., he having been fast duly sworn well and faithfully to administer the same, by paying the just debts of the said deceased and the legacies contained in his will [or will and codicils], and to exhibit a true and perfect inventory of all and singular the said estate and effects of the said deceased, and to render a just and true account thereof whenever required by law so to do. (Signed) G. H., (l.s.) District Registrar. Sivorn under No. 11.— Exemplification of Probate or of Letters of Adminis- tration with Will annexed. In her Majesty's Court of Probate. The District Registry at Be it known, that upon search being made in the District Re- gistry attached to her Majesty's Court of Probate at it appears that on the day in the year of our Lord 187 , the last will and testament with codicils of A. B., late of deceased, who died at on or about 187 , and had, at the time of his Digitized by Microsoft® District Eegisteies (D. R.) 511 death, a fixed place of abode at ■within the district of was proved by C. D., the executor named therein lor letters of adminis- tration with the last will and testament and codicils annexed of the personal estate and effects of A. B., late of, &c., were granted to C. D., as the ] , and which probate [or letters of administration] now remain of record in the said District Eegistry. The trae tenor of the said will (and codicils) is in the words following, to wit: \_Here follow the mill, codicils, wnd such affidavits as are re- gistered.'] In faith and testimony whereof these letters testimonial are issued. Given at as to the time of the aforesaid search, and the sealing of these presents, this day of in the year of our Lord 187 . (Signed) E. P., (L.s.) District Eegistrar. Non-Contentious Business. No. 12. — Exemplification of Administration. In her Majesty's Court of Probate. The District Eegistry at Be it known, that upon search being made in the District Eegistry, attached to her Majesty's Court of Probate at it appears that on the day of in the year of our Lord 187 , letters of administration of all and singular the personal estate and effects of A. B., late of who died at on or about and had, at the time of his death, a fixed place of abode at within the district of were granted to C. D., the \or one of the ] of the said deceased, and which letters of administration now remain of record in the said District Eegistry. The true tenor of the said letters of administration is in the words following, to wit : IHere the letters of administration are to Tie recited, verbatim.] In faith and testimony whereof these letters testimonial are issued. Given at as to the time of the aforesaid search, and sealing of these presents, this day of in the year of our Lord 187 . (Signed) E. P., (l.s.) District Eegistrar. Sworn & No. 13. — Special Administration with the Will of a Married Woman annexed. In her Majesty's Court of Probate, at The District Eegistry Be it known, that A. B. [wife of C. B.], late of in the county of died on the day of 187 , at having at the time of her death a fixed place of abode at within the district of and having during her cover- ture with the said C. B., by virtue of certain powers and authorities riven to and vested in her by a certain indenture of settlement bear- ing date the day of 187 , and of all other powers and authorities her enabling, made and executed her last will and testament bearing date the day of 187 , with a codicil thereto, bearing date the day of 187 {eras Sworn iinder Digitized by Microsoft® 512 Appendix II. — Forms used in the Non-Contentioua Business. the ease may te), and thereof appointed her said hushand, the said C. B., sole executor, and that the said C. B., sis the lawful hushand of the said deceased, is the sole person entitled to her personal estate and effects, over which she had no disposing power, and concerning which she is dead intestate. And be it also known, that on the day of 187 letters of administration (with the said will [and codicil] annexed) of all and singular the personal estate and effects of the said deceased were granted and committed at the District Registry attached to her Majesty's Court of Probate at to the said C. B., he having been first sworn well and faith- fully to administer the same by paying the just debts of the said deceased, and the legacies contained in her will and codicil, and distributing the residue of her estate according to law, and to exhibit a true and perfect inventory of all and singular her personal estate and effects, and to render a just and true account thereof whenever required by law so to do. (Signed) J. S., (l.s.) District Registrar. No. 14. — Limited Probate of a Married Womari's Will. under .S I In her Majesty's Court of Probate, at The District Registry in the Be it known, that A. B. [wife of C. B.], late of county of died on the day of 187 at having at the time of her death a fixed place of abode at within the district of and having during her coverture with the said C. B., by virtue of certain .powers and authorities vested in her by a certain indenture of settlement, bearing date the day of 187 and made between the said C. B. therein de- scribed of in the county of esquire, of the first part, the said deceased, by her then name and description of A. G. of in the county of spinster, of the second part, and E. r. of in the same county, gentleman, and H. I. of gentleman, of the third part, made and executed her last will and testament, bearing date the day of one thousand eight hundred and (with codicils thereto, bearing date respectively [insert date'] ) and thereof appointed L. M. and O. P. executors. And be it also known, that on the day of 187 the said last will and testament (with codicils) of the said A. B ., deceased, hereunto annexed, was proved and registered in the District Registry attached to her Majesty's Court of Probate at and that probate of the said will (and codicils) of the said deceased, limited to the administration of all such personal estate and effects as she, the said deceased, by virtue of the aforesaid in- denture had a right to appoint or dispose of, and has in and by her said will (and codicils) appointed or disposed of accordingly, but no further or otherwise, was granted by the aforesaid Court to the said Ii. M., one of the executors named in the said will as aforesaid, he having been first sworn well and faithfully to administer the same by paying the just debts of the deceased, and the legacies contained in her said will (and codicils), and to exhibit a true and perfect inventory of the said limited estate and effects, and to render a just and true account thereof whenever required by law so to do. Power being reserved of making a like grant of probate to the said 0. P., the other executor, when he shall apply for the same. (Signed) J. S., (L.S.) District Registrar. Digitized by Microsoft® District Eegisteies (D. K.) No. 15. — Special Administration of the rest of the Goods of a Married Woman. 513 In her Majesty's Court of Probate, at Non-Conteritious Business. The District Registry- Be it known, that A. B., wife of C. B., late of in the county of died on the day of 187 at having at the time of her death a fixed place of abode at within the district of and having dnring her cover- ture with the said C. B., by virtue of certain powers and authorities vested in her by a certain indenture of settlement bearing date the day of 187 and made between the said C. B., therein described of in the county of gentleman, of the first part, the said deceased, by her then name and description of A. F. of in the county of widow, of the second part, and G. H. of the same place, esquire, of the third part, made and executed her last vnU and testament, bearing date the day of 187 and thereof appointed E. F. and G. H. exe- cutors. And be it also known, that on the day of 187 probate of the said vrill, limited to the administration of all such personal estate and effects as she the said deceased, by virtue of the said indenture, had a right to appoint or dispose of, and has . in and by her said vrill appointed or disposed of accordingly, but no further or otherwise, was granted at the District Eegistry attached to her Majesty's Court of Probate at to the said E. F. and G. H., the executors named in the said will. And be it further known, that on the day of 187 letters of adminis- tration of the rest of the personal estate and effects of the said A. B. deceased were granted at the said District Registry to the said C. B. the lawful husband of the said deceased, he having been first sworn well and faithfully to administer the same, by paying the just debts of the said deceased, and distributing the residue of her said estate and effects according to law, and to exhibit a true and perfect inventory, of the rest of her estate and effects, and also to render a just and true account thereof whenever required by law so to do. (Signed) R. S., (L.S.) District Registrar. Sworn imder No. 16. — Administration de Bonis non. In her Majesty's Court of Probate. The District Registry at Be it known, that A. B., late of in the county of deceased, died on 187 at intestate, and had at the time of his death a fixed place of abode at within the district of and that since his death, to vrit, in the month of fe 187 letters of administration of all and singular his personal ^ estate and effects were committed and granted at the District Be- g gistry attached to her Majesty's Court of Probate at to C. D. jj {insert the Cowrt from mUoh the grant issued and the relation- f^ shAp or charaeter of admnmstrator^, which letters of administrar ^ tion now remain of record in the said District Registry, who, after taking such administration upon him, intermeddled in the personal estate and effects of the said deceased, and afterwards died, to wit, on leaving part thereof unadministered, and that on the B. i-r^ Sworn £ Digitized by Microsoft® 514 Appendix II.— Forms used in the Non-Contentiou8 day of 187 letters of administration of the said personal Bnsineas. estate and effects so left nnadministered were granted at the said District Registry to he having been first sworn well and faith- fully to administer the same, by paying the just debts of the said intestate, and distributing the residue of his estate and effects ac- cording to law, and to exhibit a true and perfect inventory of the said personal estate and effects so left nnadministered, and to render a just and true account thereof whenever required by law so to do. (Signed) E. F., (L.s.) District Registrar. No. 17. — Administration Bond. Know all men by these presents, that we, A. B. of C. D. of and E. P. of are jointly and severally bound unto G. H., the Judge of her Majesty's Court of Pro- bate, in the sum of pounds of good and lawful money of Great Britain, to be paid to the said G. H. or to the Judge of the said Court for the time being, for which payment well and truly to be made we bind ourselves and of us for the whole, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and The condition of this obligation is such, that if the above-named A. B. \or K. B., wife of the above-named A. B.], the \here state the oha/racter in mhioTi the party takes the gram£\ of I. J., late of deceased, who died on the day of and the in- tended administrator of all and singular the personal estate and effects of the said deceased [left nnadministered by ] do, when lawfully called on in that behalf, make or cause to be made a true and perfect inventory of all and singular the personal estate and effects of the said deceased [so left nnadministered] which have or shall come to hands, possession, or knowledge, or into the hands and possession of any other person for and the same so made do exhibit or cause to be exhibited into the District Regis- try attached to her Majesty's Court of Probate at whenever required by law so to do, and the same personal estate and effects, and all other the personal estate and effects of the said deceased at the time of death, which at any time after shall come to the hands or possession of the said or into the hands or posses- sion of any other person or persons for do well and truly administer according to law j (that is to say,) do pay the debts which did owe at decease, and further do msjse or cause to be made a just and true account of said administration whenever required by law so to do j and all the rest and residue of the said personal estate and effects do deliver and pay unto such person or persons as shall be entitled thereto, under the Act of Parliament, intituled "An Act for the better settling of Intestates' Estates;" and if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor or executors, or other persons therein named, do exhibit the same into the said CJourt, making request to have it allowed and approved accordingly, if the said being thereunto required, do render and deliver the letters of administration granted to him (approbation of such testa- ment being first had and made) in the said Court, then this obliga- Digitized by Microsoft® DiSTEicT Eegisteies (D. E.) 515 tiou to be Toid and of none effect, or else to remain in full force and Non-Contentious virtue. A. B. (L.s.) C. D. (L.8.) E. F. (L.s.) Signed, sealed, and delivered by the within-named A. B., C. D., and E. P., in the presence of M. N., District Registrar at [or a commissioner.] No. 18. — Administration Bond for Administrators mth the Will. Know all men by these presents, that we, A. B. of C. D. of and E. E. of are jointly and severally bound nnto G. H., the Judge of her Majesty's Court of Probate, in the sum of pounds of good and lawful money of Great Britain, to be paid to the said G. H. or to the Judge of the said Court for the time being, for which payment well and truly to be made we bind ourselves and of us for the whole, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and The condition of this obligation is such, that if the above-named A. B. [or K. B., wife of the above-named A. B.], the [here state the character in which the party takes the grawf] of I. J., late of deceased, and who died on the day of and the intended administrator with the wiU of aU and singular the personal estate and effects of the said deceased do, when law- fully called on in that behalf, make or canse to be made a true and perfect inventory of all and singular the personal estate and effects of the said deceased [left nnadministered by ] which have or shall come to hands, possession, or knowledge, and the same so made do exhibit or cause to be exhibited into the Dis- trict Registry attached to her Majesty's Court of Probate at whenever required by law so to do, and the same personal estate and effects [so left nnadministered] do well and truly administer, (that is to say,) do pay the debts of the said deceased whifch did owe at decease, and then the legacies contained in the said will annexed to the said letters of administration so to committed, as far as the said personal estate and effects [so left nnadministered] will thereto extend, and the law charge and further do make or cause to be made a just and true account of said adminis- tration when shall be thereunto lawfully required, and all the rest and residue of the said persgnal estate and effects shall deliver and pay nnto such person or persons as shall be by law entitled thereto, then this obligation to be void and of none effect, or else to remain in fuU force and virtue. A. B. (L.S.) C. D. (L.S.) E. F. (L.S.) Signed, sealed, and delivered by the within-named A. B., C. D., and E. F., in the presence of M. N., District Registrar at , [or a commissioner.] LL 2 Digitized by Microsoft® 516 Appendix II.— Foems used in the Non-Contentioua Business. The affirmation must be made according to the form of words prescribed by the statute applicable to the particular case. No. 19. — Declaration of the Personal Estate and Effects of a Testator or an Intestate. In the goods of A. B., deceased. A true declaration of all and singular the personal estate and effects of A. B., late of deceased, who died on the day of at and had at the time of his death a fixed' place of ahode at within the district of which have at any time since his death come to the hands, possession, or know- ledge of CD., the intended administrator with the will [»»• ad- ministrator] of the said estate and effects, made and exhibited upon and by virtue of the corporal oath \_or solemn affirmation] of the said C. T>., follows, to wit: First, this declarant declares that the said de- £ s. d. ceased was at the time of his death possessed of or entitled to [?%e details of the deceased's effects must le here inserted, and the value inserted opposite to each pa/rticular. Household goods, furnitv/re, plate, linen, china, jewellery, a/nd trinltets, ^c, may ie descrited in general terms, the name and address of the licensed appraiser who valmed them ieing added. Where leasehold estates are described briefly, it will he neces- sary to state the valuation. But if they are described yan'tienla/rly , the iialuation will not be reqitired. Policies of insii^ance and mortgages must be sufficiently de- scribed to identify them."} Lastly, this declarant saith, that no personal estate or effects of or belonging to the said deceased have at any time since his death come to the hands, possession, or knowledge of this declarant, save as is hereinbefore set forth. (Signed) C. D. On the day of 187 the said C. D. was duly sworn to {or being solemnly, sincerely, and truly de- clared and affirmed] the truth of the above declaration, at in the county of , Before me, \_person authorized to administer oatlis under tJie act."] No. 20.— Justification of Sureties. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., jdeceased. "We, C. D. of and E. F. of jointly and severally make oath [_or solemnly, sincerely, and truly declare and affirm, according to the form of words prescribed by the statute applicable to the particular easel, that we are the proposed sureties on behalf of G. H., the intended administrator of all and singular the personal estate and effects of the said A. B., late of deceased, in the penal sum of pounds, for his faith- ful administration of the said personal estate and effects of the said deceased; and I the said C. D. for myself further make oath [or as before'], that I am, after payment of all my just debts, well and truly worth in real and personal estate the sum of ; and I the said E. F. for myself further make oath [or as before']. Digitized by Microsoft® District Eegistkies (D. E.) 517 that I am, after payment of all my just debts, well and truly worth Non-Contentious in real and personal estate the sum of pounds. Business. Sworn by the said CD. "^ and E. F. at I on the day f of 187 . J Before me, [jperson authorized to administer oatlia under the act.'] No. 21. — Election ly Minors of a Guardian. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. Whereas A. B., late of in the county of deceased, died on or about the day of 187 at having at the time of his death a fixed place of abode at within the district of and intestate, a widower, leaving C. D., E. P. and G. H. his natural and lawful and only children, the said C. D. being a minor of the age of twenty years only, the said E. F. being also a minor of the age of nineteen years only, and the said G. H. being an infant of the age of six years only: Now we, the said C. D. and E. P., do hereby make choice of and elect K. L., our lawful maternal uncle [or as the ease may be] and one of our next of kin, to be our curator or guardian, for the pur- pose of his obtaining letters of administration of the personal estate and effects of the said A. B. deceased to be granted to him, for our use and benefit, and until one of us shall attain the age of twenty- one years [or for the purpose of renouncing for us, and on our behalf, all our right, title, and interest to and in the letters of administration, &c. as the ease may ie] [add, in cases where a proctor, solicitor, or attorney appears for the minors], and we hereby appoint M. N. of our proctor, solicitor, or attorney, to file or cause to be filed this our election for us in the District Registry attached to her Majesty's Court of Probate at th. witness whereof we have hereunto set our hands and seals this day of in the year 187 . C. D. (L s.) E. P. (L.s.) Signed, sealed, and deUvered by the wdthin-named C. D. and E. P., in the presence of [ One disinterested witness sufficient.] No. 22. — Renunciation of Prohate amd Administration with the Will annexed. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. Whereas A. B., late of in the county of deceased, died on the day of 187 at and had, at the time of his death, a fixed place of abode at within the dis- trict of ; and whereas he made and duly executed his last will and testament [or will and testament with a codicil thereto] Digitized by Microsoft® 518 Appendix II. — Forms used in the Non-ContentlouB Business. (') If there are codicils their dates should be also Inserted, This to be varied so to show the kindred or interest of the person renouncing. Insert the names, resi- dence and title, or addi- tion uf the deponent. bearing date the day of 187 ('), and thereof appointed C. D. executor and residuary legatee in trust [or as the case may iej: Now I, the said C. D., do hereby declare, that I have not inter- meddled in the personal estate and effects of the said deceased, and will not hereafter intermeddle therein, with intent to defraud creditors, and I do hereby expressly renounce all my right and title to the probate and execution of the said will [amd codicils, if any'], and to the letters of administration with the said will [ami codicils, if any'], annexed, of the personal estate and effects of the said de- ceased [add in cases where a proctor, solicitor, or attorney is to appear for the person renouncing], and I hereby appoint E. F. of my proctor, solicitor, or attorney, to file or cause to be filed this renunciation for me in the District Registry attached to her Majesty's Court of Probate at In witness whereof I have hereto set my hand and seal, this day of 187 . C. D. (L.S.) Signed, sealed, and delivered by the said C. D. in the presence of G. H. [One disinterested witness sufficient.] No. 23. — Renunciation of Administration. In her Majesty's Court of Probate, at The District Eegistry In the goods of A. B., deceased. Whereas A. B,, late of in the county of deceased, died on the day of 187 at intestate, a widower, and had, at the time of his death, a fixed place of abode at within the district of ; and whereas I, C. D., am his natural, lawful, and only child [or as the case may ie] and next of kin [or one of next of Mn] : Now I, the said C. D, do hereby expressly renounce all my right and title to the letters of administratlou of the personal estate and effects of the said deceased [add in cases where a proc- tor, solicitor, or attorney is to appear for the person renouncing], and I hereby appoint E. ]?. of my proctor, solicitor, or at- torney, to file . or cause to be filed this renunciation for me in the District Registry attached to her Majesty's Court of Probate at . In witness whereof 1 have hereto set my hand and seal, this day of 187 . CD. (L.S.) Signed, sealed, and delivered by the said C. D. in the presence of G. H. [ One disinterested witness sufficient.] No, 24, — Affidavit for the Commissioners of Inland Revenue when Stamp Duty is paid upon the total value of the Per- sonal Estate in the United Kingdom. (For Executors.) In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. I, C, D., of make oath [or solemnly, sincerely, and truly affirm and declare, according to the form of words prescribed by Digitized by Microsoft® District Kegisteies (D. E.) 519 the statute applicable to the particular ease'], that I am one of ifon-Contcntlous the executors [or as the case may ie] named in the last ivill and Business, testament, with codicils thereto, of A. B., late of de- ' ceased ; that the said deceased died on or about the day of Insert place of death, or in the year of our Lord one thousand hundred and s^' '"rth the reason why at _ having at the time of his death a fixed place of abode at 1^^^.°*™""'° within the district of and was at the time of his death domiciled in England, and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to within the United Kingdom of Great Britain and Ireland, and for or in respect of which a probate of the said will and codicils is to be granted, exclusire of what the said deceased may have been possessed of or entitled to as a trustee for any other person or per- sons, and not beneficially (if the deceased died on or after 3rd April, 1860, add, but including all personal estate and effects which the said deceased under any authority enabling him [or her] to dispose of the same as he [or she] might think fit, and has dis- posed of by his [or her] said will),* and without deducting any- a If any leaseholds, insert thing on account of the debts due and owing from the said deceased, clause No. i, at page S05. are under the value of pounds, to the best of knowledge, information, and belief .» *, « no leaseholds, insert And further make oath [or solemnly, sincerely, and truly ""'"*' ^°- ^' "' '^^ *"**• declare and affirm] that a part of the said personal estate and effects of the said deceased, under the value of pounds, is in England, and a further part thereof, amounting in value to the sum of and more particularly mentioned and set forth in the in- ventory and valuation hereunto annexed, is in Scotland, and that the said deceased was not, at the time of his death, possessed of or entitled to any personal estate and effects in Ireland, to the best of knowledge, information, and belief. [ Or end thus : and H there Is personal estate that a further part thereof, amounting in value to the sum of im^tlVrSJ^So.ST, is in Ireland, to the best of knowledge, information and be- is to he made by raLecutora lief.] ^°d admioistiaterB. Sworn at on "j (Signed) C. D. the day of > 187 . Before me. J [person a/ivthoriaed to administer oaths u/nder the act.'] No. 2b.— Affidavit for the Commistioners of Inland Revenue when Stamp Duty is paid upon the total value of the Per- sonal Estate in the United Kingdom. (For Administrators with Will.) In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. I C D of the party applying for letters of administration (with the will annexed) of the personal estate and effects of toert the namra, resi- A. B., late of deceased, make oath [or solemnly, smcerely, and ^SSS^^I ttel^ponent. truly affirm and declare, according to the form of words pre- scribed by the statute applicable to the particular case], that the said deceased died on or about the day of one thousand hundred and at having at the time of his death a fixed place of abode at within the district of and was at the time of his death domiciled in England, and that the personal estate and effects of the said deceased which he any way Digitized by Microsoft® 520 Appendix II. — Foems used ik the Kon-Contentiou8 Business. Insert the place of death, or set forth the reason ■why the same cannot be furnished. a If any leaseholds, Insert clause 1^0. 1, at pa^e 605. 6 If no leaseholds. Insert clause 1^0. 2, at page 505. If there Is personal estate In Ireland, a further affl- davit, in Torin No. 27, must he made by tho executors or adminis- trators. died possessed of or entitled to within the United Kingdom of Great Britain and Ireland, and for or in respect of which letters of administration with the said will annexed are to be granted, ex- clusive of what the said deceased may have been possessed of or en- titled to as a trustee for any other person or persons, and not bene- ficially (if the deceased died on or after Zrd April, 1860, add, but including all personal estate and effects which the said de- ceased under any authority eDabling him [or her] to dispose of the same as he [or she] may think fit, and has disposed of by his [or her] said will)," and without deducting anything on account of the debts due. and owing from the said deceased, are under the ralue of pounds, to the best of knowledge, information, and belief.'' And further make oath [or solemnly, sincerely, and truly affirm and declare] that a part of the said personal estate and effects of the said deceased, under the value of is in England, and a further part thereof, amounting in value to the sum of and more particularly mentioned and set forth in the inventory and valuation hereunto annexed, is in Scotland, and that the deceased was not, at the time of his death, possessed of or entitled to any personal estate and effects in Ireland, to the best of knowledge, information and belief. [Or end thus: and that a further part thereof, amounting in value to the sum of is in Ireland, to the best of knowledge, information, and belief.] Sworn at on '\ (Signed) C. D. the day of V 187 . Before me, J [person authorized to administer oaths under the act.'] No. 26. — Affidavit for the Commissioners of Inland Revenue when Stamp Duty is paid upon the total value of the Per- sonal Estate in the United Kingdom. (For Administrators. ) s Court of Probate. The District Registry In her at Insert the names, resi- dences and titles, or addi- tions of the persons making the affidavit. Insert the place of death, or set forth the reason why the same cannot be furnished. a If any leaseholds, Insert clause Ko. 1, at page 505. In the goods of A. B., deceased. I, C. D., of the party applying for letters of administration of the personal estate and effects of A. B., late of in the county of deceased, make oath [or solemnly, sincerely, and truly declare and affirm, aecording to the form of -words prescribed iy the statute applicable to the particular ease], that the said de- ceased died on or about the day of one thousand hundred and at and had at the time of his death a fixed place of abode at within the district of and was at the time of his death domiciled in England, and that the personal estate and effects of the said deceased which he any way died possessed of or entitled to within the United Kingdom of Great Britain and Ireland, and for or in respect of which letters of administration are to be granted, exclusive of what the said deceased may have been possessed of or entitled to as a trustee for any other person or persons and not beneficially* And without deducting anything on account of the debts due and Digitized by Microsoft® DiSTKiCT Eegistries (D. K.) 521 owing from the said deceased, are under the value of pounds, Non-Contejitious to the best of knowledge, information, and belief.'' And I Business. further make oath [or solemnly, sincerely, and truly affirm and declare] that a part of the said personal estate and effects of the 5J' ""v^f al'^C'sn', said deceased, under the value of pounds, is in England, and 7 a further part thereof, amounting in value to the sum of and JJ Snd.S^er ""'" more particularly set forth in the inventory and valuation hereunto affldavit, ia ronn ifo. 27, annexed, is in Scotland, and that the said deceased was not at the is to be made by executors time of his death possessed of or entitled to any personal estate and " administrators. effects in Ireland to the best of knowledge, information, and belief. [Or end thus: That a further part thereof, amounting in value to the sum of is in Ireland to the best of knowledge, information, and belief.] Sworn at on 1 (Signed) C. D. the day of v 187 . Before me, ) [_person authorized to administer oaths under the act J] No. 27. — Additional Affidavit and Schedule for the Commis- sioners of .Inland Revenue when part of the Personal Estate consists of Property in Ireland. In her Majesty's Court of Probate, The District Kegistry at I, A. B., of an executor [or A. B. of and C. D. of executors] named in the last will and testament with codicils [or the party or parties applying for letters of administration with the will and codicUs annexed, of the personal estate and effects] of E. E. (tlie testator), late of who died on the day of 187 at [or in cases of intestacy, in oriei to the due administration of the personal estate and effects of G. H. {fhe intestate), late of who died on the day of 187 at intestate], and had at the time of his death a fixed place of abode at within the district of make oath and say [or, in the case of Quakers or other afflrmants, do or doth solemnly, sincerely, and truly affirm and declare], that ha made diligent search and due inquiry after and in respect of the personal estate and effects of the said deceased in Ireland, in order to ascertain the full amount and value thereof; and that to the best of knowledge, information, and belief, the whole of the personal estate and effects, rights and credits, of which the said deceased died possessed in Ireland, consisting of the property, moneys, securities, matters, and things specified in the account annexed to this affidavit [or aflirmation], are under the value of pounds exclusive of what the deceased may have been possessed of or en- titled to as a trustee for any other person or persons, and not bene- ficially, and without deducting anything on account of the debts due and owing from iie deceased. (Signed) A. B. Sworn at on the day of 187 . Before me, G. H. [person authorised to adtmnister oaths under the act."] Digitized by Microsoft® 522 Kon-Contentlous Appendix II. — Forms used in the An Aceoimt of the Estate and Effects of Price of Stocks. Household goods, linen, wearing apparel, books, plate, jewels, &c. £ s.d. Property in the stocks or funds transferable at the bank. Leasehold property. . . . . . . . . , Property in public companies Money out on mortgage and other securities Real estate devised to be sold, or value of lega- cies charged on real estate. Stock In trade, fanning stock, and implements of husbandry. Other personal property not comprised under the foregoing heads. No. 28.— Affidavit of Handuyriting. In her Majesty's Court of Probate. The District Registry at In the goods of A. B., deceased. I, C. D., of in the county of make oath [or solemnly, sincerely, and truly afiSrm and declare, according to the form of words prescribed by the statute applicable to the pair- ticula/r case'], that I knew and was well acquainted with A. B., late of in the county of deceased, who died on the day of at and had at the time of his death a fixed place of abode at within the district of for many years before and down to the time of his death, and that during such period I have frequently seen him write and also sub- scribe his name to writings, whereby I have become well acquainted with his manner and character of handwriting and subscription, and having now with care and attention perused and inspected the paper writing hereunto annexed, purporting to be and contain the last will and testament of the said deceased, bearing date beginning thus ending thus and being described thus " A. B." {or as the case may be], I further make oath, that I verily and in my conscience believe the whole body, series, and contents of the said will, together with the names " A. B." sub- scribed thereto as aforesaid [or as the case may be], to be of the Digitized by Microsoft® District Eegisteies (D. E.) true and proper handwriting and subscription of the said " A. B." deceased. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. [^pei'son authorized to administer oatfis under the aot.'] 523 Kon-Contcntious BuBioess. No. 29. — Affidavit of Plight and Condition and Finding. In her Majesty's Court of Probate, at The District Registry In the goods of A. B., deceased. I, C. D., of in the county of make oath [or solemnly, sincerely, and truly affirm and declare, acoordmg to the fon-m of words prescribed hy the statute applicable to the par- ticular case], that I am the sole executor named in the paper writing now hereunto annexed, purporting to be and contain the last wUl and testament of A. B., late of in the county of deceased, who died on the day of at and had at the time of his death a fixed place of abode at within the district of the said will bearing date the day of and having viewed and perused the said will, and par- ticularly observed [here recite the various obliterations, interlinea- tions, erasures, and alterations {if any), or describe the plight and condition of the mill, or any other matters requiring to be accounted for, and set forth the finding of the mill in its present state, and, if possible, trace the mill from the possession of the deceased in his lifetime up to the time of making the affidavit] ; I the deponent lastly make oath that the same is now in all respects in the same state, plight, and condition as when found [or as the case ma/y be] by me as aforesaid. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. [jperson authorized to ad/minister oaths under the act.] No. ZQ.— Affidavit of Search. In her Majesty's Court of Probate. The District Registry at I, C. D., of in the coanty of make oath [or solemnly, sincerely, and truly declare and affirm, according to the form of mords prescribed by the statute applicable to the par- ticular case], that I am the sole executor named in the paper writing hereunto annexed, purporting to be and contain the last will and testament of A. B., late of deceased, who died on the day of in the year 187 at and had at the time of his death a iixed place of abode at within tihe district of the said will beginning thus, " ," This fonn of affidavit to be used when it is shown by affidavit that neither the subscribed witnesses nor any other person can depose to the precise time of the execution of the will. Digitized by Microsoft® 524 Appendix II. —Forms used in the Non-Contentloua ending thus, " In witness whereof I have hereunto set my hand this Business. day of in the year of our Lord one thousand eight hundred and fifty-four" [or as the case may J«], and being thus subscribed, " A. B." And referring particularly to the fact that the blank spaces originally left in the said will for the insertion of the day and month of the date thereof hare never been supplied {or that the said will is without date, or as the case may Je] , I further make oath \or declare and affirm] that I have made inquiry of E. F., the solicitor of the said deceased, and that I have also made diligent and careful search in all places where he the said deceased usually kept his papers of moment and concern, and in his deposi- tories, in order to ascertain whether he had or had not left any other will, but that I have been unable to discover any such will. And I lastly make oath {or declare or affirm], that I verily believe the said deceased died without having left any will, codicil or testa- mentary paper whatever other than the said will by me hereinbefore deposed of. (Signed) C. D. Sworn at on the day of 187 . Before me, G. H. {jcrson autlwrized to administev oaths under the act.'] No. 31. — Caveat. In her Majesty's Court of Probate. The District Registry at Let nothing be done in the goods of A. B., late of deceased, who died on the day of at and had at the time of his death a fixed place of abode at within the district of unknown to C. D. of having interest {or to E. F. of proctor, solicitor, or attorney of parties having interest]. Dated this day of 187 . (Signed) C. D of {or E. F. of the proctor, solicitor, or attorney of parties having interest]. Digitized by Microsoft® District Registries (D. R.) 525 Kon-Contenliou9 Business. FOEMS OF JURAT. I£ one deponent only — Sworn at on the day of 187 Before me, If more than one deponent — Sworn by the said and. cmd surnames of each deponenf) at -day of 187 , (^give the christian on the Before me. If the deponent he a marksman, or is blind or illiterate — Sworn by the said at on the day of 187 this affidavit baring been first read over to him {or her], who seemed perfectly to understand the same, and made his [or her] mark thereto in my presence, Before me. If the deponent be unacquainted with the English language — Sworn by the said at on the day of 187 by interpretation into the language by C. D. of who had previously sworn that he was well acquainted with both languages and faithfully to interpret. (The interpreter should sign his name on the affidavit for the purpose of identification.) N.B.— In all cases of affirmation the exact words prescribed by the statute applicable to the particular case must be used, and none other will be received. Digitized by Microsoft® 526 Appendix II. — County Court (Probate) Forms. FORMS, Which are to be followed as nearly as the Circumstances of each Case will allow. [Stamp, 16«. 8(e.] Form A. Application to a County Court for proceedings to he tahen vmder the act 20 c6 21 Vict. c. 77, for amending the law relating to probates and letters of administration in England. I, A. B., of [or C. D., proctor, solicitor or attorney of A. B. of ], do hereby apply to the Judge of the above Court for a decree to be made by him, according to the provisions of the above act, for the grant [or revocation] of probate of the will [or letters of administration in the goods] of [here insert name and address of testator or intestate] ; and I hereby state that the person who has applied for probate or letters of administration [or who has obtained probate or lettM's of administration, or is the party against whom this application is madejis E. P. of A. B. [or C. D., proctor, solicitor or attorney of A. B. of ]. Form B. (Seal.) In the County Court of holden at Between A. B., plaintiff, [address] and C. D., defendant, [address]. Take notice, that at a County Court to be holden at on the day of at the hour of in the noon, the Judge of this Court will proceed to make a decree for the grant [or revocation] of probate of the will [or letters of administration in the goods] of [here insert name and address of testator or intestate] , unless cause be then shown to the contrary; and you are hereby informed, that, if you do not attend' on that day, the Judge may proceed to make such decree in your absence. Dated this day of 187 . To the plaintiff [or defendant]. Registrar of the Court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on when the office will be closed at one. Form C. (Seal.) In the County Court of holden at Between A. B., plaintiff, and C. D., defendant. Whereas an application has been made to this Court to revoke the grant of probate of the will [or letters of administration granted by yon in the goods] of [here insert the name and address of the testator or intestate] ; and whereas the matter of such application will be considered by the Judge Digitized by Microsoft® Appendix II.— County Court (Probate) Forms. 527 of this Court on the day of at the hour of in the noon, I therefore request that you will cause to be produced before the Judge on that day [the will {a), and] all documents which are in your pos- session relating to the matter. Dated this day of 187 . Registrar of the Court. Hours of attendance at the office of the registrar Iplace of office] from ten till four, except on when the office will be closed at one. [Stamp 40s.] Form D. Certificate of a Registrar of a County Court, under sect. 55 of 20 di 21 Vict. c. 77. (Seal.) In the County Court of holden at Between A. B., plaintiff, [_addrSss'] and C. D., defendant, l_address]. I, A. B., Registrar of the above Court, do hereby certify, that the follow- ing decree was made in the above cause. [^Here set out the decree."] Certified under the seal of the Court, this day of 187 . Registrar of the Court. Poem E. (Seal.) In the County Court of holden at Between A. B., plaintiff, and C. D., defendant. Upon the hearing of the application in this cause, at a Court holden this day, it is decreed as follows: [^Eere set out the decree.'] and it is ordered, that the do pay the sum of for the 's costs, and that the same be paid to the Registrar of this Court on the day of 187 . Given under the seal of this Court, this day of 187 . By order of the Court, Registrar. Hours of attendance at the office of the Registrar {place of office] from ten till four, except on when the office will be closed at one. lAs the above forms mill seldom le required, they are not to he printed, but are to be written on foolscap paper.] N.B. — The County Cou/rt has only jurisdiction in contentious matters. (a) To be left out where administration without will annexed has been granted. Digitized by Microsoft® 528. Appendix II. — Forms in Contentloua BuslneBs. Thig affidavit must be made by the plaintiffs or one ol them. FORMS, Which are to be followed as nearly as the Circumstances of each Case will allow. No. 1. — Citation to see Will proved. In her Majesty's Court of Probate. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To of in the county of Whereas it appears by an affidavit of A. B. of sworn on and filed in the Principal Registry of our Court of Probate, that the said A. B. of claiming to be the executor of C. D., late of deceased, who died on or about the day of 187 at intends to prove in solemn form of law as well the alleged last will and testament of the said deceased bearing date the day of as also the {_Jirst'] codicil thereto, bearing date the day of \_and so on for any other oodieils] , and that the said deceased died a bachelor without parent [o?" as the case may ie] and that you the said are the natural and lawful and only next of kin of the said deceased, and the only person entitled to his personal estate and effects [or as the case may Jg] in case he be pronounced to have died intestate : Now this is to command you the said that within eight days after service hereof on yon, inclusive of the day of such service, you do cause an appearance to be entered for you in the Principal Registry of our Court of Probate, in support of any inte- rest you may have in the personal estate and effects of the said deceased : And take notice, that in default of your so doing the Judge of our said Court will proceed to hear the said will [and codicils] proved in solemn form of law, and to pronounce sentence in regard to the validity of the same, your absence notwithstanding. Dated this day of 187 and in the (Signed) Citation to see will proved. Name of practitioner. Indorsement to ie mjide after service. This citation was served by G. H. on the within-named at on the day of 187 . (Signed) year of our reign. E. F., Registrar. of G.H, This affidavit must bo made by the plalntlfis or one of them. No. 2. — Citation to bring in Probate. In her Majesty's Court of Probate. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To of in the county of Whereas it appears by an affidavit of C. D. of sworn on and filed in the Principal Registry of our Court of Probate, that probate. Digitized by Microsoft® Contentious Business (C. B.) 529 of the alleged last will and testament [with codicils thereto] of A. B,, contentious late ot deceased, was on or about the day of 187 Business. granted to you by our Court pt Probate [o>' at the District Registry " attached to our Court of Probate at ' ] : and that the said deceased died a bachelor without parent lor as the case may *e], and that the said C. D. IS one of the natural and lawful brothers and next of kin of the said deceased, and one of the persons entitled in distribution to his personal es- tate and effects in case he shall be pronounced to have died intestate [or interested under a former will bearing date, &c., or as the case may J«], and that the said probate ought to be called in, revoked, and declared null and void in law : now this is to command you, the said that within eight days after service hereof on you, inclusive of the day of such service, you do bring into and leave in the Principal Registry of our said Court the aforesaid probate, and f nrtber do show cause (if you should think it for your interest so to do) why the said probate should not be revoked and declared null and void in law, and the said will [and codicils] pronounced to be null and invalid. Dated this , day of 187 , and in the year of our reign, „ . , (Signed) E. P., Registrar. Citation to bring in probate. Name of the practitioner. Indorsement to he made after service. This citation was served by G. H. on the within-named of at on the day of 187 . (Signed) G. H. No. 3. — Citation to bring in Administration. In her Majesty's Court of Probate. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Paith. To of in the county of Whereas it appears by an affidavit of A. B. of sworn on mis affidavit and filed in the Principal Registry of our Court of Probate, that C. D,, late must be made by of deceased, died on at and that on the letters of ^*° pJ^JJ™' ™ administration of the personal estate and effects of the said deceased, on the suggestion that he had died intestate, were granted to you by the autho- rity of onr Court of Probate as the and next of kin of the said de- ceased, and that it has since been discovered that the said C. D. made and duly executed his last will and testament, dated and thereof ap- pointed executors [oj' as the case may Je], and thaS the Said letters of administration ought to be called in, revoked, and declared null and Void in law : now this is to command yon, the said that within eight days after service hereof on you, inclusive of the dsly of sUch service, you do bring into and leave in the Principal Registry of our said Court the said letters of administration, and further do show cause (if you should think it for your interest so to do) why the same should not be revoked and declared null and void. Dated this day of 187 , and in the year of our reign. (Signed) E. P., Registrar. Citation to bring in administration. Name of practitioner. Indorsement to ie made after service. This citation was served by G. H. on the within-named of at on the day of 187 . (Signed) G. H. B. MM Digitized by Microsoft® 530 Appendix II. —Forms in Contentious Basiness. This affidavit must be made by tlie party on whose behalf the citation is ex- tracted. If heir-at-law recite hriefiy the order on motion. No. 4. — Citation to see Proceedings. In her Majesty's Court of Probate. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To of in the county of Whereas it appears by an affidavit of sworn on the day of 187 and filed in the Principal Registry of our Court of Probate, that there is now depending in our said Court a cause entitled A. B. ». C. D., wherein the said is proceeding to prove in solemn form of law the alleged last will and testament with codicils thereto, of E. I"., late of deceased, who died on or about the day of at : And whereas it appears by the said affidavit that you are the natural and lawful and one of the next of kin of the deceased, and a party entitled in distribution to the personal estate and effects of the deceased in case he should be pronounced to have died intestate [or interested under a former will of the said deceased, bearing date, &c., or as the case may Je]. Now this is to give notice to you, the said to appear in the said cause, either personally or by your proctor, solicitor, or attorney, should you think it for yo.nr interest so to do, at any time during the dependence of the said cause, and before final judgment shall be given therein ; and take notice, that in default of your so doing the Judge of onr said Court of Probate will proceed to hear the said will [and codicils] proved in solemn form of law, and pronounce judgment in the said cause, your absence notwithstanding. Dated this day of and in the year of our reign. (Signed) E. F., Registrar. Citation to see proceedings. Name of the practitioner. Indorsement to he made after service. This citation was served by G. H. on of at on the day of 187 , (Signed) G. H. No. 5. — Praecipe for Citation. In her Majesty's Court of Probate. Citation [or citation to see proceedings] for A. B. against C. D., in a matter of proving in solemn form of law the last will and testament with codicils of E. F., late of in the county of, &c., deceased [«)■ generally describing the nature of the snif]. P. A., proctor, solicitor or attorney for [or A. B. in person]. [Add an address irithin three miles of the General Post Office.'] The day of 187 . The No. 6. — Declaration. In her Majesty's Court of Probate, day of 187 . A. B. [or A, B., by C. D., his proctor, solicitor, or attorney] saith, that Hi. h., late of deceased, who died on or about the day of Digitized by Microsoft® Contentious Business (C. B.) 531 at being of tlie age of twenty-one years and upwards, made hia last Contentious will and testament, with. codicils thereto, bearing date, to wit, the Busineaa. said will on the day of 187 the first of the said codicils on the day of 187 \and so on for any other codicils], and in the said will appointed the said A. B. sole executor \_or as the case may he] ; that the said will and codicils respectively, after having been reduced into writing, were signed by the said testator \or signed by G. H. in the presence and by direction of the testator, or signed by the testator who acknowledged his signature thereto, or as tlie case may Je], in the presence of two witnesses present at the same time, and who subscribed the same in the presence of the said testator, and whose names severally appear upon the said will and codicils ; and that the said testator was at the time of the execution of the said will and codicils respectively of perfect sound mind, memory, and understanding. ' (Jfotice wliere tlie Defendant appears.') The defendant must plead hereto in eight days from the date hereof, otherwise the plaintiff will proceed to obtain probate of the said will and codicils [or as the case may he]. No. 7. — Declaration in an Interest Cause. In her Majesty's Court of Probate. The day of 187 . A. B. [or A. B. by C. D., his proctor, solicitor, or attorney] saith, that E. F., late of deceased, died on or about the day of 187 at intestate [or as the case may he\ a widower, without child, parent, brother or sister, uncle or aunt, nephew or niece, leaving the said A. B. his lawful cousin german and one of his next of kin [or as the case may Je]. {Notice.') The defendant must plead hereto in eight days from the date hereof, othenvise the plaintiff will proceed to obtain letters of administration of the personal estate and effects of the said deceased [or as the case may te]. No. i.—Tlea. In her Majesty's Conrt of Probate. The day of 187 . G. H. [or G. H. by I. Z., his proctor, solicitor, or attorney] saith, that the paper writing bearing date the day of 187 and alleged by the plaintiff to be the last will and testament of A. B., late of in the county of deceased [or the first or any other codicil thereto], was not executed according to the provisions of 1 Vict. cap. 26 [or that A. B., the deceased in this cause at the time his alleged will [or codicil] bears date, to wit, on the day of 187 was not of sound mind, memory and understanding], [or any otlier avevment in opposition to the mill or codicil propounded]. No. 9. — Plea in an Interest Cause. In her Majesty's Court of Probate. The day of 187 . G H [or G. H. by I. K., his proctor, solicitor or attorney] saith, that A. B., the plaintiff, is not the lawful cousin german of K. F., who died on M m2 Digitized by Microsoft® 532 Appendix II. — Forms in Contentions qj. about the day of 187 at the deceased in this canse. Business. And further, that the said deceased died intestate [or as the case may ie] a widower, without child, parent, brother or sister, uncle or aunt, nephew or niece, or cousin german, leaving him the said G. H. his lawful cousin german once removed, and his only next of kin [or as the case may ie]. No. 10. — Affidavit of Scripts. In her Majesty's Court of Probate. A. B. V. C. D. I, < ' ' > of in the county of party in this cause, make oath and say, that no paper or parchment writing, being or purporting to be or having the form or effect of a will or codicil or other testamentary disposition of E. F., late of in the county of deceased, the deceased in this cause, has at any time; either before or since his death, come to the hands, possession or knowledge of me, this deponent, save and except the trueand original last will and testament of the said deceased now remaining in the Principal Registry of this Court [or hereunto annexed, or as the ease may Je], the said will bearing date the day of 187 [or as the case may Je], also save and except [liere add tlie dates and particulars of any other testamentary papers of which tlie deponent has any Imowledgel. (Signed) A. B. Sworn at on the day of 187 . Before me, [person avtltorized to administer oaths under tlie act.'] JN.B. — ^AU papers answering the description given in Eule 28, which are in the possession or under the control of the party making the affidavit, should be particularly described therein, and, if possible, annexed thereto, and brought into the Principal Registry. If any such papers are known to be in the possession, or under the control of any other person, the de- scription of such papers and the name and address of such other person should also be set forth. No. 11.— The Issue. In her Majesty's Couit of Probate. The day of 187 , A. B. V. C. D. A. B., by P. Q., his proctor, solicitor, or attorney [or in person], did deliver, to wit, on the day of 187 to the said C. D. his decla- ration in the words and figures following : [Here insert declaration at length.] Whereupon the said C. D. did deliver, to wit, on the day of to the said A. B., his plea, in the words and figures following: [Here insert plea at length.'] [Add any further pleadings^ Therefore the plaintiff claimed that the cause should be tried as the Court shall direct. Digitized by Microsoft® Contentious Business (C. B.) 533 3. 12.— Notice as to Mode of Trial In her Majesty's Court of Probate. No. i2.— Notice as to Mode of Trial. Contentious *^ Buainess. A. B. V. C. D, To of Take notice, that after the expiration of eight clear days from the ser- vice hereof, to wit, on the day of 187 or on the next Court day on which the application can be made, the ] defendant ( '" *^^^ cause intends to apply to the Court to hear this cause without a jury [»?• to try the questions at issue before itself by a common or special jury], [_or to direct the questions at issue to be tried before the Judge of Assize by a special or common jury at the next assizes to be holden in and for the county of ], [_or as the ease may he]. Dated this day of 187 . fA. B. ) (Signed), |c7d".( or E. F., proctor, solicitor, or attorney No. 13. — Record. In her Majesty's Court of Probate. The day of 187 . A. B. -0. C. D. A. B., by E. F., his proctor, solicitor, or attorney [or in person], having cited C. D. to appear in support of any interest he may have in the estate and effects of G. H. [or according to the terms of the eitation], [or A. B., by E. F., his proctor, solicitor, or attorney [or in person], having warned the caveat entered by C. D. in the estate and effects of G. H.,] late of deceased, who died on or about the day of 187 at • the said C. p. appeared thereto personally [or iy his proctor, solicitor, or attorney'] : Whereupon to wit, on the day of 187 did deliver his declaration to the said in the words and figures following: [Here insert declaration at length.] Whereupon the said did deliver, to wit, on the day of to the said his plea in the words and figures following r [Bere insert at length plea and amy fwrther pleadvngs^ Therefore claimed that the cause should be tried as the Court should direct. Whereupon the Judge did order as follows : _ _, [Here set forth the direction as to the mode of hearmg or tr%al.] No. 14. — Record in case of Party cited not appearing. In her Majesty's Court of Probate. The . day of 187 . A. B. V. CD. A B by E. F., his proctor, solicitor or attorney [or in person], having cited C b. to appear in support of any interest he may have in the estate and effects of G. H. [or according to the terms of the citation], late of deceased, who died on or about the day of 187 at Digitized by Microsoft® 534 Appendix II.— Forms IN Contentious the said C. D. did not in anywise appear thereto : Whereupon, in default BusincBs. of appearance of the said C. D., the said A. B. did file his declaration in the Principal Registry in the words and figures following: [Here insert declaration at length."] Therefore A. B. claimed that the cause should 'be tried as the Court should direct : Whereupon the Judge did order as follows : [_Here set forth the direction as to tlie mode oftrial.'\ A. B. V. C. D. No. 15. — Form of Questions for the Jury. In her Majesty's Court of Probate. . „ , ( plaintiff ) , ^ t^ , f defendant ) Whereas A. B., the { defendant f ^^^''^' ^""^ ^- ^^ ^^^ \ plaintiff \ denies that [7iere set out eacli question at issue ietreeen the parties, and repeat the form as often as may ie necessary ; and conclude.'} Therefore let a jury come. No. 16. — -Suhpcena ad testificandum. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To [names of all witnesses in- cluded in the subpoena'], greeting. We Qommand you and every of you, that, all other things set aside, and ceasing every excuse, you and every of you be and appear in your proper persons before [insert the name of the Judge], Judge of our Court of Probate at our Court of Probate at on the day of by of the clock in the fore- noon of the same day, and so from day to day until the cause or proceed- ing is heard or tried, to testify the truth according to your knowledge in a certain cause now in our Cfturfc before our said Judge depending, be- tween' plaintiff, and defendant- [or in a certain cause or proceeding now in our Court before our said Judge depending, in default of appearance of parties cited, entitled J, on the part of the [plaintiff, defendant, or as the case may ie], and at the aforesaid day, between the parties aforesaid, to be heard or tried [or in default aforesaid, between the parties aforesaid, to be heard] ; and this yon nor any of you shall in nowise omit, under the penalty of every of you of lOOZ. Witness [insert the name of the Judge], at the Court of Probate, the day of in the year of our reign. (Signed) E. I"., Registrar. Name of the practitioner and address. No. 17. — Subpcena duces tecum. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, To [names of all parties in- cluded in the subpoena], greeting. We command you and everv of you, that, all other things set aside, and ceasing every excuse, you and every of you be and appear in your proper persons before [insert the name of the Judge], Judge of our Court of Probate at our Court of Probate at on ■ the day of by of the clock in the fore- noon of the same day, and so from d-ay to day until the cause or proceed- ing is heard or tried, and also that you bring with you, and produce at the Digitized by Microsoft® Contentious Business (C.B.) 535 time and place aforesaid Ihere describe sTiortly the deeds, letters, papers, Contentious #c. required to be produced], then and there to testify and show all and °y»'''°°°- singular those things which yon or either of you know or the said deed or ~ instrument doth import of and concerning a certain cause or proceeding now in our said Court before our said Judge depending, between plaintiff, and defendant [or a certain cause or proceeding now in our said Court before our said Judge depending, in default of appearance of parties cited, entitled ], on die part of the [plaintiff or de- fendant, or as the case may be] , and at the aforesaid day between the parties aforesaid to be heard or tried. And this you nor any of you shall in nowise omit, under the penalty of every of you of lOOZ. Witness [in- sert the name of the Judge], at the Court of Probate, the day of 18 in the year of our reign. (Signed) E. F., Registrar, Name of the practitioner and address. No. 18. — Prcecipefor Suhpxna ad testificandum. In her Majesty's Court of Probate. A. B. V. C. D. Subpcena for to testify between A. B. plaintiff, and C. D. de- fendant, on the part of the plaintiff [or defendant], the day of 18 . ,£,-,•. ( A.B. \ (P. A., plaintiff's [or defendant's] (.age) ^ cTD. i \ proctor, solicitor or attorney. No. 19. — PrcEcipefor Subpoma duces tecum. In her Majesty's Court of Probate. A. B. '0. C. D. Subpoena for to testify and produce, &c. between A. B. plaintiff, and C. D. defendant, on the part of the plaintiff [or defendant], the day of 18 . /■c- ^^ ( A. B. 1 ( P. A., plaintiff's [or defendant's] C&igned; I g-^ ] "^ \ proctor, solicitor or attorney. No. 20. — Notice to admit Documents. In her Majesty's Court of Probate. A. B. «. CD. Take notice, that the / P'f "^'^^^ I in this cause proposes to adduce I defendant ) in evidence the several documents hereunder specified, and that the same may be inspected by the | 45^^^| at on between the hours of and the ■f '^f^°'^f°H is hereby required, within forty- l plaintiff 1 eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been, that such as are specified to be copies are true copies, and such documents as are stated to have been served, sent or delivered were so served, sent or delivered re- Digitized by Microsoft® 536 Appendix II.— Forms in ContenttDus spectivcl}', saving all just exceptions to the admissibility of all such docn- Business. ments as evidence in the cause. Dated, &c. ■ rp f A. B. j or to E. F., proctor or solicitor / defendant . IUTd; 1 <"' attorney for \ plaintiff. „. , j C. B. 1 or G. H., proctor or solicitor f plaintiff, (bigned) | ^^-^ | ^^ attorney for 1 defendant. IHere describe tlie documents. The same farm may le employed in de- scribing the documents as is now in use in the common law courts.] No. 21. — Suhpmna to bring in a Script decreed by the Court. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To of ; Whereas there is now proceeding in our Court of Probate a certain business of proving in solemn form of law the last will and testament ,of A. B. late of deceased, who died on or about at the said will bearing date the day of 18 pro- moted by C. D., the sole executor {or as the case may be] therein named, against E. F., the natural and lawful brother and one of the next of kin of the said deceased {or as the case may be] : And whereas the Eight Honourable the Judge of our said Court did, by his order made in the said cause, and bearing date order arid direct that a subpoena do issae, under seal of our said Court, to the purport and effect hereinafter men- tioned: Now this is to command you, that, within eight days after service hereof on you, inclusive of the day of such service, you do bring into and leave in the Principal Registry of our said Court, a certain original paper writing or script purporting to be testamentary, to wit {here describe the script accurately] , if the same be now in your possession or under your control: or in case the said paper writing or script be not in your posses- sion, or under your control, that you, within eight days after the service hereof on you, inclusive of the day of such service, do file in the Principal Ilegistry of our said Court an aflSdavit to that effect, and therein set forth what knowledge you have of and respecting the said paper writing or script; and this you shall in nowise omit, under the penalty of lOOZ. Witness {insert the name of the Jvdge'], at the Court of Probate, the day of 18 in the year of our reign. (Signed) E. F., Registrar. Name' of the practitioner and address. Indorsement to be made after service. This subpoena was served by I. K. on the within-named of at on the day of 18 (Signed) I. K. No. 22. — Suhpcma to a Witness to he examined touching a Testa- mentary Paper of which he is supposed to have knowledge. Victoria, by the grace of God of the United Kingdom of Great Britain and Ii-eland Queen, Defender of the Faith. To of greeting. We command you, that, all other things set aside, and ceasing every excuse, you do appear before A. B., the Judge of our Court of Probate, at our Court of Probate, at on the day of 187 by of the clock in the forenoon of the same day, and Digitized by Microsoft® Contentious Business (C. B.) 537 so from day to day until yon be dismissed by our said Judge, to testify the Contentious truth according to your knowledge [or to answer to certain interrogatories Business. to be administered to you], touching a certain paper writing or script, being or purporting to be testamentary, to wit [here describe tlie script, and give its date as accurately as possihW], of which said paper, writing or script reasonable grounds have been furnished to our said Judge for believ- ing that you have knowledge. And this you shall in nowise omit, under the penalty of 1002. Witness [insert the name of the Judge"], at the Court of Probate, the day of 187 in the year of our reign. E. r., Registrar, Name of the practitioner and address. Indorsement to he made after service. This subpoena was served by I. K. on the within-named on the day of 187 . (Signed) I. K. No. 23. — Prcecipe for' Subpoena to a Witness to bring in a Script. In her Majesty's Court of Probate. A. B. V. C. D. Subpoena for W. W. to bring into and leave in the Principal Registry. [Sere accurately describe the script.] The day of 187 . f Simedl -f ^'^ \ or ^^- ■*-' Pl^u^'i^'s [<"■ defendant's] proctor, ■ IC. D./ 1 solicitor, or attorney. No. 24. — Prmcipefor Subpoena to a Witness to be examined touching a Testamentary Paper. of which he is supposed to have Icnowledge. In her Majesty's Court of Probate. Subpoena for W. W. to testify respecting a paper writing or script being or purporting to be testamentary, to wit [describing it], of which he is supposed to have knowledge, on the part of this day of 187 . . ,„. ,■ 1 A. B. ) f P. A., plaintifE's [or defendant's! proctor, ^^'^""^^ \crD.\'"'\ solicitor, or attorney. No. 25. — Entry on the Record of a Verdict. Afterwards, on the day of 187 before _ the Judge of her Majesty's Court of Probate, come the parties within mentioned, by their respective attomies [or as the, case may be] within mentioned, and a jury duly summoned also come, who, being sworn to try the matters in question between the parties, upon their oath say, that [state the affirma- tive or negative of the issue, as found for the plaintiff or defendant, and in the terms adopted in the questions for tliejury]. [Jf there be several issues joined and tried, thsn say] as to the first issue within joined upon their oath say, that [here state the affirmative or Digitized by Microsoft® 538 Appendix II.— Forms in Contentions negative of the issue, as found for plaintiff or defendaMf], and as to the- Business. second issue within joined, the jury aforesaid upon their oath say, ^'c. [«o proofed to state the finding of the jury on all the issues']; whereupon the Judge decreed [Jiere set forth the tenor of the decree'}. (Signed) A. B., Registrar. No. 26. — Entry on the Record of a Judgment. Afterwards, on the day of 187 before the Judge of her Majesty's Court of Probate, come the parties within mentioned, by their respective attomies \_or as the case may he] mthin mentioned: whereupon the Judge decreed [/terc insert the tenor of the decree], (Signed) A. B., Eegistrar. No. 27. — Inventory. A true, full, and particular inventory of all and singular the personal es- tate and effects of A. B., late of deceased, which have at any time since his death come to the hands, possession, or knowledge of C. t>., the sole executor named in the last will and testament of the said A. B. [oi- administrator of the said personal estate and effects, as the case may he], made and exhibited upon and by virtue of the corporal oath {or solemn affirmation] of the said C. D., follows, to ^ni : First, this exhibitant saith, that the said deceased was at S, s. d. the time of his death possessed of [The details of the deceased's effects must te here inserted in as mjO/ny sheets of paper as may be necessary, and the value inserted opposite to each particular.] Lastly, this exhibitant saith, that no personal estate or effects oif or belonging to the said deceased have at any time since his death comfe to the hands, possession, or knowledge of this exhibitant, save as is hereinbefore set forth. (Signed) C. D. On the day of 187 the said C. D. was duly sworn to [or solemnly, sincerely, and truly declared and affirmed, according to tJw form of words prescribed iy the statute applicable to the particular case] the truth of the above inventory, at Before me, [person aiitlwrized to administer oaths under the act.] No 28. — Petition. In her Majesty's Court of Probate. A. B. 0. C. D. The day of 187 . A. B. [or E. F., proctor, solicitor, or attorney for A. B.] the plaintiff says, that [Here insert all the facts which are to be alleged :] Wherefore the said A. B. prays, that [Here end with tJie xn-ayer of the plaintiff.] (Signed) A. B. or C. D. Digitized by Microsoft® Contentious Business (C. B.) ' 539 Answer. Contentious Business. In her Majesty's Court of Probate. A. B. V. C. D. The day of 187 . C. D. lor G. H., proctor, solicitor, or attorney for C. D.] the defendant says, that [^Sere insert the facts to he alleged iwanswer.'] Wherefore the said C. D. prays, that [Sere insert the ^prayer of the defendant."] (Signed) C. D. or G. H. Tlte reply, rejoinder, ^-c. (if any sueh he necessary) are to be in the same form. No. 29. — Notice of Appeal. A. B. V. C. D. Notice is hereby giren that the I .™^^^ I in a suit lately depending in her Majesty's Court of Probate, entitled A. B. v. C. D., has in due time and place appealed -against a certain final order or decree made in the said cause by the Eight Honourable the Judge of the said Court on the day of 187 ; whereby, amongst other things, he did order and decree \Jtere set forth the matters which are the subject of the appeal] . (Signed) C. D. [or G. H., proctor, solicitor, or attorney for C. D., the defendant, or as the case may be']. This day of 187 . No. 30. — Bond to he executed by a Receiver of Real Estate pending Suit. Know all men by these presents, that we, A. B. of C. D. of and E. P. of are jointly and severally bound unto the Eight Honour- able the Judge of her Majesty's Court of Probate, in the sum of pounds of good and lawful money of Great Britain, to be paid to the said Eight Honourable or to the Judge of the said Court for the time being, for which payment well and truly to be made we bind ourselves and every of us for the whole, our heirs, executors and administrators, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and seventy- Whereas G. H., late of died on the day of 187 at {his 1 r — > last will and testament, with codicil thereto, bearing date respectively the [here insert dates of the testamentary papers] : And whereas there is now pending in j udgment in her Majesty's Court of Probate a certain cause or suit instituted by I. J., as one of the executors named in the said will, against K. L., the natural and lawful and only next of kin of the said deceased, touching and concerning the validity of the said will and codicil, in which said cause or suit M. N., as the heir-at-law of the said G. H., has been cited to see proceedings, and has entered an appearance, and become a party to the said cause or suit: And whereas the Eight Plonourable the Judge Digitized by Microsoft® 540 Appendix II. — Foems in Contentious Business. Contentious aforesaid, did, on the day of 187 after hearing counsel for and liuaineas. on behalf of all parties to the said cause or suit, appoint the above-bounden A. B. as and to be receiver of the real estate of the said G. H. pending the said cause or suit: Now the condition of this obligation is such, that if the above-bounden A. B., the receiver of the real estate of the said G. H. pending the aforesaid cause or suit, do make a true and perfect inventory of all the rents, issues, and profits of the said real estate which have or shall come to his hands, possession or knowledge, or into the hands, possession or knowledge of any other person for him, and the same so made do exhibit, or cause to be exhibited, into the Principal Registry of her Majesty's Court of Probate, when lawfully required so to do, and the same rents, issues and profits do well and truly pay and appropriate according to law, that is to say, in pay- ment and satisfaction of all charges and expenses which are or may be or become legally charged upon and payable out of the said rents, issues and profits, and in the letting and managing the said real estate, and in per- forming other the duties committed to him by the Judge aforesaid, and further do make or cause to be made a true and just account of his admi- nistration of the said rents, issues and profits, which shall be allowed by the said Court, and all the rest and residue of the said rents, issues and profits to deliver and pay under the direction of the said Court, then this obliga- tion to be void and of none effect, or else to remain in full force and virtue. (Signed) A. B. (l.s.) C. D. (L.S.) E. F. (L.S.) Signed, sealed and delivered by the within-named in the presence of P. Q., a clerk in the Principal Registry, or a com- missioner or surrogate authorized to administer oaths in the Conrt of Probate. Digitized by Microsoft® ( 541 ) £he following Forms are Precedents in Contentious Business, and used in the Principal Registry, though not given in the authorized Forms. Order on Summons. In her Majesty's Court of Probate. Smith against Jones ^ others. Upon hearing the agents on both sides, and upon reading the affidavit of George Broom, sworn the 24th day of January, 1870, 1 do order that a commission do issue under seal of this Court for the examination (vivA voce and by interrogatories) of James Simpson, Esquire, Queen's counsel of Toronto in Upper Canada, and others, witnesses to he produced by the defendants Thurlow Jones and Charlotte Bazette Jones his wife, in sup- port of the same such commission to be addressed to and that the plaintiff be at liberty to join in the said commission, such commission to be returned .into the Eegistry of this Court within two months from its date. Dated the 25th day of January, 1870. Penzance. In her Majesty's Court of Probate. Smith V. Jones ^ others. I do order that a commission issue in this cause at the instance of the defendants directed to , of Toronto in Upper Canada, a commissioner on the part of the defendants for the examination of James Simpson, Esq., Queen's counsel of Toronto aforesaid, and such other witnesses as may be produced by the defendants and by the plaintiff in this cause upon interrogatories, and yiva voce on oath or affirmation according to their several religions. And I do further order that copies of the interrogatories in chief to the vritnesses James Simpson and others, shall be delivered by the defendants to the plaintiff's attorneys, and that within a week thereof cross interrogatories to the said interrogatories shall be delivered by plaintiff's attorneys to defendants' attorneys. And I do further order that if the plaintiff shall be desirous of having the said commission directed also to a commissioner on her part, the said commission shall be so directed accordingly on the plaintiff fur- nishing to the defendants' attorneys or agents, within a week from the date hereof, the name and addition of her commissioner for the purpose. And I further order that the said commission shall be executed at Toronto afore- said, and that seven days previously to the examination of any witness or witnesses by virtue of this order under the said commission, notice in writing containing the name and description or names and descriptions of the witness or witnesses intended to be examined, and the place and hour of such intended examination, under the hand of the said commissioner, shall be given to the commissioner of the plaintiff if one shall be named as aforesaid, and if such commissioner of the plaintiff having received such notice shall neglect or decline to attend pursuant to such notice, then and Digitized by Microsoft® 542 Appendix II. — Precedents in in such case the said commissioner of the defendant shall proceed ex parte in the absence of the plaintiff's commissioner. And I further order that the said defendants' commissioner shall be at liberty, if he shall see reason- able occasion after the commencement of the examination under the. con\- mission to be issued by virtue of this order, to adjourn any meeting or meetings, or to continue the same de die in diem, until the whole of the witnesses proposed to be examined shall have been examined, without giving any further or other notice of such subsequent meeting or meetings, than notice to be given on the occasion of such adjournment or continua- tion of the meeting. And I further order that the commissioner ap- pointed on behalf of the plaintiff shall be at liberty, if he shall think fit, to call witnesses on behalf of the plaiutifE, on giving to the defendants' com- missioner notice in writing within seven days after the close of the exami- nation of the witnesses on defendants' behalf, that it is his intention to examine and take the evidence of witnesses on behalf of the plaintiff, and that thereupon the said commissioner on defendants' behalf shall forthwith give notice to the commissioner on plaintiff's behalf, appointing a place and hour for the examination of the said witnesses to be called on plaintiff's behalf. And I further order that the depositions and afBrmations taken under and by virtue of this order shall be subscribed by the witness or witnesses, and that the depositions and affirmations shall also be subscribed by the said defendants' commissioner and the plaintiff's commissioner, if any, who shall have taken the same, and that all books, letters, papers and documents produced in evidence shall be marked as exhibits by the said commissioner or commissioners. And I further order that it shall not be necessary to send and return with the said commission, depositions and afBrmations, the original of any books which may have been given or offered in evidence, but that copies or extracts from such books to be verified on oath, and certified by the said.commissioner or commissioners as correct copies shall and may be exhibited, and may be given in evidence on the trial of this cause in lieu of such original books, saving all just exceptions. And I further order that it shall not be necessary to annex to the said commission depositions or affirmations, or to return with the same to the Principal Registry of this Honorable Court hereinafter mentioned, any documents, letters, or other papers (with the exception of silleged wills or script) produced before or read in evidence by the said commis- sioner or commissioners, and referred to in the evidence of any witness or witnesses under or by virtue of the commission to be issued in pursuance of this order, but that copies of the same respectively shall be verified on oath as correct copies of original documents, and certified under the hands of the said commissioner or commissioners as being the document or docu- ments mentioned in such evidence, and as being correct copies of the originals, and referred to as being marked with the letter " A," or with any other letter or letters respectively, or in any other manner as to the said commissioner or commissioners may seem meet, and that all docu- ments, letters and papers, with the exception of alleged wills or script, Upon being produced annexed to the said commission, and purporting to be so verified and certified and returned as aforesaid, may, If required, be given and read in evidence on the trial of this cause in lieu of the originals without proof of the certificates being written or signed by the acting commissioners, and without further proof of such copies purporting to be verified and certified, or any of them being the same as are respectively referred to in the depositions and affirmations or any of them, saving all just exceptions which might have been taken to the originals, if produced, and proved in the ordinary manner, and saving the right of either party to prove that the copies or extracts so purporting to be verified and certi- fied, or any of them, were or was not so certified and verified. And I further order that all alleged wills or script which may be given in evi- Digitized by Microsoft® Contentious Business. 543 dence by any of the witnesses to be examined under the said commission, shall be annexed to the depositions or aiBrmations of the said witnesses taken under the said commission, and shall be certified under the hands of the said commissioner or commissioners as being the document referred to in such evidence, and as being referred to and marked with the letter " A," or with any other letter or letters respectively, or in any other manner as to the said commissioner or commissioners may seem meet, and that all such alleged wills or script shall be returned annexed to the said commission, depositions or affirmations, and shall be returned to the Principal Registry of this Honorable Court. And I do further order that the said commission, together with the depositions, affirmations and exhibits which shall be made, exhibited, and taken by virtue of this order, shall be returned to and filed in the Principal Registry of this Court under the signature and seals of the said commissioner or commissioners on or before the 1st day of July, 1870, or on or before such farther or ulterior day as may be ordered by me, and that office copies thereof, and of all letters, papers and documents so marked as exhibits, and copies and ex- tracts from books so respectively certified and verified as aforesaid, shall or may be given and read in evidence on the trial of this cause, saving all just exceptions to the admissibility of the evidence without any other proof of the absence out of this country of the witness or witnesses therein mentioned than the evidence of the attorney or agent, or one of the attornies or agents of the defendants, or of the plaintiff of his belief of the absence out of the jurisdiction of this Court of such witness or wit- nesses. Dated the 17th day of May, 1870. As altered in red ink we approve of this order. Evans & Edwards, 21st May, 1870. ViCTOElA, by the grace of God of the United Kingdom of Gre.at Britain and Ireland Queen, Defender of the Faith, To John Thomas, Esquire, and William Evans, Esquire, barristers-at-law, both of Toronto in Upper Canada, commissioners respectively named by or on the part of the defendants hereinafter mentioned; and Patrick Dale of the town of Chatham, in the county of Kent and province of Ontario, barrister-at-law, commissioner named by or on behalf of the plaintiff, hereinafter men- tioned jointly and severally greeting. Whereas a certain cause is now depending in our Court of Probate wherein Rosa Smith, wife of John Smith, is plaintiff; and Charlotte Bazette Jones, wife of Thurlow Jones, and the said Thurlow Jones are defendants. And whereas by an order made in the said cause on the 25th day of January, 1870, it was ordered that a commission should issue under seal of our said Court to the effect and purpose hereinafter mentioned. _ _ , , Now know ye that we do by virtue of commission to yon directed, autho- rize Tou the said John Thomas and William Evans, commissioners on the part of the defendants, or one of you, within ten days after receipt of this commission, at a certain time and place in Toronto aforesaid, to be by you, or one of you, appointed for that purpose to take the examination of James Simpson, Esquire, Queen's counsel, and such other witnesses as may he produced by the defendants and by the plaintiff in this cause, upon interrogatories and viva voce on oath or affirmation according to their several religions, and that seven days previously to the examination of any Digitized by Microsoft® 544 Appendix II. — Precedents in ■witness or witnesses under this commission, notice in writing containing the name and description or names and descriptions of the witness or wit- nesses intended to be examined, and the place and hour of such intended examination under the hand of you the said John Thomas and William Evans or one of you, shall be giren to you the said Patrick Dale, the com- missioner on the part of the plaintiff, and if the said Patrick Dale having received such notice shall neglect or decline to attend pursuant to such notice, then and in such case you the said John Thomas and William Evans, or one of you, shall proceed in the absence of the said Patrick Dale. And we further authorize yon the said John Thomas and William Evans, or one of you, if you shall see reasonable occasion after the com- mencement of the examination under this commission, to adjourn any meeting or meetings, or to continue the same de die in diem until the whole of the witnesses proposed to be examined shall have been examined without giving any further or other notice of such subsequent meeting or meetings than notice to be given on the occasion of such adjournment or continuation of the meeting. And we do authorize you the said Patrick Dale, "if you shall think fit, to' call witnesses on behalf of the plaintiff, on giving to the said John Thomas and William Evans notice in vfiiting within seven days after the close of the examination of the witnesses on defendants' behalf that it is your intention to examine and take the evi- dence of witnesses on behalf of the plaintiff, and that thereupon you the said John Thomas and William Evans, or one of you, shall forthwith give notice to the said Patrick Dale, appointing a place and hour for the ex- amination of the said witnesses to be called on plaintiff's behalf. And we do command that the depositions and affirmations taken under and by virtue of this commission, shall be subscribed by the witness or witnesses, and that the depositions and affirmations shall also be subscribed by you, or one of you, who shall have taken the same, and that all books, letters, papers and documents produced in evidence shall be marked as exhibits by you. And that it shall not be necessaiy to send and return with the said commission, depositions and affirmations, the original of any books which may have been given or offered in evidence, but that copies or extracts from such books to be veiified on oath, and certified by you, or one of yon, as correct copies shall and may be exhibited, and may be given in evidence on the trial of this cause in lieu of such original books saving all just exceptions. And that it shall not be necessary to annex to the said com- . mission, Repositions or afSrmations, or to return vrith the same to the Principal Registry of our Court of Probate hereinafter mentioned, any documents, letters or other papers (with the exception of the alleged wills or scripts) produced before or read in evidence by yon, and referred to in the evidence of any witness or witnesses under and , by virtue of this com- mission, but that copies of the same respectively shall be verified on oath as correct copies of original documents, and certified under the hands of you, or one of you, as being the document or documents mentioned in such evidence, and as being correct copies of the originals, and referred to as being marked with the letter " A," or with any other letter or letters respectively, or in any other manner as to you may seem meet. And we do further command that all alleged vidlls or scripts which may be given in evidence by any of the witnesses to be examined under this commission, shall be annexed to the depositions or affirmations of the said witnesses taken under this commission, and shall be certified under the hands of you, or one of you, as being the document referred to in such evidence, and as being referred to and marked with the letter " A," or with any other letter or letters respectively, or in any other manner as to you may seem meet, and thiit all such alleged wills or scripts shall be annexed to this commission with the depositions or affirmations taken thereunder. And we do further command that this commission, together with the depositions, Digitized by Microsoft® Contentious Business. 545 affirmations and exhibits which shall he made, exhibited and taken by virtue of this commission, shall be returned to and filed in the Principal Eegistry of our said Court, under the signatures and seals of you, or one of you, on or before the day of 1870, or on or before such further or ulterior day as may be ordered. Dated at London this day of 1870, and in the thirty- third year of our reign. Citation to examine -witnesses, Registrar. Styles & Co., Proctors and Solicitors, 7, Grodlimau Street, Doctors' Commons. London. NN Digitized by Microsoft® ( 546 ) APPENDIX III. DUTIES ON PROBATES Of Wills and Letters of Administration ; on Confirmations of Testaments, testamentary and dative ; on Inventories to be exhibited in the Commissary Courts in Scotland; and on Legacies out of Real or Personal, Heritable or Move- able Estate ; and on Successions to Personal or Moveable Estates upon Intestacy, imposed by 55 Geo. III. c. 184, s. 3; 22 ,§■ 23 Vict. c. 36, s. 1, and 27 4- 28 Vict. c. 56, s. 4. Probate of a will, and letters of administration witli a will an- £ s. d. nexed, to be granted in England; Confirmation of any testament testamentary or eik thereto, to be expeded in any commissary conrt in Scotland, where the deceased shall have died before or upon the 10th day of October, 1808, and subsequent to the 10th day of October, 1804; Inventory to be exhibited and recorded in any commissary court in Scotland, of the estate and effects of any person deceased, who shall have died after the 10th day of October, 1808, and have left any testament or testamentary disposition of his or her personal or moveable estate and effects, or any part thereof; Where the estate and effects for or in respect of which such probate, letters of administration, confirmation or eik re- spectively shall be granted or expeded, or whereof such inventory shall be exhibited and recorded, inclusive of Indian Government promissory notes, certificates and stock, and of ships and shares of ships registered at any port of the United Kingdom (a) ; and, where the deceased shall have died on or since the 3rd of April, 1860, in- clusive also of all personal or moveable estate and effects disposed of by his will under any authority enabling him to dispose of the same as he shall think fit, and inclusive also of money secured on heritable property in Scotland, and money secured by Scotch bonds in favour of heirs and assigns, excluding executors ; [but exclusive of what the deceased shall have been possessed of or entitled to (a) By 27 & 28 Vict. c. 66, s. 4, withstanding such ship, at the time which received the royal assent on of the death of the testator or iu- the 25th of July, 1864, it is enacted testate, may have been at sea or that the said stamp duties shall be elsewhere out of the United King- charged and paid in respect of the dom ; and for the purpose of charg- value of any ship or shai-e of any ing the said duties, such ship shall ship belonging to any deceased per- be deemed to have been at the time son which shall be registered at any aforesaid in the port at which she port of the United Kingdom, not- may be registered. Digitized by Microsoft® Appendix III.— Duties on Peobates. 547 as a trustee for any other person or pertom, and beneJiciaUy,'] shall be- Above the value of *20 and under the value of *100 (i) . . Ot the value of *100 and under the value of 200 not 200 300 450 600 800 1,000 1,600 2,000 3,000 4,000 6,000 6,000 7,000 8,000 9,000 10,000 12,000 14,000 16,000 18,000 20,000 25,000 30,000 36,000 40,000 45,000 50,000 60,000 70,000 80,000 90,000 100,000 120,000 140,000 160,000 180,000 200,000 250,000 800,000 350,000 400,000 500,000' 600,000 700,000 800,000 900,000 300 460 600 800 1,000 1,600 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 12,000 14,000 16,000 18,000 20,000 25,000 30,000 35,000 40,000 45,000 50,000 60,000 70,000 80,000 90,000 100,000 120,000 140,000 160,000 180,000 200,000 250,000 300,000 350,000 400,000 500,000 600,000 700,000 800,000 900,000 1,000,000 £ 2 6 8 11 15 22 30 40 50 60 80 100 120 140 160 180 200 220 250 280 810 360 400 450 525 600 675 760 900 1,050 1,200 1,350 1,500 1,800 2,100 2,400 2,700 8,000 3,750 4,500 6,260 6,000 7,500 9,000 10,500 12,000 13,500 d. (S) No stamp duty shall be charge- able on any snch probate, letters of administration or inventory as afore- said, in any case where the whole estate and effects of the deceased person dying after the passing of this act (26th of July, 1864), exclusive of what he shall have been possessed of or entitled to as a trostee for any other person or persons, and not beneficially, shall be sworn not to exceed and shall actnally not ex- ceed in value lOOZ. 27 & 28 Vict, c. 66, s. 5. N N 2 Digitized by Microsoft® 548 Appendix III.— Duties on Probates. Letters of ad- mlnistratluii. Of the value of £1,000,000 and upwards; for every £100,000 of the whole value of such estate and effects, a,nd any fractional part of £100,000 (c) . . Letters of administration, without a will annexed, to be granted in England ; Confirmation of any testament dative, to be expeded in any commissary court in Scotland, where the deceased shall have died befpre or upon the 10th day of October, 1808, and subsequeijii to the 10th day of October, 1804; Inventory, to be exhibited and recorded in any commissary court in Scotlwd of the estate and effects of any person deceased who §ball have died after the 10th day of October, 1808, without. leaving any testament or testamentary dis- position of his or her personal or moveable estate or effects or any part thereof; Where the estate and effects for or in respect of which such lettpys of administration or confirmation re- spectively shall be granted or expeded, or whereof such inventory shall be exhibited and recorded, in- clusive of Indian Government notes, certificates and stock, ani of money secured in heritable property in Scotl^ijd, and money secured by Scotch bonds in favoui; pf heirs and assigns, excluding executors, and of ships and shares of ships registered in any port of the United Kingdom, [_buf exclusive of wfmt the deeeqgpd shall lume been possessed of or entitled to as a trustee for any other person or persons, and not ienefioially ,'] shall be — Above the value of £20 and under the value of £50 Of the value of £50 and under the value of £100 £ d. 15,000 100 200 , 300 450 .. 600 .. 800 1,000 .1,500 2,000 .3,000 ,4,000 .6,000 .e.ooo .7,000 .§,000 .9,000 IQ.OOO 12,000 14,000 16,000 18,000 20,000 25,000 30,000 200 300 450 600 800 . 1,000 1,500 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 12,000 14,000 16,000 18,000 20,000 26,000 30,000 35,000 10 1 3 8 11 15 22i 30 45 60 76 90 120 150 180 210 240 270 300 330 376 420 465 525 600 675 ((!) 22 & 23 Vict. c. 36, ». 1. Digitized by Microsoft® Appendix III.— Letters of Administeation. 549 Of the value of £35,000 and under the value of £40 000 40,000 45,000 50,000 „ 60,000 70,000 „ 80,000 „ 90,000 100,000 ;, 120,000 140,000 „ 160,000 „ 180,000 200,000 „ 250,000 300,000 „ 350,000 400,000 500,000 600,000 „ 700,000 „ 800,000 „ 900,000 „ 1,000,000 and upwards ; for every £100,000 of the whole value of such estate and effects, and any fractional part of £100,000 {d) . . 22,050 Mieewptions from all Stamp Duties. Probate of will, letters of administration, confirmation of testament, and eik thereto, and inventory of the effects of any common seaman, marine or soldier, who shall be slain or die in the service of his Majesty, his heirs, or successors (e); Additional inventory to ,he exhibited and recorded in any .commissary court in Scotland ; where the same shall not be liable to a. duty of greater amount than the duty already paid upon any former inventory ex- hibited and recprded of the estate and effects of the same person. , £ s. d. f £40,000 785 .45,000 900 50,000 . 1,010 60,000 . 1,125 70,000 . 1,350 80,000 . 1,575 90,000 . 1,800 100,000 . 2,025 120,000 . 2,250 0. 140,000 . 2,700 160,000 . 3,150 180,000 . 3,600 200,000 . 4,050 250,000 . 4,500 300,000 . 5,625 350,000 . 6,760 400,000 . 7,875 500,000 . 9,000 600,000 . 11,250 700,000 . 13,500 800,000 . 15,750 900,000 • 18,000 1,000,000 . 20,250 ((?) 22 & 23 Vict. u. 36, s. 1. (e) See 2 & 3 Vict. c. 37, s. 50. Digitized by Microsoft® 550 Appendix III. — Court Fees, FEES iO BE TAKEN IN THE PRINCIPAL EEGISTRT OF THE COURT OF PROBATE NON-CONTENTIOUS BUSINESS. Pkobates oe Letxees op Administeation with Will ANNEXED. If the personal estate is sworn to be — Under the valtie of £S . . . . 20 100 200 300 450 600 800 1,000 1,500 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 12,000 14,000 16,000 18,000 20,000 25,000 30,000 35,000 40,000 45,000 60,000 60,000 70,000 80,000 90,000 & s. d. 1 1 1 3 7 6 12 16 6 1 2 6 1 13 2 5 3 3 15 4 10 4 15 5 6 6 6 10 5 16 6 6 5 6 10 6 17 6 7 6 7 32 6 8 2 6 8 15 9 7 6 10 6 3 11 6 12 3 9 13 2 6 15 16 17 6 18 15 Digitized by Microsoft® Principal Eegistry (P. K.) 551 Probates — oontinned. If the personal estate is sworn to be — Under the value of £100,000 120,000 140,000 160,000 180,000 200,000 250,000 300,000 350,000 400,000 600,000 For erery additional 100,000?., or any fractional part of lOO.OOOZ., a farther and additional fee of . . . . £ s. d. 20 12 6 21 11 3 23 8 9 25 6 3 27 3 9 29 1 3 30 18 9 35 12 6 40 6 3 41 17 6 43 8 9 3 2 6 Double or Ceasate Proiate, ^c. For every double or cessate probate, or letters of administration with the will annexed, de bonis non or cessate, when the personal estate is under 450Z. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 450Z. and upwards 12 6 For every duplicate and triplicate probate, or letters of adminis- tration with the will annexed, when the personal estate is under 4B0Z. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 450Z. and upwards . . . . . . . . . . . . . . 12 6 Exemplifications. For every exemplification of a probate, or letters of administration with the will annexed, in addition to the fees for engrossing and collating the wUl and other documents registered with the same . . . . . . . . . . • . . . . . 1 1 liegistering and collating or engrossing and collating Wills. For registering and collating or engrossing and collating wills and other documents, if three folios of ninety words each, or under, including parchment . . . . . . ■ . . . If above three folios of ninety words each, per folio . . In cases of grants for Queen's pay or prize money, the effects being under lOOZ., without reference to the length of the will If there are pencil marks in a will or codicil, or if a will or codicil or any part thereof is to he or has been registered fac simile, in addition to any other fee for registering and collating or for engrossing and collating the same: If the part or parts to he registered or engrossed fac simile are two folios of ninety words in length, or under If exceeding two folios, for every additional folio or part of a folio of ninety words Codicils to Wills already proved. For every probate of a codicil or codicils, or letters of adminis- tration with a codicil or codicils annexed, being a codicil or codicils to a wUl already proved, the same fees respectively as on a duplicate probate or duplicate letters of administration with will annexed. 4 6 10 6 Digitized by Microsoft® 552 Appendix III.— Court Fees, Letters of Administration. If the personal estate is sworn to be — £ !. d. Under the value of £5 ..010 20 ..010 60 ..010 100 ..010 200 ,.046 300 . . 12 450 . . 16 6 600 ..126 800 .. 1 13 1,000 ..250 1,500 ..376 2,000 . . 4 10 3,000 . . 4 13 9 4,000 .. 4 17 6 5,000 ,.550 6,000 .. 5 12 6 7,000 ..600 8,000 ..676 9,000 . . 6 15 10,000 ..726 12,000 . . 7 10 14,000 . . 7 17 6 16,000 ..889 18,000 ..900 20,000 .. 9 11 3 25,000 ..10 6 3 30,000 ..11 5 35,000 ..12 3 9 40,000 .. 13 11 3 45,000 ..15 60,000 .. 16. 7 6 60,000 .. 17 16 3 70,000 .. 20 2 6 80,000 ..23 8 9 90,000 ..26 5 100,000 ..29 1 3 120,000 ..30 9 6 140,000 ..33 5 9 160,000 ..36 2 180,000 .. 38 18 3 200,000 .. 41 14 6 250,000 . . 44 10 9 300,000 .. 46 17 6 350,000 ..49 4 6 400,000 .. 61 n 3 500,000 . . 63 18 3 For etery additional 100,000?., or any fractional part o'f" 100,0002., a further and additional f ee of . . .. .. 4 13 6 Duplicate and SHpUeate Letters of Administration, ^c, For every duplicate and triplicate letters of administration when the personal estate is under 300Z. or any sum less than 300Z., the same fee as on a first grant of letters of administration under the same sum. For every duplicate and triplicate letters of administratibn when the personal estate is of the value of 8002. and upwards . . 12 6 Digitized by Microsoft® Pbincipal Registry (P. E.) 553 Hxemplifications. £, s. d. For every exemplification of letters of adnunistration . . ..110 Administration de bonis nan or cessate. For every grant of letters of administration de bonis non or cessate, when the personal estate is under ZOOl. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 3002. and upwards . . . . 12 6 Additional Seettrity. For noting on the grant of letters of administration with or with- out will annexed, and on the act, that additional security has been given ., .. .. .. .. .. ., ..050 Tor every certificate for the Inland Eevenne Office, that additional security has been given .. .. .. 010 Articles to pay pro Rata. Por articles entered into by administrators to pay creditors pro rata, per folio of seventy-two words each . . . . ..020 For the bond for the performance of the articles, or for payment of creditors ^ro rate, per folio of seventy-two words .. .. 2 Searches and Inspection of Wills, ^'C. For every search for vrill or grant of letters of administration or any document filed in the Principal Registry, including the looking up and inspecting an original will before the same is registered, or a registered copy of a wiU or an administration act 10 For every third will or administration act looked up in addition to the above 010 For looking up and inspecting an original will after the same is registered in addition to the fee for the search 10 For looking up and producing any document filed in the Registry other than an original will or administration act . . . . 10 For a search for a will or grant of letters of administration, and for reading the will when the party applying is unable or un- willing to search for or read the same: For the search for each year or part of a year . . ..006 For reading the will: If twenty f oUos of ninety words each or under . . 10 For every additional twenty folios or part of twenty folios of ninety words each .. .. .. ..010 Sea/rclies for former Grants. For every search by an officer of the Principal Registry in order to ascertain whether any probate or grant of letters of adminis- tration has already issued, or any application has been made for a grant of probate or administration, as under: — For every year or part of a year after the 31st December of the year in which the deceased died . . . ■ ..006 In case it be requisite to extend the search to one or more District Registries, a similar additional fee for the search in each of such District Registries. Special and Ximited Grants. For every special or limited grant of probate or letters of ad- ministration with or without will annexed, in addition to the ordinary fees, as under:— „ , , - v If the personal estate is under the value of 201., Is. perfoho Digitized by Microsoft® 654 Appendix III.— Court Fees, of serenty-two words each on the bond, on the act, and on £ s. d. the grant of probate or letters of administration. If the personal estate is of the value of 201. and upwards, 2s. per folio of seventy-two words each on the bond, on the act, and on the grant of probate or letters of adminis- tration. Whenever the personal estate to be placed in possession of, or dealt with by, the executor or administrator, by means of a special or limited grant.of probate or letters of administration, exceeds in value the sum of 201., the fee of 2s. per folio of seventy-two words shall be payable on the bond, on the act, and on the grant, although the personal estate be sworn under 202. Sealing Irish and Scotcli Chrcmts. For afiBxiilg the seal of the Conrt to any grant of probate or letters of administration, with or without will annexed, or to any exemplification of probate or letters of administration, with or without will annexed, under seal of the Court of Probate in Ireland, in order to its becoming in force for pro- perty in England, — such fee as would be payable in respect of a grant originally made in England for property equal in amount to the property in England which is to be ^ected by the probate or other instrument to which the seal of the Conrt is to be affixed. For the Registrar's fiat on an Irish grant. . . . . . ..050 For affixing the seal of the Court to any confirmation of an executor issued by authority of a Commissary Court in Scot- land.. .. 110 Notation of Domicile. For noting on a probate or on letters of administration, with or without will annexed, that the testator or intestate died domi- ciled in England . . . . ; . . . . , . . ..050 Office Co;pics and Extracts. For every office copy or extract of a will, or of a probate, or administration act, or of any docnment filed or deposited in the Principal Registry, if five folios of ninety words or under 2 6 If exceeding five folios of ninety words, for every additional folio or part of a folio .. .. .. .. ..006 If the will or other document is 200 years old and five folios of ninety words or under .. .. .. .. .. ..050 If exceeding five folios of ninety words, for every additional folio or part of a folio .. .. .. .. ..009 If the office copy of a will or any part of a will or other docu- ment is required to be made fac simile, and such will or part of a will or other docnment is two folios of ninety words in length or under, in addition to the fee for the copy . . ..010 If exceeding two folios of ninety words, for every additional folio or part of a folio .. .. .. .. ..006 For copies of wills and other documents in foreign languages made by persons specially employed for that purpose, the charges of the persons so employed will be taken in addition to any other fees which may be payable in respect of such copies. Digitized by Microsoft® Pkikcipal Registet (P. E.) 555 If a copy is required to be printed (in addition to a manuscript £ s. d. copy for the printer, at 6d. per folio of ninety words, and collating): — For twenty folios of ninety words oi: under 10 For every additional folio or part of a folio 10 For every copy of a will made for the Inland Berenne Office, per folio of ninety words 006 For every abstract of an administration act for the Inland Revenue Office 033 For office copy of a will, minute, order, decree or any document under seal of the_ Court for which no other fee is payable:— For the seal, in addition to the fee for the copy and col- lating 5 For copies of plans, drawings and armorial bearings, &c. such fee as shall be determined by the Kegistrar in each particular case. Collating Domiments. For collating copy of a probate and will, or copy of letters of administration with or without the will annexed, or any other instrument to be filed or deposited in the Registry, or for col- lating any copy or instrument with an original document already filed or deposited in the Registry, including the Regis- trar's certificate in verification thereof. If ten folios of ninety words each, or under . . , . . . 2 fi If above ten folios of ninety words each, per folio . . * . 3 If there is any pencil vradting copied or the copy or any part thereof is fac simile, in addition to the above fees: — If such pencil vpriting or fac simile copy is two folios of ninety words in length or under . . . . . , ..006 For every additional folio or part of a folio 3 Attendances. For attendance with any book or original document in any of the Courts of law or equity in London or Westminster, or elsewhere within three miles of the Principal Registry .... 1 1 For the second and each subsequent attendance in the same term or sittings after term ... . . . . ... , . . . 10 6 For attendance vrith books or original documents in any of the Courts of law or equity in London or Westminster, or else- where within three mUes of the Principal Registry, when more than one book or document are required, for each book or document besides the first .. .. .. .. ..060 For the second and each subsequent attendance in the same term or sittings after term, for each book or document besides the first 2 6 For each day's attendance with any book or original document in any of the Courts of law or equity, or elsewhere beyond the distance of three miles from the Principal Registry, exclusive of travelling expenses .. .. ■- .. ■■ ..110 For each day's attendance with books or original documents in any of the Courts of law or equity, or elsewhere beyond the distance of three miles from the Principal Registry, exclusive of travelling expenses, when more than one book or document are required, for each book or document besides the first ..060 The travelling expenses to be advanced and paid to the messenger attending vrith books or original documents, shall include sJl other necessary expenses which are to be or may have been incurred by such messenger. Digitized by Microsoft® 556 Appendix III. — Couet Fees, Registrar's Order. £ s. d', "Sot every Registrar's order for revocation of a grant . . ..050 For every other Eegistrar's order .. .. ..'.. ..026 For filing affidavit for the Inland Revenue Office on granting pro- bate or letters of administration with or without will annexed for Queen's pay or prize money .. .. ,, 010 For filing every other affidavit and other document brought into and deposited in the Principal Registry, except the oaths for executors, administrators, or administrators with the will, the first administration bond and the testamentary papers in respect of which probate or administration with will annexed is granted 2 6 For filing every exhibit .. .. .. .. .. ..010 For filing in the Principal Registry any notice required to be sent there by a District Registrar .. .. .. .. ..006 For filing in a District Registry any notice required to be sent there by a Registrar of the Principal Registry . . . . ..006 Caveats. For the entry of every caveat .. .. .. .. ..010 For each notice of such caveat to the District Registrars ..010 For every warning to a caveat .. .. .. .. ..026 For every service. of a warning to caveat sent by a Registrar through the public post .. .. .. .. .. ..026 For subducting a caveat .. .. .. .. .. ..010 For notice to any District Registrar to whom notice of a caveat has been sent of its haying been subducted or warned. . ..010 Receipts for Papers. For every receipt for documents left in the Principal Registry in order to obtain a grant of probate or letters of administration with or without will annexed, or any second or subsequent grant 010 For every receipt for a document or documents delivered out of the Principal Registry 010 Deposit of Wills. For depositing every will of a person deceased in the Principal Registry for safe custody. . . . . . . . . . . . 10 For depositing every will of a living person for safe custody, in- cluding the deposit receipt 110 Taming Costs. For taxing every bill of costs, inclusive of the Registrar's cer- tificate: If five folios of seventy-two words, or under . . ..050 If exceeding that length, for every additional folio ..010 For postponement of appointment for taxation of costs, to be paid by the party at whose instance the appointment is post- poned: If the bill of costs is five folios of seventy-two words, or under .. .. ,. .. .. .. .. ..010 If exceeding five folios of seventy-two words, and under fifteen folios 026 exceeding fifteen folios ..050 Digitized by Microsoft® Principal Eegistet (P. K.) 557: Bonds. £ I. d. For superintending and attesting the execution of a bond ..016 If not completed on one occasion, for each subsequent attestation .. .. .. .. ,. .. ..010 Oaths. For erery oath administered by the Registrars to each deponent 10 Tor marking each exhibit 010 Settling Advertisements. For settling the abstract of citation for advertisement or other advertisement .. .. ,.026 Alterations in Grants. For making alterations in grants of probate or letters of ad- ministration in pursuance of the order of one of the Registrars 2 6 JVbtations. For noting alterations in and revocations of grants on the record of the same.. .. .. .. .. .. .. ..026 For noting second and subsequent grants on the record of the first grant .. .. .. .. .. .. .. ..026 For noting renunciations, or any other necessary matter on the record of a grant ., ..026 Certificates. For every certificate nnder the hand of one or more of the Re- gistrars of the Principal Registry for which no other fee is payable 026 Fiats. For the fiat of a Registrar as to the form in which any will or codicil is to be registered. . .. .... .. ..050 For noting on a testamentary paper that probate thereof is re- fused .. ., .1, ,. ,.060 Notices. For every notice required to be sent to a District Registrar for which no other fee is payable, except notices required by Rule 72 .. ;. .. 10 Perusing and settling Oaths, S^c. For perusing and settling oaths to lead special or limited grants of probate or letters of administration, with or without will, or other instruments : If five folios of seventy-two words, or under . . ..026 If above five folios, for each additional folio . . ..003 For perusing deeds and other documents when necessary, per f oUo of seventy-two words 003 Proctor. For admission of a proctor .. .. 110 For eaeh appointment of a Commissioner in the Court of Probate 10 For registering the appointment of a Commissioner appointed to administer oaths in the Court of Chancery 5 Articled Clerlt,. For transfer of an articled clerk •• .. -. .. ..100 Digitized by Microsoft® 5S8 Appendix III. — Court Fees FEES TO BE TAKEN m THE DISTRICT REGISTRIES OF THE COURT OF PROBATE. Peobates oe Lettees of Administeation with tVill ANKEXED. If the personal estate is sworn to be — & s. d. Under the value of £5 10 20 10 100 10 200 3 800 7 6 450 12 . 600 16 6 800 12 6 1,000 1 13 1,600 2 5 2,000 3 3,000 3 15 4,000 4 10 5,000 4 15 0- 6,000 5 7,000 5 6 8,000 5 10 9,000 5 15 10,000 6 12,000 6 5 14,000 6 10 16,000 6 17 6 18.000 . .• 7 5 20,000 7 12 6 25,000 • • ■ 8 2 6 30,000 8 15 35,000 • •> 9 7 6 40,000 ■ • ■ 10 6 3 46,000 ■ • • 11 5 • 50,000 • • ■ 12 3 9 60,000 • p ■ 13 2 6 70,000 • • • 15 80,000 • • • 16 17 6 90,000 ■ •■ 18 15 100,000 . ■ ■ 20 12 6 120,000 • • • 21 11 3 140,009 • 23 8 9 Digitized by Microsoft® District Kegistet (D, K.) 559 Probates — continued. If the personal estate is sworn to be — dS s. d. Under the value of £160,000 .. .. .. 25 6 3 180,000 .. .. ,. 27 3 9 200,000 .. ., .. 29 1 3 250,000 .. .. .. 30 18 9 300,000 .. .. .. 35 12 6 350,000 .. .. .. 40 6 3 400,000 .. .. .. 41 17 6 500,000 .. .. .. 43 8 9 For every additional 100,0002. or any fractional part of 100,000i. a further and additional fee of -326 Double or Cessate Proiate, ^e. "Eai: every double or cessate probate, or letters of administration with the will annexed, de bonis non or cessate, when the per- sonal estate is under 4502. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 4502. and up- wards 12 6 Tor every duplicate and triplicate probate, or letters of adminis- tration with the will annexed, when the personal estate is under 4502. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 4502. and up- wards., ., 12 6 Exemplifications. 3?or- every exemplification of a probate, or letters of administra- tion with the will annexed, in addition to the fees for en- grossing and collating the will and other documents regis- tered with the same .. .. .. .. .. ..110 Registering and collating or engrossing and collating l^ills. For registering and collating or engrossing and collating wills aUd other documents, if three folios of ninety Words each, or under, including parchment .. .. .. .. ..046 If above three folios of ninety words each, per folio ..016 In cases of grants for Queen's pay or prize money, the effects being under 1002., without reference to the length of the will 4 6 If there are pencil marks in a will or codicil, or if a will or codicil, or any part thereof is to be or has been registered fac simile, in addition to any other fee for registering and col- lating or for engrossing and collating the same: If the part or parts to be registered or engrossed fac simile are two folios of ninety words in length, or under ..010 If exceeding two folios, for every additional folio or part of a folio of ninety words .. 006 Codicils to Wills already proved. jFor every probate of a codicil or codicils, or letters of adminis- tration with a codicil or codicils annexed, being a codicil or codicils to a will already proved, the same fees respectively as on a duplicate probate or duplicate letters of administration with wUl annexed. Digitized by Microsoft® 560 Appendix III. — Court Fees, Lettees op Administration. If the personal estate is sworn to be — A s. d. Under the value of £5 . .010 20 .010 50 .010 ICO . .010 200 .046 300 . . 12 ■450 . 16 6 600 .12 6 800 . I 13 1,000 .260 1,500 .376 2,000 . 4 10 3,000 . . 4 13 9 4,000 . . 4 17 6 5,000 ..550 6,000 . 5 13 6 7,000 ..600 8,000 ,.676 9,000 . 6 15 10,000 ..726 12,000 . 7 10 14,000 . 7 17 6 16,000 .889 18,000 .900 20,000 ■ . .. 9 II 3 25,000 . 10 6 3 30,000 . II 5 35,000 . 12 3 9 40,000 . 13 II 3 45,000 . 15 50,000 . 16 7 6 60,000 . 17 16 3 -70,000 . 20 12 6 80,000 . 23 8 9 90,000 . 26 6 100,000 . 29 1 3 120,000 .30 9 6 140,000 . 33 5 9 160,000 . 36 2 180,000 . 38 18 3 200,000 . 41 14 6 250,000 . 44 10 9 300,000 . 46 17 6 350,000 . 49 4 6 400,000 . 51 11 3 600,000 . 63 18 3 For every additional 100,0002., or any fractional part of lOO.OOOZ., a further, and additional fee of . 4 13 6 Duplicate a/n,d Triplicate Letters of Administration, S;e. For every duplicate and triplicate letters of administration -when the personal estate is under 3002. or any sum less than 3002., the same fee as on a first grant of letters of administration under the same sum. For every duplicate and triplicate letters of administration when the personal estate is of the value of 3002. and upwards. 12 6 Digitized by Microsoft® District Registry (D. R.) 561 Exemplifications. £ s. d. For every exemplification of letters of administration . . ..110 Administrations de ionis non or cessate. For every grant of letters of administration de bonis non or cessate, when the personal estate is under 300Z. or any smaller sum, the same fee as on a first grant under the same sum. When the personal estate is of the value of 3002. and upwards 12 6 Additional Security, For noting on the grant of letters of administration with or with- out will annexed, and on the act, that additional security has been given 050 For every certificate for the Inland Revenue Office, that additional security has been given .. .. .. .. .. ..010 Articles to pay pro Rata. For articles entered into by administrators to pay creditors pro rata, per folio of seventy-two words each . . . . ..020 For the bond for the performance of the articles, or for payment of creditors^™ rata, per folio of seventy-two words . . ..020 Searches and Inspection of Wills, S^c. For every search for vrill or grant of letters of administration or any document filed in a District Registry, including the looking up and inspecting an original will before the same is registered, or a registered copy of a will or an administration act ..010 For every third will or administration act looked up in addition to the above .. .. .. .. .. .. ..010 For looking up and inspecting an original will after the same is registered in addition to the fee for the search . . ..010 For looking np and producing any document filed in a District Registry other than an original will or administration act ..010 For a search for a will or grant of letters of administration, and for reading the will when the party applying is unable or un- • willing to search for or read the same: For the search for each year or part of a year . . ..006 For reading the will: — If twenty folios of ninety words each or under . . ..010 For every additional twenty folios or part of twenty folios of ninety words each .. .. .. .. ..010 Searches for former Grants. For every search by an officer of the Principal Registry or by an officer of a District Registry, in order to ascertain whether any probate or grant of letters of administration has already issued, or any application has been made for a grant of pro- bate or administration, as under: — For every year or part of a year after the 31st December of the year in which the deceased died . . . . ..006 In case it be requisite to extend the search to one or more other District Registries, a similar additional fee for the search in each of such Registries. Special and Limited Grants. For every special or limited grant of probate or letters of admi- nistration with or without will annexed, in addition to the ordi- nary fees, as under: — If the personal estate is under the value of 20Z., \s. per folio B. OO Digitized by Microsoft® 562 Appendix III. — Couet Fees, of seventy-two words each on the bond, on the act, and £, g. d. on the grant of probate or letters of administration. If the personal estate is of the yalne of 201. and upwards, 2«. per folio of seventy-two words each on the bond, on the act, and on the grant of probate or letters of adminis- tration. Whenever the personal estate to be placed in possession of, or dealt with by, the executor or administrator, by means of a special or limited grant of probate or letters of administration, exceeds in value the sum of 201., the fee of 2s. per folio of seventy-two words shall be payable on the bond, on the act, and on the grant, although the personal estate be sworn under 201. Notation of Domicile. For noting on a probate or on letters of administration, with or without will annexed, that the testator or intestate died domiciled in England .. .. ..050 Office Copies mid Extracts. For every office copy or extract of a will, or probate, or adminis- tration act, or of any document filed or deposited in a District Eegistry, if five folios of ninety words or under . . ..026 fl exceeding five folios of ninety words, for every additional folio or part of a folio .. .. .. .. ..006 If the will or other document is 200 years old and five folios of ninety words or under .. .. .. .. .. ..050 If exceeding five folios of ninety words, for every additional folio or part of a folio .. .. .. .. ..009 If the office copy of a will or any part of a will or other docu- ment is required to be made fac simile, and such will or part of a will or other document is two folios of ninety words in length or under, in addition to the fee for the copy . . ..010 If exceeding two foUos of ninety words, for every additional folio or part of a folio .. .. .. .. ..006 For copies of wills and other documents in foreign languages made by persons specially employed for that purpose, the charges of the persons so employed will be taken in addition to any other fees which may be payable in respect of such copies. If a copy is required to be printed (in addition to a manuscript copy for the printer, at ^d. per folio of ninety words and collating) : — If twenty folios of ninety words or under . . . . . . 10 For every additional folio or part of a folio . . . . ..010 For office copy of a will, minute, order, decree or any document under seal of the Court for which no other fee is payable: — For the seal in addition to the fee for the copy and col- lating 050 For copies of plans, drawings and armorial bearings, &c., such fee as shall be determined by the District Eegistrar in each particular case. Collating Documents. For collating copy of a probate and will, or copy of letters of administration, with or without the will annexed, or any other instrument to be filed or deposited in a District Registry, or for collating any copy or instrument with an original docu- Digitized by Microsoft® District Kegistrt (D. R.) 563 ment already filed or deposited in a District Registry, inclad- £ s. d. ing the District Registrar's certificate in Terlficatioti thereof :— If ten folios of ninety words each, or under 2 6 If ahove ten folios of ninety words each, per folio . . ..003 If there is any pencil writing copied or the copy or any part thereof is fac simile in addition to the above fees: — If snch pencil writing or fac simile copy is two folios of ninety words in length or under C For every additional folio or part of a folio 3 For attendance with any book or original document within three miles of the District Registry 110 For the second and each snbseqiieut attendance at the same plaCe within fourteen days 10 6 For attendance with books or original documents within three miles of the District Registry, when more than one book or document are required, for each book or document besides the first 5 For the second and each subsequent attendance at the same place within fourteen days, for each book or document besides the first.. .. 2 6 For each day's attendance with any book or original document beyond the distance of three miles from the District Segi'stry, exclusive of travelling expenses .. .. .. .. ..110 For each day's attendance with books or original documents beyond the distance of three miles from the District Registry, exclusive of travelling expenses, when mbfe than one book or document are required, for each book or document besides the first , 5 The travelling expenses to be advanced and paid to the messenger attending with books or original documents shall include all other necessary expenses which are to be or may have been incurred by such messenger. District Registrar's Minute. For every District Registrar's minnte 2 6 Rling. For filing affidavit for the Inland Reveniie Office on granting probate or letters of administration, with or without will an- nexed, for Queen's pay or prize money 10 For filing every other affidavit and other document brought into and deposited in a District Registry, except the oaths loi: exe- cutors, administrators, or administrators with the will, the first administration bond and the testamentary papers in respect of which probate or administration with will annexed is granted 026 For filing every exhibit .. .. .. .. .. ..010 For filing in a District Registry any notice required to be sent there from the Principal Registry 6 For filing in the Principal Registry any notice required to be sent there by a District Registrar 6 Caveats. For the entry of every caveat .. ..010 For each notice of such caveat to the Principal or to any District Registry 010 Digi8z2dby Microsoft® 564 Appendix III.— Coukt Fees, District Registry. £ s. d. For subducting a caveat .. .. .. .. •■ ..010 Tor notice to the Principal Eegistry or to any District Eegistiy to which notice of a caveat has been sent of its having been subducted 010 Receipts for Papers. For every receipt for documents left in a District Registry . . 10 For every receipt for a document or documents delivered out of a District Registry 010 Deposit of Wills. For depositing every will of a person deceased in a District Registry for safe custody. . . . . . . . . . . . 10 Bonds. For superintending and attesting the execution of a bond ..016 If not completed on one occasion, for each subsequent attestation .. .. .. .. .. .. ..010 Oaths. For e.very oath administered by a District Registrar to each deponent .. .. .. .. .. .. .. ..010 For marking each exhibit .. .. .. ., .. ..010 Alterations in Chants. For making alterations in grants of probate or letters of adminis- tration in pursuance of an order of one of the Registrars of the Principal Registry .. .. .. .. .. ..026 Notations. For noting alterations in and revocations of grants on the record of the same .. .. .. .. .. .. .. ..026 For noting second and subsequent grants on the record of the first grant 026 For noting renunciations, or any other necessary matter on the record of a grant .. .. .. .. .. .. ..026 For every certificate under the hand of a District Registrar for which no other fee is payable .. .. .. .. ..026 Mats. For the fiat of a District Registrar as to the form in which any will or codicil is to be registered . . . . . . ..050 For noting on a testamentary paper that probate thereof is refused 5 Notices. For every notice required to be sent to the Principal Registry for which no other fee is payable, except notices required bv Rule82 .. ..010 Perusal of Deeds, ^-c. For perusing deeds or other documents when necessary, for every folio or part of a folio of 72 words 3 Digitized by Microsoft® Appendix III. — Additional Fees, etc. 565 IN ADDITION TO THE ORDBTAEY FEES TO BE TAKEN IN THE PRINCIPAL REGISTRY OP THE COURT OP PROBATE (or, in the District Registries attached to the Court of Probate) (a) I» NON-CONTENTIOUS BUSINESS, THE FOLLOWING PEES ARE TO BE TAKEN IN THE DEPARTMENT TOE PERSONAL APPLICATIONS (or, in the District Registries in cases of Personal Applications). On Probates or Letters of Administration with Will annexed. Preparing Effects sworn under Preparing Oath of Executors. Affidavit lor ttie Inland Kevenue Probate under SeiO. Clerks, Letters, &c. Office. £ £ s. d. £ s. d. £ s. d. £ s. A. 5 2 6 2 6 1 — 20 2 6 2 6 1 .0 10 100 5 5 1 2 200 5 5 2 2 300 5 6 5 2 450 5 5 8 2 600 5 5 11 2 800 6 5 15 2 1,000 5 5 1 2 2 1,500 5 5 1 10 5 2,000 5 6 2 5 3,000 5 6 2 10 5 4,000 5 5 a 5 5,000 5 6 3 2 6 7 6 6,000 5 5 3 5 0-7 6 7,000 6 6 3 7 6 7 6 8,000 5 5 3 10 7 6 9,000 6 5 3 12 6 7 6 10,000 5 5 8 16 7 6 12,000 6 5 3 17 6 7 6 14,000 5 6 4 7 6 (a) These charges being the same (with slight exceptions) in the Prin- cipal Registry and in the District Registries, are inserted only once — the exceptions are the three last items, which do not appear in the official list of fees in the District Registries — as see below, p. 569. Digitized by Microsoft® 566 Appendix III. — Additiqnal Fees, Preparing Effects sworn under Preparing Oath of Executors. Affidavit tor tlie Inland Bevenue Protjate under SeaL Clerks, Letters, to. Office. £ & S. d. * s. d. £, a. d. £ S. d. 16,000 6 5 4 3 9 7 6 18,000 5 5 4 7 6 7 6 20,000 5 5 4 11 3 7 6 25,000 5 6 4 16 3 7 6 30,000 6 6 6 2 6 7 6 35,000 5 6 5 8 9 7 6 40,000 5 6 5 18 3 7 6 45,000 5 5 6 7 6 7 6 60,000 5 6 6 17 7 6 6.0,000 6 6 7 6 3 7 6 70,000 5 5 8 5 7 6 80,000 6 6 9 3 9 110 90,000 5 6 10 2 6 110 100,000 5 5 11 1 3 110' 120,000 5 6 11 10 9' 110 140,000 5 6 12 9 6 110 160,000 5 6 13 8 3 110 180,000 5 6 14 7 110 200,000 5 5 16 5 9 1 1 250,000 5 6 16 4 6 11-0 300,000 6 5 18 11 3 110 350,000 6 5 20 18 3 1 1 400,000 5 6 21 13 9 110 500,000 6 5 22 9 6 110 Tor every additional 100,0002., or any fractional part of 100,0002., under which the effects are sworn, in addition to the above fees, 11. lit. 3d. Eor engrossing and coUatiug the will, if three folios of ninety words or under, including parchment If ^xc^dipg three folios, per folio £ s. d. Fees on Letters of Administration with Will annexed. In addition to the above fees : For preparing the bond — if the effects are £ Under 201 202. and under 1002. 1002. and upwards Digitized by Microsoft® Pbesonal Applications. 567 On Letters of Administration. Effects sworn Prepari^ig Oath ^'reparing Letters ot Clerks, J^A±^^L« V0 O f T \/*r k± of Administrator Affidavit lor tlie Administration T.fitt^r^ &c and Sond. Inland Bevenue. under Seal. ijcbiitijra, oiiu. s, & S. d. £ s. d. £ g. d. & s. d. 6 4 2 6 10 — 20 4 2 6 10 10 50 7 6 3 10 2 100 8 6 6 10 2 200 10 5 3 2 . 300 10 6 8 2 450 10 5 11 2 600 10 5 15 2 800 10 6 12 2 1,000 10 5 1 10 6 1,500 10 5 2 5 5 2,000 10 5 3 6 3,000 10 5 3 19 7 6 4,000 10 5 3 3 9 7 6 6,000 10 6 3 7 6 7 6 6,000 10 5 3 11 3 7 6 7,000 10 6 3 15 7 6 8,000 10 5 3 18 9 7 6 9,000 10 6 4 2 6 7 6 10,000 10 6 4 6 3 7 6 12,000 10 6 4 10 7 6 14,000 10 6 4 13 9 7 6 16,000 10 6 4 19 6 7 6 18,000 10 5 5 5 7 6 20,000 10 6 5 10 9 7 6 25,000 10 5 5 18 3 7 6 30,000 10 5 6 7 6 7 6 85,000 10 6 6 17 7 6 40,000 10 5 7 10 9 7 6 45,000 10 5 8 5 7 6 50,000 10 5 8 18 9 7 6 60,000 10 5 9 13 3 7 6 70,000 10 5 11 1 3 7 6 80,000 10 5 12 9 6 110 90,000 10 5 13 17 6 110 100,000 10 6 15 5 9 110 120,000 10 6 15 19 9 110 140,000 10 5 17 8 110 160,000 10 5 18 16 3 110 180,000 10 6 20 4 110 200,000 10 6 21 12 6 110 250,000 10 5 23 3 110 300,000 10 6 24 3 9 110 350,000 10 6 26 7 3 110 400,000 10 5 26 10 6 110 600,000 10 5 27 14 110 600,000 10 5 30 10 110 700,000 800,000 10 10 5 5 32 7 9 34 13 9 110 110 900,000 10 5 37 1 6 110 1,000,000 10 5 39 8 6 110 For every addi which the e£E ional 100,000?., or any f ractioi lal part of 100 ,000Z., nnde ects are sworn, ] n addition to th e above fees, 21 7s. Digitized by Microsoft® 568 Appendix III. — Additional Fees, On Double or Cessate Probates. If the Effects are sworn under Looking up and taking an Account of each former Grant. Oath of the Executor. Affidavit for Inland Re- venue Office. Double or Cessate Pro- bate under Seal. Clerks, Letters, &c. & £ s. d. & s. d. £ s. d. £ s. d. £ s. d. 5 2 6 2 6 2 6 10 — 20 2 6 2 6 2 6 10 10 100 6 5 5 10 2 200 5 6 6 5 3 2 300 5 6 6 5 7 6 0-2 450 5 6 6 5 12 2 600 5 6 6 5 12 6 2 800 5 6 6 5 12 6 2 1,000 6 6 6 5 12 6 2 1,500 5 6 6 5 12 6 5 2,000 5 6 6 5 12 6 5 3,000 6 6 6 5 12 6 5 4,000 5 6 6 5 12 6 5 5,000 5 6 6 5 12 6 7 6 Above The fees to be taken are the same as above, except the fee for 5,000 clerks, letters, &c., which, if the effects are of the yalue of 70,0002. or upwards, is 11. U. On Exemplification of Probate or Letters of Administration with or without Will annexed. £ s. d. Looking up the grant of probate and original will, or grant of administration ., .. .. .. .. .. ..060 Exemplification under seal, in addition to the 31. stamp . . 110 Clerks, letters, &c 2 6 On Duplicate and Triplicate Probates, or Letters of Administration {with or without Will annexed), &c. £ s. d. Looking up the will .. .. .. .. .. .. ..050 Dnplicate or triplicate probate or letters of administration, with or without the will annexed, or probate of codicil to will already proved, or letters of administration (with same annexed ), if the personal estate is sworn under 4502., or any smaller sum, the same fees as on the original grant. If the personal estate is of the value of 4502. and upwards . . 12 6 Clerks, letters, &c 026 Digitized by Microsoft® Personal Applications. 569 On Letters of Administration with or without Will annexed, de bonis non or Cessate. If the Effects are sworn under Looking up and taking an Account of eacli former Grant. OaUi of tlie Administra- tor and Bond. Affidavit for Inland Re- venue Office. De Bonis or Cessate Administration under Seal and Duty-paid Stamp. Clerks, Letters, &c. £ & S. d. & s. d. & S. d. £ S. d. £ S. d. 5 2 6 2 6 2 6 I — 20 2 6 4 2 6 1 10 50 3 6 6 3 16 2 100 6 7 6 6 3 2 200 6 10 6 4 6 2 300 6 10 6 12 2 450 6 10 6 12 6 2 600 5 10 5 12 6 2 If the effects are 600Z. and upwards, the same fees as above, except the fee for clerks, letters, &c., which is 5«. Instructions, Drawing, Copying, &c. Instructions for erery oath, afBdavit, instrument, or document, £ other than the oaths and affidavits included in the foregoing "• fees . . . ■ . . . • • • 6 Drawing same, at per folio of 72 words . . . . ..01 Copies of any documents prepared in the department for personal applications, at per folio of 72 words . . ..00 Instructions for special or limited probates, or letters of adminis- tration {with or mithout mill annexed') .. .. ..05 Attendances on settling oatha for special or limited grants . . 10 s. d. Perusing, t&c. Perusing and settling oaths, affidavits, and other instruments and documents not drawn in the department for personal applica^ tions (or District Registry, as the ease may be), if 6 folios of 72 words or under If exceeding 6 folios, at per folio of 72 words . . . . Perusing and abstracting deeds, or other instruments when neces- sary, at per folio of 72 words Oaths, &c. Administering oaths, or taking affirmations, each deponent Marking each exhibit Bonds. 3 1 1 1 6 Attesting execution of bond If not completed on one occasion, for each subsequent attes- tation 10 These charge! are only set out in the charges in the Department for Personal Applications In the Princi- pal Registry, and do not appear In the charges in the District Registry. Digitized by Microsoft® 570 Appendix III. — Fees on Probate op Wills COUNTY COURT FEES. The fees to be taken in the County Coart are the same as in the case of a plaint for the sum of 201., and are to be collected by stamps (a). The only stamps mentioned in the forms are those on application for a grant, or as the case may be, 16s. 8d. ; and on the certificate of a decree, iOs. TABLE OF FEES To be taken for Probates of Wills, and Letters of Adminis- tration with Will annexed, of Warrant and Petty Officers and Non-commissioned Officers of Makines, and also of Common Seamen and Maeines, in pur- suance of the Act 2 Will. 4, c. 40, s. 14. PROBATES. Under what Sum the Eflects sworn. Where the Deceased was a 'Warrant or Petty Officer in the KaT7, or a Kon-commissioned Officer of Marines. ■Where the Deceased was a Common Seaman or Marine. If the Executor be a Wife, Child, Parent, Brother, or Sister of the Deceased. If the Executor he more re- motely related, or a Stranger in Blood to him. If the Executor he a Wife, Child, Parent, Brother, or Sister of the Deceased. If the Executor be more re- motely related, or a Stranger in Blood to liim. If the executor f sworn in Lon-^ don . . . . (. £ 20 50 100 & s. d. 7 1 6 18 6 £ s. d. 16 6 1 10 6 1 15 6 £ S. d. 7 11 19 £ s. d. 16 6 1 1 1 6 If the executor f sworn in the) country by) commission.. 20 60 100 19 1 17 2 8 1 12 2 12 6 2 17 6 19 17 6 1 18 6 1 12 2 3 2 8 (a) C. P. A. 1857, s. 97. Digitized by Microsoft® OF Sailors and Marines. 571 . §1 s § ll •«■ o to O CO CO o g |°.5 fi ri OB CO « CO CO 1-1 OS CO CO ■<* e i 1 III £ • is ■«• O CO CO CO to CD CO CO 1 63 If < =fi rt N cq l-H 1-H l-H CO CO * J-a -s O CO o o O CO ft ji 00 l-H l-H o o I— ( t-\ CO l-H l-H Oq i '1" •« CO o o CO CO CO w ^ *"-g Ss . . 1 i 1^1 1^ ^ s i a °° i 1 Digitized by Microsoft® 572 Appendix III.— Fees, Contentious Business (C. B.) FEES TO BE TAKEN IN COUET AND CONTENTIOUS BUSINESS IN THE COUKT OF PROBATE. Citation. £ s. d. On every citation .. .. .. .. .. .. ..050 On every citation to see proceedings .. .. ... ..050 Filing citation in case of non-appearance . . . . . . ..026 Eor settling citation, or abstract thereof for advertisement, or other advertisement : If five folios of seventy-two words or under . . . . ..026 If above five folios, for each additional folio . . ..003 Appearance. On entering appearance .. .. .. .. .. ..026 On amending an appearance .. .. .. .. ..026 Search for appearance .. .. .. .. .. ..010 Affidamt as to Scripts. Filing affidavit as to scripts .. .. .. .. ..026 Filing every script annexed to such affidavit . . . . ..050 Filing declaration 050 Filing plea ._ 5 Filing replication or any further pleading . . . . ..050 Filing petition .. .. .. .. .. ,. ..050 Filing answer .. .. .. .. .. .. ..050 Filing reply or any further writing to the petition . . . . 5 On amending or reforming pleadings . . . . . , ..026 Inventories. Filing inventory 050 JElvidenoe. Filing interrogatories (for each set) . . . . . . ..050 Filing deposition of each witness .. .. ,. .. ..026 Record. On depositing the record 100 Setting down. Setting a cause down for hearing or trial .. .... ..050 Questions for Jury. For settling questions of fact to bo tried by a jury . . . . 10 Filing parchment copy questions as settled . . . . ..026 Reducing into writing any question to be submitted to a iury under the Judge's direction 100 Digitized by Microsoft® Appendix III.— Fees, Contentious Business (C. B.) Special Jury. £ g. d. Order under the signature of the Judge for a special jury . . 5 Filing panel 026 Subpcena. On erery subpoena against a witness 2 6 On every subpcena to bring in a testamentary document ..050 Trial. On the hearing or trial of a cause : Prom the plaintiff .. .. ,. .. .. ..100 Prom the defendant . . . . . . . , . . ..0150 If the hearing or trial continues more than one day, for each day: Prom the plaintiff . . . . . . . . . . , . 10 Prom the defendant ! . 10 Judge's Kates. Producing the Judge's notes 050 Mntering Verdict, Decree, or Order. Entering on the record the finding of the jury or the decision of the Judge, to be paid by the successful party 5 Entering special verdict, if five folios of seventy-two words or under, to be paid by the successful party 5 If exceeding five folios, for every additional folio of seventy- two words .. .. .. .. .. .. ..010 Entering decree or order in pursuance of judgment of an extinct Court 10 Entering any final order or decree made with consent of parties by the Judge or by one of the Registrars . . . . . . 10 Entering the final decree in a cause, or order dismissing same, to be paid by the successful party . . . . . . , . . . 10 Entering order for the examination of witnesses . . . . ..050 Entering any order or decree in the Court book, not otherwise specified 026 Bill of Exceptions. Bill of exceptions signed by the Judge 5 Receiver of Real Estate. Entering order appointing a receiver of real estate . . ..100 Bond to be executed by Vas receiver of real estate : If three folios of seventy- two words or under . , ..060 If above three folios of seventy-two words, per folio . . 2 Bonds. Bonds given by any person or for any purpose, the same fees as if given by a receiver of real estate : Assignment of bond .. .. .. .. .. ..050 Tahing Evidence. On every commission issuing under seal of the Court . . . . 10 Por taking the evidence of one or more witnesses before the Registrar, and within three miles of the General Post Office, for each day . . . . . . . . . . . . ...330 If beyond that distance, for each day in addition to travel- ling expenses .. .. .. .. .. .. ..550 If for part of a day only, such smaller fee as the Registrar in his discretion shall th;nk proper. 573 Digitized by Microsoft® 574 Appendix III.— Fees, Contentious Business (C. B.) Commissioner or examiner appointed by order to take the exami- £. s. d. nation of witnesses, for each day's attendance, besides trayelling expenses 330 Reference to Registrar for Ms Report. On each reference : For the Registrar's attendance . . . . ■ • ■ ..100 For every hour or part of an hour, after the first hour a furtherfeeof 10 For the Registrar's report, if 5 folios of 72 words or under 10 If exceeding 5 folios, for every additional folio . . ..020 Motions. Filing case for motion .. .. .. .. .. ..050 For entering the order of Court on motion . . . . ..060 Certificate. For every certificate under the hand of one or more of the Regis- trars of the Principal Registry for which no other fee is pay- able 2 6 Summons to attend in chambers 026 For entering the order of Court on summons 2 6 If a final order in the cause 10 Notices. Filing every notice 010 Writs. Writ of attachment .. .. .. .. .. .. ..076 Writ of sequestration .. .. .. .. .. ..100 Wrltoffi.fa 10 Filing Fees. Filing certificate of Couilty_ Court Judge 10 Filing exhibits, each exhibit .. .. .. .. ..010 Filing every affidavit or other document brought into Court, and deposited in the Registry, not otherwise specified . . ..026 Filing and entry of remission of appeal . . . . . . ..026 Attendance mith BooTts, ^c. For every attendance with any book or original document in any of the Courts of law or equity in London or Westminster, or elsewhere within three miles of the Principal Registry . . 110 For second and each subsequent attendance in the same term or sittings after term .. .. .. .. .. .. ..0106 For every attendance with books or documents in any of the Courts of law or equity in London pr Westminster, or else- where within three miles of the Principal Registry, when more than one book or document are required, for each book or document besides the first .. .. .. .. ..OSO For the second and each subsequent attendance in the same term or sittings after term, for each book or document besides the first 026 For each day's attendance with any book or original document in any of the Courts of law or equity, or elsewhere beyond the dis- tance of three fniles from the Principal Registiy, exclusive of travelling expenses .. 110 Digitized by Microsoft® Appendix III. — Fees, Contentious Business (C. B.) 575 For each day's attendance with books or documents in any of & s. d. the Courts of law or equity, or elsewhere beyond the distance of three miles from the Principal Registry, exclusive of travel- ling expenses, when more than one book or document are required, for each book or document besides the first . . ..060 The travelling expenses to be advanced and paid to the mes- senger attending with wills, books, or original documents, shall include all other necessary expenses which are to be or may have been incurred by such messenger. Office Copies and Extraots. For every office copy or extract of a minute, order, decree, or other document filed or deposited in the Principal Registry, if five folios of ninety words or under . . . . . . ..026 If exceeding five folios of ninety words, per f oUo . . ..006 For office copy of a minute, order, decree, or other document under seal of the Court for which no other fee is payable : For the seal, in addition to the fee for the copy and collat- ing 5 Receipts. For every receipt for a document or documents delivered out of the Principal Registry 010 Sea/rches in Cowrt SooTts. Search in each Court book, if within the last five years . . ..010 If at an earlier period than within the last five years , . ..026 Taxing every bill of costs : When taxed aa between party and party, per folio of seventy- two words each .. .. ..006 When taxed as between practitioner and client, per folio of seventy-two words each .. .. .. .. ..010 The fee for taxing every bill of costs shall be due from each party heard on the taxation thereof. For postponement of appointment for taxation of costs, to be paid by the party at whose instance the appointment is post- poned : If the bill of costs is five folios of seventy-two words or under .. .. •- •• •• •• •• ..010 If exceeding five folios of seventy-tw6 words and under fifteenfoHos .. 2 6 If exceeding fifteen folios .. .. .. .. ..050 Appointments of Officers. For admission of a proctor 110 For each appointment of a commissioner in the Court of Pro- bate .. . •■ ... ..100 For registering the appointment of a commissioner appointed to take oaths in the Court of Chancery 5 Oath. For every oath administered by a Registrar to each deponent ..010 For marking every exhibit .. .■ •• •• •• ..010 Digitized by Microsoft® 576 Appendix III.— Costs in COSTS TO BE ALLOWED PEOCTOBS, SOLICITORS, AND ATTOENIES PRACTISING IN THE COURT OP PROBATE (a), IN NON-CONTENTIOUS BUSINESS. In respect of Probates. Eflects sworn under Oath ot Executor and attendance on the Affidavit for tlie Inland Revenue Office- and attendance Engrossing and collating the WiU, three folios ot ninety words or under, including parchment. Probate under Seal. Extract- ing. Clerks. party being sworn. on the party being sworn. £ s. d. s. d. s. d. £ s. d. S. d. & s. d. 6 2 6 2 6 4 6 1 1 — 20 2 6 2 6 4 6 1 3 4 1 100 5 5 4 6 1 6 8 2 200 6 8 6 8 4 6 3 6 8 2 300 10 10 4 6 7 6 6 8 2 450 10 10 4 6 12 6 8 2 600 10 10 4 6 16 6 6 8 2 800 10 10 4 6 1 2 6 6 8 2 1,000 10 10 4 6 1 13 6 8 2 1,500 10 10 4 6 2 5 6 8 6 2.000 10 10 4 6 3 6 8 5 3,000 10 10 4 6 3 15 13 4 5 4,000 10 10 4 6 4 10 13 4 6 6,000 10 10 4 6 4 15 13 4 7 6 6,000 10 10 4 6 5 13 4 7 6 7,000 10 10 4 6 5 5 13 4 7 6 8,000 10 10 4 6 5 10 13 4 7 6 9,000 10 10 4 6 5 15 13 4 7 6 10,000 10 10 4 6 6 13 4 7 6 12,000 10 10 4 6 6 6 13 4 7 6 14,000 10 10 4 6 6 10 13 4 7 6 16,000 10 10 4 6 6 17 6 13 4 7 6 18,000 10 10 4 6 7 5 13 4 7 6 20,000 10 10 4 6 7 12 6 13 4 7 6 25,000 10 10 4 6 8 2 6 13 4 7 6 30,000 10 10 4 6 8 15 13 4 7 6 35,000 10 10 4 6 9 7 6 13 4 7 6 40,000 10 10 4 6 10 6 3 13 4 7 6 45,000 10 10 4 6 11 5 13 4 7 6 50,000 10 10 4 6 12 3 9 13 4 7 6 (a) Thesefeea being identical with those taken in the District Registries (with trifling exceptions which are noticed) are only printed once. Digitized by Microsoft® Non-Contentious Business (Non-C.) 577 Effects sworn under Oath of Executor and attendance on the Affidavit for the Inland Eevenue Office and attendance Engrossing and collating the Will, three folios of ninety words or under, including parchment. Probate under Seal. Extract- ing. Clerks. party being sworn. on the party being sworn. £ s. d. s. d. £ s. d. & s. d. s. d. £ s. d. 60,000 10 10 4 6 13 2 6 13 4 7 6 70,000 10 10 4 6 15 13 4 7 6 80,000 10 10 4 6 16 17 6 13 4 1 1 90,000 10 10 4 6 18 15 13 4 110 100,000 10 10 4 6 20 12 6 13 4 110 120,000 10 10 4 6 21 11 3 13 4 1 1 140,000 10 10 4 6 23 8 9 13 4 1 1 160,000 10 10 4 6 25 6 3 13 4 1 1 180,000 10 10 4 6 27 a 9 13 4 110 200,000 10 10 4 6 29 1 3 13 4 110 250,000 10 10 4 6 30 18 9 J3 4 110 300,000 10 10 4 6 35 12 6 13 4 110 350,000 10 10 4 6 40 6 3 13 4 110 400,000 10 10 4 6 41 17 6 13 4 110 500,000 10 10 4 6 43 8 9 13 4 110 And for every additional 100,000?., or any fractional part of £ s. d. 100,0002., nnder whicla the personal estate is sworn, in addi- tion to the above fees, a further fee for probate under seal, of ..326 Por engrossing and collating the will, if more than three folios of ninety words each, per folio, including parchment.. ..016 When there are two or more executors, and they are not sworn at the same time, for each attendance after the first on their being sworn to oath and affidavit — If the effects are sworn nnder 201. 2 6 If the effects are sworn nnder lOOl. 5 If the effects are sworn above 1001. 6 8 In respect of Letters of Administration with Will annexed. In addition to the above fees, for preparing and attendance on the exe- cution of the bond if the effects are— »• ">■ Under202 f ° 202. and under 100? o ° 1001. and upwards 10 For engrossing and collating a will or codicil for a grant of pro- £ bate or letters of administration with the will annexed, when there are pencil-marks in the will or codicil, or when the will or codicil is to be registered f ac-slmile, in addition to any other fee for engrossing and collating the same — If the pencil-marks in the will or codicil, or in the part or parts thereof to be registered fac-simile are two folios of ninety words in length or under . . ,.,.•• • ; If exceeding two folios, for every additional folio or part ot a folio of ninety words B. I"^ Digitized by Microsoft® s. d. 10 6 578 Appendix III,— Costs in In respect of Letters of Admimstiration. Oath of Admi- Affidavit for nistrator and Inland Eevenue Xjettersof Effects swom under attendance on his being swom, Office and attendance on Administration under seal. Extracting. Clerks. and on execution Administrator of the Bond. being swom. & «. d. «. d. £ s. d. s. d. £ s. d. 6 2 6 2 6 1 1 20 3 4 2 6 1 3 4 1 60 6 5 1 6 4 8 2 100 6 8 6 8 3 6 8 2 200 10 6 8 4 6 6 8 2 300 13 4 10 12 6 8 2 450 13 4 10 16 6 6 8 2 600 13 4 10 1 2 6 6 8 2 800 13 4 10 1 13 6 8 2 1,000 13 4 10 2 5 6 8 5 1,500 13 4 10 3 7 6 6 8 6 2,000 13 4 10 4 10 13 4 5 3,000 13 4 10 4 13 9 13 4 7 6 4,000 13 4 10 4 17 6 13 4 7 6 5,000 13 4 10 5 5 13 4 7 6 6,000 13 4 10 5 12 6 13 4 7 6 7,000 13 4 10 6 13 4 7 6 8,000 IB 4 10 6 r 6 13 4 7 6 9,000 13 4 10 6 15 13 4 7 6 10,000 13 4 10 7 2 6 13 4 7 6 12,000 13 4 10 7 10 0- 13 4 7 6 14,000 13 4 10 7 17 6 13 4 7 6 16,000 13 4 10 8 8 9 13 4 7 6 18,000 13 4 10 9 13 4 7 6 20,000 13 4 10 9 11 3 13 4 7 6 25,000 13 4 10 10 6 3 13 4 7 6 30,000 13 4 10 11 5 13 4 7 6 35,000 13 4 10 12 3 9 13 4 7 6 40,000 13 4 10 13 11 3 13 4 7 6 45,000 13 4 10 15 13 4 7 6 50,000 13 4 10 16 7 6 13 4 7 6 60,000 13 4 10 17 16 3 13 4 7 6 70,000 13 4 10 20 12 6 13 4 7 6 80,000 13 4 10 23 8 9 13 4 1 90,000 13 4 10 26 5 13 4 1 100,000 13 4 10 29 1 3 13 4 1 120,000 13 4 10 30 9 6 13 4 1 140,000 13 4 10 33 6 9 13 4 1 160,000 13 4 10 86 2 13 4 1 180,000 13 4 10 38 18 3 13 4 1 200,000 13 4 10 41 14 6 13 4 1 250,000 13 4 10 44 10 9 13 4 1 300,000 13 4 10 46 17 6 13 4 1 350,000 13 4 10 49 4 6 13 4 1 400,000 13 4 10 51 11 3 13 4 1 500,000 13 4 10 53 18 3 13 4 1 Digitized by Microsoft® NON-CONTENTIOTJS BUSINESS (NON-C.) 579 And for every additional 100,000/., or any fractional part of & s. d. 100,000?., trnder which the personal estate is sworn, in addition to the above fees, a further fee for letters of administration nnder seal of . . . . . . , , . . ..4136 When there are two or more administrators, and they are not sworn at the same time, for each attendance after the first on their being sworn to oath and affidavit, and on execution of the bond — If the effects are under 201. .. .. .,034 If the effects are under 1001. . . . . ..050 If the effects are above lOOZ. . . . . . . 10 In addition to the above fees, for preparing bond if the effects are — Under20Z. 1 8 20i. and nnder 50i. .. .. .. ..034 502. and under lOOZ. .. .. .. ..050 WOl. and upwards . . . • . . ..068 pp2 Digitized by Microsoft® sso Appendix III. — Costs in "k. s* ^ •^ 0000000000001:0 cA i-( g S p^g B^ E a" g g,» ^ S « B -9 £ « -y i S S « 1* f^ OD CO 0000 O O O O O O O O ^ i ' iXi CO (©COOOOOOOOO ^ ■SI. * a *> p ^ S P o-P ^ d 03 ^ ^ O P EO .^ TH C3 "cO O „ Digitized by Microsoft® Non-Contentious Business (Non-C.) 581 Exemplification of Probate or Letters of Administration with or without Will annexed'. Attending in the Registry, looking up the grant of probate and & s. d. original will or grant of administration, and bespeaking exem- plification .. .. .. 068 Exemplification under seal and stamp . . . . . . ..110 Extracting 068 Clerks 026 In respect of Duplicate and Triplicate Prohates or Letters of Administration with or without Will annexed. Attending in the Registry, looking up the will, and bespeaking & s. d. duplicate or triplicate of a grant and engrossment . . ..068 Drawing and copying statement in support of application to the Inland Revenue Office for the duty-paid stamp : The same fee as on a double or cessate probate. Attending at the Inland Reyenue Office and procuring the duty- paid stamp . . . . . . ■ ■ ■ • . . . . 13 4 Duplicate or triplicate probate or letters of administration with or without will annexed. If the personal estate is under' 450Z. or any smaller sum, the same fee as on the original grant. If the personal estate is of the value of 450Z. and upwards . 12 6 Extracting ..068 Clerks 2 6 Digitized by Microsoft® 582 Appendix III.— Costs in "« fe: I i 1^ ns OOOOOO ti ' i-l (M (S (M IM C0eO 0) S m 'C i3 t" S3 46 . HP SI'S flip •a il g« S'a Hie nt 'O "d ffl a M K 5°li CD CO CO CO ©00 COCO f^tOCOOCOOOOO ^3OO00O"«*l00Q0 oe»OiOCOOe050to '^SCOQOCOOOQOCOCO ago 1 is H^ fl (S rig SS =5:3 J3 H cft>OOOOOpO >-o (NIOOOOUJOIO i-H (N CO ■* rC rH nigtration, with or without cS"' :: :: :: :: \) ^^n..e,. Office Copies of, or Extracts from, Records, Wills, and other Documents. For attendance in the Registry and searching for a record, will, £ s. d. or other document, or for a grant of probate, or letters of ad- ministration, with or without will annexed, for five years, or any period less than five years, incl-uding the ordering of a copy.. .. .. .. .. •• 060 For every five years after the first five years 3 4 For the perusal of a record, wiU, or other document, when neces- sary, for the purpose of ordering extracts or for any other pur- pose, including the ordering of extracts, per folio of ninety words .. .. •• •• •• •• •• ..004 Digitized by Microsoft® 584 Appendix III.— Costs in For collating an office copy or extract of a record, ■will, or other & g, d. document, with the original, or a registered copy thereof, in- cluding extracting fee, per folio of ninety words . . ..002 For collating an ofSce copy of the act on granting prohate or ad- ministration with the original entry thereof, including extract- ing fee 010 Caveats. For attendance in the Registry (or District Registry, as the case tnay he) and entering or subducting a caveat . . . . ..068 For attendance in the Registry {or District Registry) and giving instructions for warning caveators to enter an appearance {a) 6 8 For service of warning to a caveat, and copy . . . . ..050 Affidavits other than the Affidavits a/nd Oaths included in the Fees of Prohate and Letters of Administration ; and Declarations of Per- sonal Estate and Effects. For taking instructions for every affidavit or declaration of per- £ 's. d. sonal estate and effects 068 For drawing and fair copy of the same, per folio of seventy-two words .. .. .. .. 014 For every attendance on the deponents or declarants being sworn or affirmed to such affidavit or declaration 6 8 Instruments of Renvnoiation and Consent, Letters of Attorney, and other Documemts. For taking instructions for every instrument of renunciation or & s. d. consent, letters of attorney, or other document . . ..068 For drawing and fair copy thereof, per folio of seventy-two words 014 For Commissioners of the Court. For each oath administered to each deponent by a commissioner, surrogate, or other person authorized to administer oaths in the Court of i?robate .. .. 016 For marking each exhibit .. .. 010 For each occasion of superintending and attesting the execution of a bond 016 Taxing Bill of Costs. For attendance on taxation of bill of costs (J) . . . . ..068 If long, such further fee as the Registrar may think proper. (a) This is not in the official list of costs allowed in the District Regis- tries ; obviously, because caveats are always warned from the Principal Registry. Rule 9, C. B. (ft) Not included in the costs officially set out in the costs allowed ia the District Registries. Digitized by Microsoft® Non-Contentious Business (Non-C.) 585 Proctors, solicitors, and attomies are not entitled to any costs in addition to those allowed by the foregoing table in respect of the non-contentious business comprised therein ; but in case of their transacting any business not therein provided for, they will be allowed as follows : — * «. d. For instmctions for any original instrument prepared by them.. 6 8 For perusing every document which it is necessary to peruse as instructions, per folio of seventy-two words 4 For drawing and fair copy of any original instrument, per folio of seventy-two words .. .. .. 014 For every plain copy of a document, per folio of seventy-two words 004 If the same, or any part thereof, is to be copied fao-svmile, for the part or parts to be so copied, per folio of seventy-two words, in addition to the above .. .. 002 For every necessary attendance on counsel, or on any practitioner or party other than their own client (c) 6 8 (e) Instead of client the words in the list set out in the District Eegisr tries are other than " their OTim parties." Digitized by Microsoft® 586 Appendix III.— Costs in COSTS TO BE ALLOWED PROCTORS, SOLICITORS, AND ATTORNIES PRACTISING IN THE COURT OF PROBATE m COURT AND CONTENTIOUS BUSINESS. Citation. & s. d. Citation, inclndiug precipe • ..076 Citation to see proceedings, including praecipe . . . . ..076 Certificate of service .. .. .. .. .. ....026 Service of citation, if within two miles of the place of business of the practitioner or of the person employed to effect the service .. .. .. .. .. -• -. ..050 If beyond that distance in addition for every mile one way .010 Affidavit of service, if three folios of seventy-two words or under 5 If necessarily more than three folios, for every folio, includ- ing copy .. .. .. .. .. .. ..014 In cases in which the person to be served shall avoid service, or the service shall be effected beyond the iurisdiction, except in Scotland and Ireland, such a sum to be allowed for service as the Registrar may consider reasonable under the circumstances. Subpoena. Subpoena ad testificandum, including praecipe 5 Subpoena duces tecum, or to bring in a script, if five folios of seventy-two words, or under, including praecipe . . ..050 If necessarily exceeding five folios, for each additional folio of seventy-two words 010 Service of a subpoena. Same as citation. Writ. Writ of attachment, including praecipe 7 6 Writ of sequestration, including praecipe . . . . . . ..076 Writ of fieri facias, including praecipe . . . . . . ..076 Instriictions. Instructions for citation, for pleadings, for interrogatories, for special affidavits, or for inventories 6 8 Ditto to defend suit 068 Ditto for brief, or case for hearing 13 4 If there are several witnesses and the brief is necessarily long an ' .additional fee will be allowed. Pleadings and Copies. Drawing and engrossing declaration, if ten folios of seventy-two words or under .. .. .. .. .. .. ..100 If exceeding ten folios, for every additional folio . . ..014 Drawing and engrossing pleas, rejjlioations, demurrers, and other pleadmgs, except those simply joining or taking issue, if ten folios of Beventy-two words or under . . . . . . ..100 If exceeding ten folios, for every additional folio . . ..014 Copies of declaration or other pleadings to file, at per folio of seventy-two words. . .. .. .. .. .. ..004 Digitized by Microsoft® Contentious Business (C. B.) 587 The Issue, Drawing the issue, if fifteen folios, of seveuty-tw© words or nnder, £, s. d. including copy . . . . . . . . 10 If exceeding fifteen folios, per folio, including copy . . ..008 The Record. Engrossing record to file, at per folio of seventy-two words, in- cluding parchment .. ..006 Special Case. For case for motion, including fair copy for the Judge . . . . 10 If necessarily exceeding seven folios of seventy-two words in length, for every additional f oUo of seventy-two words, including copy .. .. .. .. .. ..014 For case to advise on evidence, including copy for counsel . . 10 If the case exceeds ten folios in length, and it is shown that it could not he used as part of the brief or case for the hearing, an additional fee will he allowed. Brtmmg Instruments. Drawing any instrument to he filed in or issued by the Registry for which no other fee is herein allowed, and for fair copy to be filed or issued, per folio of seventy-two words . . ..014 m Perusing and aistracting. Eor perusing and abstracting pleadings, testamentary papers, and ejchibits of all kinds, per folio of seventy-two words . . ..004 Briefs and Cases for Hearing. For drawing same, per folio of seventy-two words . . ..010 For each copy, per folio of seventy-two words . . . . ..004 Maps a/nd PUms. C 1 1 For maps or plans each from < to t 3 3 ( 10 Copies of same, if required . . . . . . . . each from \ to I 1 Drawing affidavit : If five folios of seventy-two words or nnder, including copy for the Court or Registry .. .. .. .. .. ..068 If above five folios, per folio including copy . . . . ..014 Interrogatories. For drawing the same, at per folio of seventy-two words, and copy for 3ie court . . . . . . , . . . ,.014 ■ Copies, For every plain copy of a script, exhibit, or other instrument per folio of seventy-two words .. ... .. ., ,.004 If the same or any part thereof are required to he made fac- simile, for the part or parts copsi facsimile, in addition to the above per folio of seventy-two words . . ..002 All copies on parchment, per folio of seventy-two words including the parchment .. .. .. .. .. .. ..006 Digitized by Microsoft® 3 4 588 Appendix III.— Costs m Collating. For collating any copy of a script, exhibit, or other instrument & s. d. with the original, or with another copy thereof, per folio of seventy words, in addition to the fee for attendance . . 2 Notices. All necessary notices, if three folios or under, inclusive of copy and service .. •• •• •• ••..•' --OSO If necessarily exceeding three folios, for every additional folio 10 In all cases where service of a notice is necessary beyond two miles of the place of business of the practitioner, the same fee as upon the service of a citation. SMnmonies, Dravf ing summons • • • •_ • • ..034 Copy of summons or order of the Judge, and service . . ..050 Attendances. For attendance on and feeing counsel, when the fee is one guinea . . . . • ■ • . ■ • • ■ • • . When the fee exceeds one guinea and is under five guineas 6 8 "When the fee is five guineas and upwards 13 4 Attendance on consultation .. .. .. •• ..0134 Attendance on conference .. ..-.. .. .. ..068 Attendance in pursuance of notice to admit . . . . ..068 For every hour after the first •• .. .. •• ..068 Attendance on trial or hearing when cause is in paper and not tried or heard, or on motion in court . . . . . . . . 13 4 On trial or hearing .. .. .. .. .. .. ..110 If it lasts the whole day ...220 Attendance on examination of witnesses under a commission or order — If in England or Wales, per diem 2 2 If elsewhere .. .. .. .. .. .. ..330 For all necessary attendances in chambers before the Judge or before a commissioner, on counsel, in the Registry or upon the adverse parties or practitioner, for which no other fee is herein allowed .. .... .. .. .. ..068 Term Fees, Letters, and Messengers. Term fee, letters, and messengers, for each term in which any business is done in Court or in chambers other than obtaining an order for taxation, or attending the taxation of hills of costs 15 For every necessary letter written to any person other than the practitioner's own cUent ..036 Bills of Costs. Drawing bill of costs and copy for taxation, per folio of seventy- two words 010 Copy for the adverse party, per folio of seventy-two words ..004 Attendance on taxation of bill of costs .. .. •. ..0134 If necessarily above an hour, for each additional hour or part of an hour .. .. .. .. .. .. .-068 If in any Court or contentious business it should become necessary for proctors, solicitors, or attomies to transact any business for which no fee is herein specified, such fee shall be allowed to them as would be allowed for similar business done in the Courts of Common Law and Equity. Digitized by Microsoft® Contentious Business (C. B. 589 COSTS TO BE ALLOWED PROCTORS, SOLICITORS, AND ATTORNIES PRACTISING IN THE COURT OF PROBATE CONTENTIOUS BUSINESS. FOR THE USE OF OTHER PERSONS. Counsel's Clerks' Fees. Not to exceed as under & s. d. Upon a fee to counsel under 5 guineas . . 2 6 5 guineas and under 10 guineas . . . . . . ..050 10 guineas and under 20 guineas .. .. .. .. 10 20 guineas and under 30 guineas .. .. .. ..0150 30 guineas and under 50 guineas . . ■ . . . ..100 50 guineas and upwards — at per cent, on the fee paid . . 2 10 On consultations : Senior's clerk .. .. .. ..076 Junior's clerk .. .. .. .. .. .. ..026 On general retainer . . . . . . . . . . . . . . 10 6 On common retainer .. .. .. -. .. ..026 On conference .. .. .. 050 Witnesses' Expenses. Allowance to witnesses, including their board and lodging, as between party and party : Common witnesses, such as labourers, journeymen, &c. &c.: If resident within five miles of the General Post Office, per diem .. .. .. .. .. .. ..050 If beyond that distance, per diem 7 6 Master tradesmen, yeomen, farmers, &c. : If resident within five miles of the General Post Office, per diem . ■ • • . ■ ■ ■ . • ■ ■ ■ . . 10 If resident beyond that distance, per diem . . . . 15 Auctioneers and accountaaits : If resident within five miles of the General Post Office, per diem .. .. .. •• •• •■ ..110 If resident beyond that distance, per diem . . ..220 Professional men, including notaries, engineers, and sur- veyors, &c.: If resident within, five miles of the General Post Office, per diem .. .. •• •• -• ■• ..110 If resident beyond that distance, per diem . . ,.330 Clerk to attomies or others : If resident within five miles of the General Post Office, per diem . . . . • • ■ • ■ • ■ • . . 10 6 If resident beyond that distance, per diem . . ..110 Esquires, bankers, merchants, and gentlemen, per diem . . 1 10 Digitized by Microsoft® 590 App. III. — Allowances in Contentious Business. Allowance to witnesses — continued. Females according to station in life : & s. d. If resident within five miles of the General Post OflSce, j , per diem, from .. >. .. .. .• ")o7()6 (0 7 6 If resident beyond that distance, per diem, from.. .. < to Police inspector : If resident within fire miles of the General Post Office, per diem 076 If resident beyond that distance, per diem . . . . 10 Police constable: If resident within five miles of the General Post Office, per diem .. .. .. ,. .. ,, ..050 If resident beyond that distance, per diem . . ..076 The travelling expenses of witnesses will be allowed according to the sums reasonably and actually paid ; but in no case will there be an allowance for such expenses of more than Is. per mile one way. Commissioners of the CoM/rt. Commissioners of the Court for administering each oath to each deponent 016 For marking each exhibit 010 Digitized by Microsoft® Appendix III.— Costs in County Couet. 591 COSTS IN COUNTY COUET. In actious of deht or coTitrace exceeding Wl. In actions under sects. 11&12 otthe County Courts Act, 1867. Letter before action (as) Instructions to sue or defend Perusing deeds and documents when long, not exceeding Attendance and entering plaint, including particulars and copies, such particulars and copies being signed by the attorney . Preparing afSdavit and filing, includuig notice of mode in which payment will be accepted Copy and serrice of snmmons, if served by plaintiff, his attorney, or clerk, or servant of either of them, within two miles of the place of business of the plaintiff or at- torney If beyond that distance additional for every mile but not to exceed lOmUes Affidavit of service, with copy of snmmons annexed . . ■ . Attending to file affidavit of service, in- cluding entering up judgment by default N.B. — The totsil amount of these items where applicable to be entered on the summons. Attending lodging Judge's order, and pre- paring statement of cause of action or defence, including copies, and lodging same with Registrar, if signed by attorney (sections 7 and 10 of "The Ciounty Courts Act, 1867") •• . •■ ■■ . •• Examining and taking minutes of evidence of each witness afterwards allowed by the Judge If more than six folios, every additional folio (whether counsel employed or not) Drawing brief for counsel, per folio Copy brief, per folio, and necessary docu- ments to accompany same Attending counsel therewith . . _ . . If conference with counsel allowed, appoint- ing it and attending counsel £ s. d. 3 6 6 8 13 4 6 8 5 6 5 3 4 13 4 3 4 10 10 4 3 4 s. d. 3 6 6 8 13 4 £ i.d. 3 6 13 4 2 2 13 4 13 4 3 4 1 1 4 3 4 ., 6 8 10 10 4 3 4 13 4 (a) Before the 19 & 20 Vict. c. 108, these costs were regulated by the 13 & 14 Vict. c. 61, s. 6, and the 15 & 16 Vict. c. 64, s. 1, which are now Digitized by Microsoft® 592 Appendix III.— Costs in County Court. Fee to counsel and clerk, sum paid not ex- ceeding Fee to counsel and clerk, on conference . . Attending Court and conducting cause, ■where no counsel employed Where judgment is deferred, attending Court to hear it . . Plans and models where necessary for use at hearing, by special order on taxation, not exceeding . . Witnesses' expenses, according to scale in force . . Attending taxing costs Occasional Costst Notice to produce, notice to admit, — ^notice of application for a new trial, or to set aside proceedings, — including copies or duplicate originals and seryice,— and no- tice of special defence and copies, includ- ing particulars, and copies in cases of set-off, and attending Begistrar of the Court therewith, such notices, particulars, and copies being signed by the attorney. . On receipt of notice to produce or admit or to answer interrogatories perusing same, tod advising thereon All applications and motions, or attending Court to answer applications and motions under sections 50, 51, 52 and 53 of " The Common Law Procedure Act, 1864" Drawing interrogatories and answer thereto under section 51 of last act If more than fire folios, per folio Attending examination under section 63 of last act . . . . . . Attending inspecting documents . . Mileage, one way, from the attorney's place of business to place of inspec- tion of documents, for each mile, not exceeding, unless by special order of Judge, in the whole 20 miles All necessary affidavits, not exceeding five fplios, including filing, each .. For every additional folio . . Oath ; sum paid Attending Court for an order to bring up a prisoner to give evidence In actions of debt or contract exceeding 201. & g. d. 8 5 6 1 10 6 8 2 2 *6 8 6 8 6 8 6 8 5 1 6 8 6 8 10 5 1 4 £ s.a. 3 5 6 1 10 6 8 2 2 6 8 6 8 6 8 6 8 5 10 6 8 6 8 10 5 10 4 In actions under sects. 11 &12 County Courts Act, 1867. & B. d. 5 10 1 6 2 2 6 8 2 2 6 8 13 4 13 4 6 8 5 10 6 8 (0 6 8 i perliour. 10 5 10 4 Digitized by Microsoft® Appendix III. — Costs in County Court. 593 In actions of debt or exceeding 20;. In acUona oitort wliere damages recovered 201. In actions under sects. 11 &12 of tlie County Courts Act, 1807. Attending Court to snpport or oppose motion for new trial, or motion to set aside pro- ceedings, or motion for a change of venue, including instructions, or any other neces- sary attendance, where no counsel em- ployed Attending in the last-mentioned cases with counsel . . . . . . . , Fee to counsel and clerk in such cases, sUm paid (not exceeding) . . , , All necessary applications and motions to the Court not otherwise provided for, in- cluding instructions and all attendances . . Attorney's travelling expenses to attend Court, one way, not exceeding 20 miles, per mile Where in the opinion of the Registrar he cannot return the same night, in addition to the ahove mileage . . . . . • Any attendance at the office of the Registrar, or any attendance upon the opposite party, which the Registrar may, upon taxation, think was necessary All costs for letters, and for searches for certificates of births, marriages, and deaths which the Registrar may upon taxation think necessary, such sum as the Registrar shall deem reasonable. Fees and copies; sum paid. All necessary copies, per folio Case. Drawing case, per folio Perusing and settling case prepared by the other party in action, per folio . . Drawing briefs for counsel to argue case . . Attending counsel with brief Fee to counsel upon brief, sum paid not exceeding . . ' Attending Court when counsel employed . . Attending Court when counsel not employed Costs of tTie Day on Acljowrnment of Cause. Attorney for attending Court where no counsel employed . . Attending with counsel Refresher fee to counsel and clerk . . Witnesses' expenses, same as on trial. & s.d. 110 10 2 4 6 10 1 11 6 3 4 '6 4 15 10 13 6 £ s. d. 110 10 2 4 6 10 1 11 6 3 4 '6 4 15 10 X 3 6 £ s.d. 1 1 13 4 3 5 6 13 4 10 1 11 6 3 4 4 10 15 15 13 4 13 6 QQ Digitized by Microsoft® 594 Appkndix III.— Costs in County Coukt. In actionB In actions In actions oi tort under sects. of debt or where 11 &12, corUract exceeding damages recovered oi tlie County 201. exceed iOl. Coui-ts Act, 1807. £, s.d. £ S.d. & S.d. Arbitration. Attending reference, without counsel, for each sitting 1 1 10 Attending reference, with counsel, for each sitting . • . . . • • - 15 15 15 Where sitting exceeds four hours, for every additional hour . . 6 8 6 8 G 8 Pee to counsel and clerk, for each sitting. sum paid, not exceeding . . • . ._ 2 i 6 2 i G 2 4 6 Witnesses' expenses, same as on a trial. iVofe.— Costs of counsel and attomcv, or of an attorney on attending reference, shall not be allowed without the order of the judge; nor shall the costs of more than one sitting be allowed without the order of the judge. 2feni Trial. Costs to he allowed on the same scale as on the original trial. Costs on Appeals. Preparing notice of appeal, including copies and service . . 5 5 10 Paying money into Court as deposit on appeal, including notice and service thereof 3 3 3 Notice of nature and particulars of pro- posed security, including copies and ser- vice . . 5 5 5 Notice of Court to which appeal to be made . . 3 3 3 Preparing case, including copies . . 10 10 1 1 Attending Judge to sign, or to settle and sign 6 8 G 8 6 8 Transmitting and depositing copies of case to party, and with Registrar 5 5 5 Transmitting case and copies to Court of . appeal, including notice thereof to suc- cessful party . . ... 7 7 7 Application to Judge for leave to proceed on the judgment . . 5 5 7 Depositing order of Court of Appeal, includ- ing notice and service thereof . . 3 i 3 4 6 8 Where a new trial takes place in pursuance of the directions of the Court of Appeal, the costs of such new trial shall be allowed on the same scale as in the case of a new tiial granted by the Judge of the County Court. Digitized by Microsoft® Appendix III. — Costs in County Court, 595 Actions under Section 2 of " The County Cowts Act, 1867," wJiere sum claimed exceeds iOs. and does not exceed 201. Preparing affidavit, swearing and filing, including notice of mode £ s. d. in which payment will be accepted . . . . . . ..060 Copy and service of summons, if served by plaintiff, his attorney or clerk, or servant, or either of them, within two miles of the place of business of the plaintiff or attorney . . ..050 If beyond that distance additional for every mile, but not to exceed 10 miles .. .. .. .. .. ..006 Affidavit of service with copy of summons annexed, attending to file and entering np judgment by default . . . . ..068 N.B. — The costs in every cause shall vpon the above scale abide the event, unless tile Judge sh-all m-ake some special order tvith reference to such costs or any part thereof. The same costs and charges as are now paid to counsel and attorney in the County Courts under the provisions of section 33 of the Act 19 & 20 Vict. c. 108, shall be paid to counsel, proctors, solicitors and attorneys in respect of proceedings in the County Courts under the Acts 20 & 21 Vict. c. 77, and 21 & 22 Vict. c. 95, except that the fee to counsel and clerk may be a sum not exceeding 51. 10«. In pursuance of the powers vested in us by the Acts 19 & 20 Vict. c. 108, and 21 & 22 Vict. c. 95, we have framed the above, and we do hereby cer- tify the same to the Lord Chancellor accordingly. J. MAMflNG. J. H. KoB. B. Cooke. J. WOKLLEDGE. W. FUENEK. I approve of the above to come into force in all County Courts on the 11th day of January, 1859. Chelmspoed, C. 3 January, 1859. Taxation of Costs. All costs and charges between party and party must be taxed by the Registrar of the Court in which they were incurred, but his taxation may be reviewed by the Judge on the application of either party; and no costs or charges may be allowed on taxation which are not sanctioned by the scale then in force (i). Costs between attorney and client may also in the (5) 19 & 20 Vict. c. 108, s. 34. QQ2 Digitized by Microsoft® 596 Appendix III. — Taxation of Costs. same cases, on the application either of the attorney or client, bnt not other- wise, be taxed by the Registrar of the Court in which they were incurred, but his taxation may be reviewed by the Judge on the application of either party. Costs may not be allowed which are not sanctioned by the scale, unless the Registrar is satisfied that the client has agreed in writing to pay them, in which case they may be allowed; and no attorney may recoTcr from his chent any such costs unless they have been allowed, either on taxation, or on the taxation of a master of a superior court of common law or of the Court of Chancery (c). The decision of the Judge, on reviewing the taxation of costs, cannot be appealed against to a superior Court (* Costs between that delivered on the Uth January, and we Party and Party. consented to receive it, and they were to send us notice not to plead to it former de- claration delivered . . . . . . ..068 .3 4 Perusing new declaration 3 4 3 4 Close copy, new declaration sent . . ..034 10 The like of notice to plead 10 6 8 Attending Mr. M. with the new declaration, , . and informing hinj of the omission of the ' , plaiptifE's solicitors, and that the new decla- ration was substituted for the one delivered on the 1 1th instant .0 6 8 6 8 21. Attending Mr. K. on receipt of the close copy of the amended declaration and conferring and advising with him thereon, and Mr. K. wished the pleas to be delivered as soon as possible, and writing agents thereon . . 6 8 22. On receipt of letter attending Mr. M. to request him to let us have the pleas, &c. as soon as possible, which he promised to do . . ..068 24. Close copy pleas, settled by Mr. M., sent , The like of declaration settled . . ..084 Drawing particulars under the fourth plea and copy .. .. .. .. .. ..060 Close copy sent .. .. .. .. ..020 Fee to Mr. M. to settle same . . . . ..136 , Attending him . . . -. . . . . ..068 26. Drawing and ingrossing summons to show cause why the defendants should not have further time to plead . . . . ..068 The like of summons to he at liberty to file a further affidavit of script . . . . ..068 Attending the Registrar, procuring his signa- ture thereto .. .. ■• .- ..068 The like for second summons . . . . . . i?aid stamps thereon . . . . .... , Copy and service of on the plaintiff's solicitors . . . . ■ . ■ . . . The like of to be at liberty to file fur- ther affidavit of script Instructions for affidavit in support of the . . Drawing same and copy . - . • . . Paid oath Copy affidavit for the plaintifE's solicitors . . Attending summons for further time, when order made by jury .. .. .. ..0 Attending to obtain order . . . ■ . . Court fee thereon Copy order and service on the plaintiff's soli- citors . . . . • • • • • ■ . . Close copy same " . . Attending for leave to file further affidavit of script, when order made by Judge . . . . Paid filing affidavit Attending to obtain order Court fee thereon ■ • Copy order and service on the plaintiff's solicitor Digitized by Microsoft® 6 8 5 5 5 6 8 10 1 6 3 4 6 8 6 8 2 6 5 2 6 8 2 6 6 8 5 602 Appendix IV. — Examples oe Bills of Costs. Defendant's BiU £ S. d. 1867. £ «■ d. of Cosis between Jan. 26. Close copy thereof . . . ■ . • ..020 Tarty and Party. 6 8 28. Attending Mr. K. and Mr. M. on the pleas, and drawing further instructions for connsel and copy .. .. ■• .. ..068 Instructions for farther affidavit of scripts . . 6 8 29. Drawing same .. .. .. .. ..080 Engrossing 028 Writing to you with affidavit and attending to register letter containing the scripts to be annexed .. .. ■• .. ..034 Paid registering and postage Attending to be sworn 6 8 Paid oaths and exhibits .. .". ..056 Attending to register the letter relating to the original documents, and paid . . ..034 6 8 AtteudingMr.M. the co-executor, and Mr. K., conferring on these proceedings and advis- ing and taking instructions . . . . ..068 Feb. 1. Attending filing further affidavit of script . . 6 8 Paid filing affidavit and two scripts . . . . 12 6 One of the scripts being in pencil, attending to get the same examined with a fair copy .008 Making the fair copy . . . . . . ..020 Paid .. .; 10 Paid fee for examining pencil script . . . . 3 Notice of filing scripts and copy and service. .050 Making a copy of the affidarit and scripts for the plaintiffs solicitors, foB. 46 .. .. 15 4 The like to keep before filing the originals • . 15 4 Attending plaintiff's solicitors with affidavit of further scripts, &c. . . . . ..068 Attending in the Registry to file pleas and particulars .. .. .. .. ..068 Paid filing 10 5 Notice of filing same, copy and service . . 5 Copy particulars to deliver . . . . ..020 Attending in the Registry to file declaration .068 Paid filing 050 5 Notice of filing copy and service . . ..050 Notice to plead copy and service . . ..050 8 4. On receipt of a letter from Messrs. N. that we had declared without warning the contract. Attending Mr. M. thereon, when he said it was quite immaterial whether we warned the caveat or no ; but he advised us under the circumstances to do so, and writing yon 068 Instructions to warn the caveat Attending at the Kegistry, searching for the caveat for particular for the warning . . 8 Paid scai'ch .. .. .. .. ..010 Drawing warning to caveat and copy . . 6 8 Attending to obtain Registrar's signature thereto a68 Paid Court fees 4 Copy and service of warning 5 Attending scarcliing for appearance to warn- ing and p.iid .. .. .. ., ..078 Digitized by Microsoft® Appendix IV.— Examples of Bills of Costs. 603 Party and Party. 5 6 8 6 8 2 6 5 2 6 8 2 6 1 4 1 4 1 4 1 4 £ o. d. 1867. & S. d. Defendant's Bill Feb. 4. Having received notice of appearance to warn- "' Costs between ing, perusing same •• .. .. ..020. Close copy sent 020 6 8 7. Drawing and ingrossing summons to show cause why the pleas should not be dated the 8th February instead of the 1st, in con- sequence of the caveat being warned after pleas delivered . . . . . . ..068 6 8 Attending the Registrar, procuring his signa- ture thereto .. .. .. ., ..068 Paid stamp thereon . . . . . . ..026 Copy and service on the plaintiff's solicitors . . 5 Attending summons at the Judge's Chambers, when order made . . . . . . ..068 Attending to draw up order . . . . ..068 Court fee thereon . . . . . . ..026 Copy order and service on the plaintiff's soli- citors .. .. .. .. .. ..050 Close copy sent .. .. .. .. ..020 9. Attending to file the order 6 8 Paidfiling 2 6 Perusing replication . . . . . . ..020 Close copy, replication sent . . . . ..020 Perusing pleas to th#defendant'3 declaration .034 Close copy sent .. .. .. .. ..034 Perusing plaintiff's second declaration sent . . 3 4 Close copy sent . . ... . . . . ..034 Perusing notice to plead . . . . ..010 Close copy sent . . Close copy of a letter from Messrs. N. as to applying to eonsolidate the actions sent . . 12. Instructions for pleas to plaintiff's second de- claration .. .. .. .. ..068 Drawing same and copy . . . . ..100 Pee to counsel to settle same . . . . ..136 Attending him .. .. .. .. ..068 Instructions for replication to the pleas to the defendant's declaration . . . . ..068 Drawing same and copy . . . . ..060 Pee to counsel to settle same 13 6 Attending him .. .. .. .. ..068 ]3 4 On receipt of a letter from agents enclosing close copies of the pleadings. Attending Mr. M. and Mr. K. thereon and conferring and advising .. .. .. ..0134 14 16. Close copy pleas to plaintiff's second declara- tion sent .. -• -■ •• ..034 The like of replication to the pleas to the de- fendant's declaration 2 Attending to file same 6 8 Paidfiling 050 Q g Q Notice of filing pleas to the plaintiff's second declaration .. •• •• •• ..060 14 Copy pleas to deliver ..034 Attending delivering same to the plaintiff's attorneys 050 Copy replication to the pleas to the defendant's declaration to file 2 Attending to file same 6 8 Digitized by Microsoft® 604 Appendix IV.— Examples of Bills of Costs. Defendant's BUI £ s. d. 1867. ^ '■ ' Coats between Close copy sent 050 ^J^rty and Party. Attending to deliver issue to the plaintiff's solicitors 2 2 Attending Mr. M. and Mr. K., and receiving their instructions to see Mr. and Mrs. D. with the statement in order that they might put their signature to it, and attending at accordingly and seeing them, and they signed the statement 2 2 12 Horse hire and expenses 12 Term fee .. '. 15 Easter Term. 6 8 Instructions for Mr. M. to move the Court as to mode of trial . . . . . . ..068 10 18. Drawing case for motion as to mode of trial .0100 6 8 Attending filing case for motion as to mode of trial 068 Paid 10 5 Notice thereof and service .. .. ..050 2 Close copy sent . . 5 20. Messrs. N. & Co. having delivered issue, perus- ing same 10 5 Close copy sent 10 Perusing notice of motion by them as to mode oftrial 2 Close copy sent 020 Messrs. N. & Co. having given notice that they should apply to have the cause tried by a special jury, attending Mr. M. and Mr. K., when they ^ected us to consent to special jury 13 4 6 8 25. Attending searching, when we found that the plaintiff's solicitors had lodged the papers for motion as well as ourselves . . ..068 6 8 Attending Mr. M. and Mr. K., conferring as to whether it would not be well to have the cause tried at when they instructed us to see counsel thereon . . . . ..068 6 8 28. Attending Mr. M. by your direction to consult him as" to the mode of trial, when he advised us to apply to have the cause tried at vrith a special jury, and it was arranged that we should make an affidavit shovring the expense to be less if tried at than in and vrriting you . . . . ..06-8 Instructions for affidavit in support of motion 6 8 Drawing same .. .. .. .. ..060 Pair copy 020 Attending to be sworn 6 8 Paid 2 6 29. Brief for counsel to move for cause to be tried at &c. by a special jury . . ..068 Brief pleadings for counsel 10 Attending to file affidavit in support of mo- tion 034 PaidfiUng 2 6 Digitized by Microsoft® 606 Appendix IV.— Examples of Bills of Costs. Defendant's Bill & s. d. 1867. . ^„ ": ^A of Costs between 2 Apr. 29. Copy affidavit for the other side . . ..040 Party and Party , q 2 Briefing affidavit for counsel . . ... ..040 Attending eounsel with papers . . .,068 Paid his fee and clerk . . . . . . ..136 6 8 Brief for counsel to oppose motion to be made by the plaintifE . . 6 8 Attending counsel with papers . . ..068 Paid his fee and clerk . . . . . . ..136 13 4 30. Attending Court on motion when the applica- tion was to be repeated next Tuesday, the plaintiff's solicitors requiring time to answer affidavit .. .. 13 4 Paid cab, with papers .. •.. .. ..020 6 8 May 1. Attending Messrs. N., on their calling upon us to say they should apply to have the cause tried in by a special jury, and asking for consent, and we informed them that we should press for the trial to be in the country, &c. . . . . . . ..068 6 8 Attending Mr. K., informing him of the above, and conferring thereon . . . . ..068 3 6 Writing to Mr. M., informing him of the above, and for his instructions . , ..036 2 8. Perusing notice of motion served by Messrs. N., sent .. ..020 2 Close copy sent .. ..020 10 Drawing case for motion on re-hearing the application as to mode of trial . . . . 10 6 8 Attending filing case for motion . . ..068 Paid 10 5 Notice thereof, copy and service . . . . .5 2 Close copy sent 2 6 8 11. Brief for counsel to repeat the motion as to mode of trial .. .. .. .. ..068 6 8 Attending counsel with brief . . . . ..068 Paid his fee and clerk . . . . . . ..136 Brief for counsel to oppose motion to be made by the plaintiffs . . . . . . ..068 Attending counsel with brief ... . . ..068 Paid his fee and clerk . . . . . . ..136 14. Attending Court on motion, when the Court directed the cause to be tried in by a special jury, the plaintiff to pay the extra costs of trial in beyond those which would be incurred if trial took place at . . l.S i Paid cab, with papers , . . . . . ..020 Attending to draw up order as to mode of trial 068 Paid Court fee 2 6 Copy and service of order . . . . ..050 21. Close copy order as to mode of trial sent . . 2 6 8 Attending Mr. K. on the result of the motion, and conjfen-ing 6 8 2 2 Journey to to see Mr. M. on the further proceedings, and taking instructions, &c. . . 2 2 12 Horse hire and expenses 12 Term fee 15 Digitized by Microsoft® Appendix IV.— Examples of Bills of Costs. 607 & s. d. 18G7. Trinity Term, 18&7. £ s. d. Defendant's Bin Maj' 30. Perusing summons for leave to lodge the party' and Party record 020 Copy sent 020 Attending order made by judge ,.068 Copy order sent 2 Perusing notice of trial 2 Close copy sent .. .. .. .. ..020 6 8 June 5. Attending searching how the cause stood in the paper .. .. .. .. ..068 Attending Messrs. N. & C, to request them to let us hare the questions for the jury without delay, and they promised to do so . 3 6 10. Instructions for counsel to advise the defen- dants on evidence . . . . . . ..110 3 9 Drawing same and copy . . . . . . 4 10 Attending counsel with papers . . ..068 Paid his fee and clerk 3 5 6 Numerous attendances on Mr. M. for case and opinion .. .. .. .. ..068 17. Perusing opinion on evidence . . . . ..040 Close copy sent .. .. .. .. ..040 Attending Mr. M., conferring with him on the evidence, and taking further instructions .. .. .. .. ..068 The like attendance on Mr. K . . ..068 6 8 20. Attending Mr. K. on his informing us that Mrs. K. was getting rid of some of the effects of the testator, and receiving instruc- tions to write to Messrs. N. & Co. to know whether they would consent to an inventory heing taken in the usual way . . ..068 6 8 Writing them, accordingly, and clerk's attend- ance with the latter, and they were to com- municate with their client . . . . ..068 6 8 Having received your instructions, attending Mr.M. upon the above, when he advised us that the proper course would be to apply for appointment of an administrator pen- dente lite, and writing you thereon . . 6 8 25. Not having received a reply to our letter to Messrs. N. & Co. of the 20th, writing to them for same . . . . . . ..036 Perusing questions for the jury . . . . 4 27. Close copy questions for the jury sent ..040 Copy letter from Messrs. N. & Co. sent ..010 Attending Mr. K. on letter from Messrs. N., and advising and receiving instructions ..068 29. Attending Mr. M. on Messrs. N.'s letter and receiving instructions . . . . ..068 10 Drawing instructions for counsel to settle the question on behalf of the defendants . . 10 6 8 Attending counsel with papers . . ..068 13 6 Paid his fee and clerk 13 6 On receipt of your letter saying you did not quite understand Messrs. N.'s letter, but if they required a list of the documents handed to you by the late Mr. K. &c., and as to the Digitized by Microsoft® 608 Appendix IV.— Examples of Bills of Costs. Defendant's Bill & s. d. 1867. , ,. . x * «• <^- of Costs between June 29. person you proposed to make the mTentory, Party and Party. making a copy thereof and writing to Messrs. N. therewith and thereon . . ..046 July 2. Copy letter received from Messrs. N. sent ..010 6 8 Attending Mr. K. on Messrs. N.'s refusal to make an inventory made and conferring and advising .. .. .. ■■ ..068 6 8 4. Attending Mr. M. when he said he approved of the questions delivered hy the other side and writing you thereon .. .. ..068 On receipt of your letter in reply to Messrs. N. & Co. therewith and thereon . . ..068 2 2 9. Jonmey to with Mr. K. to see Mr. M. on Messrs. N.'s letter to them and conference thereon, and receiving instructions and ad- vising .. .. .. .. .. ..220 12 Horse hire and expenses . . . • ..0120 26. Copy letter received from Messrs. N. sent ..010 Attending Mr. K. and Mr. M. thereon, and caa.- f erring at length and receiving their instmc- ■ • tions .. .. .. .. .. ..068 Writing Messrs. N. in reply to their letter that you were acting only as trustees in the inte- rest of the late Mr. K.'s infant nephew and that you did not feel to be in a position to make a proposition, but that you would be disposed to consider anything they might be advised to make . . . . . . ..036 Copy this letter sent . . . . . . ..010 30. Copy letter received from Messrs. N. sent ..010 Writing them acknowledging receipt of their letter, and that we were in communication with you .. .. .. .. ..036 Attending Mr. M. and Mr. K. on the letter received from Messrs. N. & Co. and taking instructions . . . . . . . . ..0134 Aug. 3. Writing to Messrs. N. & C. that we were in- structed to arrange for an interview between them and ourselves, but that any proposal they might make must be submitted by us to you, and that if, necessary, we might here- after arrange for an interview in the country 5 Copy this letter sent . . . . . . ..010 6. • Attending Messrs. N. on their calling upon us by appointment, but they made no proposal, and they stated in the first place they wished you to state what property had come into your hands, and they wished to be assured that there was a bona fide disposi- tion on the part of the defendants to arrange terms, that they had been informed the parties you represented were very desirous that an arrangement be come to, and writing you fully thereon 13 4 7. Copy letter from Messrs. N. & Co. sent ..010 Attending Mr. K. on Messrs. N.'s letter on the 6th, and conferring and receiving in- structions 068 Digitized by Microsoft® Appendix IV. — Examples op Bills of Costs, 609 & s. d. 1867. £ s. d. Defendant's Bill 6 8 Aug. 7. 'The like attendance on Mr. M 6 8°' °™'^ 5°^"^?" 12. Writing to Messrs. N. & C. that it would be Fa,rty ana Party. inconvenient for you to come to town, but that if they would communicate any pro- posal to us it should be submitted to yon . . 5 6 8 Oct. 25. Attending at the Principal Registry for and bespeaking office copy of the order for the cause to be tried by a special jury . . ..068 2 6 Paid for same 026 2 Perusing same .. .. .. .. ..020 2 Close copy sent 020 28. Attending at the Principal Registry for and bespeaking office copy order for the jury to be summoned.. .. .. .. ..068 Paid for same .. .. .. .. ..050 Afterwards attending in the Registry to get the order signed by the Judge, and after- wards for same . . . . . . ..068 2 Perusing same 020 2 Close copy sent . . . :• . . .... 2 Attending sheriif for appointment to nominate special jury .. .. .. .. ..068 Paid the sheriff's fees 2 2 Copy rule for the sheriff . . . • ..020 The like of order ..020 Copy and service of appointment to nominate 5 Term fee 15 MieTiaelmas Term, 1868. 13 4 Nov. 2. Attending in the Principal Registry, searching how the cause stood and writing . . . . 13 i 2 6 Paid for cause list and Court C 2 6 8 8 Instructions for brief . . . . . . . . 15 15 Drawing same, f OS. 380 .. .. .. 19 Two fair copies for counsel, f OS. 797 . . ..26 11 4 Briefing questions for counsel . . ..080 Two fair copies of plaintifE's script to accom- pany .. .. •• The like of affidavits Two fair copies of defendant's script, fos. . . The like of affidavits .. 6. Attending nominating the special jury .. 13 4 Copy writ, fos. 48 5 The like sent 050 Instructions to reduce the list 13 4 9. Making a copy of a copy of a letter we had received from the Principal Registry in this matter appointing to see us for the purpose of appointing a day to try the cause ..014 13. Attending before the Judge at on his Lordship appointing the 7th December to try the same . . . . 13 4 Writing to the country to inform defendant's attorney the day appointed for the trial of the same .' . • > • • • < ..036 14 Attending reducing the special jury . . . . 13 4 Copy list of , 24 2 6 18 Tbe like sent . . 2 6 R E B. Digitized by Microsoft® 610 Appendix IV.— Examples of Bills of Costs. Defendant's Bill £ «. d. 1867. ,, -„ „ r^ ^ ^' ''" of Costs between 4 6 Nov. 14. On receipt of a letter from Messrs. N. & C. Party and Party. requesting an appointment to see the defen- dant's attorney on this suit as they were about visiting , copy sent . . ..046 3 6 Writing Messrs. N. & C. acknowledging re- ceipt of the letter and that we had commu- nicated its contents to the defendant's at- torneys .. .. .. .. ..036 2 2 In consequence of Messrs. N. & C.'s letter, journey to to see Mr. M. thereon and taking his instructions . . . . ..220 16. On receipt of another letter from Messrs. N. & C. upon this bnainess, making a copy thereof and writing the defendants therewith and thereon ,. .. .. .. ..046 Writing to Messrs. N. & C. acknowledging the receipt of the letter and that we had com- municated the contents to the defendant's attorneys .. ..^ .. .. ..036 2 6 Paid carriage of brief and other papers to town 050 19. Having received another letter from Messrs. N. & C. with the reply stating the time the defendant's attorney would he at , &e 3 6 Copy, Messrs. N. & C.'s letter sent . . ..010 26. Drawing two subpceuas and prjecipes and at- tending issuing the same . ■ . ■ ..084 10 Copy and service of subpoena on Mr. C. ..060 1 19 Paid him with subpoena 2 Certificate of service . . . . . . ..026 10 Copy and service of subpoena on Mr. K. ..060 19 Paid him with subpoena . . . . ..100 Certificate of service . . . . . . ..026 10 Copy and service of subpoena on Mr. T. ..060 119 Paid him with subpoena . . . . ..200 Certificate of service . . . . . . ..026 10 Copy and service of subpoena on Mr. L ..060 1 19 Paid him with subpoena 2 Certificate of service . . . . . . ..026 10 Copy and service of subpoena on Mrs. C. . . 6 1 19 Paid her with subpoena 2 Certificate of service . . . . . . ..026 10 Copy and service of subpoena on Mrs. T. K. 6 1 19 Paid her with subpoena 2 4 6 Copy and service of subpoena on Mr. D. and mileage 13 1 19 Paid him with subpoena 2 Certificate of service . . . . . . ..026 4 6 Copy and service of subpoena on Mrs. D. and mileage 13 1 19 Paid her with subpoena 2 Certificate of service 2 6 9 6 Copy and service of subpoena on Mr. M. . . 18 Paid him with subpoena . . . . . . Certificate of service . . . , . . ..026 2 6 Drawing notice to inspect and admit . . 10 3 4 Copy for 034 3 4 Close copy sent .. ., ,, ., ..034 Digitized by Microsoft® ■ Appendix IV.— Examples of Bills of Costs. £ s. d. 1867. 2 6 Nov. 26. Drawing notice to produce 3 4 Copy for 034 3 4 Close copy sent 034 2 8 Two copies notice to produce to annex to writ 6 8 2 8 The like of notice to admit 6 8 2 6 Copy jury list for the sheriff 2 6 Attending Messrs. N. & C, obtaining their signature to the same 6 8 Attending the sheriff with same and instruct- ing to summon the special jury . . ..068 , Paid the sheriff's fees 4 14 30. Attending the sheriff for the panel , . ..068 Perusing same and examining . . ..020 Attending the Principal Registry lodging the same . . . , . . , , . , Paid 026 13 4 Dec. 4. Attending at the Principal Registry and Court searching how the cause stood, and writing to the country as to the attendance of the witnesses, arranging for them not to bo in town until they were actually required, in order to save expense . . . . . • Affidavit of service of notice to inspect and Copy notice to annex . . . . . . , . Attending to be sworn . . Paid oath 5. Attending Mr. D. with brief . . Paid his fee and clerk . . Attending Mr. M. with brief . . Paid his fee and clerk . . . . . . Attending each counsel to appoint consultation Consultation fee, Mr. D. The like, Mr. M. 6. Attending at searching how the cause stood, and there being a probability that the cause would be reached on the day appointed. Attending to transmit telegram to the defendants 13 4 Attending to arrange for the attendance of the vritness . . . . . . . . . . 13 4 Paid for telegram 2 3 6 Having received telegram for the witnesses to be in readiness to be at on the morrow 3 ' Letter to Mr. C. to inform him thereof . . 2 The like, Mr. M 2 Thelike, Mr. D .. ..0 2 The like, Mrs. D. .. 2 18 -( The like, Mr. T 2 The like, Mr. K. 2 The like, Mrs. K 2 The like, Mr. C 2 ^ The like, Mr. L .. .. .. ..0 2 13 4 Attending at again later in the day, and also attending counsel, when it was • ■ found that the cause would not be reached ■ on the morrow, and attending to transmit telegram to countermand the attendance of thfe witnesses 13 4 ' Eft 2 611 £ S. d. Defendant's Bill 10 of Costs between Party and Party. 13 4 6 3 4 6 8 1 6 13 4 33 13 4 22 6 8 2 9 6 1 3 6 Digitized by Microsoft® 612 Appendix IV.— Examples of Bills of Costs. Defendant's Bill of Costa between Party and I'arty. q £ S. a. 1867. Dec. 6. Paid for telegram 3 6 16 6 8 2 2 4 4 6 8 7 8 1 10 13 4 One receipt of a telegram countermanding the attendance of the witnesses. Letter to Mr. C. thereon The like, Mr. M Thelike, Mr. D The like, Mrs. D The like, Mr. T f The like, Mr. K The like, Mrs. C The like, Mrs. K The like, Mrs. I Perusing notice to produce ^ Close copy sent . . Attending Mr. T., the plaintifE's solicitor, on his calling upon me upon the subject of the draft of a will made by the testator in 1853, and all day-books, books of account, and other documents in my possession relating to this cause, which he wished to have pro- duced . . Perusing notice of application to amend the A s. a. 3 8 6 2 2 2 2 2 2 2 2 4 4 10 6 8 Close copy sent . . Perusing notice to produce Close copy •• _ Two brief copies of notice of application to amend the pleas for counsel . Two copies notice to produce for trial Attending each counsel for the above papers Drawing instructions for Mr. M. in pursuance of notice of application to amend the pleas . , Attending Mr. M. with the papers . . Paid his fee and clerk . . Self and clerk engaged this day in arranging the papers and books to be taken for pro- duction on this trial, in consequence of the notice to produce In order to save expense attending Court, and afterwards attending counsel, to know whe- ther we should have the witnesses in town on Wednesday, when they advised us not to have them in town, and writing you Drawing telegram to inform you of the above, and attending to transmit same . On receipt of telegram from agents that the witnesses would not bo required to-morrow, attending each of them informing them thereof Attending consultation when it was deter- . , mined, under the advice of counsel, to em- ploy another expert, and they recommended Mr. D Copy and service of subpoena on Mr. D. Paid him with subpoena Certificate of service . . , . Attending with the expert to to . , inspect the signatm-es to the wills and codicils, &c, , . . . , . 4 4 4 4 8 8 6 8 6 8 6 8 2 4 6 3 3 13 4 4 110 13 6 13 4 Digitized by Microsoft® Party and Party, Appendix IV.— Examples of Bills of Costs. 613 & S. d. 1867. £ 5. (?. Defendant's Bill 2 2 Dec. 10. Afterwards attending him taking his evidence °^ '^°^*^ between very long .. ..220 "°-*—-"'-'" 2 2 11. Attending at cause in the paper, but not reached . . . . . . ..220 Carriage of papers .S 18 8 12. The like 220 Carriage of papers 3 The Judge having intimated that no other cause could be taken till the 18th instant, attending to transmit telegram to inform yon of the above . . . . , . . . i Paid 020 4 6 Attending to inform each of the -witnesses of the above .. .. .. ,. ..110 13 4 16. Attending Mr. D. on his calling upon usvrith his report, and perusing same . . . . 13 4 5 Making a copy for you . . . . .,050 13 4 17. On receiving letter from agents, with copy of Mr. D.'s report on the signatures to the wills propounded by plaintiff, perusing and considering same, and attending Mr. K., submitting same to him, and conferring thereon at length . . . . . . ..0134 Attending at again searching how the cause stood and writing . . ..068 Drawing telegram to inform yon of the above, and attending to transmit same . . . . 4 Paid 020 2 2 18. On receiving telegram from agents that this cause would not be reached to-day, journey to . Attending Mr. M., informing him thereof, and submitting Mr. D.'s re- port to him, and conferring thereon . . 2 2 12 Horse hire and expenses .. • ,. .. 12 4 6 Informing the other witnesses of the above . . 110 18 8 Attending Court, cause in the paper, but not reached .. .. .. .. ..220 Paid carriage of papers . . . . ..030 18 8 19. The like 220 Paid carriage of papers . . . . ..030 On receiving letter that there was no chance of this cause being reached till the 21st, attending Mr. K. informing him thereof ..068 The like attendance on Mr. M, and conferring 6 8 20. Attending Court, when it was ordered that this cause was to stand over until next term . . 2 2 Drawing telegram, and attending to transmit same to inform you of the above . . ..040 Paid for telegram . . . . . . ..020 3 6 On receipt of telegram from agents that this cause would not be beard till the middle of January next. Writing letter to Mr. M., informing him thereof . . . . ..036 Writing letter to Mr. D.jinforming him thereof 3 6 2 8 Attending the other vritnesses, informing them thereof .... 13 4 1868. 6 8 Jan. 26. Attending again at the Principal Registry to ascertain when special j uries would be taken next term, and writing 6 8 Digitized by Microsoft® 614 Appendix IV. — Examples of Bills of Costs. Defendant's Bin £ s. d. 1868. Hilary Term, \i&%. * «• d. piSyand'party Jan. 6. Term fee 15 — 11. Attending paying refresher fee to Mr. D. ..068 Paid his fee ai>d clerk . . . . . . ..246 .Attending paying. refresher fee to Mr. M. . . 6 8 • Paid his fee and clerk 13 6 15. Two snhpoenas ad test. 18. Drawing supplemental brief for counsel . ■ 10 Two fair copies for counsel . . . . ..168 Attending counsel therewith . . . . ..068 Having receired notice from the Principal Registry to attend before the Judge for the cause to be appointed, perusing same . . 10 Copy sent .. .. .. .. ..010 6 8 Attending Mr. K. on the evidence to be given by the expert, &c. . . . . . . ..068 29. Attending before the Judge at when the cause was appointed for 28th Feb 13 4 6 8 30. Attending Mr. K., informing him of the time appointed by the Judge for the trial of this cause, &c. .. .. .. .. ..068 3 6 Writing letter to Mr. M., informing him thereof 036 6 8 Feb. 1. Attending searching how the cause stood in the paper and vrriting you . . . . ..068 10 , Copy and service of subpoena on Mr. D. ..060 10 Paid him with subptena , , . . ..110 Certificate of service . . . . . . ..026 13 4 Attending you, when after consideration it was thought desirable to have a view of the wills and codicils, and attending counsel thereon in consultation when they advised a view 13 4 10 15. Attending Mr. C, serving him with subpoena, and arranging for his attendance at the trial 6 Paid him 010 10 The like attendance on Mr. K., serving him with subpoena 6 Paid him 010 Certificate of service . . . . . . ..026 10 The like attendance on Mr. T., serving him with subpoena . . . . , . ..060 Paid him 010 Certificate of service . . . . . . ..026 10 The Uke attendance on Mrs. I., serving her with subpoena . . . . . . ..060 Paid her 10 Certificate of service . . . . ..026 10 The like attendance on Mrs. C, serving her with subpoena . . . . . . ..060 Paid her 10 Certificate of service . . . . . . ..026 10 The like attendance on Mrs. K., serving her with subpoena . . . . . . ..060 Paid her 010 Certificate of service 2 6 17 Journey to attending Mr. M. and con- ferring hereon, and afterwards attending Digitized by Microsoft® Appendix IV. — Examples of Bills of Costs. 615 & s. d. 1868. £ g, H, DeJendant's 11111 Feb. 15. Mr. and Mrs. D., serring them witli sub- «• Costs between pcEna and arranging for their attendance Party and Party. at the trial .. .. .. .. ,.220 118 Paid them with subpoena, \l. each . . .,200 12 Horse hire and expenses . , , . ..0120 2 Certificate of service . . . . , , ..050 22. Attending the sheriff, directing him to re- summon the j ury . . . . , . ..068 Paid him 4 14 Attending for special jury panel .. ..068 Attending at the Principal Registry with the same 068 Paid 026 6 8 Attending Mr. D. to appoint view . . ..068 5 15 6 Paid his fee and clerk 5 15 6 6 8 Attending Mr. M. to appoint view . . ..068 3 1.3 6 Paid his fee and clerk 3 13 6 6 8 Attending each counsel to appoint consulta- tion .. .. 068 2 9 6 Consultation fee, Mr, D 2 9 6 13 6 Thelike, Mr. M 13 6 4 Drawing telegram to inform the time for the view, and attending to transmit the same. .040 6 8 Attending at the Principal Registry to arrange for the view, when we were informed the document had been removed to and they could not be seen on Monday, and attending counsel to put off the appoint- ment and writing you . . . . ..068 6 8 .24. On receiving letter from agents that the docu- ments had been removed from the Registry so that the view had been postponed. At- tending Mr. D. J. K., conferring hereon . . 6 6 8 2 2 Journey to with Mr. D. J. K. Attend- ing Mr. M., long consultation vrith him hereon and making the necessary arrange- ments for the witnesses' attendance at the trial 2 2 12 Horse hire and expenses . . . . . . 12 J 3 4 25. Attending at the Registry and afterwards at arranging for the production of the wills on view with counsel . . . . 13 4 6 8 Attending Mr. D., arranging for his attend- ance on the morrow at . . ..068 13 4 26. Attending at and afterwards attending counsel, when we found that we could not have it again this day, and attending Mr. D. at his private residence to save the expense of his attendance at 13 4 Attending at when we found that the cause was nearly reached . . ..068 Drawing telegram to inform thereof and at- tending to transmit the same . . ..040 Paid 3 5 On receipt of a telegram, making a copy thereof and writing to Mr. M. therewith ..050 Digitized by Microsoft® 616 Appendix IV. — Examples or. Bills of Costs. Defendant's Bill £ s. d. 1868. £, s. d. of Costs between 6 8 Feb. 26. Attending Mr. J). J. K., informing him Party and Pftrt y. thereof, and conferring and advising ..068 2 2 27. Attending at cause not reached ..220 18 8 28. Attending Court all day, when the Judge in- timated that no other cause would be put into the paper on the morrow than Q v. M , which had been part heard . . 2 2 Drawing telegram and attending to transmit the same to you to prevent the attendance of the witnesses . . . . . . ..040 Paid for telegram . . ■ . . . ..030 6 8 Attending counsel, when he informed us that Mr. D. at the rising of the Court would apply to have this cause made a remanet to the sittings after Easter Term, and attend- ing at to hear the result . . ..068 Paid cab for expedition . . . . ..020 Attending the witnesses and informing them of the above .. .. .. .. .. 13 4 3 6 Writing to Mr. D., to inform him the cause would not be in the morrow's paper ..036 6 8 On receiving telegram from agents that the witnesses would not be required on Friday, attending Mr. D. K. K., informing him thereof 068 Paid for telegram on arrival . . . . ..010 "Writing to Mr. M., informing him thereof . . 3 6 110 Attending at when the Court intimated that the cause would not be in the paper until Wednesday . . . . . . ..110 4 Drawing telegram to inform you of the above, and attending to transmit the same to you . . 4 Paid for message .. .. .. ..036 Attending the witnesses on receipt of the above to inform, them thereof . . . . 13 4 Writing Mr. D. to inform him thereof ..036 On receiving letter from agents that the case was not yet reached, and that Mr. D. in- tended to make an application to have the trial postponed till after Easter Term as the counsel would be on circuit. Attend- ' ing Mr. D. K, conferring thereon .. .. 6 8 2 2 Journey to with Mr. D. J. K., consult- ing and conferring with Mr. M. upon this matter, when he instructed me to oppose Mr. D.'s application 2 2 12 Horse hive and expenses ,. .. .. 12 6 8 On receiving letter from agents that the case would not be reached till next Wednesday. Attending Mr. K., informing him thereof ..068 10 Paid for message . . . . . . ..010 3 6 29. Writing to Mr. M. informing him thereof . . 3 6 The like to the other witnesses .. .. 13 4 13 1 Mar. 2. Attending Court, when the cause was ordered over until after next term 13 4 2 6 Paid can-iage of papers thereon . . ..050 \yriting Mr. D., to inform him of the above .036 The like to other witnesses 3 13 6 4 3 6 6 8 Digitized by Microsoft® Appendix IV. — Exajviples of Bills or Costs. 617 £ S. d. 1868. £ s. d. Defendant's Bill 6 8 Mar. 4. On receiving letter from agents that Mr. D. <>* Cost8>tween had made his application while our counsel rarty ana ai- y. were ont of Court, and the Judge had made the order attending Mr. D. K. K. therewith and thereon .. .. ..,.. ..068 4 6 Making copy letter and writing to Mr. M. therewith 046 6 8 11. AttendingMr.M. and Mr. D.K.K., conferring upon this matter and explaining to Mr. M. the cause of the postponement . . ..068 Term fee 15 Easter Term, 1868. 6 8 Apr. 15. Attending searching how the cause stood in the paper .. .. .. .. .. 13 4 6 8 Attending paying refresher fee to Mr. D. . . 6 8 2 4 6 Paid his fee and clerk 2 4 6 6 8 Attending paying refresher fee to Mr. M. . . 6 8 1 3 6 Paid his fee and clerk 13 6 6 8 16. On receiving letter from agents that no probate causes would be taken during the present sittings, but that a fresh day would be fixed. Attending Mr. D. K. K., informing him thereof 068 3 6 "Writing to Mr. M., informing him thereof ..036 6 8 17. Attending searching how the cause stood and writing you .. .. .. .. ..068 Term fee 15 Trinity Term; 1868. May 22. Attending searching how cause stood . . 6 8 Attending paying refresher fee to Mr. D. . . 6 8 Paid his fee and clerk . . . . . . ..246 Attending paying refresher fee to Mr. M. . . 6 8 Paid his fee and clerk . . . . . . ..136 13 4 On receiving letter from agents that this cause was second in the paper, attending arrang- ing with the witnesses 13 4 6 8 Attending Mr. D. K. K., conferring hereon, and arranging for his attendance on the trial . . ..068 June 5. Perusing notice to appoint special juries . . 2 Close copy sent .. ■■ .. .. ..020 8. Attending Mr. M., conferring upon the busi- ness . . 6 8 10. Attending at before the Judge of the Court of Probate when the special juries were appointed . . ■ ■ . . . . 13 4 1 1. Two subpoenas duces . . On receiving letter from agents that the Judge had appointed the 24th inst. for the trial of this cause, making copy letter and writing to Mr. M. thereon 4 Attending Mr. K. D. K., informing him thereof .. ■• •. •. ..068 6 8 15. Drawing instructions for the" sheriCE to re- summon the special jury 6 8 Attending the sheriff with same . . ..068 Digitized by Microsoft® 618 Appendix IV. — Examples of Bills of Costs. DefeBdimt's Bill £ s. d. 1868. * *: ^^ of Coats between June 15. Paid hira 4 14 l-ariy md Parly, q 1 Attending Mr. L H. C, semng him with subpoena and arranging for his attendance at the trial 060 Paid him with aubptena 10 Certificate of service . . . . . . ..026 10 The like attendance on Mr. K., serving him with sabpoena . . ..060 Paid him with subpoena . . . . ..010 Certificate of service . - . . . • ..026 10 .The like attendance on Mr, T., serving him with snbpoena . . . . . • ..060 Paid him with subpoena . . . . ..010 Certificate of service . . . - . . ..026 The like attendance on Mrs. I., serving her with snbpoena . . . . . . ..060 Paid her with subpoaia . . . . ..010 10 Attendance on Mrs. C, serving her with subpfiena .. .. .. .. ..060 Paid her with snbpoena . . . . ..010 Certificate of service . . . . . . ..026 10 The like' attendance on Mrs. K., serving her with subpoena . . . . . . ..060 Paid- her with subpoena . . . . ..010 Certificate of service . . . . . . ..026 13 17. Journey to attending Mr. M., con- ferring hereon and attending Mr. and Mrs. C, serving them with subpoena and arrang- ing for their attendance at the trial . . 2 2 12 Horse hire, &e 12 Certificate of service . . . . . . ..026 6 8 19. Attending Mr. D., arranging for him to attend the view and copy and service of snbpoena on him . . . . . . ..068 10 Paid him with snbpoena . . . . ..110 6 8 Attending counsel to re-fix the time for the view, when Tuesday next at 1 o'clock at was arranged . . . . ..068 3 G Writing to Mr. D., to inform him the time for the view 036 13 4 Attending at bespeaking room for the view and .. .. .. .. .. 13 4 Attending searching how the cause stood as directed and writing you . . . . ..068 Attending at the Sheriff's Oflice, Red Lion Square, for the jury panel . . . . ..068 Attending at the Principal Registry with same 068 Paid .. 026 Having received a letter from agents that cause most likely to be tried on the 24th . . 20. Making copy letter and writing to Mr. E. M. thereon .. .. .. .. ..046 3 6 Writing to Mr. K. D. to be in readiness to go to 3 6 6 8 Attending Mr. D. K. K., conferring hereon, and requesting him to be in readiness ..068 Digitized by Microsoft® 1 10 6 1 10 6 1 10 6 1 10 6 1 3 10 3 Appendix IV.— Examples of Bills op Costs, 619 £ s. d. 1868. & s. d. Defenaant's Bill 6 8 June 22. Attending Court, when we were informed that 9* Costs ^etween a common jury cause which stood lastin Party ana a y. the list would be taken first, and writing as to the witnesses, &c. . . . . . . 13 4 6 8 Attending Mr, K. D. K. again this day, and arranging for the witnesses' departure to- morrow .. .. .. .. ••068 6 8 Attending Mr. I. H. C, arranging for his de- parture to to-morrow . ■ ..068 Paid him . . . . . . . . . • Farther for train fare . . . . , . . . . 1 10 8 The like attendance on Mr. C. T?, and ar- ranging with him . . . . . . ..068 Paid him further for train fare . . . . 1 10 8 The like attendance on Mrs. T., and arranging with her 6 8 . Paid her further for train fare . ■ . . 1 10 8 The like attendance on Mrs. C, and arranging with her 068 Paid her further for train fare . . . . 1 10 8 The like attendance on Mrs. S. K., and ar- ranging with her . . . . . • ..068 Paid her further for train fare . . . . 110 In consequence of the plaintiffs' notice to pro- duce, &c., self and clerk engaged the whole day in perusing and looking into the docu- mentary evidence to produce at the trial . . 3 3 110 23. Attending view at 110 Paid cab, with papers ■ ■ . . . . ..036 13 Attending bespeaking room for another view on the morrow, and paid . . . . ..0130 3 6 Letter arranging for D. to attend the view . . 8 6 The like, attending transmitting telegram to country that there was a short common jury cause to be tried before this, and then this would be tried, and for witnesses to be present 4 Paid .. .. 2 13 4 Attending consultation with counsel, con- ferring upon the evidence, and papers re- quired in this case . . . . . . ..0134 18 8 Attending Court all day, case in the paper, but not reached . . . . . . ..220 Paid cab, with papers . . . . . . ..020 6 8 Attending paying refresher fee to Mr. D. . . 6 8 11 Paid his fee and clerk 11 6 8 Attending paying refresher fee to Mr. M. . . 6 8 5 ]0 Paid Ms fee and clerk 5 10 18 8 25. Attending Court all day, cause in the paper, but not reached . . • . . . ..220 Paid cab, with papers 2 110 26 Attending Court, case in the paper, and part heard 3 3 Paid cab, with papers 2 IQ 6 Clerk's attendance, also, in consequence of number of witnesses . . . . . . ..110 Attending paying refresher fee to Mr. D. .. 13 4 Paid his fee and clerk 16 10 Attending paying refresher fee to Mr. M. . . 6 8 Digitized by Microsoft® 620 Appendix IV. — Examples of Bills op Costs. Defendant's Bill of Costa between Party and Party. £ 8. d. 1868. Jane 26. Paid his fee and clerk . 110 10 6 1 1 10 13 11 1 1 10 1 1 1 8 18 18 2 12 11 11 12 11 2 12 9 9 1 18 4 3 1 18 4 3 1 18 3 6 1 18 4 3 1 IS 4 3 1 18 27. Attending at , cause in the paper, and further part heard . . Paid carriage of papers • Clerk's attendance Attending paying refresher fee to Mr. D. . . Paid his fee and clerk Attending paying refresher fee to Mr. M. . . Paid his fee and clerk . . Attending each counsel to appoint further , consultation . . Consultation fee, Mr. D. The like, Mi-. M. 30. Attending consultation July 1. Attending Court all day, cause further partly heard, and adjourned till the next day Paid cab, with papers . . 6 Clerk's attendance 4 Attending paying refresher fee to Mr. D. . . Paid his fee and clerk . . Attending paying refresher fee to Mr. M. . . Paid his fee and clerk . . 2. Attending Court %11 day, when the trial pro- ceeded with, and adjourned until the next day Paid carriage of papers Clerk's attendance 8, Attending at when the trial concluded, and verdict given for the defendant on all the issues, and the plaintiff was condemned in costs Paid for special jury .. Paid Court fees . . 12. Having received notice of motion for a new trial, perusing same . . Copy and service 14. Attending Court, when motion made for a new trial, and refused Paid cab, with papers . . Attending paying the following witnesses — paid Mr. T., solicitor, nine days, three guineas a-day . . Travelling expenses Mr. D., expert . . D. M., two guineas a-day, eleven days Travelling expenses Mr. C, nine days Travelling expenses Mr. D., eleven days, 15s. a-day Travelling expenses Mrs. D., eleven days, 15s. a-day Travelling expenses Mr. T., eleven days, 1 guinea a-day Travelling expenses Mrs. I., eleven days Travelling expenses Mrs. C, eleven days . . Travelling expenses . . £ s. d. 11 3 3 2 1 1 13 4 16 10 0. 6 8 11 6 8 2 9 6 1 3 6 13 4 3 3 • 2 1 1 13 4 11 6 8 5 10 3 3 2 1 1 3 3 12 12 2 12 6 2 2 2 2 2 28 7 4 12 19 19 22 4 12 18 18 3 18 8 5 3 8 8 5 3 8 11 11 3 8 8 5 3 8 8 5 3 8 Digitized by Microsoft® Appendix IV. — Examples op Bills of Costs. 621 f o i T^®®?-- ,. ^ & S. d. Defendant's Bill 4 d July 14. Mrs. K., eleven days 8 6 oJ Costs between 1 18 Travelling expenses .. 3 8 Party and Party. 5 10 Mr. K., eleven days, lOs. a-day .. .. 11 11 1 18 -Traveliing expenses 3 18 Attending at the Principal Registry for Court minutes 068 Attending, &c 6 8 Drawing bill of costs I ^3 6 8 Fair copies .. .... ., ..068 Attending for appointment to tax . . ..068 Copy and service of 5 Attending at the Principal Eegistry, paying the hearing fees . . . . . . ..068 Paid .. ..■ .. .. ,. .. 3 10 Attending taxing costs . . . . ,.550 Paid taxing fees . . . . . . Term fee 15 PLAINTIFF'S BILL OF COSTS, AS TAXED BETWEEN SOLICITOE AND CLIENT. In her Majesty's Court of Probate. U. B. G. S , plaintifE, v. S. S , defendant. In the goods of B. S , deceased. Hilary Term, 1864. £ s. d. 186i. Attending at Doctors' Commons searching for and procuring copy. Caveat lodged by & g. d. Messrs. N. & M. on behaU of defendant . . 6 8 Instructions for warning . . . . ..068 10 Drawing and engrossing same . . . . 10 Paid stamp 026 6 8 Attending for and obtaining Registrar's sig- nature thereto ,.. .. •• ..068 16 Copy and service .. .. .. ..076 6 8 Attending entering caveat as against defend- ant and others . . . . . . ..068 10 Stamp on same 010 10 Notice thereof to District Registrar . . ..010 2 6 Paid stamp for notice to be served by post ..026 6 8 Attending Mr. H. G. at , one of the late solicitors to the plaintifE, for and ob- taining draft and fair copy of will prepared by him for the late Mrs. S., same having to be filed as script .. .. .. . . 13 i Fair copy fao-simile will and codicil received from and examining same with clerk for proof, folios H.. .. .. .,056 Digitized by Microsoft® 622 Plaintlffa Bill of Costs between Solicitor and Client. £ 1 3 1 3 1 8 6 6 8 1 Appendix IV. — Examples of Bills of Costs. d. 1864. £■ '■ ''• \i.- Attending at Registry, searching for and taking minute of entry of appearance by de- fendant 6 8 Instructions for affidavit of script . . . . 6 8 Drawing same and engrossing to file, folios S . 6 8 Makingfao-simile copies of scripts B. C. D. E. F. and G., the originals having to be filed, 334folios. 5 11 4 4 Fair copy, warning to caveat to accompany, 4 folios .. 014 4 The like of copy will and codicil of 1st October, 1863, folios 11 3 4 The like of alleged revocation of 23rd February, 1864, 3 folios 10 6 Fee to counsel to peruse and settle affidavit of scripts .■ .. .. .. ..136 4 Attending him .. .. ■• •■ ..034 4 . Drawing instructions by way of case on several points in connection with the suit as to the best mode of procedure, and having re- ference to the peculiar facts of the case • . 13 4 Fair copy thereof . . . . . . ..068 Fee to Mr. N. therewith and clerk . . ..246 Attending him.. .. .. .. ..068 4 Attending Mr. N. with all the drafts and copies of wills, and as requested with a view to his finally settling affidavit of scripts . . ,.034 21. Engrossing affidavit of scripts as amended ..018 Attending plaintiff, reading over same, and to be sworn ,, .. .. .. ..068 Paid oath 016. Preparing exhibits . . . . . . ..070 Paid fees thereon .. .. .. ,.070 2 Paid filing affidavit 6 8 8 Attending clerk of the papers when he re- quired fac-simile copies showing the pencil marks in red ink, in addition to the original documents .. .. ,. .. ,.068 8 22. Attending counsel thereon, and subsequently the clerk of the papers, as to his require- ments, that copies of all the documents should be supplied in which pencil appeared to be shown in red ink, for perpetuation in addi- tion to the scripts then filed, and ultimately he reduced his requirements to copies of the particular sheets only . . . . ..068 Attending searching for afBdavit of scripts filed by defendant 6 8 23. Having received notice of defendant's having filed affidavit of scripts, attending inspect- ing same, and the scripts annexed, and making memoranda . . . , ■ . ..068 8 Apr. 2. Drawing summons, as advised by counsel, to show cause why defendant should not, within eight days, set forth his interest as entitling him to oppose the grant of probate of the will and codicil of 1st October, 1863 .. 5 Attending the Registrar to get same signed ..068 Paid stamp •.. ,, .. ., .,026 Digitized by Microsoft® . 1 4. 1 2 18 1 3 2 1 Appendix IV.— Examples of Bills op Costs. d. 1864. £ e. Apr. 4. Fac-similes of copies of portions of scripts as required by the clerk ol the papers for per- petuation, folios 121.. .. .. ..2 1 Attending at Registry with same . . ..06 Paid examiner's fees thereon . . . . ..23 Paid filing 4 Notice of having filed affidavit of scripts and copy . . . . 4 Copy affidavit of scripts and exhibits for de- fendant's solicitors, together 66 folios . . 1 Attending them with same . . . . . . Term fee 15 Easter Term, 1864. 19. Attend'ing summons at when in conse- quence of the great number same adjourned 6 Attending, bespeaking affidavit of defendant's script .. .. .. .. .. ..06 26. Attending adjourned summons, when in con- sequence of Sir James Plaisted Wilde being sworn in a Privy Couneellor this day at Osborne, all the summonses were adjourned till Friday 6 29. Attending adjourned summons when order made .. .. •■ ■• •■ .,06 May 3. Attending Registrar for and obtaining order.. 6 Paid stamp .. .. .. .. ..02 Copy and service ■ . . . . . ..05 Paid for office copy of defendant's . . ..07 Affidavit and scripts, folios 14 . . ..06 8 Perusing and abstracting same . . . . 6 Attending Mr. M. on compromise, when he stated that the Revd. Mr. I. would insist on the deed poll of 1862 being set aside or rectified, and that Mr. S. senr., was alleging that he had intended to reserve to himself a power of revocation . . . . ..06 12. Attending at Registry for and obtaining copy amended appearance . . . . . . .,06 4 Perusing and abstracting 3 Close copy •• .. .. .. ..0 2 8 18. Drawing summons for defendant to propound his interest . . . . . . . . ..05 Attending the Registrar getting same signed 6 Paid stamp .. 2 Copy and service . . . . . . ..05 Terra fee 15 Trinily Term, 1864. 26. Attending summons before Judge when order made . . ... ■ • • . ■ • ..06 Attending Registrar for order.. ■. ..0 6 Paid stamp .02 Copy and service 5 Jane 3. Perusing and abstracting declaration, folios 4 1 Instructions for pleas' and demurrer .. ..0 6 Drawing same . . . . . . . . ..10 Copy declaration to accompany . . ..01 623 Plaintiffs Bill of Costs between BoUcitor and Client. 2 Digitized by Microsoft® 624 Appendix IV.— Examples op Bills of Costs. Plaintiffs Bill of Costs between Solicitor and Client. 1 6 8 3 4 6 8 13 4 8 8 5 1 8 186+. June 3. Fee to Mr. N. to peruse and settle pleas and demurrer and clerk .. .. .. .. Attending him .. ( Engrossing pleas and demurrer and copy to file } The like to deliver Attending filing plea and demurrer . . Paid stamp . . ■ . • • . . 24. Writing plaintiff as to this suit .. 27. Attending plaintiff as to this matter and con- ferring thereon, and receiving his instruc- tions to issue summons, calling on defendant to deliver issue . . . . . . 29. Drawing summons accordingly Attending the Registrar to get same signed Paid stamp Copy and service July 5. Attending summons when Judge made order for the pleadings to be amended in form by being turned into an act on petition, and that proof should be filed within eight days thereafter Attending Registrar for order. . Paid stamp . . Copy and service ... 9, II, and 12. Attending defendant's solicitors on these days on their not having complied with terms of order ; they ultimately promised to do so forthwith 13. Having received act on petition, perusing same Attending appointing conference with Mr. N. thereon Fee to him and clerk . . . . ■ . . Copy act on petition for him . . . . . . Attending conference . . • ■ . , ( Drawing notice of motion to discharge or vary < act on petition ( Copy for proof . . Copy and service . . , , . , , , Drawing motion paper . . . . . . Two copies Attending clerk of the papers, lodging same. . Paid stamp . . . , , , 25. Brief pleadings . . Drawing observations and copy Fee to Mr. N. therewith and clerk . . Attending him •• Writing plaintiff in reply 26. Attending Court when motion argued and order made that act on petition should stand, defendant paying the costs previously occa- sioned, and the Judge intimated that as the pleadings now stood, there was a sufficient in the defendant £ ». d. 1 3 6 6 8 2 1 6 8 5 3 6 6 8 5 6 8 2 6 5 6 8 6 8 2 6 5 13 4 3 4 6 8 1 6 3 4 13 4 6 8 6 8 5 10 4 8 6 8 10 2 10 3 5 6 6 8 5 . possibility of interest shown to oppose the grant . < Attending Registrar for order Paid stamp . , Copy and service Term fee . . 13 4 6 8 2 6 5 15 Digitized by Microsoft® Appendix IV.-^Examples op Bills of Costs. 625 Easter Term, 1865. £ 0. d. 1865. £ s. d. Drawing costs and copy for taxation, folios 16 10 Fair copy thereof for defendant's solicitors .. 3 4 Attending Registrar for appointment to tax .. 6 8 2 6 Paid stamp ..026 Notice thereof to defendant's solicitors, copy and service .. .. .. .. ..050 Paid filing bill 026 6 8 Attending at Registry filing same . . ..068 Attending taxing .. .. .. .• 13 4 Paid stamp on taxation . . . . . . ..050 Attending defendant's attorneys agreeing the amount .. .. .. .. ..068 15 Term fee 15 Mr, X. O. G.*s charges on change of solicitors, 6 8 .4 pr. 20. The plaintiff in person having taken out sum- mons for liberty to conduct cause, attending return at when order made without prejudice to the taxation and pay- ment of costs, under order of July last, and without prejudice to Mr. G.'s lien on papers and funds to be recovered . . . • ..0134 Attending Mr. S. on his calling in making a proposition and declining same . . 3 6 27. Writing Mr. S. in reply to letter received, that my opinion was unchanged, and ray deter- mination unaltered . . . . . . ..036 6 8 May 9. Attending summons to vary order when same dismissed with costs . . .. .. .. 013 4 1866. 5 8 Nov. 20. Attending a gentleman from Mr. X. on his, serving summons to show cause why the proceedings should not be prosecuted by Mr. X. instead of plaintiff in person, and conferring with him at his request as to my costs .. .. .. ..068 6 8 26. Attending Mr. X. on his calling, conferring hereon and giving him information, and arranged to attend summons to-morrow . . 6 8 6 8 27. Attending summons by plaintiff in person to appoint Mr. X. — same adjourned for a week for the consideration of the Judge upon the question of payment of my costs . . . . 13 4 6 8 30. Attending at Bankruptcy Court searching for, and obtained date of discharge . - ..068 1 Paid 10 6 8 Dec. 4. Attending adjourned summons at when order made .. .. ■• ..0134 8. Attending Mr. X. on his handing me copy order, and he said he should write with a list of papers he required in a day or two •. 1S67. 6 8 Feb. 20. Having received letter applyrag for papers, with a list required, looking up papers and arranging same .. .. .. •• 13 4 8 S . B. Digitized by Microsoft® 626 Appendix IV. — Examples of Bills of Costs. £ s. d. 1867. , . £ s. d. 3 4 Feb. 20. Drawing list thereof, and form of undertaking and receipt pursuant to order, and fair copy 13 4 3 6 Writing Mr. X. in reply to his letter, and with list, &o. thereon .. .. .- ..036 6 8 23. Attending Mr. X. on his calling at for papers, and offered him the papers in the cause on his signing receipt, but he required all the papers in the list he had supplied, and I declined to give up the same . . 6 8 3 6 28. Writing Mr. X. in reply, that in my opinion what I had proposed to do complied with the order of the judge .. .. ..036 JWar. 2. Attending Mr. X. on his serving summons for delivery of papers . . • . 3 4 Copy list made out by Mr. X. for the Judge.. 3 4 13 4 5. Attending summons at when order made to deliver in four days papers, and Registrar to decide as to any others not de- livered .. 13 4 3 6 12. Writing Mr. X. that he might have papers con- tained in my list at any time in exchange for receipt and undertaking, and that if he considered he was entitled to any others I would attend the Registrar on receiving an appointment for that purpose' . . . . 3 6 15. Notice of appointment before Registrar for to-morrow at half-past 1, received . . 6 8 16. Attending Registrar at Doctors' Commons, when lists gone through and directions given 13 4 3 6 18. Writing Mr. X. to supply list of papers he considered the Registrar had settled . . 3 6 13 4 Drawing fresh list and copy to keep, and copy for Mr. X 13 4 3 6 Apr. 1. Writing Messrs. X. in reply to letter received, and appointing Wednesday at 12 to hand over papers .. .. .. .. ..036 Attending Mr. X.'s clerk subsequently on his calling in apprising him thereof 1. Drawing undertaking and copy .. ..068 6 8 3. Attending Mr. X. on his calling, examining list and copies, and handing papers in exchange for receipt and undertaking, and answering his inquiries respecting Mr. X. . . 13 4 12 1866. Attending plaintiff as to proceeding with this cause on his behalf, perusing various docu- ments, discussing matter very fully with him and conferring thereon, when it was determined we should submit a case to Mr. N., and in the event of his opinion being favourable we would do so, engaged several hours 2'20 1 8 Nov. 17. Drawing summons to show cause why Mr. K S. M. X. should not be appointed the solicitor of the plaintiff .. .. ..0-50 Attending the Registrar to get same signed . . 6 8 Paid stamp . . . . . . . . ..026 Copy and service . . . . . . ..050 Digitized by Microsoft® Appendix IV.— Examples op Bills of Costs. 627 £ s. d. 1866. £ ,-. d. Nov. 17. Attending summons, when at request of Mr. G. same adjourned to the 4th December . . 6 8 Dec. I. Attending adjourned summons, order made, and also for Mr. G. to hand over to Mr. X. all the papers necessary for the conduct of the cause, Mr. X. undertaking to re-deliver them within ten days after the conclusion of the cause, and also to use all legitimate means to obtain the costs from the defend- ants, which he was ordered to pay, and on the receipt of same to hand over to Mr. G. the amount due to him for costs herein .. 6 S Attending Eegistrar for order . . ..068 Paid stamp 2 (i Copy and service . . . . . . ..050 6 8 Attending plaintiff, informing him result of application, and conferring as to course of proceeding ., .. .. .. ..068 Michaelmas Term, 1866. 6 8 Long conference with counsel, Mr. N., on the point whether having regard to the circum- stances of the case, and to the observations dropped by Sir K. Q. X. on the 26th July, 1864, when the motion was made to the Court herein on behalf of the plaintiff that the defendant's act on petition should be rejected or reformed as the Court might direct, but which he declined to order, but directed that the defendant should pay the plaintiff's- costs occasioned by his the de- fendant setting forth his interest as in such act on petition set out, namely, that the de- fendant's interest as therein expressed might possibly give him a locus standi, it would be prudent or desirable further to litigate the defendant's interests, and when, after lengthy and mature consideration, Mr. N. advised the defendant should be served with notice that the plaintiff would not con- test the point further, and proceed at once to declare .. 13 4 Paid Mr. N. conference fee and clerk . . 16 3 4 Attending to pay same.. .. .. ..068 Instructions for declaration .. .. ..068 Drawing and engrossing same .. .. 10 Fee to Mr. N. to peruse and settle same . . 1 3 (i 3 4 Attending.him .. .. .. .. ..068 Drawing and fair copy notice that plaintiff admitted defendant's interest, and would no longer content same, copy and service ..050 Mr. N. having advised that inasmuch as more than a year had elapsed since proceedings had been had in this cause, that a summons should be taken out, supported by affidavit, for leave to serve and file declaration, instruc- tions for affidavit in support .. ..068 ss2 Digitized by Microsoft® 628 Appendix IV.— Examples of Bills of Costs, Dec. 1. Drawing same, folios 8 .. •• .. •> 6 8 Attending plaintiff reading over and settling same .. Ingrossing affidavit Attending plaintiff to be sworn Paid oath 6 8 Attending at the Registry to file same Paid stamp . . . . • . . . . . 18 Drawing summons for leave to file and deliver declaration .. .. •. Attending the Registrar to get same signed . . Paid stamp .. .. .• .• •• Copy and service Copy affidavit for defendant's solicitors 11. Attending summons, order made Attending Registrar for order . . Paid stamp . . . . . . • • • • Copy order and service . . . . . • 22. Retainer to Mr. D., Q.C., and clerk . . 3 4 Attending him .. .. .. .. Copy declaration to file . . Attending at the Registry filing declaration.. Paid stamp . . . . . . • • 29. Having been served with summons for a month's time to plead, perusing and ab- stracting same, folios 3 . . • , Attending summons, order made Perusing and abstracting order 1867. Jan. 4. Having been served with defendant's pleas, and a declaration setting forth a subsequent revocation of the testatrix in the pleadings named, perusing and abstracting same, to- gether 19 folios 13 4 The case being excessively special, there being no less than four wills made by the testatrix within a short time of her death, three of which were made out by the testatrix's rela- tives under most peculiar circumstances, and counsel having advised that he should be fully and minutely instructed as to every particular in order to settle pleas and state of facts, instructions for case accordingly 6 3 Drawing same, 123 folios 2 10 Fair copy for counsel . . 5 10 Fee to Mr. H. therewith and clerk 4 Attending him paying same . . Term fee . . 13 £ s. d. 8 6 8 2 8 6 8 1 6 6 8 2 6 5 6 8 2 6 5 2 8 6 8 6 8 2 6 5 1 3 6 6 8 2 6 8 5 1 6 8 1 6 4 1 8 Jan. 12, 2 6 Hilary Term, 1867. Drawing summons for a week's time to plead to defendant's declaration .. Attending the Registrar to get same signed . . Paid stamp . . Copy and service Attending summons, order made Attending Registrar, order made Paid stamp 13 4 6 3 2 1 5 10 13 4 15 5 6 8 2 6 5 fi 8 ti 8 5 Digitized by Microsoft® Appendix IV.— Examples of Bills op Costs. 629 £ «• d. 1867. £ s. d. Jan. 12. Copy and service 5 Instructions for replication .. .. ..OSS Drawings and engrossing same . . . . 10 Fee to Mr. N. to settle same and clerk ..136 Attending him 034 Fair copy to file 10 Attending at the Registry filing same ..068 Paid stamp .. .. .. .. ..OSO Attending delivering replication . . . . 5 Instructions for pleas to defendant's declara- tion 068 Dravfing same and fair copy . . . . ..100 Fee to Mr. N. to settle same 13 6 Attending him .. .. .. .. ..034 6 8 Instructions for particulars of plaintiffs case under 4th plea 6 8 6 8 Drawing and engrossing same, 12 folios . . 12 8 Fee to Mr. H. to settle.. .. .. ..136 18. Attending him 3 4 18 Drawing summons for further time to plead to defendant's declaration . . . . ..050 Attending the Registrar to get same signed . . 6 8 Paid stamp 026 Copy and service . . . . , . ..050 22. Attending summons, order made .. ..068 Attending Registrar for order . . . • ..068 Paid stamp 026 Copy and service . . . . . . ..050 6 8 Mr. H.'s opinion being very long and special, upwards of two brief sheets, and several points requiring careful consideration, at- tending him appointing conference . . 6 8 16 Conference fee to Mr. H. and clerk . . . . 16 13 4 Attending conference, engaged very long time 13 4 18 26. Drawing summons for further time to plead to defendant's declaration . . . . ..050 Attending the Registrar to get same signed . . 6 8 Paid stamp 026 Copy and service . . . . . . ..050 29. Attending summons, order made . . . . 6 8 Attending Registrar for order . . . . ..068 Paid stamp 026 Copy and service . . 5 6 8 Having much doubt whether it would be ad- visable to place on the record a plea of fraud, as advised by Mr. H., attending Mr. N. with fair copy pleas and state of facts as settled by Mr. H. as well as case, with in- structions to advise and settle same finally.. 6 8 2 4 6 Fee to Mr. N. to settle same and clerk . . 2 4 6 6 8 Attending him 068 18 Feb. 2. Drawing summons for further time to plead to defendant's declaration . . . . ..050 Attending the Registrar to get same signed . . 6 8 Paid stamp 026 Copy and service . . . . • • ..050 5. Attending summons, order made .. ..068 Attending Registrar for order .. ■ .. .. 6 8 Paid stamp 026 Digitized by Microsoft® 630 Appendix IV.— Examples of Bills of Costs. £ s. d. 1867. £ »• d. Feb. 5. Copy and service .. .. .• ..050 6 8 Having received pleas and state of facts as settled by Mr. N., and the plea of fraud having been struck out for the reason sug- gested, attending Mr. H. thereon, when he retained his opitiion for the reasons stated, and the point as to the evidence we might be excluded from giving . . . . ..068 6 8 Attending Mr. N. appointing conference thereon . . . . . . . . ..068 16 Conference fee to him and clerk . . . . 16 13 i Attending conference, when, after long dis- cussion, it was determined that plea of fraud should be withdrawn, and that a citation should issue .. .. .. .. .. 1-3 4 Copy pleas to defendant's declaration as finally settled, folios 12 4 Atten"ding at the Registry filing pleas .. 6 8 Paid stamp .. .. .. .. ..050 Copy statement of facts to file . .. ..040 6 8 Attending at the Registry filing same .. 6 8 Paid stamp 050 18 Attending delivering pleas and statement . . 6 8 Attending searching for will of U. S. deceased, the lawful father and next of-kin to the tes- tatrix in the pleadings named, and as ad- vised by counsel, for the purpose of inserting his executor or administrator in citation, but unable to find either will or letters of admi- nistration .. .. .. .. ..068 Paid stamp on search . . . . . . ..010 21. Having been served with replication perusing and abstracting same, 6 folios . • ..020 Drawing the issue and fair copy for delivery, 60 folios 200 n 1 X Attending delivering same .. .. ..068 18 Drawing summons for Mr. X. O. G. to forth- with deliver to us all the papers which had been prepared for or originated in this suit and properly connected therewith, and which were necessary for the conduct of the suit. . 5 Attending the Registrar to get same signed ,. 6 8 Paid stamp 026 Copy and service . . . . . . ..050 16 Mar. 1. Letter to the defendant's solicitors requesting to be informed whether they would accept service of citation on behalf of Mr. S., Mr. 1., Colonel S., Captain S. and Mr. M., to save expense of advertisement . . . . .,050 8 4 4. Attending defendant's solicitors, being without any answer to our letter, but they had re- ceived no instructions . . . . ..034 5. Attending at the last known residence of the late Mr. U. S., when we saw the land- lord, who knew nothing of the parties, he having lately come into possession, nor would he give us any information as to the whereabouts of the landlord of the house when Mr. S. lodged at .. 6 8 Digitized by Microsoft® Appendix IV.— Examples of Bills op Costs. 631 £.. d. ]867. £ ,.,i. Mar. 5. Afterward attending at making inquiries of Mr. B. S., a nephew of the late Mr. U. S , for the address of his widow, when he in- formed us that at the time of his decease Mr. S. was lodging in and from which place he was buried, but he could give us no fur- ther information as to the other members of his family we required 6 8 Attending at and saw the landlady of the house where Mr. and Mrs. S. lodged, and she stated that she believed Mrs. S. was then living at and that Captain S. went to live at in same street, but she did not know whether she was still there or not ..068 Attending at saw the landlady, she could give us no information as to Captain S., as he had left 068 Attending at when we found that Mrs. S. resided there 6 8 Cab hire 040 Attending summons order made for Mr. G. to hand over the papers within four days, and if the plaintiff was not satisfied with the compliance of the said Mr. G. under the order, then that both parties attend before one of the Registrars of this Court for him to decide the matter as to the delivery of the said papers between them . . . . ..068 Attending Registrar for order . . . . ..068 Paid stamp 026 Copy and service . . . . . . ..050 6. Attending at the last known address of Mr. M., but found he had left, and they re- ferred me to the of which they believed he was a member .. .. .. ..068 Attending at accordingly, when his address was given ns as engaged making these inquiries above two hours .. ..068 Paid cab hire 046. Attending at the to ascertain the addresses of Colonel and Captain S. respectively, and on reference to their books, they found that ' these officers were on furlough, and conse.. quently they could not give us their address, but referred us to the of which they stated Colonel S. was a member, and to Messrs. D. & H 6 8 Attending at the found that Colonel S.'s letters were addressed there, and they re- ferred us to where they believed the Colonel stayed when in town . . ..068 Attending at accordingly, and found Colonel S. had left a few days previously, and was then staying with the Revd. Mr. 1., at 6 8 Attending at Messrs. D. & H. for the address of Captain S., when, on reference to their books, they gave us his address as in the 6 8 Digitized by Microsoft® 632 Appendix IV. — Examples of Bills of Costs. £ s. d. 1867. £ «■ ^■ Mar. 6. Paid cab hire .. 040 Instructions for citation .. •• ..068 Drawing and engrossing same and praecipe . . 10 Paid parchment. . .. •• .. ..036 Instructions for affidavit in support . • ..068 Drawing same and engrossing.. .. .. 9 4 - . Attending plaintiff, reading over same, and to be sworn .. .. .. .. ..068 Paid oath .. ..016 Attending at Registry with praecipe, and pro- curing citation to be signed and sealed ..068 Paid stamp on the citation . . . . . . .5 6 8 Attending to file the affidavit .... ..068 Paid stamp thereon . . . . . . ..026 5 10 Extracting citation .. .. .. ..068 Three copies of the citation for service, 11 folios each, together 33 folios .. .. Oil 12. Having received letter from Messrs. N. & Co., defendant's solicitors, stating that they were instructed to accept service of the citation on behalf of Mrs. S. and Colonel and Captain S. and Mrs. M., but not for Mr. I., attend- ing them, obtaining undertaking, leaving copy citation .. .. .. .. ..068 3 4 13. Attending at serving Mrs. I. with citation, and leaving copy, 86 miles and railway fare and expenses . . . . ..4100 Attending at Registry and searching whether appearance entered for any of the parties cited, and found same . . . . ..068 Stamps on searching .. ..020 Perusing and abstracting notice of appearance 10 Drawing notice of intention to apply at the ex- piration of eight days to move the Court to direct the questions at issue to be tried by a common jury, copy and service .. .. S Drawing case and fair copy for Judge, folios 45 2 5 Instructions for the affidavit in support of motion 068 Drawing same, 6 folios . . . . . . ..060 Engrossing same . . . . . . ..020 6 8 Attending deponent, reading over same, and to be sworn .. .. .. ,, .,068 16 Paid oath 016 Attending at Registry, filing the case for mo- tion, and affidavit 6 8 Paid stamps 10 16 8 Two copies case on motion for Messrs. N. & Co. 1 10 6 8 Instructions for brief on the case for motion.. 6 8 10 Drawing same and engrossing, 45 folios, being observations . . . . . , . , . . 1 15 Copy citation and notice to accompany, to- gether 12 folios .. .. .." ..040 Attending Mr. N. therewith 6 8 Paid him his fee and clerk . . . . ..246 Not having been able to obtain all the papers and letters from Mr. G., attending the Re- gistrar obtaining appointment . . ..068 Digitized by Microsoft® 1 15 6 8 fi 2 . Appendix IV.— Examples of Bills or Costs. 633 £ s. d. 1867. £ s. r7. Mar. 13. Service thereof 5 16. Attending appointment before Registrar, when, after long discussion, he directed Mr. G. to deliver papers and letters to us, engaged two hours 13 4 8 Drawing and engrossing affidavit of service of citation .. .. .. .. ..080 Attending searching at Doctors' Commons, if Mrs. 1. bad appeared, and found that Messrs. D. & V. had appeared for both herself and husband 068 Paid stamp on search .. ..- .. ..010 Perusing and abstracting notice of appearance 10 Attending surrogate to be sworn to affidavit of service of citation . . . . , . ..068 Paid oath and exhibit 2 6 6 8 Attending at Registry filing affidavit and ex- hibit 068 Paid stamp thereon . . . . . . ..050 3 Copy and service of notice of motion on Messrs. D. & Co 3 Copy case on motion for them . . ..0150 19. Attending the Court, when after hearing coun- sel on both sides the Judge on the applica- tion of defendant ordered questions at issue to be heard before the Court itself and a special jury . . . . . . . . ..0134 Attending at the Registry bespeaking office copy of the order . . . . . . ..068 6 8 Attending afterwards for and obtaining same . . 6 8 Paid for order and collating ■ . . . ..036 8 4 Copy order and service on defendant's soli- citors and Messrs. D. & Co.. .. ..084 6 8 Instructions to settle questions for the con- sideration of the jury .. .. ..068 Drawing same, folios 8.. .. ,. ..080 Fee to Mr. N. to settle and clerk . . ..136 Attending him 034 3 Drawing the record, 60 folios . . .. ..300 Engrossing same, including parchment . . 110 Attending at the Registry lodging record . . 6 8 Paid stamp on depositing same . . ..100 Notice thereof to defendant's solicitors . . 5 The like to Messrs. D. & V 5 Letters to defendant's attorneys that not having received summons as promised to declare on further script we had been compelled to lodge record . . . . . ■ . . ..036 Apr. 4. Having been served with summons to show cause why defendant should not be at liberty to file a declaration propounding a copy of an alleged will of the testatrix B. S.," dated the 11th February, 1864, being one of the scripts filed by the defendant on the , 22nd March, 1864, perusing and abstract- ing same 1 Term fee 15 Digitized by Microsoft® 634 Appendix IV.— Examples of Bills op Costs, Easter Term, 1867. £ s. d. 1867. , ^ , ^ £ s. d. 6 8 Apr. 15. Having been served with notice that defendant would attend, summons for counsel, instruc- tions for brief to oppose same . . ..068 10 Drawing same and engrossing, 15 folios .. 10 2 4 Copy script of 11th February, ISG*, and affi- davit of defendant verifying scripts to ac- company same, together folios 20 . . . . 6 8 Fee to Mr. N. therewith and clerk .. .. 2 4 6 Attending him .. .. .. .. ..068 16. Attending summons, order made, the Judge ~ reserving the question of costs until case decided 6 & Perusing and abstracting copy order . . ..010 Having been served with declaration, pro- pounding copy of alleged will of 11th Feb- ruary, 1864, perusing and abstracting same, folios 8 .. ..028 Instructions for pleas - . . . . . ..068 Drawing pleas .. .. -- .. ..100 Fee to Mr. H. to settle and clerk . . ..136 Attending him .. .. .. .. ..034 6 8 Instructions for particulars . . . . ..068 8 Drawing same .. .. .. .. ..100 Fee to Mr. H. to settle and clerk . . . . 13 6 Attending him .. .. 034 Fair copy affidavit of defendant verifying scripts to accompany, folios 5 . . ..018 6 8 25. Mr. H. having advised and drawn a plea of fraud attending him appointing conference thereon and on the pleas generally.. .. 6 8 16 Conference fee and clerk . . . . ..160 13 4 Attending conference, when it was ultimately determined to retain the plea of fraud, and Mr. H. was to resettle the other pleas and particulars .. .. .. .. ..0134 18 May 2. Drawing summons for time to plead to de- fendant's second declaration. . .. ..050 Attending the Registrar to get same signed . . 6 8 Paid stamp .. .. .. .. ..026 Copy and service thereof on defendant's soli- citors .. .. .. .. .. ..050 18 The like on Messrs. D. & Co 5 Drawing summons for leave to plead several matters .. .. .. .. ..050 Attending the Registrar to get same signed . . 6 8 Paid stamp OSO Drawing and two copies abstract of pleas . . 5 Copy and service on defendant's solicitors . . 5 The like on Messrs. D. & Co 5 Copy abstract for the Judge .. .. ..010 Attending nominating special jury .. ., 13 4 Copy list of 48 050 Attending summons for time to plead, order made . . '6 8 The like to plead several matters, order made 6 8 Attending Registrar for order for time to plead 6 8 Paid stamp .. .. 026 Digitized by Microsoft® Appendix IV.— Examples of Bills of Costs. 635 £ •• d. 1867. £ ,, a. May 2. Copy and service on defendant's solicitors ..050 The like on Messrs. D. & Co 5 Three fair copies pleas, one to file and the others to deliver, together folios 18 ..060 The like particulars of case, 10 folios each, to- gether 30 folios 10 Attending Registrar for order to plead several matters 068 Paid 2 (j Copy and service on defendant's solicitors ..050 The like on Messrs. D. & Co 5 Attending delivering pleas at defendant's soli- citors and Messrs. D. & Co 10 10 The like particulars , ., 10 Attending at the Registry filing pleas ..068 Paid stamp thereon . . . . . . ..050 6 8 Attending Registrar filing particulars, and paid stamp .. 0118 10 Demand of replication and service .. .. 10 15. Having been served with replication perusing and abstracting same, 5 folios . . ..018 18 18. Drawing summons for plaintiff to be at liberty to add to the record . . . . . . ..050 Attending the Registrar to get same signed.. 6 8 Paid stamp .. .. .. .. ..026 Copy and service on defendant's solicitors . . 5 The like on Messrs. D. & Co 5 Attending summons, order made . . ..068 Attending Registrar for order . . . . ..068 Paid stamp .. .. .. ., ..026 Copy and service . . . . . . ..050 13 4 Drawing and two fair copies additional issue, folios 20 16 8 3 4 Attending delivering same to defendant's soli- citors and Messrs. D. & Co. . . . . 13 4 8 Drawing questions on additional pleadings for the jury .. .. ' 100 Fee to counsel to peruse and settle . . ..136 - Attending him .. .. .. ,. ..034 3 Fair copy as settled for the Registrar.. .. 5 8 21. Attending at ofBce of Registrar with same . . 6 8 Paid stamp on settling same . . . . . . 10 Attending Registrar on his settling same . . 6 8 6 Two copies thereof for service . . . , ..0114 18 Attending defendant's solicitors delivering same .. .. .. .. .. ..068 18 The like to Messrs. D. 8z Co. . . . : . . 6 8 18 Engrossing questions for the jury to file .. 5 8 Paid parchment.. .. .. .. ..026 Term fee 15 Trinity Term. June 11. Engrossing additional record .. .. .. 10 Parchment 050 Attending lodging additional record . . ..068 Paid stamp 050 6 8 Attending filing questions for the jury . . 6 8 Paid stamp 026 Digitized by Microsoft® 636 Appendix IV. — Examples of Bills oe Costs. £. s. d. 1867. . £ s. d. June 11. Attending setting cause down for trial .. 6 8 Paid stamp .. .. .. .. ..010 Service of notice thereof on defendant's soli- citors ■■ •• .. •• •• ..050 The like on Messrs. D. & Co... .. ..050 Attending at the Registry bespeaking office copy of the proceedings . . . . ..068 Paid for same and collating . . . . ..076 6 8 Attending for and obtaining same . . . . 6 8 8 Copy to keep, 24. folios 8 Attending filing office copy . . . . ..068 Paid stamp thereon . . . ■ . . ..026 20. Having received notice from Registry to at- tend at attending accordingly, when Judge appointed the 24th July for cause to be in paper . . . . . . ..068 1 2 Instructions for case to advise on evidence, drawing same . . . . . . ..220 8 4 Fair copy case and pleadings, together folios 492 8 4 Fee to Mr. N. I. with case and clerk. . ..11 Attending him . . . . . . . . . . 13 4 Attending appointing conference thereon .. 6 8 Conference fee to him and clerk . . . . 16 Attending conference, discussing at great length the various points of the ease, when Mr. I. requested to be furnished with copies of correspondence relative to settlement, security deed and deed poll, engaged nearly four hours .. .. .. .. ..110 Attending Mr. I. with copies ofcorrespoudence and appointing further conference . . ..068 Conference fee to him and clerk '. . . . 16 Attending further conference, engaged very longtime .. .. .. .. .. 13 4 July 11. Drawing and engrossing two subpoenas ad . test, and precipe . . . . . . . . 10 6 8 Attending at Registry and procuring same to be entered and sealed . . . . ..0134 Paid stamps thereon . . . . . , ..050 Instructions for brief, including examination . and perusal of a number of documents and journey to and examining very many persons relative to and in con- nection with the various wills and docu- ments, thirty-one witnesses afterwards sub- poenaed 52 10 5 5 Drawing brief, folios 826 41 6 8 5 4 Four copies brief, with pleadings, folios 936, each 62 8 The like of settlement, 4th July, 1844, folios 70, each 434 The like of deed of security of 1st March, 1847, folios 92, each . . . . . . ..628 The like of deed poll of 12th November, 1862, folios 25, each ... .. .. .. 1 13 4 The like of some of testatrix's letters, folios 78, each .. .. 540 Digitized by Microsoft® Appendix IV. — Examples of Bills of Costs. £ 5. d. 1867. £ s. d. July 11. The like of correspondence between plaintiff's and defendant's solicitors, folios 82, each ..594 The like as to correspondence as to security deed, and deed poll of 1862, folios 196, each 13 1 4 The like of extracts from Mr. G.'s diary, folios 8, each 10 8 12 The like as to particulars of case the plaint.ff intended to set up under first declaration, folios 9, each 12 13 4 The like, under second declaration, folios 10, each .. 13 4 The like, as to scripts to be propounded, folios 25, each 113 4 The like of Script B, being fac-simile of the draft will of Mrs. B. S., prepared by counsel under instructions from Mr. H. G., folios 62, each 428 The like of Script C, being fac-siraile copy of the fair draft will of Mrs. B. S., finally settled by counsel, folios 54, each .. .. .. 3 12 The like of correspondence between Messrs. U. & S., and the Rev. S. X. I. and plain- tiff, in relation to the settlement deed of 4th July, 1844, folios 250, each 16 13 4 The like of Script D, being fac-simile of the engrossment of the will of Mrs. B. S., dated 8th February, 1864, folios 56, each . .. 3 14 8 Thelike of Script E, being fac-simile of the draft will of Mrs. B. S., prepared by counsel under instruction from Mr. X. O. 6., folios 53, each .. 3 10 8 The like of Script G, being will prepared by Mrs. B. S., folios 49, each 3 5 4 The like of Script F, being fac-simile of the draft will of Mrs. B. S., sent by Mr. X. O. G. to Messrs. N. & M, for perusal on be- half of S. S., on the 19th February, 1864, folios 50, each 3 6 8 Drawing analysis of the leading facts of case, folios 25 15 Four copies for counsel . . . . . . ..164 Drawing analysis of correspondence, folios 12, each 12 Four copies for counsel .. .. .. 16 Fee to Mr. D., Q.C, with brief and clerk 110 16 8 Attending him 200 Consultation fee to him and clerk . . ..296 Attending to appoint same . . . . ..068 Fee to Mr. H.G. with brief and clerk ..49 10 Attending him .. .. .. .. .. 13 4 Consultation fee to him and clerk . . ..136 Attending to appoint same .. .. ..068 Fee to Mr. B. F. N. with brief and clerk ..38 10 Attending him 13 4 Consultation fee to him and clerk . . . . 13 6 Attending to appoint same . . . . ..068 Fee to Mr. J. N. I. with brief and clerk . . 27 10 Attending him •• .. .. .. ..0134 637 Digitized by Microsoft® 638 Appendix IV. — Examples of Bills of Costs. & .. d. 1867. • £ s. d. July 11. Consultation fee to him and cleik .. ..136 Attending to appoint same . . . . ..0^8 Three copies subpoenas ad test, for service .. 6 Service thereof on B. E 5 The like on F. X. K 5 The like on N. C 5 Drawing a further subpoena ad test, and pre- cipe .. .. .. •• .. ••05.0 Attending at Registry getting same entered and sealed 068 Paid stamp and parchnient . . . . ..036 5 8 Drawing and engrossing notice to admit, folios 29 1 16 8 The like notice to produce, folios 8 . . . . 10 6 8 Attending defendant's solicitors therewith .. 6 8 Four copies plaintiff's notice to admit to annex to briefs, folios 29, each 1 18 8 Thelike plaintiff's notice to produce, folios 10, each 13 4 Four copies defendant's notice to admit, folios 6, each 080 The like notice to produce . . . . ..080 Instructions to reduce special jury .. .. 13 4 Attending reducing same .. .. ..068 Copy list as reduced . . . . . . ..026 Attending defendant's solicitors exchanging and signing lists . . . . . . ,,068 Seventeen copies subpoenas for service . . 114 2 Attending at serving Mr. X. M. with subpoena .. .. .. .. .. 10 The like on Miss B. M. 5 The like on S.D 5 The like on M. Q 5 10 19. Attending defendant's attorneys, giving them inspection, engaged three hours , , ..110 Service of subpoena on Dr. Q. T. ,. ,.050 Service of subpoena on Mr. F. M. G 5 The like on 1. C 5 The like on K.T 5 3 The like on S. U. St. B., at .. 10 The like on D. X 5 The like on F.0 5 The like on K. D 5 The like on B. E., at . . 15 The like on Mrs. D 5 The like on D. I. 5 The like on T.C 5 The like on H.C 5 3 Subpoena duces tecum for X. O. G 8 Attending at Registry with precipe, and getting subpoena signed and sealed.. .. ,. 6 8 Paid stamp and parchment . . . . ..046 1 4 Copy for service . . . . . . ..028 Service thereof .. .. .. .. ..050 3 (1 Subpoena duces tecum for F. B. .. .. 8 Attending at Registry with precipe, and getting subpoena signed and sealed 6 8 Paid stamp and parchment . . . . ..046 Digitized by Microsoft® Appendix IV. — Examples of Bills of Costs. 639 £ s. d. 1867. £ ,. d. 14 July 19. Copy for service .. .. .. ..028 Service thereof .. .. .. .. ..050 3 Subpoena duces tecum for H. G. .. .. 8 Attending at Registry with precipe, and getting subpcena signed and sealed . . . . ..068 Paid stamp and parchment . . . . ..046 14 Copy for service . . . . . . ..028 Service thereof .. .. .. .. ..050 3 Subpcena duces tecum for U. B 8 Attending at Registry with precipe, and getting subpoena signed and sealed . . .. .. 6 8 Paid stamp and parchment .. .. ..046 Copy for service. . .. .. .. ..014 Service thereof .. ..050 3 Subpoena duces tecum for D. N. .. ..080 Attending at Registry with precipe, and getting subpoena signed and sealed . . . . ..068 Paid stamps and parchment and copy for service . . .. .. .. .. S 10 Service thereof . . . . . . ... ..050 Attending inspecting defendant's documents .068 Attending signing admissions . . . . ..068 Copy plaintiff's notice to admit for signature of defendant's solicitors .. .. .. 11 8 Attending defendant's solicitors on their sign- ing admissions . . . . ■ . ..068 4 Writing to Dr. E., Mr. K., and N. C, request- ing their attendance . . .. .. .. 10 6 24. Attending consultation at .. .. 13 4 Paid for use of room . . . . . . ..050 7 8 Attending at cause in paper, hut not reached .. ■■ .. .. ..110 At request of Mr. D. attending him as to pro- posed compromise, discussing matter very fully and conferring thereon . . ..068 Attending plaintiff and informing him result of interview with Mr. D., and conferring thereon 068 7 8 25. AttendingCourt,causeinpaper,butnotreached 110 Attending Mr. D. again as to proposed com- promise, discussing various points raised by Dr. E., and conferring thereon ■ . ..068 7 8 26. Attending Court, cause in the paper, and made a remanet .. .. .. .. ..110 Term fee 15 Michaelmas Term, 1867. Nov. 13. Attending at cause appointed to be heard on the 6th December . . . . ..068 Subpcena ad testificandum .. .. .. 5 .0 Attending in the Registry and getting same signed and sealed .. .. .. ..068 Paid stamp and parchment . . . . ..046 Copy thereof for service on Mr. F. X. K. at 2 Writing agent therewith for service . . ..036 Paid his charges . . . . . . ..087 20. Refresher to Mr. D., Q.C., and clerk.. ..246 Attending him 6 8 2 9 6 Consultation fee to him and clerk .. -..2 9 6 6 8 Attending to appoint same . . . . ..068 Digitized by Microsoft® 3 1 3 6 3 1 3 6 640 Appendix IV.— Examples of Bills of Costs. £ ,. d. 1867. £ «• d- Nov. 20. Refresher to Mr. H. G. and clerk . . . . 13 6 3 4 Attending him .. .. .. .. ..068 Refresher to Mr. B. F. N. and clerk . . ..136 4 Attending him .. .. .. .. ..068 6 Consultation fee and clerk . • . . ..136 8 Attending to appoint same .. .. ..068 Refresher to Mr. K. N. I. and clerk . . ..136 4 Attending him 068 6 Consultation fee to him and clerk . . . . 13 6 8 Attending to appoint same . . . . ..068 Two subpoenas ad testificandum . . . . 10 6 8 Attending in the Registry with precipe, and getting same signed and sealed . . . . 13 4 Paid stamps and parchment . . . . ..090 Twenty- one copies for service.. .. ..220 Service thereof on N. C. . . . . ..050 Writing agents at with subpc°na for service on G. T. at .. 3 6 Paid their charges .. .. .. .. 13 6 Writing agents at with subpoena for service on B. E, .. .. .. ..036 Paid their charges .. .. .. ..087 18 Deo. 2. On receipt of letter from Mr. K., informing us that he would be unable through severe ill- ness to attend the trial of this cause on the 6th, preparing summons to postpone trial.. 5 Attending the Registrar to get same signed .. 6 8 Paid stamp ' 026 Copy and service .. .. .. ..050 Drawing affidavit in support of summons, folios 8 080 Ingrossing .. .. .. .. ..028 Paid oath 016 6 8 Attending at the Registry filing same . . 6 8 Paid stamp .. .. .. .. ..026 Copy for defendant's solicitors . . ..028 4. Attending summons at order made to postpone trial till next term, and for commission to issue for the examination of Mr. K 6 8 Attending at Registry for and obtaining order 6 8 Paid stamp .. .. .. .. ..026 Copy and service . . . . . . ..050 110 Attendance at , , , and other places, and writing to several per- sons for the purpose of discovering the address of Mr. X., a material witness, when we at length ascertained he was residing at 2 2 1S68. Jan. 2. Writing Mr. S., in reply as to examination of Mr. K 3 6 6. Writing Mr. X. in reply 3 6 7. On the receipt of letter from Mr. Q., attending Messrs. N. & M., and afterwards Mr. 1. as to attending at on Saturday to take examination of Mr. K., when Messrs. N. & M. promised to see Dr. U. and communicate with us 6 8 Digitized by Microsoft® Appendix IV.— Examples of Bills of Costs. 641 £ s. d. 1868. £ ,. d. Jan. 2. Attending Messrs. N. & M. on their informing us Dr. U. could not attend until the 20th instant, and afterwards attending Mr. I., ar- ranging appointment accordingly, and at- tending Messrs. N. informing them thereof 6 8 Writing Mr. Q., the commissioner, in reply ..036 8. Writing Mr. X. in reply 3 6 Subpoena ad test. .. ., .. ..050 Attending in the Registry and getting same signed and sealed .. .. .. ..068 Paid stamp and parchment 4 6 Copy for service on Mr. X. . . . . ..020 2 8 10 10. Journey to and long conference with Mr. X. as to this matter, and serving him with copy subpoena, engaged from 7 a.m. till I a.m. of the 11th 330 Paid railway fare, cab hire, and other expenses 4 5 13. Writing Mr. Q. for appointment .. .. 3 6 14. Service of appointment to examine Mr. K. on Messrs. N. S M '..050 Writing Mr. K. in reply 3 6 Writing Mr. Q. acknowledging receipt of ap- pointment and in reply . . . . ..036 Attending Messrs. N. & Co., enlarging time for return of commission till the 22nd inst. 6 8 Term fee 15 Hilary Term, 17. Writing Mr. Q. in reply 3 6 Attending at bespeaking original will to be forwarded to and leaving copy . . 6 8 Copy for the Registry . . . . . . ..050 Paid examining fees . . . . . . ..029 18. Writing Registrar of Probate Court requesting him to send will by ..036 16 Instructions to Mr. I. to attend examination at on Monday . . . . . . ..110 Copy order for examination for him . . ..020 Fee to him and clerk ..1100 Attending him .. .. .. .. .. l.S 4 20. Attending at when Mr. K. examined, engaged from 10 A.M. till 11 P.M. .. ..330 Paid railway fare of Mr. 1. and self and ex- penses .. . . .. . ■ . . 3 18 Two copies subpcEua ad test. .. .. ..040 Copy and service subpoena on Mr. K. ..050 The like on G.T *.. ..050 21. Attending at Registry filing examination of Mr. K 6 8 Paid 036 6 8 Attending at Registry bespeaking office copy examination .. .. .. .. ..068 29. Attending at Probate Court at cause ap- pointed for 26th February 6 8 3 6 Writing informing you thereof .... 3 6 6 8 Attending at Registry Office for and obtaining office copy, examination of Mr. K. . . . . 6 8 Paid 090 B. TT Digitized by Microsoft® 642 Appendix iv. — ji;xamples or i>ills of ijosts. 1868. Feb. 3. 4 2 8 3 4 3 4 2 2 6 8 3 4 2 2 6 8 Writing Mr. K. informing him cause ap- pointed to be heard on the 26th The lilie to Mr. X The like to G. T 10. Copy and service subpoena on N, C. . . 21. Subpoena ad testificandum Attending in the Registry and getting same signed and sealed Paid stamp and parchment Copy for service on B. E. .. .. AVriting Messrs. L. with same for service 22. Subpoena ad testificandum Attending in the Eegistry and getting same signed and sealed Paid stamp and parchment Nineteen copies for service Subpoenas duces tecum for X. O. G. . . Attending in the Registry and getting same signed and sealed Paid stamp and parchment . . Copy for service Service thereof . . Writing G. T. with post-office order for £1 . . Writing Mr. X. with post-office order for £2 Drawing proofs of Mr. X., G. T., U. T. and X. T., folios 20, and observations . . Four copies for counsel. . Do. of observations Four copies examination of Mr. K. for counsel, folios 20, each Attending plaintiff as to a proposed pre- liminary consultation with Mr. B. F. N. and Mr. K. N. I. on certain points likely to arise in the event of a compromise being again proposed, discussing same very fully, and conferring thereon, when he requested us to appoint same .. Attending Mr. B. F. N., appointing consulta- tion accordingly . . Fee to him and clerk . . Attending Mr. K. N. I., appointing tation . . Fee to him and clerk .. Attending consultation . . Refresher to Mr. D., Q.C. Attending him . . Consultation fee to him and clerk Attending to appoint same Refresher to Mr. 11. G. and clerk Attending him .. Consultation fee and clerk Attending to appoint same Refresher to Mr. B. F. N. and clerk Attending him . . Consultation fee to him and clerk Attending to appoint same Refresher to Mr. N. I. and clerk Attending him .. 3 6 3 6 3 6 5 5 6 8 4 6 2 3 6 5 6 8 4 6 1 18 5 6 8 4 6 2 5 3 6 3 6 2 I 6 8 1 6 8 1 6 6' consulta 6 8 2 9 6 6 8 1 3 6 13 4 11 13 4 2 9 6 6 8 5 10 13 4 1 3 6 6 8 5 10 13 4 1 S 6 6 8 5 10 13 4 Digitized by Microsoft® Appendix IV.— ExiVMPLES of Bills or Costs. 643 £ .. d. 1868. £ s_ d. Feb. 22. Consultation fee and clerk 13 6 3 4 Attending to appoint same 6 8 Subpoena duces tecum for H. G 5 Attending in the Registry and getting same signed and sealed 6 8 Paid stamp and parchment 4 6 ■Copy for service . . . . , . ..020 Service thereof .. .. .. .. ..050 Service of subpoena ad test, on F. M. G. .. 5 The like on I. C. 5 2 The like on X. M. at 10 The like on M. Q. at 5 The like on B. M. at 5 24. Attending consultation . . . . ..0134 2 Copy and service subpoena ad test, on S. D. at 10 The like on H. C 5 The like on K.D '..050 The like on Mrs. D 5 The like on D. X 5 The like on F. 6 The like on K.T 5 The like on Q. T 5 The like on U. T 5 The like on D.I 5 The like on X.T 5 The like on T.C 5 3 The like on S. U. St. B. at . . ..0100 The like on N. C 5 Subpoena duces tecum for U. B. .. .. 0, 5 Attending in the Registry and getting same signed and sealed . . . . . . ..068 Paid stamp and parchment . . . . ..046 Copy for service . . . . . . ..020 Service thereof . . . . . . . . ..050 Subpoena duces tecum for F. B. . . ..050 Attending in the Registry and getting same signed and sealed . , . . . . ..068 Paid stamp and parchment . . . . ..046 Copy for service . . . , , , ..020 Service thereof .. .. .. .. ..050 Subpoena duces tecum for D. N. . . ..050 Attending in the Registry and getting same signed and sealed . . , . . . ..068 Faid'stanip and parchment . . . . ..046 Copy for service . . . . . . ..020 Service thereof .. .. .. .. ..050 7 8 26. Attending Court, cause in paper but not called on 110 Clerk's attendance 10 6 On receipt of letter from Mr. D. enclosing proposed terms of compromise and request- ing to see us thereon, attending him accord- ingly, discussing same and conferring thereon 068 7 8. 27. Attending Court, cause in paper but not called on 110 Clerk's attendance 10 6 T T 2 Digitized by Microsoft® g44 Appendix 1 V . — sij}^ami--iji^s un ±ji.l,x^o kji ^^v^dj..^. £ .. d. 1868. ^ J. £ '■ ^• Feb. 27. Attending plaintiff as to terras proposed, dis- cussing same very fully and conferring thereon .• .. •• •• ..068 7 8 28. Attending Court, cause not in the paper, and attendances on witnesses requesting them not to attend till further notice . . ..110 Clerk's attendance •• 10 6 Attending searching cause list and ascertained cause in list for to-morrow . . . . ..068 Writing twenty-six witnesses requesting them to attend to-morrow . . . . . . ..210 29. Attending Court, cause called orj, but in con- sequence of only five special jurymen being in attendance, his lordship adjourned the cause to Thursday nextand ordered the jury to be resummoned . . . . . . ..110 Clerk's attendance .. •• .. .. 10 ti March' 4. On receipt of letter from Mr. D. enclosing pro- posal from Dr. E. and requesting our at- tendance at attending at accordingly, discussing terms very fully, and conferring thereon, engaged nearly three hours . . . . . . ..110 Attending plaintiff as to proposed terms and conferring thereon . . . . . . ..068 Attending Mr. N. as to certain points arising on proposed terms of compromise, discuss- ing same very fully and conferring thereon, engaged long time .. .. .. .. 13 4 Attending searching cause list . . ..068 Writing twenty-six witnesses requesting ihcra to attend at to-morrow at eleven.. .. .. .. .. ..210 5. Attending plaintiff, Mr. D., Mr. G., Mr. N. and Mr. 1. on terms of compromise and conferring thereon .. .. .. ..0134 Attending Court, cause called on, and after Dr. E. had addressed the jury, terras arranged, the will of 11th February, 1864, admitted to probate, engaged the whole day. Plaintiff's costs to be taxed as between soli- citor and client 2 2 10 6 Clerk's attendance 110 Term fee IS Easter and Trinitti Terms. 3 3 Very many attendances on plaintiff and on defendant's solicitors relative to proof of will and on various points arising in the matter, discussing same very fully and conferring thereon .. .. .. .. ..330 Paid witnesses as follows: — F. X. K. of solicitor, three days at and one day before examiner a' .12 10 B. E., of physician, eight days . . ..31 4 N. C, of domestic servant, seven days. . 5 Digitized by Microsoft® Appendix IV.— Examples of Bills of Costs. 645 £ s. d. 1868. £ J. a. ■Mar. 4i. G. T., of near groom and general servant, five days 5 K. D., of lodging-house keeper, seven days .. .. 3 10 Mrs. D., of 10 X. O. G., of solicitor, seven days ..770 H. G., of solicitor, seven days . . ..770 F. M. G., of solicitor's clerk, seven days 3 13 6 X. M., of ciiief clerk in her Majesty's Stationery Department, seven days.. .. 5 5 B. M., of seven days 3 10 H. C, of physician, seven days . . 7 7 K. T., of physician . . . . ..110 Q. T., of physician . . . . ..110 U. B., of chemist, seven days .. ..770 6 6 D. N., of solicitor, seven days . . ..770 F. B., of matron of Society, seven days . . 3 10 X. X., of inspector of agencies to an in- surance company, seven days .. .. 11 7 S. U. B., of seven days .. .. 5 50 I. C, of summoning officer at police court, seven days .. .. .. .. 1 15 S. D., of nurse, seven days . . . . 2 12 6 M. Q., of nurse, seven days .. .. 2 12 6 D. I., of commercial traveller, seven days 3 12 6 F. O., of matron to Hospital, seven days 3 10 B. E., of one day 110 D. X., of nurse, seven days .. .. 2 12 6 T. C, of nurse 5 U. T., of police Serjeant, four days . . 10 X. T., of police constable, four days . . 12 Writing Mr. K, Q., the commissioner appointed to take the evidence of Mr. F. X. K., vvith cheque for 5/. 5s., amount of his fees .. 3 6 Paid 550 Paid cab hire, ushers, and expenses of wit- nesses, eight days .. .. .. .. 10 10 2 12 6 Plaintiff's attendance, seven days .. .. 3 13 6 Attending at Eegistry paying hearing fees ..068 Paid 100 Drawing and engrossing affidavit of increase, folios 55 1 15 Paid oath 016 Copy for defendant's solicitors. . .. .. 11 8 Attending at Registry filing affidavit .. .. 6 8 Paid 026 5 Drawing bill of costs and copy, folios 125 . . ' 6 10 18 Copy for defendant's solicitors. . .. ..234 6 8 Attending for appointment to tax . . ..068 Paid Mr. U., shorthand writer . . . . 2 2 Paid taxing 650 Attending taxing . . . . . . ..330 4 4 Attendances, letters, messengers, postages, &c. in the above business and not otherwise . charged 10 10 Term fee 15 Digitized by Microsoft® 646 Appendix IV.— Examples or Bills of Costs. THE PLAINTIFF'S BILL OF COSTS. (To BE TAXED AND PAID PURSUANT TO DECREE DATED 1871). . In Her Majesty's Court of Probate. H V. S and others. £ s. d. Hilary Term, 1871. £ «. d. Jan. 5. Instructions for citation calling in probate . . 6 8 Drawing same, fo. 10 .. .. .. . . 10 Copy for Registrar . . . . . . ..034 Attending leaving same for settlement . . 6 8 Attending searching for original grant to ' S. & D 6 8 Paid 010 Attending searching for subsequent grant to Mrs. S 6 8 Paid 10 6 8 10. Attending Mr. E. and Mr. O., conferring as to their joining in proceedings, and Mr. E. was to obtain execution of necessary docu- ments 068 8 Drawing renunciation by father of right to guardianship, he being an executor of the will, fo. 8 8 2 8 Engrossing .. 028 8 Drawing election by' minors of guardian, fo. 8 8 2 8 Engrossing 028 6 8 Attending Mr. E., banding him same and con- ferring thereon, and be was to get same exe- cuted 068 13 4 Attending Mr. E., conferring as to circum- stances connected with execution of Mr. H.'s will 13 4 13 4 Attending Messrs. O. & E., conferring as to interview with Mr. T., and as to proceedings being instituted in Mr. E.'s son's name . . 13 4 6 8 Instructions to advise as to proceedings and evidence .. .. .. ., ..068 2 17 21. Drawing instructions for counsel to advise, fo. 77 3 17 15 8 Copy for counsel . . . . . . ..168 Fee to Dr. T. therewith and clerk . . ..356 Attending him 068^ 5 23. Writing Mr. I. long and special letter as to intended proceedings, and suggesting divi- sion of property by way of compromise . . 5 5 27. Writing Mr. I. long letter that it was intended to take proceedings to dispute will, and as to terms of compromise.. .. .. ..050 3 6 Perusing opinion of Dr. T. — writing Mr. I. for reply ;. ..036 Digitized by Microsoft® £ s. 13 13 6 6 6 6 10 3 6 8 5 6 6 1 1 0, 1 6 3 3 1 3 Appendix IV.— Examples op Bills 'oi^'ddsTS. d. 1871. £ ^. d. 4 Jan. 27. Attending Mr. O., conferring tliereon, and it was determined to continue proceedings, and Mr. O. was to communicate with tlie E.'s . . 13 4 4 Attending Mr, O., when he stated that Mr". B. refused to join in the proceedings, and gave instructions to apply for leave to issue cita- tion on his affidavit .. .. .. .. 13 4 8 26. Instructions for case for motion to issue cita- tion on affidavit by Mr. 6 8 Drawing same, fo. 12 12 Copy for the Court 4 Instructions for affidavit in support .. ..068 Drawing same, fo. II . . . . . . . . Oil Engrossing .. .. .. ., ..038 Writing agent to have same sworn . . ..036 Paid his charges, 6s. 8rf., 2s. 6d., 3s. 6d. ..0128 Paid filing 026 Attending thereon . . . . . . ..068 8 Attending depositing case for motion ■ . ..068 Paid 010 27. Drawing observations for brief on motion, fo. 10 10 8 Brief copy of same, and case and affidavit, fo. 32 10 8 Copy power of attorney for counsel, fo. 18 .. 6 Fee to Dr. T. and clerk with brief . . ..246 Attending him 068 81. Attending Court, order made for leave to issue citation upon filing letter containing autho- rity •. . 13 4 Instructions for affidavit by Mr. O. as to re- ceipt of letter 068 Drawing same, fo. 5 . . . . . . ..050 Engrossing .. .. .. .. ..018 Endorsing exhibit . . . . . . ..010 Writing agent to get same sworn . . ..036 Paid his charges, 6s. 8d., 3s. 6d., 3s. 6rf. .. 13 8 Instructions for affidavit to lead citation ..068 Drawing same, fo. 5 . . . . . . ..050 Engrossing .. .. .. .. ..018 Writing agent to get same sworn .. .. 12 8 Paid his charges Writing Mr. I. very long letter in reply as to form of proceedings, and in explanation of suggestion for avoiding litigation . . ..050 8 Attending Mr. U. H. E. as to evidence offered by him, and perusing his statement . . 6 8 8 Feb. 8. Attending Registrar at with affi- davit and letter and bespeaking order . . 6 8 Paid filing same .. .. .. ..050 6 Attending thereon .. .. .. ..068 6 Attending for office-copy order .. ..068 6 Paid .. 026 8 Fee to Serjeant C. with retainer . . ..136 Attending him 068 4 Fee to Dr. T., Q. C, with retainer and clerk . . 13 6 4 Attending him .. .. .. .. ..068 6 Fee to Mr. Q. with retainer 13 6 647 Digitized by Microsoft® £ s. d. 1871. 6 8 Feb. 3. 6 8 4. g48 AprteNDix IV. — Examples of J5ills of uosts. £ s..d. Attending him ... .. .. ■• ..068 Attending in Registry, finally settling draft citation .. .. .. .■ ..068 Paid fees on settling . . . . . . ..030 2 Engrossing citation, fo. 6 . . . ■ ..050 Parchment .. .. .. .. ..026 Attending filing affidavit to lead citation . . 6 8 Paid 2 6 Attending entering caveat and issuing cita- tion 068 Paid entering caveat . . . . . . ..010 Issuing citation, fee paid . . . . ..050 4 Three copies citation for service, fo. 6 each .. 10 Writing Mr. I., arranging as to serving his clients at his office, and in reply as to Mr. O.'s authority to commence proceedings . . 3 6 6. Service on Mr. T 0' 5 Certificate 026 Service on Mr. E 5 Certificate 026 7. Service on Mr. and Mrs. S 5 Certificate 026 3 6 9. Writing Mr. I. that as proceedings had been commenced the rents of the two freehold houses could no longer be allowed to be re- ceived by Mr. and Mrs. S., and suggesting an arrangement to avoid a receiver .. 3 6 3 6 Writing Mr. T. with notice that if he and his co-trustee allowed Mr. S. to continue receiv- ing rents of freeholds they would be held personally liable . . . . . . ..036 18. Attending in Registry, searching for appear- ance, and found one entered for Mrs. S. .. 6 8 Paid 10 10 Abstracting 010 3 6 22. Writing Mr. I. in reply as to further proceed- ings, and that it rested with him to deliver declaration .. .. .. .. ..036 5 4 Mar. 6. Perusing declaration . . . . . . ..068 Instructions for pleas .. .. .. ..068 Drawing same and copy . . . . ..100 Fee to Mr. Q. to settle same 1 3 13 Attending him 068 Drawing instructions for him and copy 10 9. Fee to Mr. Q. for conference on case and to settle pleas .. .. .. .. ,.016 Attending him .. .. ,. ,. ..068 Attending conference .. .. .. . . 13 4 10. Writing Mr. I., inquiring whether he had filed affidavit of scripts . . . . . . ..036 20. Attending filing pleas . . . . . . ..068 Copy to. serve .. .. .. .. ..024 Attending serving .. .. .. ..068 Instructions for affidavit as to scripts. . .. 6 8 Drawing same, fo. 5 . . . . . . ..050 Engrossing 018 Attending swearing and paid . . . . ..082 Paid filing 026 Digitized by Microsoft® 3 4 10 1 6 6 8 13 4 3 6 1 4 1 8 Appendix IV.— Examples of Bills of C'osts. 649 £ I. d. 1871. £ 5. d. Mar. 20. Attending thereon 6 8 21. Attending summons for leave for defendants to serve issue and move for directions as to mode of trial, no order made . . ..068 22. Writing Mr. I. for co-defendant's affidavit of scripts filed by hira . . . . . . ..036 4 Perusing same .. .. .. .. ..050 Perusing and abstracting replication . . ..050 Perusing and abstracting the issue . . ..034 14 Apr. 13. Instructions for brief on motion as to mode of trial 068 14 Drawing and copy brief, fo. 16 . . ..114 10 Perusing and abstracting notice . . ..010 10 Notice to annex. . 020 Fee to Dr. T. therewith and clerk . . ..246 Attending hira .. .. .. .. ..068 Term fee 15 Easter Term, 1871. Apr. 18. Attending Court, order made for trial before the Court itself .. 13 4 13 4 Maya. Attending Mr. O. on several occasions, con- ferring as to sufficiency of .evidence and ad- vising and arranging that Mr. Q,. should be consulted .. .. 13 4 16 Fee to Mr. Q. for conference upon evidence and clerk .. .. .. .. ..160 6 8 Attending him 6 8 13 4 Attending conference .. .. .. .. 13 4 6 8 8. Attending Mr. O., confening as to evidence already obtained, and as to advisability of postponing trial until I. H. could be present, which he objected to . . . . . . ..068 5 9. Preparing 3 subpoenas for witnesses .. .. 15 6 8 Attending sealing 13 4 2 6 Paid 076 Copy and service on Mrs. T. . . . . ..046 The like on Mr. X. I. E 4 6 The like on U. H. E 4 6 The like on K. K. E 4 6 The like on Mrs. N 4 6 The like on Mr. K ..046 Attending searching in Registry to ascertain probable date of trial . . . . ..068 16 12. Fee to Mr. Q. for conference on evidence and clerk 16 6 8 Attending him .. .. .- .. ..068 13 4 Attending conference when he advised that it would not be proper to have the cause heard in the absence of the plaintiff, and he advised that an application should be made to have it postponed .. .. .. .- ..0134 3 6 Writing Mr. I. in reply that notwithstanding Mr. O's letter to him, we considered our- selves as acting for the plaintiff . . ..036 3 19. Perusing notices to inspect and admit docu- ments . . . . ; . • . • ■ ..050 Attending signing admission . . . . ..068 Digitized by Microsoft® 650 Appendix IV.— Examples of Bills op Costs. & s. d. 1871. £ s. d. 1 6 May 19. Fee to Mr. Q. for conference upon further evidence of witnesses, and as to postpone- ment of hearing and clerk .. .. ..160 6 8 Attending him 068 13 4 Attending conference, and he advised that evidence vras sufficient to justify abandon- ment of application to postpone .. .. 13 4 3 6 Writing Mr. I. that application was abandoned 3 6 26 5 20. Instructions for brief on hearing .. .. 31 10 6 13 Drawing same and evidence, fo. 298 . . .. 14 18 8 6 Three copies thereof for counsel .. .. 14 18 2 12 Two copies shorthand notes of evidence of defendant S. on trial of H. V. U., fo. 52 each 2 12 6 Three copies of power of attorney, fo. 18 each 18 Fee to Serjeant C. with brief . . . . . . 55 17 8 Attending him 220 Fee to him for consultation and clerk . . 2 9 6 Attending liim .. .. .. .. ..068 Fee to Dr. T. with brief and clerk . . . . 33 2 2 Attending him 220 2 9 6 Fee to him for consultation and clerk .. 2 9 6 6 8 Attending him 068 Fee to Mr. Q. with brief 27 10 7 8 Attending him 110 Fee to him for consultation and clerk .. 13 6 3 4 Attending him 068 Attending consultation. . .. .. . . 13 4 Term fee 15 Trimly Term, 1871. May 25. Attendance in Registry ascertaining probable time of trial .. .. .. .. ..068 ,0 16 Four copies further statement of Mr. K., fo. 12 16 3 3 Attending Court cause part lieard (self and clerk) ". .. ..550 6 8 Attending instructing shorthand writer . . 6 8 26 7 Three copies transcript of 1st day's evidence for counsel, fo. 527 each . . . . . . 26 7 26. Refresher fee to Serjeant C. and clerk 2nd day 16 10 Attending him .. .. .. .. .. 13 4 2 9 6 Consultation fee and clerk .. .. ..296 6 8 Attending him .. .. .. .. ..068 11 Refresher fee to Dr. T. and clerk .. .. 11 13 4 Attending him .. .. ., .. . , 13 4 2 9 6 Fee to him for consultation and clerk .. 2 9 6 6 8 Attending liim .. .. .. ., ..068 Refresher fee to Mr. Q. and clerk .. ,. 11 Attending him .. .. .. .. .. 13 4 13 6 Fee to him for consultation and clerk . . 13 6 6 8 Attending him .. .. .. ., ..068 3 ? Attending Court, cause heard, decree made against validity of will and condemning de- fendants S. in costs (self and clerk) .. 5 5 10 Paid ushers .. .. ,. .. ..100 6 8 Attending him .. .. .. .. ..068 Paid hearing fees . . . . . . ..276 Attending in Registry paying same . . ..068 Digitized by Microsoft® Appendix IV. — Examples of Bills op Costs. 651 £ s. d. 1871. £ s. d. 1 18 May 26. Paid Mrs. T. (of ) for attendance as witness 330 1 18 Like Mr. X. L E. (of ) 3 3 LikeMr.K. (of ) 4 4 1 18 Like Mr. U. H. E. (of ) . . ..330 1 18' Like Mr. K. K. E. (of ) .. ..330 118 Like Mrs, N. (of ) 3 3 Attending bespeaking ofiBce copy decree . . 6 8 10 Paid for same 036 6 8 Attending afterwards for and obtaining same 6 8 4 6 Copy and service . . . . . . ..046 Drawing costs and copy for taxation, fo. 48 . . 2 8 Copy for other side .. .. .. .. 16 Attending filing and olitaining appointment. . 6 S Stamp on filing . . .. .. •• ..026 Notice of appointment . . . . . . ..050 Attending taxing . . . . . . ..100 Stamps on taxation . . . . . . ..140 Attending agreeing amount . . . . ..068 4 4 Extra attendances, conferences, correspondence during suit .. .. .. .. ..550 Term fee, postage, &c... .. .. .. 15 Digitized by Microsoft® Digitized by Microsoft® INDEX or FORMS TO BE ADOPTED IN THE PEINCIPAL REGISTRY OF THE COURT as nearly as the Circumstances of each Case will allow. (P. R., NoN-C.) ♦ Non-Contentious Business (P. E.) page No. 1. AfBdavit of attesting witness in proof of due execution of will or codicil, dated after the 31st December, 1837 . . 483 No. 2. Affidavitfor Commissioners of Inland Revenue.— For exe- cutors . , . . . . . . . . . . . . 483 No. 2a. Affidavitfor Commissioners of Inland Revenue. — For ad- ministrators with will annexed .. .. .. .. 484 No. 2b. Affidavit for Commissioners of Inland Revenue. — For ad- ministrators . . . . , , , , , . , , 485 No. 3. Oath for an executor . . . . . . . . . . 485 No. 4. Oath for administrator with the will . . . . . . 486 No. 5. Oath for administrator . . . . , , . , . . 486 No. 6. Probate 487 No. 7. Letters of administration with will annexed .. .. 487 No. 8. Letters of administration . . , , . . . . . . 487 No. 9. Double probate . . . . . . . . . . . . 488 No. 10. Exemplification of probate or of letters of administra- tion with will annexed .. .. ,. .. ,, 488 No. 11. Exemplification of administration .. ,. .. .. 489 No. 12. Special administration with the will of a married woman annexed . . . . , . . . . . . . . . 489 No. 13. Limited probate of a married woman's will .. .. 489 No. 14. Special administration of the rest of the goods of a mar- ried woman . . . . • ■ . . . . . . 490 No. 15. Administrsition de Bonis non .. .. .. ,, 491 No. 16. Administration bond .. .. .. .. .. 491 No. 17. Administration bond for administrators with a will .. 492 No. 18. Declaration of the personal estate and effects of a testator or an intestate .. .. .. .. .. .. 493 No. 19. Justification of sureties . . . . . • . . . . 494 No. 20. Election by minors of a guardian . i . . . . . . 494 No. 21. Renunciation of probate and administration with the will annexed •• •■ .. .. •• •• .. 495 No. 22. Renunciation of administration .. .. ., .. 495 No. 23. Affidavit for Commissioners of Inland Revenue when stamp duty is paid upon the total value of the personal estate in the United Kingdom. — For executors .. 496 No. 24. Ditto. — For administrators with will .. .. .-> 497 No. 25. Ditto. — For administrators 497 Digitized by Microsoft® 654 INDEX OP FORMS (P. E., NON-C.) Non-Contentious page Business (P. R.) No 26. Additional affidavit, and schedule for the Commissioners of the Inland Revenue when part of the personal estate consists of property in Ireland ; _ ■• *98 No. 28. Subpoena in a proceeding in common form to bring in a script m No. 29. Affidavit of handwriting .. .. • "'>" No. 30. Affidavit of plight and condition and finding .. .. oOO No. 31. Affidavit of search ^^1 No. 32. Caveat ^01 No. 33. Warning to caveat ^"2 Forms of jurat ^"^ FORMS SET OUT IN STATUTES. Administration durante absentia •• •• • • • • • • 369 Petition for appointment of executor to deceased person (21 & 22 Vict. c. 56) 4.22 Roll of petitions, &c. .. •• .. •• •• •• •• *23 Certificate by commissary clerk, &c. . . . . . • . . 423 Testament dative or confirmation, &c. . • . . . . . . 423 Testament testamentar, &c. . . . . . . . . . . . . 424 Certificate of commissary clerk, &c. .. .. .. .. 424 FORMS OF INSTRUMENTS To be adopted in the Disteict Registries as nearly as the Circumstances of each Case will allow. Kon-Contentiou8 Business (D. B.) No. 1. Notice to be transmitted by the District Registrar of application having been made to him for grant of pro- bate 503 No. la. Notice to be transmitted by the District Registrar of ap- plication having been made to him for grant of admi- nistration with the will annexed . . . . . . . . 503 No. lb. Notice to be -transmitted by the District Registrar of application having been made to him for grant of ad- ministration • . . . . . . . . . • • 504 No. Ic. Notice of the entry of a caveat in a District Registry . . 504 No. 2. Affidavit of attesting witness in proof of the due execution of a will or codicil dated after 3 1st December, 1837 .. SOt No. 3. Affidavit for the Commissioners of Inland Revenue. — For executors . . ' . . . . . . • • . . . . 505 No. 3a. Affidavit for the Commissioners of Inland Revenue. — For administrators with the will annexed . . . . . . 506 No. 3b. Affidavit for the Commissioners of Inland Revenue— For administrators .. .. ,. .. ,, .. 506 No. 4. Oath for an executor . . . . . . , . . , 507 No. 5. Oath for administrators with the will . . . . . . 507 No. 6. Oath for administrators .. ,. .. .. .. 508 Digitized by Microsoft® INDEX OF FOEMS (d. E., NON-C.) 655 !N"on-Contentiou3 • Business (B. R.) page No. 7. Probate 509 No. 8. Letters of administration with will annexed . . . . 509 No. 9. Letters of administration .. .. .. .. .. 509 No. 10. Double probate SIO No. II. Exemplification of probate or of letters of administration with will annexed . . .. ' .. ,. .. .. SIO No. 12. Exemplification of administration .. .. .. .. 511 No. 13. Special administration with the will of a married woman annexed .. .. .. .. .. .. .. .511 No. 14. Limited probate of a married woman's will .. .. 512 No. 15. Special administration of the rest of the goods Of a married woman .. .. .. .. .. .. .. 513 No. 16. Administration rfc Bonis non .. .. .. .. 513 No. 17. Administration bond .. .. .. .. ..Sit No. 18. Administration bond for administrators with the will .. 515 No. 19. Declaration of the personal estate and effects of an in- testate 516 No. 20. Justification of sureties .. .. .. .. ..516 No. 21. Election by minors of a guardian .. .. .. .. 517 No. 22. Renunciation of probate and administration with the will annexed .. .. .. .. ,. .■ 517 No. 23. Renunciation of administration .. .. .. ..518 No. 24. Affidavit for the Commissioners of Inland Revenue, when stamp duty is paid upon the total value of the personal estate in the United Kingdom. — For executors . . .. 518 No. 25. Ditto. — For administrators with the will .. .. .. 519 No. 26. Ditto. — For administrators 520 No. 27. Additional affidavit and schedule for the Commissioners of Inland Revenue, when part of the personal estate consists of property in Ireland .■ .. .. .. 521 No. 28. Affidavit of handwriting 522 No. 29. Affidavit of plight and corvdition and finding . . . . 523 No. 30. Affidavit of search 523 No. 31. Caveat 524 Forms of jurat .. .. .. •• .. .. .■ ■• 525 FORMS IN THE COUNTY COURT To be followed as nearly as the Circumstances of each Case will allow. (N.B. — Business in the County Court is always Contentious.) Form A. Application to a County Court for 'proceedings to be taken under C. P. A. 1857 526 Form B. Notice from Registrar of County Court of proceeding to plaintiff or defendant 526 Form C. Notice from Registrar of County Court for production of documents .■ •■ • •• ■■ •• ■■ 526 Form D. Certificate by Registrar of County Court of decree .. 527 Form E. Order for payment of costs 527 Digitized by Microsoft® 656 INDEX OF FORMS (C. B.) FORMS IN CONTENTIOUS BUSINESS (C. B.), Which are to be followed as nearly as the Circumstances of each Case will allow. Contentious Business. TkG^ No. 1. Citation to see will proved . . .. .. .. .. 528 No. 2. Citation to bring in probate .. .. .. .. 528 No. 3. Citation to bring in administration.. .. .. .- 529 No. 4. Citation- to see proceedings .. .. .. .. •• 530 No. 5. Praecipe for citation .. .. -■ .. ■■ •• 530 No. 6. Declaration . . . . . . . . • . • ■ . . 530 No. 7. Declaration in an interest cause .. .. .. .. 531 No. 8. Plea 531 No. 9. Plea in an interest cause .. .. .. .. ..531 No. 10. Affidavit of scripts 532 No. 11. The issue .. 532 No. 12. Notice as to mode of trial .. .. .. .. .. 533 No. 13. Record 533 No. 14. Record in case of party cited not appearing . . . . 533 No. 15. Form of questions for the jury .. .. .. .. 534 THo. 'iQ.^iu'h-ptEnSi ad testificandum .. .. .• .. .. 534 No. 17. Subpoena rfaccs /ecwm .. .. •■ .. .. 534 No. 18. Praecipe for subpcena orf fesii^conrfaiB .. •• .. 535 No. 19. Praecipe for subpoena rfuces ^ecum .. .. .. .. 535 No. 20. Notice to admit documents . . .. .. .. .. 535 No. 21. SubpcEna to bring in script decreed by the Court .. 536 No. 22. Subpoena to a witness to be examined touching a testa- mentary paper, of which he is supposed to have know- ledge 536 No. 23. Praecipe for subpoena to briijg in script . . . . . . 537 No. 24. Praecipe for subpoena to a witness to be examined touching a testamentary paper, of which he is supposed to have knowledge.. .. .. .. .. .. .. 537 No. 25. Entry on the record of a verdict .. .. ,, .. 537 No 26. Entry on the record of a judgment .. .. ., 538 No. 27. Inventory 538 No. 28. Petition 538 Answer . . . . . . . . . . . ; . . 539 No. 29. Notice of appeal 539 No. 30. Bond to be executed by a receiver of real estate pending suit 539 Order on summons for commission to examine witnesses .. .. 541 Commission to examine witnesses . . . . . . . . . . 543 Digitized by Microsoft® INDEX. ABATEMENT, 297. death after hearing and before judgment, 298. ABOLITION of the ecclesiastical jurisdiction, 1. ABSENCE of executor, administration (will annexed), 152. form of (Appendix I.), 369. of executor or administrator, administration during, 22S. to whom granted, ift. representative of legatee, ib. to new trustee, 226. to attorney, ib. determination of, ib. ABSTRACT of citation, to be advertised as settled by Registrar (Rule 70), 437. ACCEPTANCE of grant by party cited, 138. ACCOUNT, condition of administration bond to, 197. power of Ordinary to call administrator to, 210. ACKNOWLEDGMENT of signature by testator, 67. ACT on petition, 293. distinction between it and regular suit, 294. proceedings on, ib. evidence on, 295. Rule 64 (C. B.), et seq. as to, 486. form of petition and answer (C. B., No. 28), 538, 539. ACTUAL hour of signing will, need not be specified, 282. military service, what is, 77. ADDING plea, 297. ADDRESS, for service of pleadings, 286. in praecipe to citation ( Rule 17, C. B., Appendix II.), 470. in appearance (Rule 27, C. B., Appendix II.), 471. ADHERENCE, shows will not contingent, 13. ADMINISTRATION, Simple, 162. form of, ib. to whom granted, 163. to " next and most lawful friends," ib. Ordinary's discretion, 164. disqualification for office, ib. minor, ib. married woman, ib. B. UU Digitized by Microsoft® 658 INDEX. ADMINISTRATION, Simple— eoBK«Merf. to attorney of married woman, 165. to assignee of married woman, ib. to nominee of married woman, ib. renunciation by wife inoperative on husband, 166. to lunatics, ib, to aliens, ib, to bankrupts, ib. to felons, 167. order of preference of next of kin, ib, next of kin means at the time of death, ib. to husband, 168. to husband's representatives, ib. when to wife's representatives, ib. when husband does not alter property, 169. when husband dies without administering wife's property, 170. when husband passed over, ib. non-community of property, ib, having deserted wife, ib. when wife, has obtained protection order, ih. when divorced by wife, 171. when felon, ib. to widow, ib. when widow passed over, 172. divorced, ib. adulterous, ib. joint grant to widow and person entitled, refused, ib. grant may be to widow or next of kin, 173. next of kin has equal right with widow, ib. discretion of Court, ib. to children, ib. descending line preferred, lb. primogeniture gives no right, ib, to other next of kin, 174. primo petentif ib. sole administration preferred, ib. joint grant refused, ib. male preferred, ib. majority of interest preferred, ib. to nominee of next of kin refused, 175. next of kin preferred to creditors, ib. half blood, ib. guardian of minor of whole blood preferred to half blood, 176. to crown nominee, ib. when intestate, a bastard, ib. when no relation known, 177. when deceased a felon, 178. to creditor, ib. his right, ib. cannot dispute articles of will, ib. who is a creditor, 179. debt accruing after death, ib. when barred by Statute of Limitations, ib. secretary of association, ib. guardians of minor, ib. husband of deceased creditor, 180. creditor's mortgagee, ib. creditor's official assignee, ib. to assignee of residuary legatee, 181. Digitized by Microsoft® INDEX. 659 ADMINISTRATION, Simple-continued. to nominee of creditors, 182. to creditor guardian to minors, ib, limited administration to creditor, ib. affidavit of date of debt, 183. advertising citation by creditor, ib. to party without interest, 184. to attorney, ib. if resident abroad sureties must be within jurisdiction, 185. or in Scotland, ib. regularly-executed power not required, 186. where party able to take grant himself, ib, section 73, C. P. A. 1857, ib. to what cases it applies, 187. must not be party entitled, ib. to stranger, ib. deeds to be brought into Registry, ib. to father in law of party entitled, 1 88. to residuary legatee or nominee of, 189. to son of party entitled, ib. to sister of deceased, ib. to nominee of party entitled, ib. to creditor, 190. affidavit in support, ib. Court may not change nature of grant, ib. when granted, 191. property perishable, ib. special circumstances, ib. one party abroad, rest minors, ib. party entitled, a pauper lunatic, 192. deceased a foreigner, ib. where power of attorney insufficient, 193. to follow foreign grant, 194'. renunciation of, ib. effect of, ib. when to be granted, 195. not before fourteen days, unless by leave, ib. or after three years, without explanation, ib. certificate of reason of delay, ib. how granted, ib. practical directions, 196. where will in existence but testator insane, ib. description of deceased, ib. ADMINISTRATION BOND, under old practice, 197. conditions, ib. inventory, ib. to administer, ib. to account, ib. to pay residue, ib. to exhibit will (if any), ib. taken in name of Ordinary, ib. new practice as to old bonds, 198. enactment not retrospective, 199. new practice as to bonds since C. P. A. 1857, ib. conditions of, 200. penalty, ib. execution of, ib. U U2 Digitized by Microsoft® 660 INDEX. ADMINISTRATION BOHD—cotitinued. new practice as to bonds since C. P. A. lS57—continueil. cannot be dispensed with, 200. more than one bond, 201. nominal penalty, ib. property in Ireland, ib. sureties (see Sureties), amount, 202. who may demand thera to justify, 203. dispensed with, ib. not dispensed with, 204. must be in England, ib. when resident in Scotland, ib. substitution of, ib. assignment of bond, 205. rule nisi, ib. assigned on condition, ib. two bonds, 206. delivered out to be cancelled, iU. form of (P. R., Non-C, No. 16), 491. (D. R., No. 17), 514. form of, for administration will annexed (P. R., Non-C, No. 17), 492. (D. R., No. 18), 515. ADMINISTRATION AD COLLIGENDUM {see Limited Grants'),192. to whom, 240. when, ib, ADMINISTRATION CESSATE or supplemental, 242. save and except, ib. ctsterorum, 241. ADMINISTRATION DE BONIS NON, 217. chain of representation, ih. merely administering without proving, 219. traced through /eme covert, ib. to whom, 220. representative of residuary legatee, ib, not to largest interest, 221. to representative interest, 222. right of husband, 223. joint, ib. to legatees, 224. form of (P. R., Non-C, No. 15), 491. (D. R., No. 16), 513. ADMINISTRATION, JOINT, not made if it can be avoided, 174. sole administration preferred, ib. ADMINISTRATION LIMI lED (see Limited Grants), 214. three kinds — 1st, in estate, 215. 2nd, in time, 224. 3rd, to a particular object, 237. ADMINISTRATION PENDENTE LITE (see Limited Grants), 232- when granted, ib. what administrators pendente lite are, 234. to whom granted, ih. remuneration to, 236. powers of, ib. determination of grant, 241. Digitized by Microsoft® INDEX. 661 ADMINISTRATION (save and except), 242. ADMINISTRATION (will annexed), 150. in what cases granted, 151. will lost, ill. no executor known, ib. executor not appointed, ib. executor bankrupt or absent, 152. executor dying or refusing-, ib. executor not appearing or renouncing, ib. to whom granted, 153. to largest interest, 154. direct interest preferred, ib. to residuary legatee (see Residuary Legatee), 155. to representative of residuary legatee, ib. to residuary legatee establishing will, 158. to unsuccessful opponent of will, ib. residuary legatee for life, ib. to assignee of residuary legatee, 159. to nominee of party entitled to appoint, ib. to trustee, 160. to widow and next of kin, ib. to executor oifeme covert, ib. to creditor undertaker, ib. to attorney, 161. to attorney of married woman, ib. not granted to attorney, when party in England, ib. when granted, after three years, delay to be accounted for, ib. not before seven days, 162. Statutes of Distribution do not extend to, 212. ADMINISTRATION (will annexed) limited (see Limited Grants). limited to money due on promissory note, 152. limited to assets in the jurisdiction of W., 158. granted to representative of legatee, executor being absent, 159. ADMINISTRATION OF OATHS (see Oaths). who are commissioners to administer, 2, 383. ADMINISTRATOR, power and duty of, 206. when it commences, ih. to bury deceased, 207. to take out probate, ib. to exhibit inventory, ib. who may demand, 208. residuary legatee, ib. creditor, 179, 208. to collect estate, 208. to pay debts, ib. order of, ib. when death before 1870. .209. when since 1869, ib. retainer, ib. payment of legacies, ib. distribution of estate, ib. Digitized by Microsoft® 662 INDEX. ADMINISTRATOR— cmiJBMcd. pendente lile, 232 (see Limited Grants). in v9hat cases grant made, ib. what he is, 234'. to whom granted, ib. remuneration to, 236. powers of^ ib. determination of grant to, 241. identity of, when to be proved. Rule 48 (P. R., Non-C), 435. Rule 59 (.D. R.), 453. oath of, 195. form of (will annexed) in Principal Registry, 486. in District Registry, 507. form of oath of simple administration in Principal Registry, 486. in District Registry, 5Q8. affidavit for inland revenue, 195. Court not restricted by, 247. when mistake in, 248. forms of (Appendix II.), 497, 498. order on, to pay costs, 327. ADMIT, notice to, form of (C. B., No. 20, Appendix II.), 535. Rule 72 (C. B., Appendix II.), 477. ADVANCEMENT of child by portions, 211. ADVERTISEMENTS, of citation by creditor applying for administra- tion, 183. service of citation by, 274. ADVOCATES admitted to practise in Probate Court, 2. AFFIDAVIT, who are commissioners to take, 2, 383. rules affecting Rules 51—58 (P. R., Non-C, Appendix II.), 436. Rules 80—86 (C. B., Appendix II.), 479. Rules 64—71 (D. R., Appendix II.), 454. forms of (see List of Forms'), 653. before whom sworn, 300. abroad, ib. of administration, with will annexed, 162. in support of application under 73rd section, 190. description of executrix in, 301. title of, in contentious business, ib. to lead citation, 269. by whom made, 270. of service of citation, 277. of search and non-appearance, ib. of scripts, 280. form of, ib. pencil writing, ib. omission in, no ground for costs, 334. Rules 30, 31, 32 (C. B., Appendix II.), 472. may be read at hearing, 314. AFFIRMATIONS, may be made (C. p. A. 1857, s. 24), 377. may be administered by Registrar, &c. (C. P. A. 1857, s. 27), 378. in-the Isle of Man (C. P. A. 1858, ss. 30, 32), 413, 414. in foreign parts (C. P. A. 1858, ss. 31, 32), 414. penalty if false (C. P. A. 1858, s. 34), 416. Digitized by Microsoft® INDEX. 663 AGE raises doubt of capacity, 30. what authorizes issue of commission to examine, 301. AGENT, service of citation on, 274. ALIEN, - friend, may make will, 40. afiter alien enemies, ib. unless the crown licences to reside, ib. may be administrator, 166. ALTERATION in grants, 243. by Judge, ib. by District Registrar, ib. when grant obtained by fraud, 244. in amount sworn under, ib. in wills, 120. distinction between wills before and after Wills Act, ib. when operative, 121. in wills before Wills Act, ib. in wills after Wills Act, ib. what are, 122. where no explanation, 123. alteration and re-execution, 125. (See Interlineations, Erasures.) AMBASSADOR, his certificate, evidence of the law of his country, 312. AMBIGUITY, in form of instrument, 8, evidence to be supplied dehors, ib. on face of paper, lets in evidence, 309. what is, 310. AMENDMENT, power of Court, 296. of citation, ib. of pleas, ib. before or at trial, 297. of grant of probate, 148. of declaration, costs, 337. of pleading. Rule 42 (C. B.), 474. AMOUNT of penalty to administration bond, 200. of sureties, 202. of estate in oath of representative, 246. when resworn. Rule 72 (P. R., Non-C), 438. ANIMO TESTANDI, proof of, 9. ANSWER, to petition, 294. see Form (C. B., No. 28), 539. Rule67(C. B.), 477. APPEAL, 322. Rules 87, 88 (C. B.), 479, 480. form of notice of, 539. from County Court, 322. C.P. A. 1857, s. 58.. 387. to House of Lords, C. P. A. 1857, s. 39. .382. form of notice of(C. B., No. 28, Appendix II.), 539. Digitized by Microsoft® 664 INDEX. APPEARANCE, to warning of caveat, 267. when entered, 268. who may enter, 277. directions for entering:, 278. party not appearing condemned in costs, 329. APPEARANCES of testamentary paper (see Interlineations, ^e.). Rule 24 (P. R., Non-C), as to, 432. Rule 29 (D. E,), as to, 448. APPOINTMENT, power of, in married woman, 55. will under, 42. of executors nominate, what is, 129. delegated, 131. suhstituted, ib. succeeding, 132. of executor according to tenor (see Executor), 133. APPRAISEMENT of estate. Court not restricted to oath of applicant, 246. ARREARS of pay, &c. of soldiers and sailors (see Payments without Grant), 43. ASSENT of husband to wife's will, 36. ASSETS, where situate, 46. ASSIGNEE of residuary legatee (will annexed), administration to, 159. of married woman, administration to (will annexed), 165. offlcial, of creditor, 180. of residuary legatee, 181. of bankrupt, deceased abroad, ib. security for costs, when appearing in suit, 340. ASSIGNMENT of administration bond, 205. ASSIZES, motion for trial at, 291. when trial allowed at, 291, 315. must be tried by jury at, 292. issue directed to, 314. writ of summons for, 315. form of writ, 316. practical directions as to, 316, 317. notice of trial, ib, by proviso, ib. postponement of trial, 318. bill of exceptions, 319. postea, 321. costs when judge satisfied with verdict, 336. ATTACHMENT for contempt (see Enforcing Orders), 323. against married woman, 324. on subpoena to bring in will, ib. personal service of order, 325. ATTAINDER, its effect on testamentary capacity, 39. Digitized by Microsoft® INDEX. 665 ATTESTATION, no form necessary, 64. to will required by Wills Act, ib. signature of testator among words of, 64, 69. clause when insufficient, 72. where none, 145. or insufficient, 146. rules as to, Rules 4, 8rc. (P. R., Non-C), 429. Rules 6, &c. (D. R.), 445. ATTESTING witness (see Witness— 'Evidence). before 1838 not required to wills of personalty, 58. when only one, with plural attestation clause, 6S. since 1837 essential, with exceptions, 64. name of, preceding testator's signature, 69. signature of, 7 1 . " in the presence of," 72. not essential to wills of soldiers or sailors, 76. ATTORNEY, administration (will annexed) to, 161. to attorney of married woman, ib. when refused to, 165. when granted to, ib. husband refusing consent, ib. simple administration to, 184. when resident out of jurisdiction, 185. power of, when insufficient, remedy under .73rd section, 193. ATTORNEYS and Solicitors, have power to practise in Probate Court, 2. his lien for costs, 341. AUNT, administration to, 167. succession duty payable by, 247. AUTHENTICATED copies of will proved, 119. must be evidence of its existence at date of testator's death, 120. not granted on motion, ib. BANKRUPT, administration (will) granted, when executor, 152. may be administrator, 166. though not preferred, ib. quaere when required to give security for costs, 340. BARRISTERS admitted now to practise in contentious matters, 2. motions must be made by, ib. BASTARD'S intestate effects, practice of the Crown in administration of, 176. BEGIN, right to, 314. " BESIDE " end of will testator's signature, 64. what is, 70. BILL of exceptions, will not lie in issue directed, 320. BIRTH of child, revocation of will made before 18-38. .80. BISHOP, former jurisdiction of, 1. BLANKS, probate of a will with, 127. Digitized by Microsoft® 666 INDEX. BLIND, will of, 30. rules with regard to, Rule 71 (P. R., Noti-C), 438. Rule 81 (D. R.), 455. BOND, AdministratioD, 197. form of (Appendix II.), 491, 514. conditions of, 197. to administer, ib. to account, ib. to pay residue, ib. to exhibit will (if any), ib, former practice, ib. new practice as to old bonds, 198. practice as to present bonds, ib, penalty, 200. execution of, ib, cannot be dispensed with, ii. more than one, 201. nominal penalty, ib. property in Ireland, ib, sureties (see Sureties), 202. amount of, ib, who may demand sureties to justify, 203. forms of (Appendix II.), 494, 516. dispensed with, 203. not dispensed with, 204. must be in England, ib. resident in Scotland, ib. substitution of, ib. assignment of bond, 205. rule nisi, ib. assigned on condition, ib, two bonds, 206. delivered out to be cancelled, ib, husband of administratrix refusing to join in, 165. of receiver of real estate, 236. form of (C. B., No. 30), 539. BRITISH subjects, will of, made abroad, 54. BROTHER, administration to, 167. succession duty payable by, 247. BURNING, revocation of will by, 82, 91. BURY deceased, duty of representative to, 207. CjETERORUM, grants (see Limited Grant). what are, 241. CANCELLATION, of revoked grants, 244. of administration bond, 206. CAPACITY for making will, 17. defective by nature, or circumstances, 18. by act of others, 31. by law, 35, CASE for motion, 295. Digitized by Microsoft® INDEX. 667 CAVEAT defined as non-contentious business, 4. entered by heir-at-law, a nullity, 254. commencement of a cause, 261. not necessarily contentious, 262, by whom and where entered, ib, what for, 86. rules applying to P. R., Non-C, Rule 59.. 436 ; D. R., Rule 72.. 455. form of (Appendix II.), 501, 524. date, 264. commencement and duration of, ib. caveat book, ib. practical directions for entering, ib. effect of, 265. who may enter, ib. by person without interest, ib. mere entry of, ib. how long in force, ib. expiration of, ib. directions for warning, 266. what is warning, ib. effect of not warning, 267. warning by whom served, ib. how warned, ib. appearance to warning, ib. where entered, 268. CERTIFICATE of delay, in applying for probate, 142. for administration (will annexed), 161. for simple administration, 195. CERTIFICATE of further security (see 55 Geo. 3, c. 184, ss. 40 and 41). CESSATE grants, 242. what are, ib. CESTUI QUE TRUST, when probate granted to, 249. CHAIN of representation (see Limited Grant, Be bonis), 217. estate only transmissible when one survivor, ib. executor who has taken out probate, 218. executor of executor, ib. mere administering without proving, insufficient, 219. traced through feme covert, ib. when broken, 220. CHARACTER, renunciation in one, renunciation in all, 138. CHILDREN, administration to, 173. stand in first degree, ib. preferred to the ascending line, ib. equal, primogeniture gives no preference, ib. distribution of intestate estate, no child, 212. no wife, ib. no wife, or child, ib. CHRISTMAS-DAY, not reckoned in computation of time, 286. Rule 91, C. B., Appendix 11., 480. CHURCH, its jurisdiction, 1. Digitized by Microsoft® 668 INDEX. CITATION, forms of (Appendix II., C. B., Nos. 1, 2, 3, 4), 528, 529, 530. advertisement of, by creditor applying for administration, 183. commencement of suit, 261. generally, 268. what is, ib, various kinds of, 269. affidavit to lead, ib. by whom affidavit made, 270. to prove vfill, ib. to bring in grant, ib. against whom, 271. by whom, ib. exeoutor'intermeddling, ib. preEcipe for, 272. form of prescipe for (Appendix II.), 530. practical directions for issuing, 272. dispensing with service, ib. service of, 273. [ citee resident in Great Britain or Ireland, ib. personal service of, ib. service impossible, ib. citee resident out of Great Britain or Ireland, ib~ on agent, 274. by advertisement, ib. on married woman, ib. on minors, ib. solicitor cannot accept service for infants, 275. party in charge of infant, refusing, ib. on lunatic, 276. by whom, iJ>. indorsement of service, ib. procedure after service, ib. return of, ib. affidavit of service, 277. CITED, parties to be, 253. CIVIL servants, deceased, payments to parties entitled, without grant, 46. CLAMOUR and noise, 31. CLERGY, former jurisdiction of, 1. CLERKS (counsel's), fees of, 689. CO-ADMINISTRATORS, and co-executors, distinction between, 174. CODICIL, revocation by, 84. effect of revocation of will on, 95. COERCION avoids will, 31. COLLECT estate, duty of representative to, 208. COLLIGENDA BONA, AD, administration (see Limited Grants), 240. COLLUSION, ground for revoking probate in solemn form, 101. COMITY of nations, 48. how far the Court is bound to follow the judgment of the Court of Domicil, 49. Digitized by Microsoft® INDEX. 669 COMMENCEMENT of cause, 261. of contentious business, 218. Rule 12, C. B., 469. of caveat, 261. COMMISSION for the examination of witnesses, 304-. names to be set out, ib. grounds for, ib. when party to suit dies, ib. form of (Appendix II.), 543. of lunacy, how far evidence, 19. COMMISSIONERS for taking oaths, 2. all commissioners in Chancery are, ib. of inland revenue, forms of affidavit for (P. R., Non-C, Nos. 2, 2a, 2b), 483, 484, 485 (D. R., Nos. 3, 3a, 3b), 505, 506. do. when duty paid on total value in United Kingdom (P. R., Non-C, Nos. 23, 24, 25), 496, 497. do. (D. R., Nos. 24, 25, 26), 518, 519, 520. do. when part of property in Ireland (P. R., Non.-C, No. 26), 498. do. (D. R., No. 27), 521. COMMITTEE of lunatic, party to suit, 260. COMMON form business defined, 3, 4. probate granted in, 102. COMPROMISE, 299. hefore trial, ib. CONDITIONS of administration bond (see Bond), 197, 199, 200. administration bond assigned on, 205. CONFIRMATION and Probate Act, 21 & 22 Vict. c. 56 (Scotch Con- firmations), 55. Appendix I., 417. CONSANGUINITY, degrees of, 167. CONSTITUTION of Court, 2. CONTEMPT, when party obeys in part, 279. if waived, party in, not precluded from appeal, 323. attachment for, 324. against married woman, ib. on subpoena to bring in will, ib. personal service of order, 325. CONTENTIOUS business defined, 4. vested in Court of Probate, 2. procedure, 248. commencement of, ib. parties (see Parties), ib. who may prove, 249. executors and others, ib. who may put executors, &c. on proof, ib. next of kin and others, 250. interveners, ib. interest must be shown, 251. legatee in separate paper, ib.^ creditor, ib. Digitized by Microsoft® 670 INDEX. CONTENTIOUS BVSmESS— continued. not barred by lapse of time, 252. or receipt of legacy, 253. parties to be cited, ib. widow and next of kin, ib. heir at law, devisees, &c., ib. when to be cited, 254. heir at law, 255. when to be cited, 256. devisees, ib. Queen's proctor, ib. all persons interested, ib. legatees, ib. creditor, 257. married woman, ib. minors, 258. infants, ib. guardian of minors, 269. of infants, ib. lunatics, 260. form^ pauperis, ib. plaintiff and defendant, 261. change positions, ib. commencement of cause, ib. caveat (see Caveat), 262. citation (see Citation'), 268. praecipe (see Pracipe), 272. practical directions for issuing citations, ib. appearance (see Appearance), 277. practical directions for entering, 278. non-appearance, effect of, ib. affidavit of scripts (see Affidavits, Scripts), 280. pleadings (see Pleadings), 281. declaration (see Declaration,) 285. plea (see Plea, Pleading), ib. further pleadings (see Pleading), 286. demurrers (see Demurrer), ib. issue (see Issue, Pleadings), 287. interest causes (see Interest Causes), ib. practical directions, 289. mode of trial (see Mode of Trial), ib. record (see Record), 292. setting down for trial (see Trial), ib. act on petition (see Act on Petition), 293. motions (see Motions), 295. practice in, ib. summons (see Summonses), 296. amendment (see Amendment), ib. abatement (see Abatement), 297. staying proceedings (see Staying Proceedings), 298. compromise (see Compromise), 299. evidence (see Evidence, Witness), 300. trial (see Trial), 313. County Court (see County Court), 321. new trial (see New Trial), 322. rehearing (see Rehearing), ib. appeal (see Appeal), ib. enforcing orders (see Enforcement of Orders), 323. costs (see Costs), 326. Digitized by Microsoft® INDEX. 671 CONTENTS of will prtved, 119, 120. must be known to testator, 28. evidence of, ib. when knowledge of testator presumed, 27. CONTINGENT WILL, what is, 12. adherence to, 13. on assent of party, 15. test of, ib. COPY, of lost will, proved, 119, 120. will, incorporation of, 104. CORONER, his inquest not conclusive, 39. corroborative circumstances of unsigned will before 1838.. 60. CORPORATION, executors, 129. grant made to syndic, ib. COSTS, 326. taxation of, ib. County Court, ib. who may be condemned in, ib. feme covert, 327. administrator, ib. executor, ib. heir-at-law, ib. successful party, 328. party not appearing, 329. pauper, ib. who entitled to, ib. heir-at-law or legatee, ib. out of estate, ib. intervener, 330. general principles, ib. heir-at-law, ib. successful party, 331. doubtful question of law, ib. reasonable ground for contest, 332. object of suit, ib. must be asked for at time of decree, ib. when no costs granted, 333. omission in affidavit of scripts, 331. concealment desired by testator, ib. false information, 337. Rule 41, ib. (and Appendix II.), 474. when party condemned in, 338. delay and false charge, 339. security for, 340. party residing abroad, 341. after delay, ib. attorney's lien for, ib. table of, in non-contentious business (P. R. and D. R.), 576. in contentious business (C. B.), 586. for use of other persons, 589. in County Court, 591. examples of bills of, 597. Digitized by Microsoft® 672 INDEX. COUNTY COURT, jurisdiction of (C. B.), 32f. rules relating to, 461. costs in, 589. taxed in principal Registry, 326. ' forms to be used in (Appendix II.), 526, 527. COURT OF PROBATE, constitution of, 1. jurisdiction transferred to, 2. COURT OF PROBATE ACT (C. P. A. 1857), 372. (C. P. A. 1858), 409. CREDITOR, administration (will annexed) granted to undertaker, 160. cannot take grant if entitled as next of kin, 178. his right, ib. if estate insolvent, ib. cannot dispute articles of will, ib, entitled to inventory, 179. who is, ib. debt accruing after death, ib. barred by Statute of Limitations, ib. poor law guardians, 180. husband of deceased, ib. mortgagee of, ib. official assignee of, ib. nominee of, 182, guardian to minors, ib. limited administration to, ib. affidavit of debt, ib. advertising citation, ib. not entitled to contest administration granted, 251. nor oppose grant of probate, according to tenor, ib. not to be cited in proving will, 257. aliler, if he have a grant already, ib. CROSS-EXAMINATION of witnesses' costs, 337. see Rule 41 (C. B.), 474. defendant may require attendance of both attesting witnesses, 338. notice of, must be delivered with plea, 339. may set up that defendant did not know contents of will, ib. CROWN, administration when granted to, 176. its practice, when intestate a bastard, ib. CUSTOMS of London, York, &c. abolished, 211. DATE of debt, affidavit of, in granting administration to creditor, 183. of caveat, 264. DEAF, will of, 29. DEATH must he the event to effectuate a will, 6. place of testator's death, 49. estate administered by court, 50. date of, properly omitted from confirmation, 57. presumption of, 306. no presumption of date of, ib, after two years, 307. after one year, ib. (See Evidence, Presumption.) Digitized by Microsoft® INDEX. 673 DE BONIS NON, 217 (see Limited Grant, Chain of Representation). chain of representation, 86. difFerence between executor and administrator, 218. mere administering without proving, 219. traced thro ugh /eme'couer^, ib. to whom granted, 220. representative of residuary legatee, ib, not to largest interest, 221. to representative interest, 222. to husband, 223. joint grants of, ib. forms of, Appendix II. (P. R., Non-C, No. 15), 491. (D. R., No. 16), 513. DEBT (see Creditor), accruing after death, constitutes creditor of de- ceased, 179. when barred by Statute of Limitations, ib. costs of maintenance of deceased in union, how far a, 180. to pay, duty of representative of deceased,' 208. order of, ib. where death before 1870.. 209. death since 1869, ib. appearing after distribution, parties to refund, 212. affidavit of date of, 183. DECLARATION, of personal estate of intestate, form of (P. R., Non-C, No. 18), 493. (D. R., No. 19), 516. of testator, must accompany destruction of will, 97. otherwise inadmissible, 98 (see Dependent relative Revocation, and Revocation). to show when erasure made, 125. when evidence, 312. generally, 285. will must be always propounded in, 261. Rule 33 (C. B.), 472. defendant sometimes files, 261. delivery of (Rule 34, C. B.), 472. form of (No. 6, C. B.), 530. in interest cause (No. 7, C. B.), 531. amendment of, costs, 337. in case of default (Rule 36, C. B.), 472. DECREE (see Enforcing Orders, Ifc), 323. in default of appearance, 279. DEED, revocation by, of will made before 1838. .81. incorporation of, in will, 115. must be specified when will made under power, ib. relaxation of rule, 116. must be brought into Registry when application under 73rd section, 187. DEFAULT, proceedings by, 278. effect of, ib. DEFENDANT (see Parties). sometimes files declaration, 261. where several, one only heard, 314. DEGREES of next of kin in obtaining administration, 167. of relationship in distribution^ 213. B. XX Digitized by Microsoft® 674 INDEX. DELAY in applying for probate to be accounted for, 142. in applying for administration, will annexed, 161. when ground for condemning in costs, 339. DELEGATED appointment of executor (see Executor), 131. DELUSION (see Insanity). DEMUERER, 286. party not joining in, ib. Rule 56 (C. B.), Appendix II., 476. DENOTING STAMP, 41 Geo. 3, c. 26, =. 3. .144, 246. DEPENDENT relative revocation, 96. declarations of testator made at the time admissible, 97. aliter, if subsequent, 98. DEPOSITION (see Interrogatories, Commission). DEPOSITOR in savings banks, payments to, without grant, 45. seamen, 44. illegitimate, 45. DESCRIPTION of deceased, in obtaining administration, 196. in affidavit, 301. DESTROYED WILL, in propounding, necessary to set out date if possible, 282. DESTRUCTION, revocation by, of will made before 1838. .81. of will made since 1838. .82, 91. must be unconditional, 97. presumption of, 311. DEVISEE, when to be cited in proving in solemn form, 253. when he must be cited, 256. DEVISES of land made before 1838, how revoked, 81. DIRECTIONS for describing testators and intestates and parties apply- ing for probate and administration, 466. * practical, for entering caveat, 264. for warning caveat, 266. for issuing citation, 272. for entering appearance, 278. in interest suits, 289. for obtaining special jury, 313. motion for, 289. when made, 290. who may make, ib, separating issues, 291. for assizes, ib. DISCOVERY of documents, 303. DISCREDITING witness, 305. DISPENSING with service of citation, 272. Digitized by Microsoft® INDEX. 675 DISQUALIFICATION for executor, 128. for administrator, IG*. as minor, ib. married woman, ib. lunatics, &c., 166. aliens, ib. bankrupts, ib, folons, 167. DISTRIBUTION, suits for, exempted from jurisdiction of Probate Court, 2. of estate by representative, 209. power of Ordinary to call administrator to make, 210. of surplusage of intestate estate, 211. child advanced by portion, ib. heir at law, ib. if no children, 2] 2. no wife, ib. no wife or child, ib. , not till after a year, ib. if debts afterwards appear, parties to refund, ib. not to extend to grant {testamento annexo), ib. degrees of relationship in, 213. order of, ib. DISTRICT registrars, 1. their districts, 407. rules for, 494. directions to, in cases of difficulty, 4. DISTRICT registries, Appendix II., rules, &c. for, 444. personal applications to, 459. forms in (D. R.), 503. fees in (D. R.), 558. additional fees on personal applications (D. R.), 565. costs in (D. R.), 576. DISTRICTS, Appendix I., 407. DIVORCED woman, passed over in administration, 172. DOCUMENTS, subpoena duces tecum, 302. testamentary, order to bring in, ib. discovery otj 303. DOMICIL, will must be proved in Court of, 49. law of, followed, 50. of one country only regarded, ib. followed as to document, but not as to grantee, 52. sed qutBre, 53. DOUBLE probate, 148, 149. practice in, 149. DRAFT of lost will proved, 119, 312. DRUNK, will of, 30. is temporary insanity, ib. XX 2 Digitized by Microsoft® 676 INDEX. DUMB, deaf and, will of, 29. DURATION of caveat, 264. DURESS, avoids will, 31. DUTIES and powers of personal representative, 206. commencement of, ib. to bury deceased, 207. to take out grant, ib. inventory, ib. to collect estate, 208. to pay debts, ib. their order, ib, retainer, 209. payment of legacies, ib. distribution of estate, ib. residue undisposed of, ib. Ordinaries power over, 210. how far surplusage to be distributed, 211. advancement by portions, ib. heir at law to have equal part, ib. if no children, 212. no wife or child, ib. no distribution till after a year, ib. if debts appear after year all to refund proportionably, ib. act not to extend to administration testamento annexo, ib. degree of relationship, 213. order of distribution, ib. of attorney when client of weak intellect, 27. DUTIES (Stamp), 246. exemptions under lOOZ., ib. seamen, marines and soldiers, ib. probate, ib. Court not restricted by oath of applicant, ib. succession, 247. when value re-sworn. Rule 72 (P. R., Non-C), 438. in district registries. Rule 82 (D. R.), 456. ECCENTRICITY, how far unsoundness of mind, 26. ECCLESIASTICAL jurisdiction, transfer of, to her Majesty, 2. EIK, $6. ELECTION, by minors of a guardian, 258. forms of (Appendix II.), 494, 617. ■ELEGIT (see Enforcing Orders), 323. END, foot or, of will, what is, 68. ENDORSEMENT, incorporation of, 104. on citation of service, 276. ENFORCING orders and decrees, authority of Court for, 323. by attachment, 324. by^./a., 325. attendance of witnesses, 302. of production of papers, 302, 303. Digitized by Microsoft® INDEX. 677 ENGLAND, sureties to administration bond must reside in, 204. ENGROSSMENT of will, 147 (see Practical Directions for obtaining Probate). '^ * ENTRY, of caveat, 262. rules as to, 7—12, C. B. (Appendix II.), 468, 469. of appearance, 277. who may make, ib. practical directions fqr, 278. effect of non-appearance, ib. EQUITY, powers of Court of, transferred to Court of Probate for en- forcing orders, 323. ERASURES in will, 123. ERRONEOUS reference in will, 107, 119. ERROR, will made in, 84. clause omitted by, 106, 114. codicil written in deed by, 118. ESTATE (see Limited Grants). grants limited in, 215. ESTATES of intestates, distribution of, by representative, 209. EVIDENCE (see Affidavit, Commission, Interrogatories, Sfc.) parol, when admissible to incorporate documents, 105. when inadmissible, 113. of relationship, to prove interest, 252. in general, 300. (See C. P. A. 1857, ss. 24, 25, 26, 32 and 33), 377. by affidavit (see 4S'ia'>>it)t ib. oral, 301. witnesses, 302. enforcing attendance of, ib. order to bring in papers, ib. discovery, 303. commission, 304. discrediting witness, 305. of attesting witness, ib. presumption of death from absence (see Presumption), 306. no presumption of date of death, ib. presumption after two years, 307. after one year, ib. payment by underwriters, ib. does not prove death of crew, ib. inquiries at port of departure, 308. survivorship, 309. parol, to explain ambiguity, ib. to correct date, 310. to show intention of deceased, ib. of lost will, ib. of lost revocatory will, 311. presumption of destruction, ib. of revocation, ib. ambassador's certificate, 312. declarations of deceased, ib. Digitized by Microsoft® 678 INDEX. EXAMINATION, of witnesses, 303. on commission, 304;. EXCEPTIONS, bill of, 320. EXECUTION of will or codicil, prior to 1838.. 58. since 1837.. 64. testator's signature, 65. or acknowledgment, 67. place of signature, " foot or end," 68. after witnesses, 69. among testimonium clause, ib. " beside or opposite to the end," 70. "on a page where no clause," 71. witness's signature, ib. " in the presence of," 72. attestation clause, 73. presumption of due, 74, actual hour of, need not be specified, 282. EXECUTION of administration bond (see Bond), 20O. EXECUTOR (see Probate, Renunciation, Will). who may be, 128. felon, bankrupt, femes covert, infants, ib. who may not be, lunatics, idiots, ib. nominate, ib. firm, ib. corporation, 129. different in different countries, ib. delegated appointment of, 131. substituted, 132. succeeding, ib, according to the tenor, 133. who are, ib. who are not, 134. renunciation by, 136. intermeddling of, ib. difference between executor and administrator intermeddling, 137- refusal to act by renunciation, 138. by non-appearance to citation, ib. time for option, ib. renunciation in one character, ib. assent to wife's renunciation, 140. renunciation, how made, 141. forms of (Appendix II.), 495, 517. his power, 141. several executors, 148. double probate, 149. not known (see Administration with Will annexed), 151. not appointed, ib. bankrupt or absent, 152. dying or refusing, ib. renouncing or not appearing, ib. of married woman (administration, will annexed) to, 60, marking will by, 143. Digitized by Microsoft® INDEX. 679 ^X'ECVTOR— continued. oath of, 143, 144. forms of (Appendix II.), 485, 507. cannot question will proved by himself, 250. so of his executor, ib. intermeddling, citation against, 271. swearing the same estate under different amounts (Rule 72, P. R.. Non-C), 438. (Rule 82, D. R.), 456. practice when executor distrusts a portion of will, 271. cannot be prevented from proving by heir-at-law, 254. at liberty to prove wills, 249. (Rule 4, C. B.), 468. when liable to costs, 327. EXEMPLIFICATION of will, to be left in Registry when will delivered out, 148. of probate or administration, will annexed, form of (P. R.), 488. of probate (D. R.), 510. of administration (P. R.), 489. of administration (D. R.), 511. EXEMPTIONS from stamp duties, 246. EXHIBIT will (if any), condition of administration bond, 197. EXPIRATION of caveats, 265. FALSE representation to testator, how far fraud, 33. FATHER, administration to, 167. succession duty payable by, 247. FEES, tables of, in non-contentious business (P. R., Non-C), 550. in District Registries (D. R.), 558. in personal applications, additional, 565. in County Court, 570. seamen and marines' wills, ib. in contentious business (C. B.), 572. FELO DE SE, administration of effects of, 39. coroner's inquest not conclusive, ib, FELON, will of, 39. will of wife of, ib. may be executor, 128. semble, may be administrators, 167. property acquired by wife of, subsequent to conviction, 171. FEME COVERTE (see Married Woman). may not make will, 35. but may appoint under power, ib. but only to extent of power, 42. may make will ex assensu viri, 36. republication by, after husband's death, 37- living separate, 38, of felon, 39, Digitized by Microsoft® 680 INDEX, FIERI FACIAS (see Enforcing Orders), 325. " FOOT or end of" will, what is, 68. FORCE vitiates will, 31. FOREIGN law, grant under 73rd section to follow, 194. FOREIGN will, 54.. Scotch or Irish, 55. 24 & 25 Vict. c. 114.. 360. 24 & 25 Vict c. 121.. 361. where proved, 49. probate of, 143. FOREIGNERS, administration of estates of (Appendix I., 24 & 25 Vict. c. 121), 361. FORMA PAUPERIS, 260. counsel assigned to, ib. summons to dispauperize, 261. on proof of income dispauperized, ib. party suing in, condemned in costs, 329. FORMS (see List